LaRochelle v. Wilmac Corp.LaRochelle v. Wilmac Corp.
MEMORANDUM
I. INTRODUCTION
The plaintiffs, Mary LaRochelle, Sandra Riker, Emilia Shearer, Candice Galbreath, and Nicole Vasquez brought this employment discrimination action against Lancashire Hall, Wilmac Corporation, Wilmac Health Care, Inc., and McWil Group Limited (collectively “Defendants”). The plaintiffs were formerly employed at Lancashire Hall, a nursing home, as Certified Nurse Assistants (“CNA”). The plaintiffs bring claims under Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Pennsylvania Human Relations Act (“PHRA”). Plaintiffs also bring claims for wrongful discharge under Pennsylvania state law. Defendants filed four motions for summary judgment regarding the claims of plaintiffs LaRochelle, Riker, Shearer, and Vasquez. For the reasons that follow, I will deny summary judgment with respect to LaRochelle’s Title VII retaliation claim, Vasquez’s Title VII retaliation claim, and Shearer’s ADA retaliation claim. Defendants’ motion as to all other claims is granted.
II. BACKGROUND
Although the plaintiffs shared the same employer, their allegations of discrimination are factually unique. Therefore, the facts underlying the claims of each plaintiff are set forth, individually, below.
A. Mary LaRochelle
Plaintiff Mary LaRochelle (“LaRoc-helle”) is a forty-seven year old African American female. Doc. No. 29
Soon after she was hired, LaRochelle claims a co-worker, Teddy Bernard, began to harass her. Doc. No. 84-2 ¶ 27. Bernard was hired on June 29, 2010, shortly after LaRochelle was hired. Id According to
In September 2010, LaRoehelle was working on the Rehab Wing under the direction of Charge Nurse Baron Geib. Id. In front of Geib, Bernard allegedly slapped LaRoehelle on the “behind” and said to “give me some of that ass.” Id. LaRoehelle told Bernard to remove his hands and Geib laughed and said, “Teddy keep your hands off our House Nigger.” Id LaRoehelle went to Night Supervisor, Donna Astree, to tell her that she would like to call the police and file a report for assault, but Astree told LaRoehelle that she “was not allowed to call the police because the matter had to be handled in-house.” Id. LaR-ochelle gave a written complaint to Astree who assured that the complaint would go to Human Resources. Id. LaRoehelle then reported the incident to Garcia who told LaRoehelle that she had to follow the “chain of command.” Id. On September 22, 2010, LaRoehelle spoke with Stuck at 3:15 p.m. about Bernard’s behavior toward herself and other female employees, and about Geib’s alleged racial harassment. Id. Following investigation and suspension, Bernard was fired by Defendants on July 6, 2011. Doc. No. 64-2 ¶ 28.
According to LaRoehelle, Geib told her that he was going to request that LaRoc-helle work on his wing because she did not talk “ ‘ghetto’ like every other Nigger there.” Doc. No. 84-2 ¶ 38. Geib said to LaRoehelle that she was “going to be Rehab’s House Nigger.” Id. LaRoehelle told Geib that she was highly offended and went to Supervisor Harold Go’s office to report Geib’s statements. Id. LaRoehelle claims Go told her that Geib was “just joking and that Plaintiff shouldn’t take it so seriously.” Id. LaRoehelle told Go that she was not happy with that and Go said to her that he would speak with Geib. Id.
According to the Defendants’ employee handbook, an employee who is “absent from work for two (2) unexcused days without giving proper notice to the facility will be considered as giving their voluntary resignations (abandonment of job).” Doc. No. 64-2 at ¶ 9 (citing Ex. E, Wilmac Family Handbook). Defendants’ schedule reflects that LaRoehelle was scheduled to work shifts on October 1, 2010 and October 2, 2010. Id. at Ex. D. The Defendants state that LaRoehelle did not call or show for her October 1 and 2, 2010 shifts and therefore LaRoehelle was terminated from her employment. Doc. No. 64-2 at ¶ 9. LaRoehelle disputes her termination, stating that she was terminated on the morning of October 1, 2010, before her 11:00 p.m. shift began. Doc. No. 84-2 at ¶ 7. LaRoehelle states that prior to her termination, she went to Director of Nursing Elizabeth Woland with a written statement of the discrimination and harassment mentioned above. Id. LaRoehelle maintains that Woland tore up LaRochelle’s statement and threw it in the trash. Id. After LaRoehelle left Woland’s office, Woland telephoned LaRoehelle to tell her that her
B. Sandra Riker
Sandra Riker is a white female born in 1964. Doc. No. 29 ¶ 46. On May 19, 2009, Riker was hired as a CNA at Lancashire Hall. Id. at ¶ 47. In February 2009, Riker reported a work injury to her thumb as a result of a combative patient. Doc. No. 85-4
Riker contends that the June 23, 2011 letter to Garcia was not the first time that she had reported Bernard. Doc. No. 85-4 ¶4. The first time that Riker says she brought up concerns regarding Bernard’s behavior was around June 2010. Id. Riker told RN Supervisor Donna Astree that Bernard would “yell and scream at Plaintiff Riker so loudly that the incident caused Plaintiff Riker panic attacks and ‘horrific memories of her ex-husband.’ ” Id. On September 26, 2010, Riker reported to Garcia and Administrator Michael Stuck that Bernard had sexually harassed another co-worker, Joanne Leon-Jeremiah, after Leon-Jeremiah had told him to “stop touching her and stay out of her personal space.” Id. Additionally, Riker reported that Bernard had brought in alcohol for a resident patient and had conspired with that resident to accuse Leon-Jeremiah of abusing the resident. Id. According to Riker, Garcia told Riker that she would only accept Riker’s statement once Riker “was an actual sexual assault recipient of Teddy Bernard and not just a third party victim of harassment.” Id. (citing Riker Resp. to Interrog. p. 15 Ex. N).
Riker also requested that Linda Davis, a Staff Development member, provide her a copy of the company’s sexual harassment policy and for Davis to identify the compliance officer by name and provide a phone number for the officer. Id. Riker claims the name and phone number of the compliance officer was never provided to Riker and that the company’s Handbook was missing pages for sexual harassment policy. Id. When Davis asked Riker why Riker
Riker alleges that she called and left a message on the company’s hot line regarding Bernard’s behavior for the Vice President of Human Resources, Tom Shugars, but Shugars never called her back. Id. Additionally, Riker reported Bernard’s behavior to Charge Nurse Margaret Boulton, Director of Nursing Kathy Umberger, LPN Charge Nurse Mischaelle Santiago and LPN charge Nurse Tara Osborne. Id. In addition to reporting Bernard, Riker also reported to Garcia that there was a pattern and practice of sexual harassment from male supervisors including Titus Lei-toro, Jim Hernandez, and Loi Nguyen and that female staff were treated “differently and disparately.” Id.
Five months after Bernard was fired, on October 30, 2011, Riker slipped and fell on ice outside of the Lancashire Hall building. According to the Defendants, Riker was issued a Notice of Ability to Return to Work by Dr. John Perry on April 19, 2012 which permitted Riker to go back to her pre-injury job without restrictions. Doc. No. 66-2 ¶ 19. Riker disputes this and states that her treating physicians, Lancaster Orthopedic Group, returned her to work with light duty restrictions.
Riker filed her charge of discrimination with the EEOC on February 1, 2012, alleging gender and age discrimination. Doc. No. 85-4 at ¶ 23. Riker collected unemployment compensation benefits from the Defendants beginning with waiting week ending February 4, 2012. Id. at ¶ 20. On August 30, 2012, Riker filed an amended charge of discrimination with the EEOC, adding claims of retaliation and disability discrimination, and a charge of discrimination on the basis of association with protected individuals under Title VII. Id. at ¶ 23. On February 14, 2013, Riker also signed a Compromise & Release Agreement, which was a “full settlement of all claims against Lancashire Hall/McWill Group or its Workers’ Compensation Carrier for all injuries Claimant sustained on 10/30/11 or 2/1/11 or at any other time
C. Emilia Shearer
Plaintiff Emilia Shearer (“Shearer”) is a Hungarian female born in 1960 who, according to herself, speaks English with a heavy accent. Doc. No. 29 ¶¶ 63, 64. Shearer was hired at Lancashire Hall as a CNA in March 2010. PI. Emilia Shearer’s Counter-Statement of Disputed/Undisputed Material Facts (“PI. Shearer’s Counter”) ¶ 1. Shearer started her position as CNA working the night shift on the Baker Wing. Id. at ¶ 2. After a time, Shearer requested that she be moved from Baker Wing to another floor because a co-worker, Maddie Mentzer, was allegedly ridiculing Shearer’s accent and ethnicity. Id. at ¶ 4. Shearer was then moved to the Rehab Unit. Id. at ¶ 6. While working in the Rehab Unit, Shearer began to have problems with Supervising Nurse Lisa Noll and Charge Nurse Baron Geib. Id. at ¶ 7. Shearer alleges that Geib called her a “stupid immigrant” and a “bitch.” Id. Shearer also alleges that Geib told her that “if I was your husband I would beat the crap out of you,” and “all aliens should be made to return to their countries.” Id. Furthermore, Shearer claims Geib instructed co-workers not to help Shearer even in situations where two persons were needed. Id. According to Shearer, Noll tolerated and encouraged Geib’s behavior. Id. When Shearer confronted Supervisor Noll about the harassment that she was suffering, Shearer claims Noll “tormented and retaliated” against Shearer. Id.
On October 30, 2010, Shearer hurt herself while repositioning a resident and reported the claim as a workers’ compensation injury. Id. at ¶ 8. Following her injury, Shearer was placed on light duty'. Id. at ¶ 9. On May 23, 2011, Shearer was suspended for three days after a resident reported alleged abuse to Social Services. Defs.’ Facts Re. Shearer ¶ 11. Upon employment, Shearer signed a copy of the Wilmac Corporation Resident Abuse Policy which states that “[i]f the allegations are not substantiated, the employee will be returned to work with no loss of earnings and no negative report or record will be documented.” Id. at ¶ 10; Defs.’ MSJ Ex. C. Shearer was issued an Employee Discipline Notice for the incident on June 9, 2011. Id. at ¶ 12; Defs.’ MSJ Ex. E. On June 2, 2011, Shearer received a second report of abuse allegations and was suspended from June 2 until June 6, 2011. Id. at ¶ 14.
On July 30, 2011, Shearer reported another work injury to her back and she was sent to the company doctor, Dr. Rochester. Id. at ¶ 16. Dr. Rochester placed Shearer on light duty for two (2) months. Id. On or about September 21, 2011, Shearer requested FMLA leave to care for her husband and was eligible for FMLA provided that she gave sufficient certification by October 6, 2011. Defs.’ Facts Re. Shearer ¶ 17; Defs.’ MSJ Ex. G. On September 27, 2011, Shearer was accused of resident abuse again for yelling at a resident. Id. at ¶ 18. According to Shearer, Diana Myers, the Director of Nursing (“DON”), called Shearer on the phone, placed her on suspension and asked her to come into work to make a statement regarding the alleged abuse. PI. Shearer’s Counter at ¶ 19.
On the same day that the alleged abuse occurred, September 27, 2011, Shearer suffered another work injury. Id. The Defendants contend that Shearer reported that she had suffered a work injury around 2:30 a.m. to Human Resources after giving her statement regarding the alleged abuse to Ms. Myers. Defs.’ Facts Re. Shearer ¶ 20. Shearer disputes this and states that the work injury was “instantly reported to Charge Nurse LPN Sarah Hilles that [sic] heard Plaintiff fall and assisted Plaintiff from getting up off the floor.” PL Shear
D. Nicole Vasquez
Plaintiff Nicole Vasquez (“Vasquez”) is a Hispanic Female. Doc. No. 29 ¶ 97. Lancashire Hall hired Vasquez as a part-time CNA on January 20, 2009. PI. Nicole Vasquez’s Counter-Statement of Disputed/Undisputed Material Facts (“PI. Vasquez’s Counter”) ¶ 3. Vasquez was changed over to a full-time CNA in June 2009 until January 2012. Id. at ¶ 4. Beginning in March 2013, Vasquez changed to a pro re nata (“PRN”) agreement in which she was required to work three (3) days a month— two weekend days and one weekday.
Vasquez was assigned to the Rehab Wing of Lancashire Hall on the second shift when she was hired in 2009. Id. at ¶ 7. According to Vasquez, she was subjected to sexual harassment from Bernard when their shifts overlapped. PL Vasquez’s Counter ¶ 9. Bernard allegedly “stalked [her], solicited her for dates and sex, violated her personal space and subjected her to unwelcomed touching. Id. He would touch her on her back and head, caress her shoulders, come from behind or next to her at the Nurse’s Station doing her charting so she would not be on notice of his fast approach.” Id. Additionally, Bernard would regularly ask her out to eat and to go out on dates. Id. Vasquez refused Bernard’s advances. Id. Bernard would allegedly follow Vasquez into the laundry room to harass her with propositions for “dates and sex.” Id. The Defendants contend that Vasquez did not report Bernard’s alleged behavior until asked to do so as part of Human Resources’ investigation into Bernard following Riker’s statements about Bernard. Defs.’ Facts Re. Vasquez ¶ 20. Vasquez testified that she did not report Bernard’s alleged behavior because she was “afraid of H.R. Representative, Tonya Garcia’s alleged boyfriend, and Teddy Bernard’s alleged drug dealing father.” Id. ¶ 17 (citing Vasquez II, 29:18-24). Vasquez disputes this and states that she reported Bernard’s behavior to her Supervisor Alice. Pl. Vasquez’s Counter ¶ 17. In her statement made during the investigation by Human Resources into Bernard, Vasquez writes that Bernard’s advances toward her stopped after she told him she “was going to get other people involved.” Defs.’ Facts Re. Vasquez ¶ 21. Additionally, Vasquez wrote that she did not report Bernard because she “did not want to make it a big deal and he eventually stopped asking me.” Id. (citing Defs.’ MSJ Ex. H). On April 13, 2012, Vasquez filed a charge with the EEOC alleging that she
On February 25, 2008, Lancashire Hall hired Mr. Titus Leitoro as a Charge Nurse. PI. Vasquez’s Counter ¶ 24. Mr. Leitoro was then moved into the position of Shift Supervisor on February 2, 2010 and eventually became Vasquez’s supervisor. Defs.’ Facts Re. Vasquez ¶¶ 24-25. On August 10, 2012, Vasquez named Leitoro in her EEOC complaint stating that Leito-ro treated her “in a rude, demeaning and retaliatory manner,” and that Leitoro “extended] preferential treatment towards female employees that recipr'ocate[d] his sexual advance [sic].... ” PL Vasquez’s Counter ¶ 26 (citing PI. Resp. Ex. Z). Vasquez states that Leitoro asked her if he could take her out on a date after their shift was over and when Vasquez told Lei-toro no because she had a boyfriend Leito-ro responded by saying that he did not care and still wanted to go on a date with her. Defs.’ Facts Re. Vasquez ¶ 26 (citing Defs. MSJ Vasquez Dep. I 57:24; 28:1-2, 3-10). According to Vasquez, in 2011, she called Shugars to report Leitoro but Shu-gars told her to report her complaints to Administrator Stuck. PI. Vasquez’s Counter ¶ 27. Vasquez also handwrote a statement reporting Leitoro’s invitation to her and put it in the mail slot of the Human Resources department, but she never received a response to that statement. Id. at ¶ 28. Vasquez testified that Leitoro’s harassment was intolerable and interfered with her ability to work and therefore, she reduced her work hours to part-time to limit her contact with Leitoro. Id.
In December 2010, Vasquez was placed on light duty restrictions by her physician. Id. at ¶ 30. During this time, Vasquez alleges that the Defendants did not abide by her light duty restrictions and assigned Vasquez to train a worker which Vasquez was unable to physically do. Id. Leitoro “yelled” at her because she was training one of the workers and told her “to shut her mouth, that she wasn’t worth anything, and that he’s her boss.” Id. Vasquez called the anonymous 1-800 company hotline to report Leitoro’s behavior and spoke with Shugars who told her he could do nothing about it. Id. at ¶ 32. On August 14, 2012, Vasquez filed an amended charge with the EEOC, adding allegations that she was harassed by Leitoro and treated in a “retaliatory manner” after she refused his requests for a date. Defs.’ Facts Re. Vasquez ¶ 33 (citing Defs.’ MSJ Ex. N).
In November 2009, Vasquez had breast reduction surgery. PI. Vasquez’s Counter ¶ 34. When she returned from surgery, James Hernandez, the House Supervisor, told Vasquez that her breasts were “beautiful” and “looked better smaller.” Id. at ¶ 35. Vasquez reported these comments to Supervisor Donna Astree, but not to Human Resources. Id. at ¶ 36; Defs.’ Facts Re. Vasquez ¶ 36.
Vasquez also alleges that she was subject to racial harassment from Geib. Id. at ¶¶ 37-40. Geib told Vasquez that “she was not good enough to live in the United States of America, that she need [sic] to go back to where she came from (Puerto Rico).” Id. at ¶ 38. Geib also told Vasquez that “[she] did not speak the American white proper English, and that us spic need to learn how to speak the white American English.” Defs.’ Facts Re. Vasquez ¶ 38 (citing Defs.’ MSJ Vasquez Dep. II 16:16-22). Vasquez reported Geib’s comment to LPN Kelly. Id. After this comment, Geib continued to address Vasquez as “spic.” Pl. Vasquez’s Counter ¶ 39.
On August 13, 2013, Garcia terminated Vasquez’s employment with Lancashire Hall for Vasquez’s failure to work the three shifts per month required under her PRN agreement. Id. ¶ 45. There is some contention regarding Vasquez’s termi
III. LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A party seeking summary judgment initially bears responsibility for informing the 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,
Under
IV. DISCUSSION
The plaintiffs bring a variety of claims pursuant to Section 1981, Title VII, the ADA, and the PHRA. The plaintiffs have also brought wrongful discharge claims under Pennsylvania law. As explained in further detail below, the Defendants are entitled to summary judgment on all claims except for LaRochelle’s Title VII retaliation claim, Vasquez’s Title VII retaliation claim, and Shearer’s ADA retaliation claim.
The plaintiffs have brought two different types of gender discrimination claims pursuant to Title VII and the PHRA.
1. Disparate Treatment
Title VII makes it unlawful for an employer to discharge or “otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”
The first step of the McDonnell Douglas framework requires the plaintiffs to make out a prima facie case of discrimination. To establish a prima facie case of disparate treatment under Title VII, a plaintiff must establish that: (1) she belongs to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action despite being qualified; and (4) under circumstances that would raise an inference of discriminatory action, the employer continued to seek individuals with qualifications similar to the plaintiffs to fill the position. Sarullo v. U.S. Postal Serv.,
Once the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer who must “articulate a legitimate, non-discriminatory reason for its employment decision.” Smith v. Borough of Wilkinsburg,
If an employer articulates a legitimate non-discriminatory reason for its employment decision, the third and final step under McDonnell Douglas requires the plaintiff to prove, by a preponderance of the evidence, that the articulated reason is simply pretext for discrimination. Smith,
a. Shearer’s Gender-Based Disparate Treatment Claim
To establish a prima facie case of gender discrimination, Shearer must show that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action despite being qualified; and (4) under circumstances that would raise an inference of discriminatory action, the employer continued to seek individuals with qualifications similar to the plaintiffs to fill the position. Sarullo,
i. Legitimate Non-Discriminatory Reason
Assuming Shearer has made out a prima facie case of gender discrimination, Defendants must articulate a legitimate, non-discriminatory reason for its employment decision. Smith,
ii. Pretext
To establish pretext, Shearer has two options. First, she may point to evidence that Defendants’ proffered reason is subject to such weaknesses and implausibilities sufficient to satisfy the factfinder that Defendants’ actions could not have been for nondiscriminatory reasons. Willis,
1. First Method of Proving Pretext
Shearer has failed to show that her termination was pretext for gender discrimination. Shearer does not argue that Defendants’ proffered reason for termination (patient abuse) is implausible or untrue. See Doc. No. 76-1
The parties’ disagreement over the term “substantiated” centers around a misunderstanding of the term as it relates to DOH findings of abuse versus findings of abuse per the Defendants’ Resident Abuse Policy. A finding of “substantiated” by the Pennsylvania DOH is a formal term the Pennsylvania Department of Aging uses in finding that an elderly person is “in need of protected services.”
In Willis v. UPMC Children’s Hospital, the Third Circuit addressed a similar dilemma at the “pretext” stage on a motion for summary judgment.
Likewise, here, it does not matter whether Shearer’s allegations of abuse have been formally substantiated by the DOH for them to form the basis of her employer’s decision to terminate her. The record is clear that Defendants relied on their Resident Abuse Policy, multiple times, in disciplining Shearer for patient abuse. To show pretext, Shearer must present evidence sufficient to lead a fact-finder to believe that Defendants’ reason is riddled with inconsistencies and contradic
Shearer quotes Defendants’ Resident Abuse Policy, which states that if allegations are not “substantiated,” then the employee will be returned to work without consequence. Doc. No. 76-1 at p. 14 (citing •Ex. C to Defs.’ MSJ Regarding Shearer). According to Shearer, it follows that Defendants’ proffered reason is implausible because the Pennsylvania DOH—not Defendants—failed to “substantiate” formal findings of abuse against Shearer. Id. This argument misunderstands the difference between an investigation between the DOH per the law and an investigation by Defendants per their abuse policy. Accepting plaintiffs position as true would mean that Shearer (or any employee) could defeat summary judgment simply by showing that a state agency did not enter formal findings of abuse against that employee. Clearly, such a position is not tenable. The record is clear that Defendants relied in good faith on their Resident Abuse Policy in deciding to terminate Shearer. The evidence Shearer points to, and the arguments she makes, are insufficient to create disbelief so that a factfinder could rationally find that Defendants did not rely on their proffered reasons in terminating Shearer.
2. Second Method of Proving Pretext
In terms of the second method of proving pretext, Shearer does not offer any evidence to allow a factfinder to believe that her gender was “more likely than not a motivating or determinative cause” or Defendants’ decision to terminate her. Willis,
2. Hostile Work Environment
Sexual harassment is a type of discrimination that is prohibited by Title VII. Meritor Savings Bank, FSB v. Vinson,
In determining whether a plaintiff has sufficiently made out a claim, courts must consider the totality of the circumstances, including “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or a mere offensive utterance, and whether it reasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
a. LdRochelle’s Hostile Work Environment Claim
LaRoehelle’s sex-based hostile work environment claim is premised upon allegations that her co-worker, Teddy Bernard, touched her inappropriately and made sexually inappropriate comments and advances to her. All these incidents allegedly occurred in a three-and-a-half month time frame during LaRochelle’s employ with Defendants. Defendants assert two bases for granting summary judgment on this claim. First, Defendants argue that the alleged harassment was not “severe or pervasive” enough to warrant liability. Second, Defendants contend that LaRochelle has failed to establish a genuine issue of material fact regarding the fifth element (respondeat superior liability) of her claim. Because I find vicarious liability inapplicable as a matter of law, Defendants’ motion for summary judgment on this claim is granted.
As explained above, vicarious liability for a hostile work environment claim depends upon whether the alleged harasser is a supervisor or co-worker. Huston,
The evidence cited by LaRochelle demonstrates that LaRochelle made it known to her supervisors that she felt she was being harassed by Bernard Nonetheless, the evidence fails to show that Defendants failed to act promptly to adequately remediate the situation. LaRochelle’s testimony indicates that she aired her complaints to several supervisors in the month or two preceding her termination. Ex. D to LaRochelle’s Resp. at pp. 20-50. Specifically, LaRochelle testified she gave a written statement to a supervisor, a few weeks prior to being terminated. Id. 39:3-17. LaRochelle also notified Administrator, Michael Stuck, of Bernard’s alleged harassment a few weeks prior to her termination. Id. 34:22-35:5. Stuck responded by telling LaRochelle that he would look into these allegations. Id. Thus, it is clear that LaRochelle’s complaints in mid-September sparked an investigation into Bernard by the Defendants.
The dispositive issue with LaRochelle’s claim is that the investigation into Bernard was not yet completed at the time LaRochelle was terminated and, thus, appropriate remedial action could not possibly have been taken. See Knabe v. Boury Corp.,
In the same vein, no reasonable factfin-der could conclude that Defendants failed to act promptly when they were only given notice of LaRochelle’s allegations a few weeks prior to her termination.
Therefore, I will grant Defendants’ motion for summary judgment on LaRoc-helle’s sex-based hostile work environment claim.
b. Riker’s Hostile Work Environment Claim
Plaintiff Riker also brings a gender-based hostile work environment claim. Defendants are entitled to summary judgment as to Riker’s gender-based hostile work environment claims because: (1) the alleged discrimination was not sufficiently severe or pervasive to impose liability, and (2) there can be no respondeat superior liability.
Riker was employed at Lancashire Hall for nearly three years—from May 2009 to January 2012. Doc. No. 85-1
Viewing the facts in a light most favorable to Riker, there is insufficient evidence to create a triable issue as to two of the five required elements in a hostile work environment claim. The complained of conduct, as a matter of law, fails to rise to the level of “severe or pervasive” harassment. Regarding the “severe and pervasive” element, Riker has at best established sporadic and isolated incidents of harassment. The two specific incidents she cites (the shoulder rubbing and the hug) occurred over a nearly three-year period. See Rosati v. Colello,
Even assuming Bernard’s conduct toward Riker was severe and pervasive, Riker’s hostile work environment claim fails because there is no genuine issue of fact regarding the fifth element: responde-at superior liability. Riker alleges that she was harassed by Bernard, who is a coworker rather than a supervisor. Because Bernard is not a supervisor, Defendants can only be held vicariously liable if they “failed to provide a reasonable avenue for complaint or, alternatively, if [they] knew or should have known of the harassment and failed to take prompt and appropriate remedial action.” Huston,
For these reasons, I will grant Defendants’ motion regarding Riker’s gender-based hostile work environment claim,
c. Shearer’s Hostile Work Environment Claim
Plaintiffs argue that “[substantial evidence was presented that... Defendants tolerated unabated severe and pervasive harassment against Plaintiff Shearer on the basis of her ... sex.” Doc. No. 76-1 at p. 3.
In Harris v. Forklift Systems, Inc.,
Although Shearer also claims that Geib and Leitoro sexually harassed her, Shearer does not point to any specific incident of sexual harassment nor does she provide any factual allegations to support her claim that they sexually harassed her. Shearer’s sexual harassment claims against Geib and Leitoro cannot survive summary judgment on conclusory allegations alone. In the context of employment discrimination claims, “conclusory allegations of discrimination, in the absence of particulars, are insufficient to defeat summary judgment.” Taylor v. Cherry Hill Bd. of Educ.,
d. Vasquez’s Hostile Work Environment Claim
Defendants make several arguments in support of their motion for summary judgment on Vasquez’s gender-based hostile work environment claim, including that the claim is time-barred. Doc. No. 67-1
To bring suit under Title VII in a deferral state, such as Pennsylvania, a plaintiff must first file a charge with the EEOC within 300 days of the alleged unlawful employment practice.
Viewing the evidence in a light most favorable to Vasquez, her present claim is barred because she is unable to present evidence of a single incident of sexual harassment that occurred within the limitations period.
Even if Vasquez’s sexual harassment allegations against Bernard and Lei-toro are not time-barred, they still would be insufficient to support her hostile work environment claim as Vasquez has not, as a matter of law, produced evidence sufficient to support her contention that Bernard and Leitoro’s actions were severe or pervasive. Beginning with her allegations against Bernard, Vasquez fails to present evidence indicating the frequency with which she suffered Bernard’s propositions for dates and sex, and unwelcome touches. In other words, there is no evidence regarding whether this harassment occurred daily, weekly or monthly as would support a characterization of Bernard’s harassment as pervasive. Although Bernard’s physical touching of her person was certainly inappropriate, it is not sufficiently severe enough to satisfy the second prong of Vasquez’s prima facie case even when coupled with Bernard’s comments. See e.g., McGraw v. Wyeth-Ayerst Laboratories, Inc., No.
Vasquez’s allegations against Leitoro are even less indicative than those against Bernard. Vasquez’s allegation against Lei-toro rests solely on the fact that he flirted with her and asked her on dates, and when she rejected his advances, Leitoro yelled at her while working with a resident. Like her allegations against Bernard, Vasquez does not provide evidence as to how frequent Leitoro’s advances were as would support a characterization of Leitoro’s advances as pervasive. Moreover, Vasquez does not allege that Leitoro physically touched her or that she felt physically threatened. Leitoro’s harassment consisted solely of mere offensive utterances. Furthermore, despite claims that she reduced her work hours to part-time in order to avoid contact with Leitoro, the record does not support this claim. Vasquez testified that her decision to go part-time was because “[she] was thinking about going back to school and in order to focus on that, [she] would have to go part-time.” PI. Vasquez’s Ex. I, Vasquez Dep. Day I 37:16-21.
Based on the foregoing, I will grant Defendants’ motion for summary judgment with respect to Vasquez’s gender-based hostile work environment claim.
The plaintiffs have brought three types of racial discrimination claims pursuant to Title VII, Section 1981, and the PHRA. First, some of the plaintiffs bring disparate treatment claims based on race and national origin. Second, some plaintiffs bring race-based and national origin-based hostile work environment claims. Third, plaintiff Riker brings an associational race discrimination claim.
1. Disparate Treatment
The plaintiffs’ race-based and national origin disparate treatment claims are analyzed under the same McDonnell Douglas framework set forth above in addressing the gender-based disparate treatment claims.
a. LaRochelle’s Race-Based Disparate Treatment Claim
Plaintiff LaRochelle brings a race-based disparate treatment claim under Title VII. Doc. No. 29 ¶¶22, 28. Defendants have moved for summary judgment on all of LaRochelle’s Title VII race discrimination claims, arguing that LaRochelle failed to exhaust her administrative remedies. I agree with Defendants. Therefore, summary judgment is granted with respect to LaRochelle’s race-based disparate treatment claim.
i. Title VII
Unlike claims under Section 1981, discrimination claims under Title VII are subject to several jurisdictional prerequisites including a requirement that the plaintiff exhaust their administrative remedies. See Gooding v. Warner-Lambert Co.,
On LaRochelle’s initial EEÓC notice of charge of discrimination, LaRoc-helle checked only the box “sex” to indicate the basis of her Title VII claim. See Ex. I to Defs.’ MSJ Regarding LaRoc-helle. Subsequently, on her actual EEOC charge of discrimination, LaRochelle checked the boxes for sex, age and retaliation. See Ex. O to Defs.’ MSJ Regarding LaRochelle. LaRochelle did not check the box for race; however, that is not fatal to her current Title VII or PHRA claim for race discrimination. What is fatal to her Title VII and PHRA claim is that LaRoc-helle’s EEOC charge of discrimination provides no indication that she suffered racial discrimination. Id. The only claims that might reasonably arise from LaRochelle’s description are an age discrimination, sex
ii. Section 1981
Unlike Title VII, Section 1981 is not subject to any jurisdictional prerequisites such as the EEOC filings. The Defendants move for summary judgment on LaRoc-helle’s racial discrimination claim on the grounds that LaRochelle failed to establish a prima facie case of race discrimination. The evidence shows that LaRochelle has failed to establish the fourth prong of a prima facie case—that her she was terminated under circumstances giving rise to an inference of race discrimination.
LaRochelle alleges that Baron Geib repeatedly referred her to as “House Nigger” and said to her that “he was going to request that Plaintiff work on his wing whenever present in the building because Plaintiff did not talk ‘Ghetto’ like every other ‘Nigger’ there.” PI. LaRochelle Resp. at p. 11. LaRochelle states that she reported Geib’s racially derogatory slurs to a supervisor but nothing was done in response. Id. Based on these statements, LaRochelle claims that Geib “treated [her] differently and disparately because of her race. He subjected her to unbridled disrespect and control over her as his ‘House Nigger.’ Obviously Plaintiff LaRochelle was treated less favorably than her similarly situated [white] co-workers performing duties as a certified nurse aid.” Id. at 19.
Under McDonnell Douglas, a plaintiff seeking to establish a race discrimination claim must demonstrate that she suffered an adverse employment action by showing that she was subject to a “significant change in employment status.” Burlington Indus., Inc. v. Ellerth,
Therefore, I will grant Defendants’ motion for summary judgment on LaRoc-helle’s race-based disparate treatment claim under Section 1981.
b. Shearer’s National Origin Disparate Treatment Claim
The plaintiffs’ complaint alleges that Shearer was subject to discrimination and disparate treatment on the basis of her national origin. Defendants do not dispute that plaintiff Shearer has established the elements of a prima facie case. Hence, our inquiry is limited to whether Defendants have proffered a legitimate, non-discriminatory reason and, if so, whether Shearer has established pretext.
1. Legitimate Non-Discriminatory Reason
Assuming Shearer has made out a prima facie case of national origin discrimination, Defendants must articulate a legitimate, non-discriminatory reason for its employment decision. Smith,
2. Pretext
To establish pretext, Shearer has two options. First, she may point to evidence that Defendants’ proffered reason is subject to such weaknesses and implausibilities sufficient to satisfy the factfinder that Defendants’ actions could not have been for nondiscriminatory reasons. Willis,
i. First Method of Proving Pretext
Shearer renews the same pretext argument she made with respect to her gender-based disparate claims addressed above. Shearer insists that the allegations of abuse against her were not “substantiated” by the Pennsylvania DOH and that her
ii. Second Method of Proving Pretext
In terms of the second method of proving pretext, Shearer does not offer any evidence to allow a factfinder to believe that her national origin was “more likely than not a motivating or determinative cause” of Defendants’ decision to terminate her. Willis,
The evidence in the record is insufficient to show that Defendants’ reason for terminating Shearer was pretext for national origin discrimination. Therefore, I will grant Defendants’ motion for summary judgment on this claim.
c. Vasquez’s Race-Based Disparate Treatment Claim
Vasquez asserts a disparate treatment claim, arguing she was terminated because she is Hispanic. Viewing the evidence in a light most favorable to Vasquez, she has failed to make out a prima facie case of race discrimination. Even if she had, though, Vasquez fails to meet its burden of showing that Defendants’ legitimate, nondiscriminatory reason for firing her was pretext. Therefore, I will grant summary judgment on Vasquez’s race-based disparate treatment claim.
Vasquez can easily meet the first three elements of a prima facie case of race discrimination. First, Vasquez is a member of a protected class because she is Hispanic. Doc. No. 67-2 ¶ 2. Second, there is sufficient evidence indicating Vasquez was qualified for the nursing position. Third, Vasquez suffered an adverse employment decision when Defendants terminated her in August of 2013. Id. ¶ 5. However, Vasquez is unable to bring forth evidence that her termination occurred under circumstances giving rise to an inference of intentional discrimination. Burton v. Teleflex, Inc.,
To meet this fourth element, Vasquez must either: “(1) introduce evidence
Even if she could make out a pri-ma facie case, Vasquez is unable to rebut Defendants’ legitimate, non-discriminatory reason for terminating Vasquez: Vasquez allegedly failed to show up for the three shifts required by her employment contract with Defendants. Doc. No. 67-2 ¶¶ 41-45. Although Vasquez disagrees with the details of Defendants’ proffered legitimate non-discriminatory reason, the burden at this stage is “relatively light” and involves no credibility assessment. Reeves,
Based on the foregoing, I will grant Defendants’ motion for summary judgment on Vasquez’s race-based disparate treatment claim.
2. Associational Race Discrimination
Plaintiff Riker, who is Caucasian, claims that she was subjected to unlawful discrimination because of her “association with co-workers of race, color and ancestry for whom she reported discrimination complaints on their behalf.” Doc. No. 29 ¶ 56. It is true that federal courts have recognized claims for associational discrimination under Title VII. Zielonka v. Temple Univ., No. 99-5693,
3. Hostile Work Environment
Plaintiffs Vasquez and LaRochelle bring race-based hostile work environment claims. Plaintiff Shearer brings a hostile work environment claim based on national origin.
a. Shearer’s National Origin Claim
Shearer claims that she “was the target of ongoing harassment, hatred and ridicule because of her Hungarian/Romanian nationality that included her speech and manner of speech.” Doc. No. 82, Att. 1, 3. Shearer cites to several incidents in support of her national origin claim including: (1) co-worker M.M. refused to work with her because of her nationality and ridiculed the way she spoke English; (2) Geib repeatedly called her a “stupid immigrant” and a “bitch;” (3) Geib stated that “all aliens should be made to return to their countries; (4) L.N. tolerated Geib’s discriminatory comments, assigned Shearer the more difficult and heavier residents, accused her of faking her injuries, and dumped Shearer’s purse into the soiled linen cart; (5) Geib instructed co-workers not to work with Shearer; and (6) Geib stated to Shearer that “if I was your husband, I would beat the crap out of you.” Doc. No. 76, Att. 2, ¶¶4,7.
Even taken as a whole, these comments and isolated incidents do not rise to the level of severity or pervasiveness necessary to sustain a hostile work environment claim. Although M.M.’s mocking of Shearer’s accent and Geib’s derogatory comments are tied to Shearer’s national origin, it is not clear that M.M.’s refusal to work with Shearer, Geib’s statement that “if I was your husband, I would beat the crap out of you,” and L.N.s behavior was rooted in any discriminatory animus towards Shearer based on her national origin. Certainly, facially neutral mistreatment may often conceal a more sophisticated and subtle form of discrimination; however, Shearer has presented no additional evidence to indicate that M.M.’s refusal to work with her, this particular comment from Geib, or L.N.’s behavior concealed an intent to discriminate against Shearer on the basis of national origin. Cardenas v. Massey,
b. LaRochelle’s Race-Based Claim.
In support of her race-based hostile work environment claim, LaRochelle points to the same set of facts that she alleged in support of her disparate treatment claim. LaRochelle alleges that Baron Geib referred to her as “House Nigger” in addition to telling LaRochelle that “he was going to request that Plaintiff work on his wing whenever present in the building because Plaintiff did not talk ‘Ghetto’ like every other ‘Nigger’ there.” PI. LaRochelle Resp. at p. 11. LaRochelle states that she reported Geib’s racially derogatory slurs to a supervisor but nothing was done in response. Id.
Where no serious or severe incidents occur, an individual cannot rely upon casual, isolated, or sporadic incidents to advance a hostile work environment claim. McCloud v. United Parcel Service, Inc.,
Courts have refrained from allowing such claims to proceed when the plaintiff is not able to point to a clear pattern or incidents of harassment. See Rosati,
c. Vasquez’s Race-Based Claim
Vasquez’s race-based hostile work environment claim is predicated on allegations that Charge Nurse, Geib, harassed her because of her Hispanic heritage by calling her “Spic,” told her to “ ‘go back home’ to ‘her people’ because Black and Hispanic individuals do not speak ‘proper English,” and stated that “she was not good enough to live in the United States of America.” PI. Vas. Resp. at p. 9. Defendants move for
There is no genuine dispute of material fact that Geib was not a “supervisor” for purposes of Title VII harassment. The “basis' of an employer’s liability for hostile environment sexual harassment depends on whether the harasser is the victim’s supervisor or merely a coworker.” Huston v. Procter & Gamble Paper Prods.,
Defendants contend that Geib was not Vasquez’s “supervisor” because Geib’s job description “says nothing about having any decisionmaking authority with respect to personnel.” Doc. No. 67-1 at p. 20. Defendants are correct. Geib’s job description as a “charge nurse” says nothing about any ability to take tangible employment actions. Ex. P to Defs.’ MSJ Regarding Vasquez. Vasquez relies on the fact that Geib’s job description states Geib would assist in training and supervising other staff members. Id. However, without more, these characteristics fall short of those of a “supervisor” as described by the Supreme Court. Vance,
Geib’s status as a co-worker does not immediately relieve Defendants of liability. However, under the framework for coworkers, Defendants will only be vicariously liable if plaintiffs are able to demonstrate that Defendants “failed to provide a reasonable avenue for complaint, or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and remedial action.” Huston,
Relying on the principles set forth in Huston, Defendants state that liability cannot be imputed to them as the employer because Vasquez never notified any of Defendants’ management-level or human resources employees of Geib’s alleged harassment. Doc. No. 67-1 at p. 22. To be vicariously liable for a co-worker’s harassment, the employer must first be aware of the alleged harassment. Huston,
Vasquez alleges that Defendants tolerated Geib’s “racial harassment and hostility,” Doc. No. 77-1 ¶ 38, but the record does not reflect this.
C. Retaliation Under Title VII, Section 1981, and the ADA
The plaintiffs bring a myriad of retaliation claims pursuant to Title VII,
With respect to the first element, protected activity may take the form of either “participation” or “opposition.” Washco v. Fed. Express Corp.,
1. LaRochelle’s Title VII Retaliation Claim
Defendants move for summary judgment on LaRochelle’s retaliation claim. Defendants do not dispute that LaRoehelle has made out a prima facie case of retaliation. Rather, Defendants argue that LaRoehelle failed to exhaust her administrative remedies under Title VII and thus her retaliation claim must fail. Defendants renew the administrative-exhaustion arguments they made in support of their motion for summary judgment on LaRochelle’s race-based disparate treatment claims under Title VII. Doc. No. 64-1 at pp. 6-8. However, unlike those claims, LaRochelle’s retaliation claim falls “fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry,
As for the merits of her Title YII retaliation claim, LaRoehelle has come forth with sufficient evidence to raise a genuine dispute of material fact, thereby precluding summary judgment. The evidence cited by LaRoehelle demonstrates that she made it known to her supervisors that she felt she was being harassed by Bernard. LaRochelle’s testimony indicates that she aired her complaints to several supervisors in the month or two preceding her termination. Specifically, LaRoehelle testified she gave a written statement to Astree, the Director of Nursing, indicating Bernard had touched her inappropriately. LaRoehelle Dep. 39:1-17. This was in September 2010. LaRoehelle also notified Michael Stuck of Bernard’s alleged sexual harassment a few weeks prior to her termination. Id. 34:22-35:5. LaRoehelle specifically testified that she told Elizabeth Woland of the harassment on September 30. Id. 40:20. One day later, Defendants fired LaRoehelle after Woland allegedly ripped up her complaint without reading it. Id. 41:7-14. Therefore, there is a genuine dispute of material fact as to whether LaRochelle’s complaints about harassment were linked to her termination. The temporal proximity (two days) between the time Woland allegedly ripped up LaRoc-helle’s complaint and the day she was fired further exacerbates this genuine issue of material fact. Marra v. Phila. Hous. Auth.,
2. Vasquez’s Retaliation Claim
Defendants argue that summary judgment should be granted on Vasquez’s retaliation claim because she failed to exhaust her administrative remedies. Doc. No. 67-1 at p. 6. In the alternative, Defendants argue Vasquez has failed to make out a prima facie case of retaliation, and even if she had, she is unable to rebut the Defendants’ proffered non-retaliatory reason. Id. at pp. 8-13.
a. Administrative Exhaustion
Vasquez properly exhausted her administrative remedies under Title VII. “The relevant test in determining whether appellant was required to exhaust her administrative remedies ... is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Waiters v. Parsons,
In Waiters, the Third Circuit held that “the relevant test in determining whether [a party is] required to exhaust her administrative remedies ... is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.”
Here, Vasquez sets forth the time-line of her multiple EEOC charges, the filing of the present federal lawsuit, and the Defendants’ treatment and discharge of her following the filing of this lawsuit. On April 13, 2012, Vasquez filed her first EEOC charge against Defendants, claiming that she had been subject to sexual harassment in violation of Title VII. Ex. J to Defs.’ MSJ Regarding Vasquez. Several months later, on August 14, 2012, Vasquez filed an amended EEOC charge, adding claims for race discrimination and retaliation. Ex. N to Defs.’ MSJ Regarding Vasquez. Just like the appellant in Waiters, Vasquez asserts that the Defendants’ discharge of her in 2013 was motivated by the same “retaliatory intent” that motivated Defendants alleged retaliation outlined in her prior EEOC charge. See Waiters,
Moreover, the nature of Vasquez’s case is unique. In most retaliation claims based on a “participation” theory, plaintiffs claim that they were discharged in retaliation for filing EEOC charges. Vasquez’s claim is that and then some. Vasquez actually amended her complaint to add a claim that she had been retaliated against—not only for filing EEOC charges in 2012—but also for filing this federal lawsuit in 2013 when she still worked for Defendants.
b. Prima Facie Case
Defendants do not dispute that Vasquez partook in protected activity or that she suffered an adverse employment action. Doc. No. 67-1 at p. 8. Defendants contend that Vasquez cannot make out the third element of a prima facie case: a causal connection between the protected activity and the adverse employment action. Id.
The sole argument that Defendants make is that “Plaintiff Vasquez has shown no causal relationship between her protected activity and her separation from employment.” Id. However, temporal proximity is but one of several available methods for proving the causation element of a retaliation claim. E.g., Farrell v. Planters Lifesavers Co.,
Turning to the facts of this case,-six months between Vasquez’s filing of this lawsuit and her termination is not unduly suggestive. Defendants are correct that, on its own, the six-month period of time does not establish causation. Nonetheless, Vasquez points to other circumstantial evidence indicative of a causal connection. In the months after Vasquez filed this suit, Vasquez testified that she was “harassed” by others and did not “feel safe” at work specifically because she filed this lawsuit. Doc. No. 67-1 at p. 9 (quoting Vasquez Dep. 107:1-14). According to Vasquez, people at work would say “don’t work with Nicole [Vasquez] because we hear she’s suing.” Id. Viewing the evidence in a light most favorable to Vasquez, this evidence tends to show a causal connection. Farrell,
c. Legitimate Non-Discriminatory Reason
Confronted with a prima facie case, Defendants must articulate a legitimate, nondiscriminatory reason for its termination of Vasquez. Smith,
d. Pretext
To establish pretext, Vasquez must proffer evidence that her employer’s reason for terminating her is unbelievable or implausible, or evidence that her engaging in protected activity was more likely than not the motivating cause of Defendants’ decision to terminate her. Fuentes,
As mentioned above, Vasquez presented evidence that she was treated less favorably by Defendants following the filing of this lawsuit. She presented evidence that she was shunned at work, denied shifts, and harassed for bringing this action against Defendants. This evidence, on its own, is sufficient to establish pretext. It does not matter that Vasquez now uses this same evidence to prove pretext that she relied on in making out her prima facie case. Jalil v. Avdel Corp.,
3. Shearer’s ADA Retaliation Claim
Shearer brings a retaliation claim under the ADA. Doc. No. 76-1. Defendants argue Shearer has failed sufficiently to rebut their legitimate, non-discriminatory reason for firing Shearer by showing pretext. Doc. No. 76-1 at pp. 6-9. Because I agree with plaintiffs, I will deny Defendants’ motion for summary judgment on Shearer’s ADA retaliation claim.
Retaliation claims under the ADA are analyzed under the familiar McDonnell Douglas burden-shifting framework. Williams v. Phila. Housing Auth. Police Dep’t,
b.Legitimate Non-Discriminatory Reason
Since Shearer has made out a pri-ma facie case of ADA retaliation, Defendants must articulate a legitimate, nondiscriminatory reason for its employment decision. Smith,
c.Pretext
To establish pretext, Shearer has two options. First, she may 'point to evidence that Defendants’ proffered reason is subject to such weaknesses and .implausibilities sufficient to satisfy the factfinder that Defendants’ actions could not have been for nondiseriminatory reasons. Willis,
i. First Method of Proving Pretext
As with her other claims, Shearer is unable to rebut pretext by offering evidence that falls solely under the first method of proving pretext: the “unsubstantiated” DOH findings and the critique of Defendants’ Resident Abuse Policy and decision to terminate her. Unlike her other claims, however, Shearer has offered evi
ii. Second Method of Proving Pretext
Unlike Shearer’s other claims, here she does proffer evidence that supports a finding of pretext. Willis,
The record indicates that Shearer’s doctors sent records to Defendants on September 28, 2011 after examining her injuries. Ex. UU to PI. Shearer’s Resp. The documents indicated that Shearer had work restrictions as a result of injuries to her neck, left shoulder and arm, and left knee and leg. Id. For example, the doctors’ orders prohibited Shearer from transferring any patients without assistance. Id. Two days later, on September 30, 2011, Shearer was terminated. Ex. T. Admittedly, the court found that Shearer was unable to show pretext with her previous claims solely through challenging the Defendants’ proffered reason. Here, Shearer has done more than that. Rather than simply challenging the proffered reason itself, Shearer has demonstrated an unduly suggestive temporal proximity (two days) between the date Defendants were notified of her work restrictions and the date she was fired. See Farrell,
In sum, Shearer has adduced sufficient evidence to create a genuine issue of fact regarding whether Defendants’ proffered reason for terminating her was pretext for retaliation in violation of the ADA. Therefore, I will deny Defendants’ motion for summary judgment on Shearer’s ADA retaliation claim.
4. Riker’s Retaliation Claim
Riker brings claims for retaliation. Riker brings her claims pursuant to Title VTI
a. ADA Retaliation
Plaintiff Riker contends Defendants “terminated [her] employment in retaliation for her requesting accommodation in violation of the [ADA].” Doc. No. 85-1 at p. 21. Defendants maintain that Riker never suffered an adverse employment action because she voluntarily resigned from her position.
Unless there is a claim for “constructive discharge,”
In certain cases, the Third Circuit has held that a genuine dispute of material fact regarding whether an employee resigned precludes summary judgment. Budhun v. Reading Hosp. & Med. Ctr.,
In other contexts, namely when the employee has tendered a formal written resignation letter or evidenced an intent to resign voluntarily, courts have found no genuine issue of material fact on this element. See Jones,
Defendants state that Riker “voluntarily resigned her position at Lancashire Hall/Wilmac.” Doc. No. 66-2 ¶ 21. In support, Defendants cite to a resignation letter tendered by Riker. Id. The letter states: “To Whom It May Concern: I Sandra Riker hereby voluntarily resign my employment from Lancashire Hall/McWill Group. This resignation is voluntary. I was not coerced by anyone into making this decision.” Ex. L to Defs.’ MSJ Regarding Riker. The resignation letter was signed by Riker on February 14, 2013. Id. Riker admits that she signed this resignation letter on February 14, 2013 in connection with settling her workers’ compensation claims against Defendants. Ex. A ¶ 22 to PI. Riker’s Resp. Riker’s affidavit states that, even though she signed the resignation letter, she was “forced” to resign by Defendants’ lawyers. Ex. A to PI. Riker’s Resp. She stresses that she was not represented by her current counsel at the time she signed the resignation letter. Interestingly, though, Riker omitted the fact that she was in fact represented by a different lawyer when she signed the resignation letter. See Ex. P to Defs.’ MSJ Regarding Riker, Riker Dep. 7:16-19.
Self-serving affidavits may not be used by a party to create a genuine issue of material fact. Kirleis v. Dickie, McCamey & Chilcote, P.C.,
Aside from Astree’s affidavit, the only evidence Riker relies on in claiming that she was terminated are the findings of a Pennsylvania Department of Labor claims representative who handled her workers’ compensation case a year prior to her resignation. Ex. AA to PI. Riker’s Resp. In 2012, the claims representative found that (1) Riker. had been last employed on January 3, 2012; (2) Riker was on a leave of absence; (3) Riker informed Defendants of a thirty-pound lifting limitation; and (4) Defendants did not offer alternate work to Riker. Id. Although these findings establish that Riker was unemployed at some point in 2012 due to an injury, they do nothing to explain her subsequent interaction with Defendants in the months preceding her resignation in 2013.
In sum, the record demonstrates that there is no genuine dispute that Riker resigned voluntarily. Unlike the employees in Burton and Budhun, Riker actually signed and tendered a formal written resignation letter. This letter was read and signed by Riker with the assistance of counsel. Riker testified that she had no questions for the workers’ compensation judge, her lawyer, or Defendants’ lawyers regarding the written voluntary resignation she executed. Ex. P to Defs.’ MSJ Regarding Riker, Riker Dep. 7:16-19; id. 13:6-18. Also unlike the plaintiffs in Burton and Budhun, Riker has been unable to come forward with conflicting testimony from other witnesses, or other evidence, raising a genuine dispute of material fact on the issue of her resignation. In sum,
Even if Riker could establish she suffered an adverse employment action, her ADA retaliation claim would still fail because she is unable to create a genuine issue of material fact as to the causal connection between her alleged requested accommodation and her alleged termination. Moore,
Accordingly, I will grant summary judgment on Riker’s ADA retaliation claim.
b. Title VII Retaliation
Riker also asserts that she was retaliated against for reporting sexual and racial harassment in violation of Title VII. To establish a prima facie case of retaliation, the plaintiff must prove: (1) they engaged in protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection between the protected activity and the adverse employment action. Moore v. City of Phila.,
D. Disability Discrimination Under the ADA
In addition to ADA retaliation claims, plaintiffs Riker and Shearer also allege that Defendants are liable for failing to accommodate them under the ADA.
The ADA prohibits employers from discriminating based upon the known physical or mental impairments of a “qualified individual with a disability.”
1. Shearer’s Reasonable Accommodation Claim
Defendants move for summary judgment on Shearer’s failure to accommodate claim under the ADA. Doc No. 65-1 at p. 6; Doc. No. 65-2 ¶¶ 40-43. In response, Shearer states that she “presented evidence that WILMAC Defendants did not accommodate her under the [ADA]. Garcia testified that WILMAC Defendants do not accommodate non-work related injuries .... Defendants terminated Plaintiff [Shearer] after receipt of work restrictions from Dr. Rochester.” Doc. No. 76-2 ¶ 40. This evidence is insufficient to establish a prima facie claim for failure to accommodate under the ADA.
Shearer does not allege or offer any evidence that she is a “qualified individual with a disability” under the ADA, which is the second prong required to establish a prima facie case. Skerski,
In addition, Shearer’s sworn testimony in her prior workers’ compensation case negates her ability to prove she is a “qualified individual with a disability” under the ADA. The U.S. Supreme Court has explained that summary judgment is proper, under certain circumstances, when an AIDA plaintiff makes sworn statements in a prior application for disability benefits that he or she is “unable to work.” Cleveland v. Policy Mgmt. Sys. Corp.,
Based on the foregoing, it is clear that there is insufficient evidence to lead a reasonable juror to conclude that Defendants are liable for failure to accommodate under the ADA. Therefore, I will grant summary judgment on Shearer’s ADA claim.
2. Riker’s Reasonable Accommodation Claim
Defendants also move for summary judgment on Riker’s ADA claim. Defendants specifically argue that Riker has not made out a prima facie case because she cannot demonstrate the second element— that she is a qualified individual with a disability. Doc. No. 66-1 at pp. 10-14. In response, Riker states she “was able to work with accommodation.” Doc. No. 85-1 at p. 21.
The only element of Riker’s present claim at issue is whether or not she is a “qualified individual” under the ADA. To assert an ADA claim for failure to accommodate, the plaintiff must show that he or she is a qualified individual. See Hohider v. United Parcel Serv., Inc.,
Although Riker offers evidence of a lifting restriction imposed by her doctor, she has not offered any evidence of an accom
Accordingly, I will grant summary judgment for Defendants on Riker’s ADA claim.
E. Wrongful Discharge
A1 the plaintiffs bring wrongful discharge claims under Pennsylvania law. Doc. No. 29 ¶¶ 129-139. Defendants move for summary judgment on these claims, arguing they fail as a matter of law.
In Pennsylvania, “as a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship.” Clay v. Advanced Computer Applications, Inc.,
Courts have routinely dismissed wrongful discharge claims when the plaintiffs who bring them have available statutory remedies for alleged discrimination or retaliation. See, e.g., Schoch v. First Fidelity Bancorporation,
However, plaintiffs also allege wrongful discharge claims on other bases: (1) retaliation for reporting patient abuse; and (2) retaliation for filing workers’ compensation claims.
1. Reporting Patient Abuse
First, all the plaintiffs allege in affidavits that they were retaliated against for reporting Defendants’ alleged “patient abuse” of residents at Lancashire Hall. Doc. No. 84-1 at pp. 15-16. Specifically, plaintiffs allege that they were wrongfully discharged in violation of Pennsylvania’s Older Adults Protective Services Act,
2. Workers Compensation Claims and Work-Related Injuries
Plaintiffs Riker and Shearer also assert wrongful discharge claims based upon their reporting of workers’ compensation claims. Doc. No. 29 ¶¶ 57, 76.
Wrongful discharge claims are analyzed under the same framework as a Title VII retaliation claim. Owens v. Lehigh Valley Hosp.,
a. Riker
It is undisputed that, under Pennsylvania’s wrongful discharge jurisprudence, Riker engaged in protected activity by filing a claim for workers’ compensation against Defendants. Shick,
Therefore, I will grant Defendants’ motion for summary judgment on Riker’s wrongful discharge claim.
b. Shearer
Shearer also brings a wrongful discharge claim based upon her allegation that she was terminated in retaliation for filing a workers’ compensation claim. Third Amended Compl. ¶ 76. Specifically, Shearer contends she was terminated on September 30, 2011, in retaliation for her pursuit'of a workers’ compensation claim with respect to an injury on September 27, 2011. Doc. No. 76-1 at p. 17. Shearer has offered evidence that she reported the September 27, 2011 injury to Defendants the day it happened, as well as other coworkers’ and supervisors’ incident reports regarding the injury. Exs. W, X, and MM to PI. Shearer’s Resp. Shearer was terminated on September 30, 2011. Ex. T to PI. Shearer’s Resp. The record indicates that it was not until October 13, 2011, several weeks after she was fired, that Shearer filed a workers’ compensation claim. Doc. No. 82-7. This claim was not even related-to the September 27, 2011 injury; rather, it was for an injury Shearer allegedly suffered a year earlier in October 2010. Id. It was not until December 7, 2011, over a year after her termination, that Shearer filed a workers’ compensation claim for the September 27, 2011 injury. See Ex. B. to Defs.’ MS J Regarding Shearer ¶ 3.
Here, Plaintiff maintains that he engaged in protected activity under the Pennsylvania Workers’ Compensation Act when he reported the work injury on April 19, 2009 to his supervisor. Defendant argues that because Plaintiff did not file a claim petition before the adverse employment action occurred, Plaintiff did not engage in protected activity under Pennsylvania law.
Civ. Action No. 10-1417,
The Smith court reasoned that although “the mere possibility of employer liability under the WCA and the mere awareness 'of a work-related injury are insufficient grounds upon which to base a finding of engagement in protected activity, ... filing a claim is [not] the only conduct that constitutes protected activity.” Smith,
In another wrongful discharge case based on retaliation for filing workers’ compensation claims, the district court granted summary judgment for the employer when the plaintiff filed her claim weeks after being fired. Alderfer v. Nibco Inc., No. Civ. A 98-6654,
Thus, it appears there is a split between how district courts have decided this issue. In Smith, the court fashioned the rule to mean that a plaintiff must (1) report the work injury to her employer, and (2) at the bare minimum, “express an intent” to the employer to file a workers’ compensation claim. On the contrary, in Alderfer, even where the work injury was reported to the employer, the court found no protected activity because there was no claim filed prior to termination. It is important to note that opinions “of other district courts are persuasive but not binding authority on this court.” Kuhns v. City of Allentown,
V.CONCLUSION
For all the foregoing reasons, Defendants’ motions for summary judgment on plaintiff Shearer’s retaliation claim under the ADA (Count IV), plaintiff LaRochelle’s retaliation claim under Title VII (Count II), and plaintiff Vasquez’s retaliation claim under Title VII (Count II), are denied. Defendants’ motions for summary judgment are granted with respect to all other claims.
An appropriate Order follows.
Notes
. Pl.’s Third Am. Compl. ¶ 23. Many of the documents referred to by the parties in this case were filed under seal. Throughout this opinion, when a document is referred to by its actual title (rather than by “Doc. No.”), that means it has been filed under seal.
. Defs.' (Unredacted) Statement of Material Facts Regarding Plaintiff Mary LaRochelle.
. PL LaRochelle’s Counter-Statement of Disputed/Undisputed Material Facts.
. Pi. Riker’s Counter-Statement of Disputed/Undisputed Material Facts.
. Def.’s (Redacted) Concise Statement of Material Facts Regarding PL Riker.
. Plaintiff provides medical records which indicate that Lancaster Orthopedic Group did indicate that she should return to work with light duty restrictions; however, the return to work date cited on the medical records was January 18, 2012. PL's Ex. X.
. The document states as follows:
To Whom It May Concern:
I Sandra Riker hereby voluntarily resign my employment from Lancashire Hall/ McWill [sic] Group. This resignation is voluntary. I was not coerced by anyone into making this decision.
Def.’s MSJ Ex. L.
. Vasquez disputes the existence of a PRN agreement. PL Vasquez Counter ¶ 45. Vasquez introduces as evidence the PRN agreement between Lancashire Hall and Titus Lei-toro which requires Leitoro to work one shift per month. PL Resp. in Opp. Ex. G. Defendants claim that Vasquez was required to work three shifts per month and ultimately, the Defendants terminated Vasquez for failing to work three shifts per month as required under her PRN agreement, but the Defendants have not produced Vasquez’s PRN agreement on the record. Defs.' Facts Re. Vasquez ¶ 45.
. In the employment discrimination context, the analysis for adjudicating claims under the PHRA is identical to a Title VII analysis. Scheidemantle v. Slippery Rock Univ.,
. Although plaintiffs’ Third Amended Complaint appears to bring a gender-based disparate treatment claim on behalf of plaintiffs’ LaRochelle, Vasquez, and Riker, Doc. No. 29 ¶ 22, the parties' subsequent briefing does not address these claims. Instead, the parties' briefing regarding LaRochelle, Vasquez, and Riker is limited to their race discrimination, retaliation, disability discrimination, wrongful discharge, and hostile work environment claims. Because neither party has addressed LaRochelle, Vasquez, or Riker's gender-based disparate treatment claims, clearly no reasonable factfinder could rationally conclude that there is a genuine issue of material fact as to these claims. See
. Defs.’ Concise Statement of Material Facts Regarding Pl. Shearer.
. PI. Shearer’s Resp. in Opp. to Defs.’ Mot. for Summ. Judg.
. See Pa. Dep’t of Aging, The Older Adults Protective Services Annual Report (2013), http://www.aging.pa.gov/organization/ advocacy-and-protection/Documents/OAPSA% 20Report% 20FY% 202012-13.pdf.
. To the extent that plaintiffs claim LaRoc-helle’s termination was unlawful, those allegations are addressed below in the analysis of LaRochelle’s retaliation and wrongful discharge claims.
. PL Riker’s Memo, in Support of Resp. in Opp. to Summ. Judg.
. Plaintiffs’ arguments concerning Riker’s hostile work environment claims consists mostly of vague reiterations that she “reported sexual harassment,” but often do not contain details or specific facts regarding the alleged sexual harassment. Almost always, Riker’s claims are unsupported by citation to evidence of record. The court is only bound to consider facts that are supported by citation to "particular parts of materials in the record.”
. Plaintiff Shearer does not cite to, or explain, precisely what evidence she refers to here.
. Defs.’ Memo, of Law in Support Mot. for Summ. Judg. Regarding PL Vasquez.
. Plaintiffs' briefing regarding Bernard’s and Leitoro's alleged harassment of Vasquez presents the dilemma of a "sham” affidavit. "A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment.” Jiminez v. All American Rathskeller, Inc.,
. Aside from sham affidavits, plaintiffs have muddied the waters on this issue through misrepresentation of the record evidence. For example, in plaintiffs' Statement of Undisputed Facts, they allege: "January 2012, Plaintiff [Vasquez] reduced her work hours to part-time to limit her contact and harassment by Leitoro” Doc. No. 77-1 ¶ 28. In support of this statement, plaintiffs cite only to Vasquez’s Responses to Interrogatories. Id. However, upon review of the Responses to Interrogatories, nowhere does it state that Vasquez reduced her work hours to part-time because of Leito-ro’s harassment. Doc. No. 81-7. Id. Similarly, plaintiffs rely on Leitoro's “termination slip” in stating that Vasquez was harassed by Leito-ro "on a continuous basis from 2010 through Leitoro’s last day of employment [September
. To the extent that LaRochelle argues that Geib’s racially derogatory comments and her termination were linked, the presented evidence fails to support such a causal connection. Geib is not a supervisor, has no authority to make any employment decisions on behalf of LaRochelle and LaRochelle does not allege or provide any evidence that Geib played any role in her termination.
. LaRochelle does not claim that her termination was done on the basis of her race, but she does allege that her termination was in retaliation for reporting racial harassment. These allegations are addressed in her retaliation claim.
. Geib was ultimately terminated by Defendants on January 3, 2012. Ex. QQ to PI. Shearer’s Resp.
. To the extent that Vasquez’s termination was motivated by her filing of an EEOC charge and lawsuit against Defendants, those issues are addressed below in the analysis of Vasquez’s retaliation claim.
. The legal framework for deciding hostile work environment claims set forth previously in this opinion applies equally and identically here.
. Such employees are known as "management-level” employees. Huston,
. In support of plaintiffs' allegation, plaintiffs cite to an exhibit containing a list of complaints about Geib, none of which contain a single allegation regarding race or sexual harassment. Ex. DD to PI. Vasquez’s Concise Statement of Facts. Plaintiffs also allege, without citation to any evidence, that “Geib [sic] hate speech was stated in public and heard by supervisory management that failed to act.” Doc. No. 77-1 ¶ 38. Plaintiffs’ briefing does not offer any support either. In response to Defendants motion, plaintiffs state that "Defendants were aware of the race harassment acknowledged by Astree Doc. No. 78 at p. 19. However, again, plaintiffs provide no citation to evidence to support this contention. Id.
. The factual scenario in Huston is instructive as to Vasquez's present claim. In Huston, the Third Circuit concluded that certain technicians at a paper company were not "management-level” employees and, thus, their knowledge was not imputed to their employer to create vicarious liability. Id. at 108-09. In arriving at its conclusion, the Court relied on the following facts: "[The employer] did not employ them to discover or to act upon knowledge or rumors of sexual harassment; [they] were employed to keep machines working.” Id. at 109. In that case, the court relied on evidence of the technicians’ job duties and responsibilities. Id.
. The U.S. Supreme Court has held that Section 1981 encompasses retaliation claims. CBOCS West, Inc. v. Humphries,
. This is unlike LaRochelle's allegations of race discrimination which, as discussed above, were not mentioned at all in her EEOC charge.
. Defendants do not articulate a legitimate non-discriminatory reason in response to LaRochelle’s Title VII retaliation claim. Doc. No. 64-1.
. Defendants do not address this nuance in their briefing. Nor do the cases they rely on mirror the situation presented by Vasquez's retaliation claim (i.e., they do not involve retaliation for filing of a lawsuit in addition to the filing of EEOC charges). Practically speaking, the uniqueness of Vasquez’s situation is likely due to the fact that, by the time most Title VII plaintiffs file an EEOC charge and then a federal action, they no longer work for the defendant-employer.
. In essence, Defendants’ position would have required Vasquez to file a new EEOC charge one year after this lawsuit had already commenced, wait for her EEOC right-to-sue letter, and then amend her federal complaint again.
. With Vasquez's earlier claims, she only presented evidence of pretext that fell under the first method of proof. Here, Vasquez offers evidence that falls under both methods.
. Riker asserts other bases for retaliation that are not protected activity under Title VII or the ADA (e.g. reporting patient abuse and filing a workers’ compensation claim), but that are addressed below in her state-law wrongful discharge claim.
. To make out a constructive discharge claim, a plaintiff must establish that he or she was discriminated against by her employer “to the point where a reasonable person in his position would have felt compelled tQ resign.” Green v. Brennan, - U.S. -,
. This lawyer handled Riker’s workers' compensation claims against Defendants.
. Admittedly, it is difficult to conceive how Astree would have witnessed Riker being “fired” when, by Riker’s own account, she was not present at Lancashire Hall at the time Astree claims to have witnessed her get fired.
. The only evidence challenging the resignation is a sham affidavit filed by Riker herself.
. Aside from her alleged “termination,” Riker does not argue that she suffered any other adverse employment action. Doc. No. 85-4 ¶¶ 21-22; Doc. No. 85-1 atpp. 15-21.
. Additionally, Riker's Title VII retaliation claim also fails because she is unable to establish the first prong (protected activity) or the third prong (causal connection) of a Title VII retaliation claim. Self-serving affidavits may not be used by a party to create a genuine issue of material fact. Kirleis v. Dickie, McCamey & Chilcote, P.C.,
. That the court in Cleveland referred to a Social Security petition rather than a Workers’ Compensation petition is not relevant to the analysis. The court’s reasoning turned on the fact that the ADA plaintiff had made one statement in a prior claim for benefits and a totally different statement in a subsequent claim. This contradiction of sworn testimony presents the same dilemma whether the claim is one for disability benefits or workers' compensation. Indeed, the Court relied on the general principle that "a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland,
. Riker does not cite to any record evidence to support this proposition. She also cites to Garcia's deposition, stating: "Garcia admitted that she did not know the term 'interactive discussion’ and she was not trained on 'interactive discussion’ required under the Americans with Disabilities Act.” Doc. No. 85-1 at p. 20. However, an examination of Garcia’s testimony makes clear that this is an obvious misrepresentation of the record. The testimony of Garcia referenced by plaintiffs actually reads:
Q What does employment law mean to you?
A I learned about ADA, FMLA, a bunch of things on sexual harassment, discrimination.
Q Do you know what the word interactive process is?
A No.
Q So you weren't taught interactive discussion relative to the ADA? [Objection]
A If you can explain what it....
See Ex. J to PL Riker’s Resp., Garcia Dep. 43:15-25. While Garcia states she was not familiar with the legal term "interactive process,” she never testified (as plaintiffs contend) that she "was not trained” on interactive process. Rather, she asked for clarification on what the term meant. The court finds it disingenuous for plaintiffs to allege that she was not trained on this topic when, in their own exhibits, they cut off Garcia’s deposition response to the question posed, preventing a full inquiry into Garcia’s knowledge of the interactive process.
. Nonetheless, Riker’s evidence establishes that Defendants did accommodate her lifting restrictions, for months, until she was admittedly taken out of work by Dr. Olveri: "I was injured at work in Oct of 2011. I was given restrictions by the employers [sic] physician and worked light duty until Jan 3rd when the employers physician Dr. Olveri took me out of work for 2 weeks.” Doc. No. 85-17 at p.3. Riker admits she continued to see Defendants’ company doctor through Márch 21, 2012. Id.
. One of Riker's exhibits, Ex. FF, is a copy of Defendants’ “Charge Nurse” job description. However, Riker was a Certified Nurse Assistant ("CNA”) not a Charge Nurse. Doc. No. 85-4 ¶1.
. The OAPSA’s retaliation provision provides:
Any person making a report or cooperating with the agency, including providing testimony in any administrative or judicial proceeding, and the victim shall be free from any discriminatory, retaliatory or disciplinary action by an employer or by any other person or entity. Any person who violates this subsection is subject to a civil lawsuit by the reporter or the victim wherein the reporter or victim shall recover treble compensatory damages, compensatory and punitive damages or $5,000, whichever is greater.
. Plaintiff Shearer also alleges a wrongful discharge claim for purportedly requesting leave under the Family Medical heave Act (“FMLA”), claiming that she was retaliated against in “violated public policy.” Doc. No. 29 II76.- For the same reasons discussed above with respect to plaintiffs' "patient abuse” claims, Shearer’s wrongful discharge claim could have been brought under the available statutory remedy of the FMLA. However, neither Shearer nor any plaintiff brought a count under the FMLA. Doc. No. 29. Therefore, any such claim will not be addressed by the court. Nor could an FMLA claim be analyzed as a state-law wrongful discharge claim. Schoch,
. See supra pages 74-80 of this opinion for a discussion of Riker’s resignation.
. Presumably, it was sometime in October when Riker was injured.
. Sitting in diversity jurisdiction, the court acknowledged that the Pennsylvania Supreme Court had not yet addressed this issue. Smith,