GENE E.K. PRATTER, District Judge.
Pro se plaintiff Neal Felix filed this employment discrimination case under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA") against Albert Einstein Healthcare Network ("AEHN") claiming that AEHN discriminated against him on the basis of his race, age and gender by failing to hire him for 14 of 15 positions to which he applied between June 2007 and February 2008.
AEHN filed a motion for summary judgment. Sensing that the end of the road is near, Mr. Felix has filed three related civil actions and a bevy of largely repetitive and, at times, incomprehensible motions. Most recently, Mr. Felix filed a motion for sanctions against AEHN and its counsel, alleging a conspiracy to commit perjury, suborn perjury, and commit a fraud on the Court. AEHN responded with a motion to strike Mr. Felix's motion for sanctions.
All three motions are now before the Court. For the reasons that follow, the Court will grant AEHN's motion for summary judgment, and deny both the motion for sanctions and the motion to strike.
Mr. Felix, a 48-year-old African-American man,
On June 13, 2007, Mr. Felix applied for six positions at AEHN: two Emergency Department Technician positions, a Patient Care Associate position, a Nursing Assistant position, a Medical Clerk position, and a Patient Escort position. However, AEHN did not offer any of these positions — or even offer an interview — to Mr. Felix. Mr. Felix admits that he did not tell AEHN recruiters his age or race prior to his rejection for these positions. The two successful candidates for the Emergency Department Technician positions were Guerray Sleet, a 51-year-old African-American man, and Nicholas Kurczewski, a 40-year-old white man. The successful applicant for the Patient Care Associate position was Jennifer Moses, a 26-year-old African-American woman. For the Nursing Assistant position, AEHN hired Ashley Rivera, a 21-year-old Hispanic woman. For the Medical Clerk position, AEHN hired Victoria Pascarella, a 24-year-old white woman. Finally, for the Patient Escort position, AEHN hired Jean Pierre, a 31-year-old African-American man.
Between July 29, 2007 and September 6, 2007, Mr. Felix applied for five more positions with AEHN. On July 29, 2007, Mr. Felix applied for a Certified Nursing Assistant position at AEHN's Willow Terrace facility. Again, Mr. Felix was not offered an interview. The successful candidate was Natasha Gaines, a 27-year-old African-American woman. On August 24, 2007, Mr. Felix applied for three Patient Care Associate positions. Once more, Mr. Felix was not selected to interview for these positions. The successful candidates were Denise Spires, a 43-year-old African-American woman, Jean Williams, a 23-year-old African-American woman, and Marsha Hoyte, a 25-year-old African-American woman. Mr. Felix applied for a Certified Nursing Assistant position at the Willow Terrace facility on September 6, 2007. Mr. Felix again was not selected to interview, and instead AEHN offered the job to Desiree Palmer, a 41-year-old African-American woman.
At some point in time between July and September 2007, Mr. Felix testified that he had a telephone conversation with an AEHN recruiter, Ms. Kelly Hall, in which he complained that AEHN had hired two younger white individuals, Ms. Crystal Krzeminski and Mr. Dan Cohen, but had failed to hire him. Mr. Felix admits that he did not tell Ms. Hall or any other AEHN recruiters his age or race during this phone conversation or at any other time.
On September 17, 2007, Mr. Felix applied for another Certified Nursing Assistant position at the Willow Terrace facility. On this, his twelfth application, AEHN offered Mr. Felix the job, and on October 1, 2007, Mr. Felix began working as a Certified Nursing Assistant at AEHN's Willow Terrace facility.
After being hired, Mr. Felix applied for three other jobs with AEHN in February 2008. On February 3, 2008, Mr. Felix applied for a Certified Nursing Assistant-Hospice position.
Mr. Felix initiated this action against AEHN and Jefferson Health System on August 31, 2009. Since Mr. Felix commenced this lawsuit, he has filed a number of lengthy, duplicative, and unfocused complaints and motions against various parties. This Court has resolved the vast majority of these filings in various orders issued between 2009 and today. Of particular note, is the Court's August 2, 2010 Order (Docket No. 30), dismissing Mr. Felix's first Amended Complaint (Docket No. 27), which alleged failure to hire, segregation, and retaliation claims. The Order permitted Mr. Felix to replead only the claims to which he had exhausted his administrative remedies, namely, his failure to hire claims. Although Mr. Felix filed numerous complaints and motions to amend his complaint subsequent to Court's August 2, 2010 Order, the remaining complaint in this action was filed on September 7, 2010 (Docket No. 32) and names only AEHN as a defendant.
On January 28, 2011, the Court issued an Amended Scheduling Order instructing the parties to complete discovery by February 28, 2011, and to file motions for summary judgment by March 18, 2011. The Order also instructed the parties to file responses to those motions by April 8, 2011. On March 18, 2011, AEHN timely filed the instant motion for summary judgment (Docket No. 51). On April 11, 2011, three days after the April 8, 2011 due date, Mr. Felix filed his opposition along with 26 accompanying exhibits (Docket No. 53). AEHN filed a timely reply in support of its motion for summary judgment (Docket No. 54), and on April 25, 2011, the Court cancelled all remaining deadlines set in the Amended Scheduling Order.
Following the Court's receipt of two letters from Mr. Felix requesting permission to file a surreply, on May 20, 2011, Mr. Felix filed a self-styled "Affidavit/Affirmation in Opposition to Defendant's Motion [for Summary Judgment]" (Docket No. 56) attaching an additional 32 largely repetitive and curious exhibits more than one month after his response was due. Five days later, AEHN filed a brief response (Docket No. 57), objecting to the admission of Mr. Felix's Affidavit/Affirmation. The next day, Mr. Felix filed an additional affidavit (Docket No. 58) attempting to attach two more exhibits to his response.
Between May 31, 2011 and August 12, 2011, Mr. Felix filed a rash of motions including his own motion for summary judgment on June 6, 2011 (Docket No. 61), two and one half months after the March 18, 2011 deadline set by the Court.
Ever mindful of Mr. Felix's pro se status, on December 12, 2011, the Court issued an Order denying Mr. Felix's motion for summary judgment as untimely, but noting that the Court would consider it and all supporting briefing as further opposition to AEHN's motion for summary judgment. With respect to the motion to strike, the Court ruled that it would consider the arguments against AEHN's motion for summary judgment contained in the late filings, but would not consider the filings insofar as they attempt to introduce new record evidence.
With a new year came new motions from Mr. Felix. On January 4, 2012, Mr. Felix filed a motion for sanctions (Docket No. 81) against AEHN and its counsel alleging a conspiracy to commit perjury, suborn perjury, and commit a fraud on the Court. Five days later Mr. Felix filed an addendum to that motion. In response, AEHN filed a motion to strike Mr. Felix's motion for sanctions (Docket No. 83).
Now before the Court is AEHN's motion for summary judgment (Docket No. 51), Mr. Felix's motion for sanctions (Docket No. 81), and AEHN's motion to strike (Docket No. 83).
Upon motion of a party, summary judgment is appropriate if, "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials," the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." FED. R. CIV. P. 56(c);
In evaluating a summary judgment motion, the court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor.
The party opposing summary judgment must support each essential element of that party's opposition by "citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1). "The Court need consider only the cited materials" when determining whether there exists a genuine issue of material fact for trial. FED. R. CIV. P. 56(c)(3). If the cited evidence is "merely colorable, or is not significantly probative, summary judgment may be granted."
This Court applies the so-called McDonnell Douglas burden-shifting analysis to claims of discrimination under both Title VII and the ADEA.
AEHN asserts that Mr. Felix is unable to establish a prima facie case of age, race, or gender discrimination because he fails to put forth any evidence raising an inference of discriminatory action on the part of AEHN when it failed to hire him for any of the positions to which Mr. Felix applied.
On June 13, 2007, Mr. Felix applied for six positions with AEHN including two Emergency Department Technician positions, a Patient Care Associate position, a Nursing Assistant position, a Medical Clerk position, and a Patient Escort position. Although AEHN did not hire Mr. Felix for any of these positions, Mr. Felix has failed to produce any evidence that raises an inference that AEHN acted in a discriminatory manner when it failed to hire him for these jobs. To the contrary, the evidence suggests that AEHN did not act in a discriminatory manner.
First, Mr. Felix admitted at his deposition that he has no factual basis to support his position that AEHN recruiters were aware of his race or age when they evaluated his applications for the June 13, 2007 positions. Felix Dep. at 251. In fact, Mr. Felix admits that he never told Einstein recruiters his age or race, and offers no evidence beyond his personal bare conclusions that AEHN chose not hire him because of his age or race. Felix Dep. at 257-58. It is logically impossible for an employer to discriminate against a job applicant on either of these bases if the employer is unaware of the applicant's race or age.
Second, presuming arguendo that AEHN was aware of Mr. Felix's age and race, mere knowledge on the part of an employer is insufficient to establish the necessary "causal nexus between his membership in a protected class and the decision not to hire him," to make out a prima facie case of discrimination under Title VII or the ADEA.
Third, three of the six successful candidates for the June 13, 2007 positions were African-American,
Accordingly, Mr. Felix has failed to raise an inference of discriminatory conduct on the part of AEHN.
Between July 29, 2007 and September 6, 2007, Mr. Felix applied for five positions at AEHN: two Certified Nursing Assistant positions and three Patient Care Associate positions. Mr. Felix was not hired for any of these positions. As with the June 13, 2007 positions, Mr. Felix is unable to present any record evidence raising an inference of discriminatory conduct on the part of AEHN when it failed to hire him for these five positions. Indeed, the evidence put forth by Mr. Felix in support of his race and age discrimination claims for these positions is nearly as deficient as the evidence put forth in support of the June 13, 2007 positions.
First, Mr. Felix asserts that AEHN must have known his race and age when he applied for these positions on the basis of highly dubious circumstantial evidence. With respect to his age, Mr. Felix again relies on his claim that AEHN should have known he was over 40 years of age based on his resume. However, for the reasons discussed above, and Mr. Felix's admission that he never actually told AEHN recruiters his age, Mr. Felix cannot raise a genuine factual dispute as to whether AEHN was actually aware of Mr. Felix's age when it made its decision not to hire him. Felix Dep. at 257-58. Accordingly, Mr. Felix fails to raise an inference of discriminatory conduct on the part of AEHN.
With respect to his race, Mr. Felix relies on his testimony that he had a telephone conversation with an AEHN recruiter, Ms. Hall, in which he complained that AEHN hired two younger, white individuals for positions similar to the ones to which he applied. According to Mr. Felix, Ms. Hall likely assumed that he raised this issue with her because he was African-American. Felix Dep. at 249, 258. Although Mr. Felix may see the world only in black and white, the world, and likely AEHN's applicant pool, is far more diverse than Mr. Felix's argument suggests. Indeed, Ms. Hall just as easily could have presumed Mr. Felix was Hispanic, Asian, or any of a number of other national or ethnic or racial origins.
Second, Mr. Felix argues that these two younger white people, Ms. Crystal Krzeminski and Mr. Dan Cohen, who were the subject of his conversation with the AEHN recruiter, are appropriate comparators to support his claim that AEHN treated individuals not in his protected class more favorably. However, Ms. Krzeminski and Mr. Cohen are not similarly situated to Mr. Felix. Mr. Cohen was hired for a Patient Care Associate position in a different unit, in March 2007, three months before Mr. Felix even applied for his first Patient Care Associate position. Ms. Krzeminski is also incomparable to Mr. Felix as she did not apply or seek consideration for the same positions as Mr. Felix.
Nevertheless, even if the Court were to assume that Ms. Krzeminski and Mr. Cohen were similarly situated to Mr. Felix, "[i]t is well established . . . that a plaintiff cannot selectively pick out one comparator when others are available."
In February 2008, Mr. Felix applied for positions as a Certified Nursing Assistant — Hospice, a Critical Care Associate, and an Emergency Department Technician. After interviewing for two of these positions, AEHN did not hire Mr. Felix for any of these jobs. However, Mr. Felix fails establish a prima facie case of discrimination or raise any genuine issue of material fact that would preclude summary judgment in AEHN's favor.
First, Mr. Felix admitted during his deposition, and argues in response to AEHN's motion, that he was not hired for these February 2008 positions in retaliation for telling AEHN that he had contacted the EEOC. Felix Dep. at 390-391. However, Mr. Felix failed to exhaust his administrative remedies with regard to his retaliation claims. He admits as much in his opposition to AEHN's motion for summary judgment where he noted, "I did not present a retaliation claim to EEOC/PCHR, it is not proper before this Court. . . ." Felix Opp. at 30. In the Court's August 2, 2010 Order dismissing Mr. Felix's first Amended Complaint, it permitted Mr. Felix to replead only those claims which he had previously exhausted (i.e., his failure to hire claims). Accordingly, insofar as Mr. Felix's claims relating to the February job openings are based on a retaliation theory, they are not properly before the Court.
Second, assuming that Mr. Felix's claims relating to the February 2008 job openings sound in failure to hire on the basis of race, age, and gender discrimination, the Court finds that Mr. Felix fails to present any evidence suggesting that AEHN's failure to hire him was discriminatory in nature. Although the parties do not dispute that by February 2008 — or at the very least after he interviewed for the positions — AEHN recruiters knew of Mr. Felix's race and approximate age, Mr. Felix again fails to offer any competent evidence suggesting that he was not hired on the basis of these characteristics. Mr. Felix's entire argument is premised on the fact that he is African-American, he is over 40 years of age, and he was not hired. As previously noted, mere knowledge of the applicant's race or age, without more, is insufficient to raise an inference that the decision not to hire the individual was because of those characteristics. Here, two of the three successful applicants were African-American, and one of them was only two years Mr. Felix's junior. Considering that Mr. Felix offers no additional evidence to support his claim, the Court must conclude that he has failed to establish a prima facie case of age or race discrimination.
With regards to the Certified Nursing Assistant — Hospice position, Mr. Felix also alleges that AEHN declined to hire him on account of his gender. In order to raise an inference of discrimination, Mr. Felix "must present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others under similar circumstances, based upon [gender]."
For the foregoing reasons, the Court concludes that Mr. Felix has failed to raise any issue of material fact that could permit a reasonable jury to find in its favor. Accordingly, the Court will grant AEHN's motion for summary judgment.
Following the Court's dismissal of two of Mr. Felix's related cases (C.A. Nos. 11-4094 and 11-4601), Mr. Felix filed a generalized motion for sanctions against AEHN. He accuses AEHN, its employees, and its counsel, Pepper Hamilton, of a mass conspiracy to commit perjury, suborn perjury, and commit a fraud on the Court. Mr. Felix requests sanctions of $5,000 from each of 47 listed AEHN and Pepper Hamilton employees.
Mr. Felix fails to specify whether he pursues sanctions against AEHN under Rule 11, Rule 37, or any other of the Federal Rules of Civil Procedure. A party may move for Rule 11 sanctions in situations where the opposing party makes a false representation to the court.
Irrespective of which specific rule he invokes, Mr. Felix's motion for sanctions is frivolous, and stands as yet another last ditch effort on the part of Mr. Felix to avert summary judgment. Mr. Felix's motion is based entirely on his disagreement with the substance of deposition testimony of AEHN witnesses and his dismay for the seemingly inevitable conclusion to be drawn from the record evidence presented by AEHN on its motion for summary judgment. It is not grounded in facts establishing any misconduct on the part of AEHN, its employees, or its counsel. Mr. Felix has not a shred of evidence to support his motion other than his own assertions and conclusions.
While the Court has afforded Mr. Felix more than the requisite latitude to be given a pro se litigant,
Accordingly, the Court denies Mr. Felix's motion for sanctions.
For the foregoing reasons, the Court concludes that Mr. Felix has failed to raise any issue of material fact that could permit a reasonable jury to find in its favor. Accordingly, the Court will grant AEHN's motion for summary judgment and will deny Mr. Felix's motion for sanctions and AEHN's motion to strike.
An appropriate Order consistent with this Memorandum follows.
