I. INTRODUCTION
This employment discrimination case arises from Plaintiff Gloria Terrell's allegations that her employer, Defendant Main Line Hospitals, Inc. ("MLHI")
II. BACKGROUND
A. Factual Background
1. Plaintiff's Position And Responsibilities
Plaintiff was born in 1955 and began her employment at Lankenau in 1974 as a nurse's aide. (CSMF ¶¶ 1, 3, 4.) Plaintiff subsequently became an Instrument Room Technician and then an OR secretary, the position that she held for more than thirty-five years until her termination in 2016. (Id. ¶¶ 4, 6.) At the time of the events relevant to this lawsuit, there were two other OR secretaries at Lankenau, Barbara Hawkins and Linda Robinson. (Id. ¶¶ 5, 6.) Hawkins had worked as an OR
OR secretaries use a system called "SIS" to electronically schedule surgeries. (CSMF ¶ 12.) They can also access patient demographics-such as name, date of birth, social security number, phone number, emergency contact information, and insurance information-through an electronic database called "Invision," but they cannot access medical charts. (Id. ¶¶ 25-27; SMF ¶ 4.) During the time period relevant to this action, Plaintiff and the other OR secretaries were supervised by Administrative Coordinator Andrea Ledford and Nurse Manager Annette Frawley. (CSMF ¶¶ 48, 16.)
2. MLHI's Privacy And Disciplinary Policies
MLHI is subject to the regulations promulgated pursuant to HIPAA to protect the privacy, security, and confidentiality of health information. (SMF ¶ 5.) MLHI has implemented a number of policies and employee training programs related to the protection of confidential information and the disciplinary consequences of confidentiality violations. (SMF Exs. J, K, L, M, Q, R, S; CSMF Ex. 8.) For example, MLHI's Confidentiality Policy provides, in relevant part:
[A]ll employees ... are required to maintain the confidentiality of all privileged information. Privileged information consists of, but is not limited to, data that can be communicated verbally, electronically, or in hard copy regarding the following:
1. Patient information (e.g., diagnosis, content of medical records)
* * *
3. Employee information (e.g., salary, demographics)
(SMF ¶ 5, Ex. J.) The accompanying Confidentiality Statement requires employees to agree that they "will only access information on patients/employees about whom I have a business need to know." (SMF Ex. J.) The Statement also includes an employee acknowledgement that "any unauthorized access to, use of or disclosure of privileged information or any other confidential information concerning a current or past patient or employee ... may result in immediate discharge from employment with [MLH]." (Id. )
MLHI requires employees to undertake annual HIPAA compliance training and testing. (Id. ¶ 8.) MLHI's Compliance Program materials define Protected Health Information ("PHI") as "any information that is identifiable to a patient," including, name, address, email address, date of birth, and insurance and other financial information. (CSMF ¶ 42, Ex. 8.) The materials
Plaintiff participated in HIPAA training annually while employed by MLHI. (Id. ¶ 9.) Although Plaintiff undertook the training, she testified that she felt rushed to complete it during her work day, and she would sometimes skip ahead to the test without fully reading through the preceding materials.
In April 2016, MLHI implemented a privacy monitoring system called "Fair Warning." (SMF ¶ 13.) Using algorithms, Fair Warning monitors and analyzes instances of access to patient records to identify any that lack a legitimate business purpose. (Id. ¶ 14.) When Fair Warning detects a potentially suspect instance of employee access to patient records, it sends an email to the employee's manager to determine whether there was a legitimate business need for the access. (Id. ¶ 15; CSMF ¶ 47.) If the manager does not identify a legitimate business need, the matter is referred to MLHI's Human Resources ("HR") department for investigation. (Id. ¶ 16.)
MLHI's Code of Conduct and Behaviors that Undermine a Culture of Safety ("Code of Conduct") provides examples of conduct that can lead to disciplinary action, including termination. (SMF Ex. K.) These include: "[u]nauthorized release/disclosure/access of confidential information," "[u]nauthorized and/or non-business related access, use or disclosure of electronic protected health information," and "[u]nauthorized and/or inappropriate use of MLH information system resources." (Id. ) The Code of Conduct further provides that violations "will lead to Performance Management action, up to and including termination of employment." (Id. )
MLHI's Performance Management Policy generally provides four color-coded levels of discipline: (1) performance expectations review (blue); (2) performance coaching (yellow); (3) corrective intervention (orange), and (4) termination (red). (SMF Ex. Q.) The policy directs managers to intervene "early in the development of [a] performance and/or behavioral concern to help the employee recognize and correct the deficiencies," but notes that "[t]here may be circumstances ... in which immediate termination ... is warranted." (Id. ) Under this policy, circumstances warranting termination include "[w]hen the issue is serious in nature," and "[w]hen the issue is either an egregious first time occurrence or a repeat occurrence of a behavioral or code of conduct violation." (Id.)
MLHI also has specific disciplinary guidelines for HIPAA/privacy violations.
(1) accidental or inadvertent violation;
(2) failure to follow established privacy/security policies and procedures;
(3) deliberate or purposeful violation without harmful intent; and
(4) disclosure or use of PHI for illegal purpose or unauthorized public disclosure of PHI.
(Id. ) Examples of category 3 violations include "[a]ccessing PHI outside the scope of job duties (to compare coworker workloads, learn about clinical operations)" and "[c]hecking on a coworker, family member or neighbor." (Id. ) The possible sanctions for a category 3 violation are orange (corrective action) or red (termination).
Lankenau employees who violate HIPAA are not automatically terminated, and the level of discipline imposed depends upon the facts and circumstances of each case. (CSMF ¶ 92; Papa Dep. 11, SMF Ex. B and CSMF Ex. 2.) Lankenau's HR Director, Greg Papa, testified that the performance management program "is not meant to be progressive. It's meant to assign the performance management action that best fits the situation.... [I]f someone's act is egregious, we could go right to termination, or if it's deliberate or some other circumstance." (Papa Dep. 60-61.)
3. Circumstances Of Plaintiff's Termination
MLHI terminated Plaintiff after the second of two instances in which she used the Invision system to access the phone number of her co-worker, Hawkins. (CSMF ¶¶ 13-24, 33-38, 52-70.) The first instance occurred on the morning of Monday, August 15, 2016, when Plaintiff and Robinson were the OR secretaries on duty. (Id. ¶¶ 13, 15.) The OR was particularly busy that morning, and the SIS system was not working, which required Plaintiff and Robinson to manually organize cases and schedule surgeries. (Id. ¶¶ 13-14, 16.) Hawkins was scheduled to work later in the day, but because she had called out of work at the end of the previous week, Plaintiff, Robinson, and their supervisor, Ledford, were unsure whether Hawkins would be in for her shift. (Id. ¶ 17.) Even though it was Plaintiff's birthday, she volunteered to cover Hawkins' shift if she wasn't coming in. (Id. ¶ 18.)
Ledford asked Plaintiff to find out if Hawkins was coming in, and Plaintiff looked unsuccessfully for the OR employee phone list that was normally kept on a clipboard in the unit. (Id. ¶¶ 19-23.) When Plaintiff could not find the phone list, she obtained Hawkins' phone number from Invision. (Id. ¶ 24.) According to Plaintiff, she told Ledford she had used Invision to get Hawkins' number, and Ledford said "okay."
The second instance occurred on August 22, 2016, after an orderly told Plaintiff and some OR colleagues that there had been an early morning shooting in an area that Plaintiff knew was near Hawkins' residence. (CSMF ¶¶ 33-34.) Plaintiff wanted to call Hawkins to see if she was okay and able to come in for her shift, and, because the phone list was still missing, she again looked up Hawkins' number in Invision. (Id. ¶¶ 35-36.) Plaintiff then considered that Hawkins might be sleeping and decided not to call her. (Id. ¶ 38.) It is undisputed that Plaintiff did not save Hawkins' phone number or disclose it to anyone. (Id. ¶ 41.)
Approximately six months before these incidents, Plaintiff had completed computer-based training, followed by a test, regarding information security awareness. (SMF ¶¶ 11-12; Pl.'s Resp. to SMF ¶¶ 11-12.) The training explained that MLHI is a HIPAA-covered entity, that it requires the protection of PHI, and that patient data is only to be accessed for a business-related reason. (SMF ¶ 11; Pl.'s Resp. to SMF ¶ 11.) Plaintiff believes that she had a business reason for accessing Hawkins' record on both occasions, because she wanted to determine if Hawkins would be coming in for her shift. (Terrell Dep. 168; SMF ¶¶ 73-74; CSMF ¶ 88.)
The Fair Warning system flagged Plaintiff's August 15, 2016 access of Hawkins' Invision record and sent an email to Frawley asking whether Plaintiff had a work-related reason for the access. (CSMF ¶¶ 52-53; SMF ¶ 41.) On August 25, 2016, Frawley replied "No!!!!". (SMF ¶ 42.) After receiving the Fair Warning alert, Frawley notified Lankenau HR Manager Allison Bennett of the August 15 incident and advised Bennett that Plaintiff had no work-related reason for accessing Hawkins' records. (SMF ¶¶ 44-45.) Frawley later testified that because Hawkins had not been an inpatient and had not been in the OR, Frawley "knew that there was absolutely no reason that there would have been a need for [Plaintiff] to go into [Hawkins'] record." (Frawley Dep. 24-25, SMF Ex. F and CSFM Ex. 12.)
Bennett, Frawley, and perioperative nursing director Josetta Shaw began an investigation, and while it was ongoing, they learned that Plaintiff had accessed Hawkins' Invision records a second time, on August 22. (SMF ¶¶ 46-47.) On August 25, 2016, Bennett and Frawley met with Plaintiff, who admitted that she had accessed Hawkins' Invision records twice to get her phone number-the first time, to see if she was coming in for her shift; and the second time, to see if she was okay and able to come in for her shift. (Id. ¶ 48; Pl.'s Resp. to SMF ¶ 48.) Bennett and Papa also met with Hawkins to determine whether she had given Plaintiff permission to access her records. (SMF ¶ 52.) Frawley and Papa testified that Hawkins said she had not given Plaintiff permission to access her
On August 30, 2016, Fair Warning sent Bennett a report categorizing Plaintiff's accessing of Hawkins' records as "snooping," describing the severity as "high," and stating that the incident was not reportable to the government. (Id. ¶ 57; CSMF ¶¶ 56-57.) Bennett met with Frawley and Shaw, both of whom recommended that Plaintiff be terminated. (SMF ¶ 59; CSMF ¶¶ 65-67.) Before a MLHI employee may be terminated, the HR Manager must submit a Situation, Background, Assessment, and Recommendation ("SBAR") report. (SMF ¶ 60.) Bennett prepared the SBAR, which recommended termination, and sent it to Papa for his consideration. (CSMF ¶¶ 67-68, Ex. 18.) Papa agreed with the recommendation, and Plaintiff was terminated on September 9, 2016. (SMF ¶ 62; CSMF ¶ 70.) Plaintiff's termination was also reviewed and approved by Lankenau's President and its Senior Vice President of Human Resources. (SMF ¶ 68.) Plaintiff was replaced by a 39-year-old woman hired from outside of MLHI. (CSMF ¶¶ 71, 73.)
Bennett prepared a Performance Management Record for Plaintiff's termination, which stated:
Gloria accessed co-workers medical record on two separate occasions. It was determined by her department manager and acknowledged by Gloria-there was no business need for her to access co-workers information. Under MLH's Fair Warning and HIPAA policy this is a gross violation of that policy.
(CSMF Ex. 19; SMF ¶ 69.) Bennett, Papa, and Frawley agreed that Plaintiff's violation fell within category 3 of the HIPAA Sanctions Guidelines: "Deliberate or purposeful violation without harmful intent."
19. Unauthorized release/disclosure/access of confidential information; and
40. Unauthorized and/or non-business related access, use or disclosure of electronic protected health information.
(Papa Dep. 58-59; SMF Ex. K; CSMF ¶ 87.) Defendants determined that Plaintiff's termination was warranted under MLHI's Performance Management Policy because "the issue [was] serious in nature," and "the issue [was] either an egregious first time occurrence or a repeat occurrence of a behavioral or code of conduct violation." (Papa Dep. 61-62; Bennett Dep. 35; SMF Ex. Q.)
Plaintiff filed an internal appeal of her termination. The termination was subsequently upheld by Lankenau's Vice President of Patient Services. (SMF ¶ 70, Ex. T.) In connection with this case, Plaintiff contends that she "witnessed other younger OR employees access demographic information of co-workers through Invision and not be disciplined, including OR Administrative Coordinator Josh Kirkpatrick sometime after 2015 (a phone number), and Mary Getty (an address)."
4. Defendants' Handling Of Other HIPAA/Privacy Violations
As noted above, in April 2016, MLHI began using the Fair Warning system to electronically detect HIPAA/privacy violations. (SMF ¶ 13.) Prior to the implementation of Fair Warning, MLHI's tracking of HIPAA/privacy violations was primarily anecdotal and required manual review of electronic patient records. (Id. ¶ 80.)
Defendants' records reflect that since 2009, and excluding Plaintiff, nine individuals have been terminated from Lankenau for HIPAA violations. (SMF ¶¶ 82; CSMF Ex. 25.) Three of the terminations involved "co-worker snooping," in which the employee accessed a patient-co-worker's records in Invision or Smart Chart
Since Fair Warning was implemented, fourteen Lankenau employees have been disciplined, but not terminated, for HIPAA violations. (SMF ¶ 84.) Ten of those employees accessed a family member's records with the family member's permission; two accessed a co-worker's records with permission; one used a computer logged in under her supervisor's credentials to view her own records; and one failed to properly log out of her computer, which was then used by an unknown person to access a patient record. (SMF ¶¶ 84-85; CSMF ¶¶ 97-100, Ex. 25; Papa Dep. 16-31; Defs.' Resp. to CSMF Exs. D, E, F.) At least eight of the employees who were not terminated for HIPAA violations were age-protected under the ADEA.
On or about February 17, 2017, Plaintiff dual-filed a complaint against Defendants with the Equal Opportunity Employment Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC"). (Compl. ¶ 14.) On July 12, 2017, Plaintiff filed her Complaint, alleging claims of age discrimination under the ADEA (Count I) and the PHRA (Count II). Defendants filed an Answer and Affirmative Defenses on September 8, 2017. (ECF No. 4.) Defendants filed the instant Motion on March 28, 2018. Plaintiff filed a Response in Opposition to the Motion on April 25, 2018. Defendants filed a Reply on May 14, 2018. (ECF No. 22.)
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), 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 dispute is "genuine" if there is a sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cty. of Bucks ,
Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett ,
IV. DISCUSSION
The ADEA provides that "[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
In a case such as this, where the Plaintiff has offered no direct evidence of age discrimination, we apply the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green ,
A. Plaintiff's Prima Facie Case
To establish a prima facie case of discrimination in ADEA cases, the plaintiff must show: (1) that the plaintiff was forty years of age or older; (2) that the defendant took an adverse employment action against the plaintiff; (3) that the plaintiff was qualified for the position in question; and (4) that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Smith ,
For purposes of this Motion, Defendants concede that Plaintiff has established a
B. Legitimate Nondiscriminatory Reason For Termination
At the second step of the McDonnell Douglas framework, the employer satisfies its "relatively light" burden of production by introducing evidence which, taken as true, would permit a conclusion that there was a nondiscriminatory reason for its employment decision. Fuentes v. Perskie ,
Defendants have satisfied their burden here. Defendants assert that Plaintiff was terminated because-as MLHI contemporaneously documented-she violated its HIPAA and patient confidentiality policies by twice accessing a co-worker's protected records without a work-related need to do so. According to Defendants, Plaintiff's conduct violated HIPAA, MLHI's Confidentiality Policy, and its Code of Conduct, and her termination was warranted under the Code of Conduct and the HIPAA Sanction Guidelines. Defendants' proffered reason for terminating Plaintiff is legitimate and nondiscriminatory. See, e.g. , DeCicco v. Mid-Atlantic Healthcare, LLC ,
Plaintiff argues that MLHI has not proffered a legitimate reason for her termination because, according to her, the Invision screen she accessed did not contain HIPAA-protected information, and even if the information she accessed were considered to be PHI, "employees may access such information when the information is needed for 'healthcare operations.' " (Pl.'s Opp. Br. 9; see also id. at 5 (stating that Plaintiff "did not access Protected Health Information under HIPAA".) We disagree. As a threshold matter, Plaintiff's narrow construction of PHI is at odds with the provisions of HIPAA and the related regulations. See 42 U.S.C. § 1320d(6) (defining "individually identifiable health information" to include "demographic information");
C. Pretext
At this final stage of the analysis, "the burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that the employer's proffered legitimate, nondiscriminatory reason was pretextual." Willis ,
To establish pretext under the first prong of Fuentes , the plaintiff must do more than "simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent."
Under the second prong of Fuentes , a plaintiff may establish pretext "by presenting evidence 'with sufficient probative force' so as to allow the factfinder to 'conclude by a preponderance of the evidence that age was a motivating or determinative factor.' " Willis ,
Here, Plaintiff first argues that a factfinder could disbelieve Defendants' articulated legitimate reason for terminating her because her "two business-related data accesses absolutely do not fall into the categories of conduct required for termination." (Pl.'s Opp. Br. 16.) Plaintiff essentially argues that she has established pretext based on her opinion that she did not access any PHI, that she had a business reason for the access,
However, the record reflects-and Plaintiff does not dispute-that she accessed Hawkins' records in Invision twice, and that the screen she accessed contained "name, address, telephone number, social security number, date of birth, patient number, and dates of admission." (Pl.'s Opp. Br. 9; CSMF ¶ 25.) The Fair Warning system alerted MLHI that Plaintiff had accessed Hawkins' records, and there is no suggestion, nor any evidence, that MLHI or any of Plaintiff's supervisors targeted her for discipline, or that age was a factor in the Fair Warning algorithms used to flag Plaintiff's access of Hawkins' records.
MLHI's Confidentiality Policy and Code of Conduct treat patient and employee demographic information as confidential; permit employee access to that information only for a business-related purpose; and specifically prohibit "[u]nauthorized release/disclosure/access of confidential information" and "[u]nauthorized and/or non-business related access, use or disclosure of electronic protected health information." (SMF Ex. K.) Plaintiff received regular training regarding HIPAA, and she knew that she was only permitted to access patient data on a need-to-know basis, i.e. , as "need[ed] to do [her] job." (Pl.'s Dep. 92, 125.) Contrary to her training, Plaintiff contends that at the time, she did not believe her accessing of Hawkins' records was a HIPAA violation. She now understands that doing so violated MLHI's HIPAA/confidentiality policies, and that "[l]ooking for information on my co-worker[,] [r]egardless of whether it's medical records, room number, age, birth date, phone number, address, any of that would be co-worker snooping." (Terrell Dep. 140, 164-65.)
Plaintiff contends that her termination was a violation of MLHI's disciplinary policies, and that "termination was not warranted here given the benign data accessed by Plaintiff." (Pl.'s Opp. Br. 11.) Plaintiff also suggests that termination was unwarranted because it was not preceded by lesser progressive sanctions. (Id. at 13.) Plaintiff's arguments are belied by MLHI's Code of Conduct, Performance Management Policy, and HIPAA Sanction Guidelines, which provide that confidentiality violations may result in employment termination, including when the violations are "serious in nature" or are "either an egregious first time occurrence or a repeat occurrence of a behavioral or code of conduct violation." (SMF Ex. Q.) Other unrebutted evidence reflects that MLHI's disciplinary system is not progressive, and that where MLHI management deems it appropriate under the circumstances, infractions may result in immediate termination.
In short, other than her own subjective beliefs, Plaintiff has offered no evidence from which a reasonable factfinder could conclude that Defendant's proffered reason for terminating her lacks credibility. She has provided no evidence to support a finding of discrimination. Garrow ,
Although one may have reservations about the wisdom of terminating an employee with Plaintiff's experience and tenure for electronically accessing a phone number that had already been made available to co-workers in paper form, "it is not for this Court to 'sit as a super-personnel department that reexamines an entity's business decisions.' " Carfagno v. SCP Distrib., LLC , No. 14-4856,
Turning to the second Fuentes method of establishing pretext, Plaintiff contends that "[o]ther, non age-protected employees at Lankenau were not terminated for the same conduct." (Pl.'s Opp. Br. 3.) In an effort to support this contention, Plaintiff points to the MLHI records regarding other employees who were disciplined for improper records access since the implementation of Fair Warning. These records, outlined in the factual background above, simply do not reflect disparate treatment of age-protected employees and cannot support a reasonable inference of pretext. To the contrary, the records show that of the nine employees who were terminated for co-worker or celebrity snooping without permission, at least three were younger than 40 years old, and four were younger than Plaintiff. (Def.'s Mot. Ex. U.) Similarly, the evidence reflects that more than half of the fourteen employees who were not terminated were age-protected. Moreover, the conduct of the non-terminated employees is not closely comparable to Plaintiff's since those employees either had permission to access the records or, in one instance, the improper access involved an unknown individual and resulted from the employee's failure to log off of the electronic system.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion for summary judgment will be granted. An appropriate order will follow.
Notes
Main Line Health, Inc. ("MLH") is also named as a Defendant in the Complaint. However, the parties agree that MLH was not Plaintiff's employer, and Plaintiff has stipulated to the dismissal of MLH. (Defs.' SJ Br. 13 n.1, ECF No. 17-1; Pl.'s Opp. Br. 7, ECF No. 18-4.)
HIPAA protects from unauthorized disclosure "individually identifiable health information," defined as "any information, including demographic information collected from an individual, that ... is created or received by a health care provider ... [and] relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and ... identifies the individual[.]" 42 U.S.C. § 1320d(6) ; see also
Unless otherwise indicated, the factual background is undisputed and is derived from a combination of Defendants' Statement of Undisputed Material Facts ("SMF") (ECF No. 17-2), Plaintiff's Counter-Statement of Undisputed Material Facts ("CSMF") (ECF No. 18-2), Plaintiff's Response to Defendants' SMF ("Pl.'s Resp. to SMF") (ECF No. 18-3), and Defendants' Response to Plaintiff's CSMF ("Defs.' Resp. to CSMF") (ECF No. 19). We view the facts and reasonable inferences therefrom in the light most favorable to Plaintiff as the non-moving party. Anderson v. Liberty Lobby, Inc. ,
The parties have attached non-identical excerpts of the deposition testimony of Plaintiff, Greg Papa, Allison Bennett, Andrea Ledford, Annette Frawley, and Linda Robinson as exhibits to their respective statements of fact. Initial citations herein to deposition testimony identify the exhibit references and transcript page numbers; subsequent citations refer only to the transcript page numbers.
Plaintiff also testified that she found the training "misleading" because it referred to "a patient," and, in her mind, a co-worker was different. (Terrell Dep. 127-28.) Plaintiff testified that when she accessed Hawkins' records she was not "looking at her from a patient aspect." (Id. )
Mitigating factors for a category 3 violation include: no re-disclosure; limited PHI accessed; one or low number of affected patients; patient suffered no financial, reputational, or other personal harm; and, action taken under pressure from an individual in a position of authority. (SMF Ex. R.) Contributing factors are: PHI posted to social media or disclosed to others; high exposure to [MLHI], such as large expense incurred; PHI downloaded/printed and further disclosed; specifically protected information such as HIV-related, psych, substance abuse, genetic data; sensitive data such as cancer diagnosis, abortion history; negative influence on others; and PHI not publicized by others. (Id. )
Ledford testified that she had no recollection of Plaintiff accessing Hawkins' Invision record on August 15, 2016, in connection with a scheduling issue. (Ledford Dep. 16-17, 19, SMF Ex. D and CSMF Ex. 6.) However, she testified that she would not have asked Plaintiff to call another employee scheduled to work a later shift. (Id. at 24.) Ledford explained: "I assume that everybody is going to show up unless they have called out. Call-out for a 2:30 shift is 11 o'clock in the morning." (Id. ) For purposes of this Motion, we accept Plaintiff's account of the events of that day.
Bennett testified that Plaintiff's conduct also was a violation of category 2: "Failure to follow established privacy/security policies and procedures." (Bennett Dep. 36-37.)
Plaintiff did not take the depositions of Kirkpatrick or Getty.
Specifically, Kirkpatrick denied "that he ever went into Invision or any other electronic patient record system to access the personal information of a co-worker without a legitimate business need." (Kirkpatrick Decl. ¶¶ 2-3, Defs' Resp. to CSMF Ex. B.) Getty stated that she "never went into Invision for any reason ... because, as a nurse, she access[es] patient records for business reasons through other portals." (Getty Decl. ¶ 4, Defs.' Resp. to CSMF Ex. C.) Getty also denied that she used any portal to retrieve any information about the employee Plaintiff identified, noting that she has had that employee's contact information in her cell phone for years. (Id. ¶ 5.) Robinson also denied Plaintiff's assertion about her, testifying that she "knows that accessing an employee's records is a 'no no.' " (SMF ¶¶ 86-87; Robinson Dep. 17, 36.)
Smart Chart is a separate system that contains both patient demographics and medical chart information. (Frawley Dep. 11.)
The protections afforded by the ADEA apply only to individuals who are at least forty years of age.
The age-protected employees who were not terminated for HIPAA violations, and their birth years are: "J.A."-1967; "R.C."-1966; "W.S."-1971; "J.D."-1958; "J.D."-1954; "A.D."-1967; "R.S."-1967; and "K.Q."-1971. Two other employees who were not terminated were born in 1976 and may also have been age-protected at the time they were disciplined. (SMF ¶ 84; CSMF Ex. 25.)
The PHRA also prohibits age discrimination. It provides:
It shall be an unlawful discriminatory practice ... [f]or any employer because of the ... age ... of any individual or independent contractor, to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required.
43 Pa. Stat. & Cons. Stat. Ann. § 955(a). Because the same analysis applies to claims under the ADEA and the analogous provision of the PHRA, we address Plaintiff's claims collectively. Willis v. UPMC Children's Hosp. of Pittsburgh ,
"Direct evidence of discrimination would be would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption. " Torre v. Casio, Inc. ,
Although it is not material to our analysis of the pretext issue, we note that Plaintiff's claim to have accessed Hawkins' records as part of "healthcare operations" is undermined by the fact that she never actually called Hawkins.
We also note that as an at-will employee, Plaintiff could be terminated for any reason, or no reason, as long as it was not discriminatory. "[A]bsent discrimination, an employee-at-will can be fired for any reason or no reason." Holocheck v. Luzerne Cty. Head Start, Inc. , No. 04-2082,