CONTI, Chief Judge.
Pending before the court is a motion for partial summary judgment (ECF No. 94) filed by plaintiff Diane DeCecco ("plaintiff" or "DeCecco") and a motion for summary judgment (ECF No. 97) filed by DeCecco's former employer, defendants UPMC and UPMC Presbyterian Shady side (collectively "defendants" or "UPMC").
Plaintiff initiated this action on March 2, 2012 by filing a complaint alleging UPMC discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"). (ECF No. 1.) In the complaint, plaintiff requests
(Id. ¶¶ 12, 13.) On April 12, 2012, defendants filed their answer asserting, among other defenses, that
(ECF No. 10 at 4.)
On April 24, 2012, plaintiff filed a motion for partial judgment on the pleadings and a brief in support of the motion arguing "[n]umerous ADEA and public policy violations appear on the face of UPMC's standardized Release Agreement" and it, therefore, violates public policy and § 623(d) and § 626(f)(1), (f)(3) and (f)(4) of the ADEA. (ECF No. 12 ¶ 2.) Plaintiff in her motion for judgment on the pleadings requested the court
(Id. ¶¶ a-c.) On May 29, 2012, defendants filed a response in opposition to plaintiff's motion for judgment on the pleadings. (ECF No. 19.) On June 11, 2012, after receiving leave of court, plaintiff filed a reply to defendants' brief in opposition. (ECF No. 21.) At a hearing held on August 9, 2012, the court granted in part and denied in part plaintiff's motion for judgment on the pleadings. The court on the record at the hearing stated:
(H.T. 8/9/12 (ECF No. 40) at 31.) The court determined it would consider plaintiff's claims for systemwide relief separate from her claims for individual relief. Fact discovery proceeded with respect to the claims for individual relief, but not with respect to claims for systemwide relief.
On January 26, 2013, defendants filed a motion to dismiss with respect to plaintiff's claims for systemwide equitable intervention and a brief in support of the motion.
On July 1, 2013, plaintiff filed a partial motion for summary judgment with respect to her claim for facial retaliation under the ADEA, a brief in response to that motion, and a concise statement of material facts. (ECF Nos. 94, 95, 96.) On August 22, 2013, defendants filed a motion for summary judgment with respect to both claims asserted by plaintiff in the complaint, i.e., plaintiff's claims for age discrimination and facial retaliation under the ADEA, a brief in support of the motion, and a concise statement of material facts. (ECF No. 97, 98, 102.) On the same day, defendants filed their response in opposition to plaintiff's partial motion for summary judgment and a response to plaintiff's concise statement of material facts. (ECF Nos. 102, 103.) On October 3, 2013, plaintiff filed a response to defendants' concise statement of material facts and a reply to defendants' brief in opposition to her partial motion for summary judgment. (ECF Nos. 109, 113.) On October 4, 2013, plaintiff filed a brief in opposition to defendants' motion for summary judgment. (ECF No. 114.)
On October 17, 2013, the parties filed their joint concise statement of material facts with respect to plaintiff's partial motion for summary judgment. (ECF No. 116.) On November 4, 2013, defendants filed a reply to plaintiff's counter statement of facts and a reply brief with respect to their motion for summary judgment. (ECF Nos. 119, 121.) On November 6, 2013, plaintiff with leave of court filed a surreply brief in further opposition to defendants' motion for summary judgment. (ECF No. 124.) On November 8, 2013, the parties filed their joint concise statement of material facts with respect to defendants' motion for summary judgment. (ECF No. 125.)
The parties' motions for summary judgment having been fully briefed are now ripe for disposition by the court.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.").
UPMC Presbyterian Shadyside consists of UPMC Shadyside, UPMC Presbyterian, Western Psychiatric Institute and Clinic ("WPIC"), and approximately thirty to forty hospital-based clinics. (Dep. of Brian Bachowski ("Bachowski") at 53, 56 (ECF No. 111-4 at 14, 17).) Hospital-based clinics are outpatient facilities typically separate from the main UPMC Presbyterian, UPMC Shadyside, and WPIC buildings that do not have patient beds, but share UPMC Presbyterian Shadyside's Medicare certificate number, and are considered part of UPMC Presbyterian Shadyside for Medicare certification purposes. (Dep. of
Within WPIC, there are inpatient units and ambulatory programs. (Id. ¶ 13.) Inpatient units admit patients, and ambulatory programs are akin to outpatient services. (Id.) The Diagnostic Evaluation Center (the "DEC") is one of WPIC's ambulatory programs; it is licensed as an outpatient facility and functions as WPIC's emergency room. (D.J.C.S.F. (ECF No. 125) ¶¶ 14, 15); Pl.'s Dep. at 21, 64 (ECF No. 101-1 at 6; Dep. of Eleanor Medved ("Medved") at 15, 16 (ECF No. 111-5 at 1).) The clinical administrator is the responsible manager for the DEC. (Dep. of Medved at 68 (ECF No. 111-5 at 5.) In other words, the clinical administrator is the senior leadership person who reports directly to the vice president of inpatient and emergency services. (Id.)
Dr. Cynthia Roth ("Roth") has been the president of WPIC since August 2004. (Defendants' Joint Concise Statement of Facts ("D.J.C.S.F.") (ECF No. 125) ¶ 12).
In 2004, Eleanor Medved ("Medved") was the risk manager and director of quality for WPIC. (Dep. of Medved at 100 (ECF No. 100-2 at 7.) Between 2004 and 2005, Medved became the staff associate and vice president of ambulatory services for WPIC. (Id.) In 2008, the title "vice president of ambulatory and crisis operations" was added to Medved's job description. (Id.)
Kim Owens ("Owens") was the vice president of inpatient and emergency services for WPIC at all times relevant to this lawsuit. (D.J.C.S.F. (ECF No. 125) ¶ 18.) Owens was responsible for running the DEC. (D.J.C.S.F. (ECF No. 125) ¶ 19.)
Since 2005, Katie Devine ("Devine") has been a corporate-level vice president of human resources for UPMC. (D.J.C.S.F. (ECF No. 125) ¶ 148.) Devine is responsible for the human resources function at WPIC and across UPMC's International Commercial Services Division, its community provider services network, its home care and senior communities, and its cancer centers. (Id. ¶ 149.) Devine is a member of WPIC's executive management team. (Id. ¶ 150.) Devine was responsible for enforcing UPMC's equal employment opportunity rules and policies and for being a "check and balance" against managerial decisions that might violate those rules and policies. (Id. ¶ 151.)
In or around August 1969, plaintiff began working for WPIC at the age of nineteen. (D.J.C.S.F. (ECF No. 125) ¶¶ 1, 124.) In 1971, plaintiff began working in the medical records department at WPIC. (D.J.C.S.F. (ECF No. 125) ¶ 2.) Plaintiff held various positions in the medical records department, including supervisor of the file area, hearing coordination manager, and associate director. (Id.) In 1993, plaintiff became the director of medical records at WPIC. (Id. ¶ 3.) In the late 1990s or early 2000s, the medical records department was renamed the health information management ("HIM") department. (Id. ¶ 4.) Plaintiff was responsible for the HIM department. (Pl.'s Dep. at 19 (ECF No. 111-3 at 2).) According to plaintiff's job description, as director of the HIM department, she was expected to "organize and lead a creative multifunctional, customer-focused health information management service and central transportation service." (Pl.'s Dep. at 75 (ECF No. 101-1 at 19); D.J.C.S.F. (ECF No. 125) ¶ 8.) Plaintiff's performance evaluations identified additional responsibilities associated with her position as director of the HIM department, including, among others, "[m]onitor[ing] WPIC performance against established Corporate benchmarks and regulatory standards with regard to record
In the forty-one years plaintiff worked for WPIC, she was never disciplined for poor performance or placed on a performance improvement plan. (D.J.C.S.F. (ECF No. 125) ¶ 125.) Plaintiff had a distinguished career with and greatly contributed to WPIC. (Id. ¶ 126.) Roth supervised plaintiff for several years and gave plaintiff good performance evaluations. (Id. ¶ 127.) Plaintiff "knew her job responsibilities very well, knew the organization very well, was extremely dedicated, competent[, and] a pleasure to work with." (Id. (Dep. of Roth at 174-75 (ECF No. 111-7 at 37).) Each year of plaintiff's forty-one years of employment with UPMC, plaintiff was rated between "consistently meets expectations" and "consistently exceeds expectations." (ECF No. 111-11 at 2.) In 2008, plaintiff—at the age of 58—received UPMC's Award for Commitment to Excellence and Service ("ACES"), which is given to one percent of UPMC's workforce in recognition of highly distinguished performance. (D.J.C.S.F. (ECF No. 125) ¶ 133.)
The HIM department manages all aspects of patient records, which includes overseeing, maintaining, storing, and retrieving the records, managing the various repositories and sources of documentation, and processing requests for information from those records for health care providers, insurance companies, and other persons who request information from the records. (Pl.'s Dep. at 18 (ECF No. 101-1 at 5); Dep. of Cynthia Roth ("Roth") at 69 (ECF No. 100-1 at 6).) The HIM department's responsibility to review inpatient records was different than its responsibility to review ambulatory records. (Dep. of Medved at 222 (ECF No. 111-5 at 19).) Medved testified with respect to the difference in responsibility as follows:
(Dep. of Medved at 222-23 (ECF No. 111-5 at 19-20.) Plaintiff described the difference in procedure followed with respect to review of medical records for inpatient and outpatient or ambulatory patients as follows:
(Pl.'s Dep. at 24-26 (ECF No. 101-1 at 6-7.)
Traci Cain ("Cain") was the director of ambulatory services. (Pl.'s Dep. at 26 (ECF No. 101-1 at 7.) Plaintiff's involvement in the review of the ambulatory records depended upon Cain forwarding information to plaintiff about the ambulatory records. (Pl.'s Dep. at 26-27 (ECF No. 101-1 at 7.) Cain was supposed to inform plaintiff about deficiencies in a program's medical records or if there were no deficiencies in a program's medical records. (Pl.'s Dep. at 33 (ECF No. 101-1 at 7.) Plaintiff did not recall receiving a lot of feedback from Cain about the ambulatory programs' medical records. (Id.) At one point in time, Cain prepared reports about the sampling she received from the ambulatory programs, and plaintiff reviewed the reports. (Pl.'s Dep. at 33-34 (ECF No. 101-1 at 7.) Plaintiff was not concerned about the lack of feedback she received from Cain with respect to the ambulatory programs' medical records. (Pl.'s Dep. at 34 (ECF No. 101-1 at 7.) Plaintiff explained:
(Id.)
The Joint Commission is an accrediting organization that provides guidelines and standards on human resources policies and practices and voluntary accreditation for hospitals. (Dep. of Devine at 61 (ECF No. 111-8 at 12; D.J.C.S.F. (ECF No. 125) ¶ 25.) The Joint Commission performs accreditation surveys of its accredited hospitals every three years. (Id.) UPMC Presbyterian Shadyside, which includes WPIC, is a "deemed" provider because it is accredited by the Joint Commission. (D.J.C.S.F. (ECF No. 125) ¶ 22.) If a hospital is a "deemed" provider, it is "deemed" to be in compliance with the federal government's Medicare Conditions of Participation, which are standards that must be complied with in order to participate in Medicare. (Id.; Pl.'s Dep. at 177 (ECF No. 111-3 at 5).)
In addition to the annual reviews by the DOH and the DPW, the DOH performed surveys when complaints were received by telephone call or letter to the DOH. (Id. ¶¶ 28-29.) The complaint surveys were not prescheduled, and the DOH did not provide advance notice with respect to when it would conduct a complaint survey. (Id. ¶ 28.) The DOH was required to notify the Center for Medicare and Medicaid Services ("CMS") if the complaint involved a potential violation of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd. (Id. ¶ 30.) CMS would tell the DOH whether it was authorized to conduct a survey of the provider for violations of federal standards and regulations. (Id. ¶ 31.) Once the DOH completes a survey of a hospital, it makes a recommendation to the CMS with respect to whether the provider is in compliance with the regulations. (Id. ¶ 32.) The CMS makes the ultimate decision with respect to whether the provider was in compliance. (Id.)
On February 17, 18, and 23, 2010, the DOH conducted a complaint investigation at WPIC relating to two separate complaints it received about long lengths of stay in the DEC. (ECF No. 111-6 at 113; D.J.C.S.F. (ECF No. 125) ¶ 46.) The first complaint was investigated and determined to be unfounded. (Id.) The investigation of the second complaint involved detailed review of DEC medical records and assessment and documentation processes. (Id.)
Brian Bachowski ("Bachowski"), a surveyor with the DOH, performed the investigation of the second complaint for the DOH. (Bachowski Dep. at 10, 64-65 (ECF No. 111-4 at 2, 25-26.) Bachowski began working for the DOH as a surveyor in August 2006. (Bachowski Dep. at 10 (ECF No. 111-4 at 2.) Bachowski's responsibilities as a surveyor for the DOH included inspecting hospitals, e.g., making sure the hospitals were in compliance with federal and state laws and regulations, conducting complaint investigations, and conducting EMTALA investigations for the CMS. (Bachowski Dep. at 11 (ECF No. 111-4 at 3.) In 2009, UPMC Presbyterian-Shadyside was assigned to Bachowski, meaning Bachowski served as team leader during investigations of complaints made with respect to UPMC Presbyterian-Shadyside. (Bachowski Dep. at 29-30, 32 (ECF No. 100-3 at 10, 11; ECF No. 111-4 at 4).)
When Bachowski scheduled the survey of WPIC in February 2010, he was required to and did notify CMS about the survey because WPIC was a "deemed" provider. (D.J.C.S.F. (ECF No. 125) ¶ 39.) CMS authorized Bachowski and his team to conduct the investigation of WPIC and to evaluate WPIC's compliance with federal regulations and standards. (Id. ¶ 40.)
The first two days of the investigation took place on February 17 and 18, 2010. (Id. ¶ 41.) While at the DEC, Bachowski, along with two other surveyors from the DOH, Judith Rich ("Rich") and Sandra Edkins ("Edkins"), questioned staff, including, among others, Owens, Jenn Schneeman ("Schneeman"), the clinical director of the DEC, and Jeremy Musher, medical director of the DEC, and looked at the flow of patients, medical records of the
(Bachowski Dep. at 66(ECF No. 111-4 at 27.)
Bachowski had two main concerns as he conducted the survey on WPIC. (Bachowski Dep. at 73 (ECF No. 111-4 at 34.) Bachowski was concerned about the medical screening exam for the patient in issue in the second complaint. (Id.) Time was not recorded on the documentation Bachowski examined with respect to the patient's medical records so he could not tell when the medical exam of the patient was performed. (Id.) Bachowski's second concern was that "some flow sheets were being filled out for patients that would come through the DEC that weren't becoming a part of the medical record that had information on it that would be part of the medical screening exam." (Id.)
February 23, 2010, was the third day of Bachowski's investigation at WPIC. (D.J.C.S.F. (ECF No. 125) ¶ 46.) On February 23, 2010, Bachowski interviewed "Employee 2," later identified as Owens. (Id. ¶ 47.) When Bachowski asked Owens who bore overall responsibility at WPIC for the completion of inpatient and outpatient medical records, Owens responded: "[DeCecco] is the Western Psych employee that is responsible for the health information." (D.J.C.S.F. (ECF No. 125) ¶ 49.)
On February 23, 2010, at 2:40 p.m., Bachowski interviewed plaintiff in connection with his investigation of WPIC. (Id. ¶ 51.) Two other employees from the DOH were present—but did not participate—during plaintiff's interview. (Id. ¶ 52.) Bachowski asked plaintiff how she knew whether a DEC medical record was complete. (Id. ¶ 54.) In a Form 2567 report prepared by Bachowski with respect to his investigation of WPIC, he wrote that employee 3, later identified as plaintiff, responded to his question as follows:
(Bachowski's Report dated 2/23/2010 at 6 (ECF No. 101-2 at 48).) Plaintiff admits she made the statements Bachowski included in his report, but argues Bachowski did not include the entirety of her statements, and "the gaps in what [she] said distorts the meaning." (Pl.'s Dep. at 204 (ECF No. 111-3 at 15).)
Plaintiff described her interview with Bachowski as follows:
(Pl.'s Dep. at 186-88 (ECF No. 111-3 at 6-8).) According to plaintiff, Bachowski appeared angry and as if he was not listening to plaintiff during the interview. (Pl.'s Dep. at 192 (ECF No. 111-3 at 12).) Plaintiff explained:
(Pl.'s Dep. at 192-94 (ECF No. 111-3 at 12-14).)
Plaintiff testified that Owens arrived at the interview at some point after plaintiff explained the record review process to Bachowski. (Pl.'s Dep. at 188 (ECF No. 111-3 at 8).) Once Owen arrived, Bachowski repeated his questions about the record review process to plaintiff. (Pl.'s Dep. at 188-89 (ECF No. 111-3 at 8-9).) Plaintiff
Following Bachowski's survey of WPIC, including his interview with plaintiff, his team members and he prepared a "Form 2567" report containing information which formed the basis of Bachowski's recommendation that WPIC had condition-level deficiencies violating the requirements of 42 C.F.R. § 489.24 and related requirements of 42 C.F.R. § 489.20. (Dep. of Bachowski at 75-78 (ECF No. 111-4 at 36-39); (ECF No. 101-2).) A Form 2567 is a survey report outlining the findings of an investigation. (D.J.C.S.F. (ECF No. 125) ¶ 62.) The Form 2567 with respect to Bachowski's survey of WPIC in February 2010 contained information with respect to:
(Dep. of Bachowski at 77-78 (ECF No. 111-4 at 38-39).)
If a deficiency is identified during a survey of a facility, the surveyor includes statements made that support the deficient practice in the CMS Form 2567. (Bachowski Dep. at 97 (ECF No. 111-4 at 58).) Bachowski testified that mitigating statements are put into the Form 2567 report, "but per CMS and Department of Health for the purpose of the deficiency we were instructed not to put that extraneous information or mitigating—So if they disagreed with something, typically that would not go in here." (Id.) Bachowski testified that he used ellipses on the CMS Form 2567 to signify extraneous comments made by plaintiff during the interview on February 23, 2010. (Bachowski Dep. at 92 (ECF No. 111-4 at 53).) Bachowski explained that he did not record the extraneous comments because "[t]hey weren't pertinent for the purpose of what we were trying to validate or convey in relation to the deficiency." (Id.) Bachowski testified:
(Bachowski Dep. at 133-34, 177, 209-10 (ECF No. 100-3 at 44-45; ECF No. 111-4 at 66-67, 105.)
WPIC was advised about the condition-level deficiencies in a letter dated March 2, 2010, from CMS Principal State Representative Dale Van Wieren to John Innocenti ("Innocenti") from UPMC. (D.J.C.S.F. (ECF No. 125) ¶ 69.) The letter provided:
On a day following February 23, 2010, after Innocenti received the citations from the DOH, plaintiff met with Medved. (Pl.'s Dep. at 215 (ECF No. 111-3 at 20).) During the meeting, Medved and plaintiff reviewed the citations. (Id.) Medved wanted to know if the quotations with respect to what plaintiff told Bachowski were accurate. (Id.) Medved did not think the quotations sounded like a response that plaintiff would have given. (Id.) Plaintiff told Medved the quotations were incomplete and distorted the meaning of what she told Bachowski. (Id.) Plaintiff and Medved discussed the plan of correction process and that plaintiff would be involved in the plan of correction process. (Id.)
Following the investigation on February 17 and 18, 2010, the DOH survey team, i.e.,
(ECF No. 111-4 at 169.) The CMS determined UPMC Presbyterian Shadyside's deficiencies were "so serious that they constitute[d] an immediate threat to the health and safety of any individual who [may come] to the emergency department and request examination or treatment for an emergency medical condition." (ECF No. 111-4 at 166.) The CMS planned to terminate UPMC Presbyterian Shadyside's participation in the Medicare program on March 27, 2010, unless UPMC Presbyterian Shadyside submitted an approved plan of correction or "successfully prov[ed] that the deficiencies did not exist prior to the projected public notification date." (Id.) The DOH did not interview plaintiff in connection with its EMTALA investigation. (Pl.'s Dep. at 208-09 (ECF No. 111-3 at 19-20.) WPIC was advised of its violations of EMTALA by a letter dated March 4, 2010, from CMS Certification and Enforcement Branch Manager, Timothy Hock, to Innocenti. (D.J.C.S.F. (ECF No. 125) ¶ 74.)
The condition-level deficiency noted in the March 2, 2010 letter from CMS to Innocenti was corrected for federal Medicare purposes on March 16, 2010, when the DOH and CMS accepted UPMC Presbyterian Shadyside's plan of correction for that condition-level deficiency. (Bachowski Dep. at 201-04 (ECF No. 111-4 at 108-111); ECF No. 111-4 at 217.) The Medicare recertification survey of UPMC Presbyterian Shadyside, not including WPIC, which was already cleared as compliant by the DOH, occurred in April 2010. (ECF No. 111-9 at 22.) Bachowski conducted the recertification investigation. (D.J.C.S.F. (ECF No. 125) ¶ 78.) Deficiencies were found in the following areas of UPMC Presbyterian Shadyside as a result of the recertification survey: (1) restraint use; (2) RN supervision of nursing care; (3) unified medical record service; (4) form and retention of records; (5) orders dated and signed; (6) security of medications; (7) unusable drugs not used; (8) periodic equipment maintenance; (9) director of dietary services; (10) discharge planning needs assessment; and (11) operating room policies. (ECF No. 111-9 at 22.)
Part of Medved's job responsibilities as vice president of ambulatory operations
Under the policy, managers must identify and correct all performance deficiencies in a timely and consistent manner. (ECF No. 111-5 at 61.) Any staff member found to have serious performance deficiencies must be placed on a performance improvement plan. (Id. at 64.) If there are performance deficiencies, the reviewing manager must document them in the employee's performance review, notify the employee about the need to improve, and establish expectations for performance improvement. (Id. at 61.) The manager is required to "note on the performance review any corrective action for the review period and indicate that it may impact the staff member's performance rating." (Id. at 64.) Reviewing managers assign individual performance ratings for the employee on each metric in the performance evaluation. (D.J.C.S.F. (ECF No. 125) ¶ 99.) Reviewing managers must determine the appropriate merit raise—if any—and then meet with the employee to discuss performance results, acknowledge performance that exceeds, meets, or does not meet expectations, and work on a development plan for the future. (Id.) Merit raises had to be reviewed and approved by the reviewing supervisor and the reviewing supervisor's supervisor. (D.J.C.S.F. (ECF No. 125) ¶ 100.) Employee performance reviews at UPMC are a serious matter because "[p]eople need to know where they stand." (D.J.C.S.F. (ECF No. 125) ¶ 101.) Roth expected to see concerns about her own performance documented in her performance review. (Id. ¶ 102.) Plaintiff's performance reviews were the best sources of information—"at a high level"—with respect to how Roth viewed plaintiff's performance. (Dep. of Roth at 177 (ECF No. 111-7 at 39).)
On March 15, 2010, Medved wrote Roth an email with respect to plaintiff's performance evaluation. (ECF No. 111-5 at 110.) Medved wrote:
2 questions:
(ECF No. 111-5 at 110.) On the same day, Roth responded to Medved's email, writing:
(Id.) Less than one minute after sending the first response, Roth sent the following response to Medved's email:
On March 16, 2010, Medved sent Devine a blank email with the following in the subject line of the email: "when you have a minute can we discuss Diane dececco [sic][?]" (ECF No. 111-5.) At some point in time, Medved asked Devine "for more time to do [plaintiff's] evaluation because [Medved] wanted to put more thought into it to address some issues." (Dep. of Devine at 261 (ECF No. 111-8 at 97.)
On April 27, 2010, Medved sent Devine a draft of the performance evaluation she prepared for plaintiff. (D.J.C.S.F. (ECF No. 125) ¶ 108.) On April 28, 2010, at 8:05 a.m., Medved sent an email to Devine that did not contain any text in the body of the email but provided the following in the subject line of the email: "Hi—do you have time to discuss Diane today?" (ECF No. 111-5 at 115.) Medved and Devine decided to meet at 11:00 a.m. on April 28, 2010. (Id.) Devine emailed Medved to confirm the 11:00 a.m. meeting and wrote: "I did get a chance to read the review in union negotiations yesterday. You did a nice job on the goal section." (Id.) Devine approved Medved's performance evaluation of plaintiff. (D.J.C.S.F. (ECF No. 125) ¶ 112.)
On April 30, 2010, Medved delivered to plaintiff her performance evaluation, which included a list of six goals for plaintiff to achieve in 2011, which was the upcoming work year. (D.J.C.S.F. (ECF No. 125) ¶ 113.) Medved "was extremely supportive" and genuine when she delivered the performance evaluation to plaintiff. (Pl.'s Dep. at 308-309 (ECF No. 101-1 at 77-78.) The performance evaluation addressed plaintiff's performance from September 1, 2008, through April 30, 2010. (Id.) Medved and plaintiff each signed the performance evaluation on April 30, 2010. (Id.)
The performance rating key for the performance evaluation was as follows:
(ECF No. 111-5 at 117.) Plaintiff received ratings for her 2010 goals, job responsibilities, competencies and behaviors, and overall performance. (ECF No. 111-5 at 116-32.) Plaintiff received the following ratings for her performance with respect to her 2010 goals:
(ECF No. 111-5 at 119.)
Plaintiff received the following ratings for her job responsibilities:
(Id. at 120-22.) With respect to plaintiff's responsibility to "[m]onitor WPIC performance against established Corporate benchmarks and regulatory standards with regard to record completion and coding," Medved commented:
(ECF No. 111-5 at 120.)
With respect to plaintiff's competencies and behaviors, she received the following ratings: accountability—
The performance evaluation defined "accountability" as, among other things, "[t]akes responsibility for own actions" and "[r]ecognizes own strengths and weaknesses and seeks/accepts constructive feedback, incorporating it into work." (Id. at 124.) Medved provided the following comments with respect to plaintiff's accountability: "Agree with Diane's comments though need to attend to all elements of effective program management in upcoming period beyond scope of previously acceptable standards." (Id.) Plaintiff commented with respect to accountability: "Excellent attendance. Consistently meets time commitments. Effectively manages HIM and Transcription operations. The size of the transcript operation has expanded significantly over the past year which added an additional 41 staff." (Id.)
The performance review defined "communications" as, among things, "[e]ffectively expresses ideas verbally and in writing" and "[s]elects/uses appropriate communication methods." (ECF No. 111-5 at 124.) Medved commented as follows with respect to plaintiff's communication skills: "Need to work together to assure that various stakeholders recognize implications of process change with respect to practice and regulation via various communication strategies." (Id.) Plaintiff commented as follows with respect to her communication skills: "Demonstrates ability to successfully communicate with staff and customers. Experienced at resolving customer complaints. Prepared and delivered a presentation to transcription staff regarding a significant compensation change which was positively accepted." (Id.)
In the "Development Plan" portion of the performance evaluation, Medved wrote:
(ECF No. 111-5 at 127) (emphasis added.)
The overall performance rating is a mathematical calculation based upon the ratings given for each of the employee's job responsibilities. (Dep. of Medved at 345 (ECF No. 100-2 at 33).) Plaintiff's overall rating on the performance evaluation dated March 1, 2010, was 2.12. (Id. at 117.) An overall rating of 2.12 qualified plaintiff for a 1.50-2.50 percent merit raise and indicated plaintiff was a "Solid/Strong/Good Performer." (ECF No. 111-5 at 133.)
Medved testified that she did not expect to see a year-to-year drop in overall performance rating of managers that reported to her. (Dep. of Medved at 346 (ECF No. 100-2 at 34).) Plaintiff's overall performance ratings for the years leading up to 2010 were as follows:
Medved testified that she believed the overall performance rating of the managers that reported to her should be "[b]etween 2.5 and 2.7 somewhere to a three." (Id.) Medved testified that she was supposed to and did record plaintiff's "performance problems" in her performance evaluation. (Dep. of Medved at 292 (ECF No. 111-5 at 36.)
Medved included an "HIM work plan" with plaintiff's performance evaluation. (Dep. of Medved at 347 (ECF No. 125 at 53).) The HIM work plan was "a document that outlined everything that needed to be done to conduct a program review of the health information management department." (Dep. of Medved at 347-48 (ECF No. 125 at 36).) The program review included "looking from top to bottom, policies and procedures, staffing, space, budget, to review the entire program" in the HIM department. (Id.) Medved would not include an HIM work plan with an employee's performance review if the employee was adequately performing. (Id.) Requiring a program review may be the result of "multiple bad events, it could be seriously poor performance in a regulatory review, it could be chaos, it could be lots of turnover. Basically it's something that symbolizes the program as unstable and needs attention." (Dep. of Medved at 352-53 (ECF No. 111-5 at 49).)
On April 30, 2010, at 9:29 p.m., Medved sent an email to Roth and Devine, which read:
(ECF No. 111-5 at 134.)
Roth, as a "golden rule," reads her emails from the day before she goes to sleep, and pays special attention to emails from Medved and Owens because they are her vice presidents. (D.J.C.S.F. (ECF No. 125) ¶ 122.) If Medved or Owens "said something that Roth disagreed with, Roth would express her disagreement." (Id.) Roth believed Medved was a competent evaluator of employees. (Id. ¶ 123.)
On June 1, 2010, plaintiff was notified about her termination by Medved and Devine in Medved's office. (Pl.'s Dep. at 220 (ECF No. 101-1 at 55).) Medved's role during the meeting was to address the reason for plaintiff's termination; Devine's role during the meeting was to review with plaintiff a Separation Agreement and General Release defendants provided to their employees and to address plaintiff's questions with respect to benefits. (Dep. of Devine at 205 (ECF No. 111-8 at 92).) Medved informed plaintiff that the executive staff of WPIC and other people outside of WPIC lost faith in plaintiff's ability to lead and that her employment was being terminated. (D.J.C.S.F. (ECF No. 125) ¶ 88); (Dep. of Devine at 206 (ECF No. 111-8 at 93-94.) Plaintiff learned that June 18, 2010, was her last day of work. (D.J.C.S.F. (ECF No. 125) ¶ 88.) Plaintiff was fifty-nine years old at the time she was fired. (D.J.C.S.F. (ECF No. 125) ¶ 94.)
In UPMC's position statement to the EEOC dated September 30, 2011, UPMC wrote that Roth and Medved consulted with Devine with respect to whether plaintiff's employment should be terminated, and that "all three women agreed that [plaintiff's] employment should be terminated." (ECF No. 111-11 at 12.) In an additional letter provided to the EEOC from UPMC, UPMC wrote: "The decision to terminate [plaintiff's] employment was made by Claudia Roth, President, age 44, Ellie Medved, Vice President, age 45, and Katie Devine, Vice President of Human Resources, age 52." (ECF No. 111-11 at 5.) In UPMC's response to plaintiff's interrogatories, it identified Roth, Medved, and Devine as the final decision-makers with respect to the decision to fire plaintiff. (ECF No. 111-11 at 15.)
Roth testified that she was the final decision maker with respect to UPMC's decision to fire plaintiff, and described Medved's and Devine's roles in the process as follows:
(Roth Dep. 189-190 (ECF No. 111-7 at 51.) Roth testified that she also spoke with her boss, Liz Concordia ("Concordia"), about her decision to fire plaintiff, and that Concordia concurred with her decision to fire plaintiff. (Roth Dep. 230-34 (ECF No. 111-7 at 70-74.) Plaintiff's counsel questioned Roth about her discussions with Concordia, and the following exchange took place:
(Roth Dep. 235-37 (ECF No. 111-7 at 75-77.)
Roth learned about plaintiff's performance in the interview with Bachowski from Owens and Bachowski's written report. (Dep. of Roth at 192-93 (ECF No. 111-7 at 54-55).) Owens told Roth that Owens tried to "finesse" the situation between plaintiff and Bachowski by helping plaintiff understand Bachowski's question so that plaintiff could give Bachowski the appropriate answer. (Dep. of Roth at 196 (ECF No. 111-7 at 58).) Roth testified that the appropriate answer to Bachowski's question was that the DEC's medical records were "within [plaintiff's] realm of responsibility." (Dep. of Roth at 196 (ECF No. 111-7 at 58).)
Medved testified that she was "one of a couple of people" along with Roth and Devine that made the decision to terminate plaintiff's employment with UPMC. (Dep. of Medved at 190 (ECF No. 111-5 at 18.) Medved testified that Roth first said they needed to discuss whether plaintiff should be fired, but that all three of them—Roth, Devine, and Medved—came to an agreement that plaintiff should be fired. (Dep. of Medved at 322-32 (ECF No. 111-5 at 43).)
Devine testified that Medved and she "talked with [Roth] about options, and there was a vote of no confidence in [plaintiff] leading the department, and that at that point it was decided that we would terminate her employment." (Dep. of Devine at 142 (ECF No. 111-8 at 40).) According to Devine, Roth, Medved, and she made the decision to terminate plaintiff's employment. (Dep. of Devine at 191 (ECF No. 111-8 at 83).)
Devine testified that she did not personally speak to plaintiff about her performance during the February 23, 2010 interview with Bachowski because "[t]hat's not [her] area of expertise. [She] relied on those who are subject matter experts to tell me about it." (Dep. of Devine at 152 (ECF No. 111-8 at 47).) When plaintiff's counsel asked Devine whether she did anything "to verify or at least insure [her]self that [defendants' EEOC] policy was being abided by during this course of events[,]" Devine responded: "I spoke to people who were directly involved and included in those reviews that led to this, so they observed—They were direct observers." (Dep. of Devine at 153 (ECF No. 111-8 at 48).) Devine "believed from their discussions that they were not in violation [of defendants' EEOC policy]." (Dep. of Devine at 154 (ECF No. 111-8 at 49).) Devine explained why she relied upon her discussions with Roth and Medved during the decision-making process to fire plaintiff
Devine did not review the letters dated March 2, 2010, and March 4, 2010, from CMS to UPMC prior to UPMC deciding to terminate plaintiff's employment. (D.J.C.S.F. (ECF No. 125) ¶ 152.) Devine did not speak to or interview plaintiff about plaintiff's interview with Bachowski prior to UPMC terminating her employment. (Id. ¶ 153.)
In UPMC's position statement to the EEOC dated September 30, 2011, UPMC wrote plaintiff was fired "as a direct result of her failure in the audit process," explaining:
(ECF No. 111-11 at 8, 13.) In UPMC's response to plaintiff's first set of interrogatories, UPMC wrote plaintiff was fired
(ECF No. 111-11 at 16.)
With respect to the reason plaintiff was terminated, Roth testified:
(Dep. of Roth at 191, 192, 195 (ECF No. 111-7 at 53, 54, 57).)
With respect to the reason plaintiff was terminated, Medved testified:
(Dep. of Medved at 161-62, 219. 248 (ECF No. 111-5 at 17, 19, 26).) Medved did not know if plaintiff was misquoted in Bachowski's report with respect to the complaint investigation dated February 23, 2010, or if something she said was left out of the report. (Dep. of Medved at 224 (ECF No. 111-5 at 20).)
On June 14, 2011, Roth sent an email to Devine seeking employment assistance for Elyse Averback ("Averback"), who Roth described as a "young lady" who Roth personally knew. (ECF No. 100-1 at 34.) On August 11, 2010, Roth sent an email to Devine and Medved with respect to Julie Truver ("Truver"), who applied for a position with UPMC. (ECF No. 100-1 at 35.) Roth described Truver as a "young wom[a]n." (Id.) On February 17, 2011, Roth sent an email to Medved, Owens, and Doug Henry about Maya Tobe, who Roth described as a "young woman" who was
Ross has referred people for employment who are "later on in life." (Dep. of Roth at 134 (ECF No. 100-1 at 12).) It would not be Roth's "style" to "pitch someone as this old lady or this old man." (Id.)
UPMC maintains an Employee Retirement Income Security Act ("ERISA") plan known as UPMC Welfare Benefits Plan, Plan No. 501 (the "UPMC Welfare Benefits Plan"). (Plaintiff's Joint Concise Statement of Facts ("P.J.C.S.F.") (ECF No. 116) ¶ 1.) The UPMC Welfare Benefits Plan applies to eligible staff members of thirty-one UPMC facilities, including UPMC Presbyterian-Shadyside. (P.J.C.S.F. (ECF No. 116) ¶ 2; Summary Plan Description for the UPMC Welfare Benefits Plan ("Summary Plan Description" (ECF No. 95-1) at 18.) The Summary Plan Description "serves as the official Plan document for the UPMC Welfare Benefits Plan." (Summary Plan Description (ECF No. 95-1) at 36.) The Summary Plan Description provides that if anything in the Summary Plan Description conflicts "with the official contracts or other legal document that govern each component of the Plan, the contracts and other legal documentation are followed to determine [an employee's] benefits." (Summary Plan Description (ECF No. 95-1) at 36.) The Summary Plan Description provides that the UPMC Welfare Benefits Plan are "valuable programs" that are a part of an employee's "total compensation package ... designed to attract and retain qualified staff members, as well as provide a certain level of personal security, convenience and assistance." (Id. at 15.)
Coverage for severance benefits at UPMC begins on an employee's first day of work. (P.J.C.S.F. (ECF No. 116) ¶ 5; Summary Plan Description (ECF No. 95-1) at 20.) UPMC self-insures the severance benefits it provides to its employees. (P.J.C.S.F. (ECF No. 116) ¶ 6; Summary Plan Description (ECF No. 95-1) at 17.) The UPMC Welfare Benefits Plan sets forth UPMC's "General Severance Policy" ("Severance Policy"). (P.J.C.S.F. (ECF No. 116) ¶ 8; Summary Plan Description (ECF No. 95-1) at 21-26.) The Severance Policy describes the conditions under which UPMC pays severance benefits to separated employees. (P.J.C.S.F. (ECF No. 116) ¶ 9; Summary Plan Description (ECF No. 95-1) at 21-26.) To be eligible for severance benefits under the Severance Policy, employees must "sign and return a UPMC approved Separation Agreement and General Release." (P.J.C.S.F. (ECF No. 116) ¶ 10; Summary Plan Description (ECF No. 95-1) at 21, 23.) Employees who "refuse to or fail to sign and return a UPMC-approved Separation Agreement and General Release" are ineligible for severance benefits. (P.J.C.S.F. (ECF No. 116) ¶ 11; Summary Plan Description (ECF No. 95-1) at 22-23.)
Under the heading "Release Requirement," the Severance Policy provides:
(P.J.C.S.F. (ECF No. 116) ¶ 12; Summary Plan Description (ECF No. 95-1) at 23.) UPMC's regular practice is to require an executed separation agreement and general release before paying severance benefits under its Severance Policy. (P.J.C.S.F. (ECF No. 116) ¶ 13; Deposition of Kathryn Devine ("Devine Dep.") (ECF No. 95-2) at 214.)
On June 1, 2010, at plaintiff's termination meeting, Devine presented plaintiff with a Separation Agreement and General Release (the "Separation Agreement"). (P.J.C.S.F. (ECF No. 116) ¶ 15; Dep. of Devine at 205 (ECF No. 111-8 at 92).) The Separation Agreement identified plaintiff's severance benefit as $48,000.68. (P.J.C.S.F. (ECF No. 116) ¶ 69.) Devine instructed plaintiff to speak with her lawyer about the Separation Agreement. (Pl's. Dep. at 248 (ECF No. 101-1 at 62).) On July 1, 2010, plaintiff signed the Separation Agreement. (P.J.C.S.F. (ECF No. 116) ¶ 17.) Plaintiff read the Separation Agreement prior to signing it. (Pl.'s Dep. at 246 (ECF No. 101-1 at 62.) As a consequence of signing the Separation Agreement, plaintiff received $48,000.68 in severance pay. (Pl.'s Dep. at 248 (ECF No. 101-1 at 62).) UPMC entered into the Separation Agreement with plaintiff "solely to protect against the expense and disruption of defending an administrative claim or lawsuit in connection with [plaintiff's] employment or the termination of [her] employment," and wanted plaintiff to understand that UPMC's purpose was to avoid plaintiff filing administrative claims with respect to her employment or termination from employment. (Id. ¶ 18, 21.) An "administrative claim" as provided for in plaintiff's Separation Agreement encompasses, among other things, a charge filed with the Equal Employment Opportunity Commission (the "EEOC"), a complaint filed with the Pennsylvania Human Relations Commission (the "PHRC"), the Pittsburgh Commission on Human Relations, or the Department of Labor. (P.J.C.S.F. (ECF No. 116) ¶ 20; Deposition of Defendants ("Defs.' Dep.") (ECF No. 95-4) at 34-35.) Possible expenses incurred in defending an administrative claim include expenses incurred in: preparing an answer; attending a fact-finding conference; responding to a request for information; and hiring outside counsel to represent UPMC. (Id. ¶ 23.)
Paragraph 10(b) of the Separation Agreement provides that plaintiff:
(Separation Agreement (ECF No. 95-3) at 5.) Paragraph 10(c) of the Separation Agreement provides:
(Id.)
Paragraph 10(d) of the Separation Agreement provides:
(Id.) UPMC believed it had to include paragraph 10(d) in the Separation Agreement to comply with EEOC regulations. (P.J.C.S.F. (ECF No. 116) ¶ 48.)
Paragraph 10(f) of the Separation Agreement provides:
(Separation Agreement (ECF No. 9503) at 6.)
Plaintiff is not a lawyer. (P.J.C.S.F. (ECF No. 116) ¶ 54.) Plaintiff understood some of the Separation Agreement when she signed it. (Plaintiff's Deposition at 246 (ECF No. 101-1 at 62).) Plaintiff spoke with her attorney about the parts of the Separation Agreement she did not understand. (Plaintiff's Deposition at 247-48 (ECF No. 101-1 at 62).) Plaintiff does not know:
Paragraph 4 of the Separation Agreement provides that plaintiff "will not make any disparaging or negative material remarks (whether written or oral) regarding UPMC." (P.J.C.S.F. (ECF No. 116) ¶ 35.) Paragraph 4 prohibits plaintiff from making remarks that would tend to call into question, in a public way, UPMC's business practices or fairness as an employer. (Id. ¶ 36.) UPMC defines "material remarks" as "[r]emarks that would tend to call into question UPMC's business practices, patient care quality, or fairness as an employer in a public way," e.g., "[l]etters to the editor, standing on a soapbox in [a public forum] making a speech." (Malloy Dep. at 82-83 (ECF No. 95-4 at 21.)
Paragraph 8 of the Separation Agreement provides:
(Separation Agreement (ECF No. 95-3) at 3.)
On August 2, 2010, plaintiff filed a charge of discrimination with the EEOC. (Compl. (ECF No. 1) ¶ 6; Ans. (ECF No. 10) ¶ 4.) Plaintiff was scared to file and apprehensive about filing a charge with the EEOC because she feared UPMC would sue her for breaching the Separation Agreement. (Pl.'s Aff. (ECF No. 95-5) ¶ 12.) On October 20, 2011, the EEOC issued a finding in plaintiff's favor. (ECF No. 1-3.)
On February 6, 2013, an attorney in the Pittsburgh, Pennsylvania area contacted plaintiff's counsel. (Pl.'s Aff. (ECF No. 95-5) ¶ 14.) Plaintiff understands that the attorney is representing a client who has an age discrimination case against UPMC in the Western District of Pennsylvania and wants to speak with plaintiff about his case. (Pl.'s Aff. (ECF No. 95-5) ¶ 14.) Plaintiff wishes to speak with the attorney and assist him with his age discrimination lawsuit, but will not speak with him because she fears UPMC will sue her for breach of the Separation Agreement for doing so. (Id. ¶ 15.) Plaintiff will not communicate with or assist the EEOC, the PHRC, or other attorneys investigating or pursuing ADEA claims against UPMC because she fears UPMC will deem such activity to be a breach of the Separation Agreement and will sue her in court. (Id. ¶ 16.)
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law." FED. R. CIV. P. 56(a). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249, 106 S.Ct. 2505 (emphasis added). The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) ("In considering the evidence, the court should draw all reasonable inferences against the moving party.").
The Third Circuit Court of Appeals has stated:
Id. The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993) (citing 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2721, at 40 (2d ed.1983)); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J.1956), aff'd, 248 F.2d 543 (3d Cir.1957) ("[I]n considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence.").
The ADEA prohibits an employer from discriminating against any employee on the basis of the employee's age if the employee is over forty years old, and the PHRA provides likewise.
In McDonnell Douglas, the Supreme Court developed the now familiar burden-shifting framework for courts to utilize as a tool in analyzing disparate treatment claims. The McDonnell Douglas framework requires a plaintiff to first establish a prima facie case of discrimination. The prima facie case, the elements of which depend upon the kind of claim the plaintiff is alleging, "eliminates the most common nondiscriminatory reasons for the plaintiff's rejection." Burdine, 450 U.S. at 254, 101 S.Ct. 1089. In so doing, "[t]he prima facie case `raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'" Sempier v. Johnson & Higgins, 45 F.3d 724, 728-29 (3d Cir.1995) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).
The Third Circuit Court of Appeals has held that the burden-shifting framework set forth in McDonnell Douglas applies to claims of discrimination arising under the ADEA. Smith v. Allentown, 589 F.3d 684, 690 (3d Cir.2009). In Smith, the court described the McDonnell Douglas framework as applied to claims arising under the ADEA as follows:
Smith, 589 F.3d at 689-90.
If the plaintiff successfully demonstrates a prima facie case of discrimination, the burden of production (but not the burden of persuasion) shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.2008). The burden on the defendant at this junction is "relatively light," and the defendant can satisfy this burden "by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). The Supreme Court has instructed:
Burdine, 450 U.S. at 254-56, 101 S.Ct. 1089. The nondiscriminatory reason proffered by the defendant must be "clear and reasonably specific." Id. at 258, 101 S.Ct. 1089. "This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded `a full and fair opportunity' to demonstrate pretext." Id.
Once the defendant offers a legitimate nondiscriminatory reason for the challenged conduct at issue, "`the McDonnell Douglas framework—with its presumptions and burdens'—disappear[s],...and the sole remaining issue [is] `discrimination vel non.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted). The plaintiff has the burden of proving by a preponderance
The United States Court of Appeals for the Third Circuit has developed the following two-prong test (the "Fuentes test") that a plaintiff must meet to show pretext:
Fuentes, 32 F.3d at 764; see Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir.2008) ("Put another way, to avoid summary judgment the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a fact-finder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, that the proffered reason is a pretext)."). The two prongs of the Fuentes test are distinct. The court, where appropriate, will analyze both prongs of the Fuentes test to determine whether sufficient evidence was presented by plaintiff to defeat defendants' motion for summary judgment.
In the complaint, plaintiff alleges defendant fired her because of her age in violation of the ADEA. Defendants in their motion for summary judgment argue that even assuming plaintiff can establish the prima facie case for discrimination under the ADEA, it has set forth a nondiscriminatory reason for firing plaintiff, and based upon the evidence of record, plaintiff cannot establish pretext. Defendants argue they fired plaintiff because she "made grievous and egregious errors in responding to a Pennsylvania Department of Health... investigation of a complaint pertaining to WPIC which placed UPMC Presbyterian Shadyside in danger of losing its Medicare funding, and... caused a loss in faith pertaining to Plaintiff's ability to lead the [HIM] [d]epartment." (ECF No. 102 at 4-5.)
Plaintiff in response to defendants' motion argues (1) "[d]efendants have not articulated a legally sufficient reason for [plaintiff's] termination;" and (2) "[a] reasonable fact finder could find [defendants'] explanation for discharging [plaintiff] is pretextual." (ECF No. 114 at 5-6.) The parties' arguments, applicable rules of law, and the evidence of record will be addressed below.
To establish the prima facie case under the ADEA, the plaintiff must show that:
Smith v. Allentown, 589 F.3d 684, 689 (3d Cir.2009). Here, defendants for the purposes of their motion for summary judgment concede that based upon the evidence of record, plaintiff can establish the prima facie case. (ECF No. 102 at 4)
Defendants' burden to identify a legitimate nondiscriminatory reason for the adverse employment action is "relatively light." Fuentes, 32 F.3d at 763. The Court in Burdine instructed that a defendant's proffered legitimate nondiscriminatory reason will be sufficient to satisfy defendant's burden at this stage if it serves to "frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 255, 101 S.Ct. 1089. Defendants argue their nondiscriminatory reason for firing plaintiff is that she "made grievous and egregious errors in responding to a Pennsylvania Department of Health... investigation of a complaint pertaining to WPIC which placed UPMC Presbyterian Shadyside in danger of losing its Medicare funding, and... caused a loss in faith pertaining to Plaintiff's ability to lead the [HIM] [d]epartment." (ECF No. 102 at 4-5.) Plaintiff argues this reasoning is not legally sufficient under Burdine, because it does not clearly and specifically identify what plaintiff did wrong. (ECF No. 114 at 3-4.)
The evidence of record shows, however, that defendants' stated reasoning for firing plaintiff was that in her interview with Bachowski, she denied responsibility for DEC medical records. Roth testified that plaintiff was fired because "[w]hen asked if she was responsible for information, health information management in the DEC, she denied responsibility for oversight for ambulatory HIM." (Dep. of Roth at 192 (ECF No. 111-7 at 54).) Medved testified that plaintiff was fired because plaintiff "indicated that she had no responsibility for the HIM function for the DEC; therefore, there's no oversight for the HIM function which is required by CMS and DOH." (Dep. of Medved at 219 (ECF No. 111-5 at 19).) Defendants' proffered legitimate nondiscriminatory reason clearly and specifically identifies what plaintiff did wrong, and gives plaintiff a full and fair opportunity to show pretext in this case; indeed, plaintiff spends more than fifteen pages of briefing describing how defendants' proffered reason for firing plaintiff is pretext for firing her based upon her age.
Plaintiff argues that defendants' proffered reason for her termination is not sufficient because Roth, Medved and Devine "cannot agree on what Ms. DeCecco told the DOH surveyor that supposedly resulted in her termination." (ECF No. 114 at 5.) Plaintiff asserts:
(ECF No. 114 at 5.) Plaintiff's argument in this regard, however, lacks merit. As defendants point out, it is undisputed that the DEC is an ambulatory program at WPIC. For defendants to testify that plaintiff was fired because she denied responsibility for ambulatory records or any medical records at WPIC is not inconsistent with testimony that plaintiff was fired for denying responsibility for the DEC medical records.
In Husick, the only evidence the defendant-employer presented in support of its decision to fire the plaintiff was a letter that read, in pertinent part, as follows:
Id. at *10-11. The plaintiff "was unable to recall the specific incidents referenced in [the] letter," and counsel for the defendant-employer was "unable to `address the specifics' of the termination decision," "referr[ing] only to `general conversations' with [the defendant-employer's] personnel concerning `serious problems' with the `job performance' and `conduct' of [the defendant]." Id. at *11. The court determined that the evidence presented, i.e., the letter, was insufficient to satisfy the defendant-employer's burden of production to identify a legitimate nondiscriminatory reason for firing the plaintiff because, among other things, the proffered reason was "too general to give [the plaintiff] `a full and fair opportunity to demonstrate pretext.'" Id. (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). In contrast to the defendant-employer in Husick that relied upon general
Defendants met their burden to "introduc[e] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763. Defendants' proffered legitimate nondiscriminatory reason for firing plaintiff is sufficiently clear and specific to shift the burden to plaintiff to prove pretext. Whether there is sufficient evidence of record in this case to show the legitimate nondiscriminatory reason is pretext for discrimination, as was the case in Smith, will be discussed below.
The court concludes defendants satisfied their burden to set forth a legitimate nondiscriminatory reason for terminating plaintiff's employment. In turn, plaintiff must carry the burden of proving by a preponderance of the evidence that the legitimate reason offered by defendants was not their true reason, but was a pretext for discrimination. Jones, 198 F.3d at 410. The court will determine whether plaintiff met this burden to show a reasonable jury could find based upon the evidence of record that defendants' proffered legitimate nondiscriminatory reason for firing plaintiff was pretext for discrimination under the two-prong test set forth by the Third Circuit Court of Appeals in Fuentes.
Prong one of the Fuentes test focuses on whether a plaintiff submitted evidence from which a fact-finder could reasonably disbelieve a defendant's articulated legitimate reasons for the plaintiff's termination. Under this prong, the plaintiff must point to
Fuentes, 32 F.3d at 765. The district court under this prong must focus on the legitimate, nondiscriminatory reason offered by the employer. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir.1992) (A "plaintiff does not establish pretext, however, by pointing to criticisms of members of the non-protected class, or commendation of the plaintiff, in categories the defendant says it did not rely upon ...."). The court is neither permitted to get involved in the subjective business decisions of the employer, nor set its own employment standards for the employer, unless there is evidence of discrimination. Id. at 527.
The question in prong one of the Fuentes test "`is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination].'" Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v. Bethlehem Steel Corp.,
Id. Here, plaintiff disputes that she denied responsibility for the DEC medical records in the February 23, 2010 interview with Bachowski, and asserts her response to Bachowski's questioning did not cause the condition-level deficiencies or subsequent investigation at UPMC resbyterian Shadyside. Whether defendants were correct about what plaintiff told Bachowski and the impact of her statement is not determinative; rather, the inquiry must focus upon whether defendants' view of what took place during plaintiff's interview with Bachowski and their opinions about the impact of her responses support the reason plaintiff was terminated or whether the actual reason she was terminated was her age.
In her submissions in response to defendants' motion for summary judgment, plaintiff attempts to show defendants' proffered legitimate nondiscriminatory reason for firing her is pretext for firing her based upon her age. Plaintiff makes various arguments and points to evidence of record to show "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in defendants' legitimate reasons for terminating her to support her argument that a reasonable jury could find defendant did not fire her because of her performance in the February 23, 2010 interview, and, therefore, defendants are not entitled to summary judgment in this case. Fuentes, 32 F.3d at 765. Each of plaintiff's arguments and defendants' responses with respect to pretext will be addressed below.
Plaintiff argues that "an employer's effort to hide the real decisionmaker precludes summary judgment," and a reasonable jury could find that defendants hid the real decision maker in this case. (ECF No. 114 at 6.) Plaintiff cites Reeves, 530 U.S. at 151-52, 120 S.Ct. 2097, Farrell v. Planters Lifesavers Co., 206 F.3d 271, 285 (3d Cir.2000), and Sabbrese v. Lowe's Home Centers, 320 F.Supp.2d 311, 326 (W.D.Pa.2004), in support of this argument.
In Reeves, the petitioner sued the defendant-employer for firing him based upon his age. Reeves, 530 U.S. at 138, 120 S.Ct. 2097. The petitioner introduced evidence that a director in the defendant-employer's company, who, according to the petitioner, made numerous age-biased comments about the petitioner, "was the actual decisionmaker behind [the petitioner's] firing." Reeves, 530 U.S. at 151-52, 120 S.Ct. 2097. Other evidence of record indicated that the defendant-employer's president, i.e., the director's wife, made the formal decision to
In Farrell, the plaintiff sued the employer-defendant for retaliation and quid pro quo sexual harassment under Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e, et seq. Farrell, 206 F.3d at 274. According to the plaintiff, the defendant-employer fired her after she rejected sexual advances from one of the defendant-employer's directors. Id. at 278. The defendant-employer asserted the plaintiff was fired because "upper management" made the decision to consolidate her position with another position. Id. at 277. The plaintiff introduced evidence, however, that the decision to fire her was made solely by the director who made the sexual advances toward her. Id. The court relied upon this evidence, in part, to conclude the evidence of record was sufficient for plaintiff to "show the causation required for a prima facie case of retaliation and quid pro quo harassment." Id. at 286.
In Sabbrese, the plaintiff sued his former employer for terminating his employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Pennsylvania Human Relations Act, 42 PA. CONS.STAT. § 951 et seq. The court—in deciding the parties' cross-motions for summary judgment—applied the McDonnell Douglas framework to plaintiff's claims. The defendant-employer's proffered legitimate nondiscriminatory reason for firing the plaintiff was that the plaintiff pushed a co-worker in violation of company policy. Id. at 325. The court determined the evidence presented by the plaintiff showed "`weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions'" in the defendant's proffered legitimate nondiscriminatory reason for firing him, which created a genuine dispute of material fact with respect to whether the proffered reason was the actual reason the defendant fired him. Id. at 326. The evidence relied upon by the court included evidence that none of the defendant-employer's employees acknowledged that they made the ultimate decision to fire the plaintiff. Id.
Here, defendants identified Roth, Medved, and Devine as the final decisionmakers with respect to the decision to fire plaintiff in the following documents: (1) defendants' position statement to the EEOC; (2) an additional letter defendants submitted to the EEOC; and (3) defendants' response to plaintiff's interrogatories. Medved testified that she was "one of a couple of people" along with Roth and Devine that made the decision to terminate plaintiff's employment with UPMC. (Dep. of Medved at 190 (ECF No. 111-5 at 18.) Medved testified that Roth first said they needed to discuss whether plaintiff should be fired, but that all three of them—Roth, Devine, and Medved—came to an agreement that plaintiff should be fired. (Dep. of Medved at 322-32 (ECF No. 111-5 at 43).) According to Devine, Roth, Medved, and she made the decision to terminate plaintiff's employment. (Dep. of Devine at 191 (ECF No. 111-8 at 83).) Based upon this evidence, defendants clearly identified Roth, Medved, and Devine as the final decisionmakers in this case.
As pointed out by plaintiff, however, Roth testified that she made the decision to terminate plaintiff by herself, and spoke with Medved, Devine, and Concordia about the decision. This evidence, by itself, is not sufficient to preclude summary judgment
Plaintiff argues Roth also testified "that she and Concordia were concurrent final decisionmakers." (ECF No. 114 at 6.) Plaintiff's argument mischaracterizes Roth's testimony. Roth testified that she spoke with Concordia, her boss, about her decision to fire plaintiff, and that Concordia concurred with her decision. When plaintiff's counsel asked Roth if her decision to terminate plaintiff was made for her by Concordia, Roth testified that she did "not recall it that way." (Roth Dep. 235 (ECF No. 111-7 at 75.) Plaintiff's counsel pressed the issue further, and the following exchange took place:
(Roth Dep. 235 (ECF No. 111-7 at 75.) This evidence does not support plaintiff's argument that Concordia made the decision to terminate plaintiff. Roth consulted Concordia, who concurred with her position, but Roth's testimony does not support a reasonable jury finding that Concordia was a decisionmaker with respect to the decision to fire plaintiff.
Plaintiff also argues that although Devine testified that Roth, Medved, and she made the decision to terminate plaintiff, she later "reversed herself and testified that she was not a decisionmaker at all because she relied exclusively on Roth and Medved's assessments of Plaintiff's performance." (ECF No. 114 at 6.) Plaintiff mischaracterizes Devine's testimony. Devine
Based upon the foregoing, plaintiff's argument with respect to defendants hiding the final decisionmakers will not—by itself—preclude the entry of summary judgment in favor of defendants.
Plaintiff argues that based upon her submissions and the evidence of record, she contradicted the "core facts" of defendants' legitimate nondiscriminatory reason for firing her, and defendants' motion for summary judgment should be denied on that basis. (ECF No. 114 at 8-11.) In Tomasso v. The Boeing Co., 445 F.3d 702, 706 (3d Cir.2006), the Third Circuit Court of Appeals recognized that a plaintiff "must do more than show that [his or her employer] was `wrong or mistaken' in deciding to lay him [or her] off." A plaintiff "must `present evidence contradicting the core facts put forward by the employer as the legitimate reason for its decision.'" Id. The evidence put forth by the plaintiff must contradict the core facts forming the basis of the defendant's reasoning in such a way as to show defendants could not have possibly believed them. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1110 (3d Cir.1997) ("But the relevant question is not whether Keller could have done better; instead, the relevant question is whether the evidence shows that it was so clear that Keller could not have done better that ORIX Credit Alliance could not have believed otherwise."). Under those circumstances, a plaintiff may satisfy his or her burden to prove that defendants' proffered legitimate nondiscriminatory reason for firing him or her is pretext for age discrimination.
If a plaintiff makes that showing in defending against a defendant's motion for summary judgment, i.e., the plaintiff shows that based upon the evidence of record a reasonable jury could find the defendant's proffered legitimate nondiscriminatory reason is pretext for discrimination, the court must deny the defendant's motion for summary judgment. Plaintiff attempts to make that showing in this case by contradicting the core facts defendants relied upon to fire her.
In making their decision to fire plaintiff, defendants relied upon Bachowski's account of what took place during his February 23, 2010 interview with plaintiff. In Bachowski's report following his interview with plaintiff, he wrote that she responded to his questioning as follows:
(Bachowski's Report dated 2/23/2010 at 6 (ECF No. 101-2 at 48).) Plaintiff admits she made the statements Bachowski included in his report, but argues Bachowski did not include the entirety of her statements,
(Pl.'s Dep. at 187-88 (ECF No. 111-3 at 7-8).) Plaintiff did not feel as if Bachowski listened to her when she described the ambulatory review process set in place at WPIC. (Pl.'s Dep. at 191 (ECF No. 111-3 at 11).)
According to plaintiff, a reasonable jury could conclude based upon her version of the February 23, 2010 interview with Bachowski that she
(ECF No. 114 at 10.) The testimony presented by plaintiff creates a genuine dispute of fact with respect to what she told Bachowski during the February 23, 2010 interview. A genuine dispute of fact with respect to what plaintiff told Bachowski during that interview, however, is not a sufficient basis for a reasonable jury to find that defendants' proffered legitimate nondiscriminatory reason for firing plaintiff is pretext for age discrimination. Whether defendants made the "wrong or mistaken" choice to believe Bachowski over plaintiff does not satisfy plaintiff's burden to prove pretext. Unlike in Tomasso, where it was the plaintiff's word against the employer's word, here, it is plaintiff's word against the word of a third party, i.e., Bachowski, who drafted a report to his employer that detailed what plaintiff allegedly said during the February 23, 2010, interview. Under those circumstances, plaintiff did not contradict the core facts in such a way as to show that defendants could not possibly have believed them when they made the decision to fire her.
There is evidence of record, however, to show that there is a genuine dispute of material fact with respect to whether defendants actually believed plaintiff's version of events with respect to the February 23, 2010 interview and whether defendants actually thought plaintiff's performance as recounted by Bachowski warranted her termination. Under either of those circumstances, the dispute of fact with respect to what plaintiff told Bachowski during the interview is material and precludes the entry of summary judgment in favor of defendants in this case.
With respect to evidence that defendants actually believed plaintiff's version of events, plaintiff points to an email written by Medved to Roth and Owens after Medved
(ECF No. 111-5 at 109.) Plaintiff argues this email is evidence that Medved believed plaintiff's account of what she told Bachowski about the DEC medical records during the February 23, 2010 interview. Defendant argues the email is evidence that Medved understood plaintiff's perspective about what occurred and not that she believed plaintiff's account of the February 23, 2010 interview. Plaintiff's counsel questioned Medved with respect to this email during her deposition, and the following exchange took place:
(Dep. of Medved at 249-50 (ECF No. 111-5 at 26.) Defendants argue that based upon Medved's testimony along with the text of the email she sent to Roth and Owens, a reasonable jury could not conclude that Medved believed plaintiff's version of events with respect to the February 23, 2010 interview. A reasonable jury could find, however, that based upon the text of the email Medved sent to Roth and Owens, Medved accepted and believed plaintiff's account of the February 23, 2010 interview with Bachowski. Medved wrote: "Met with Diane—I think I get it more now. Some semantics, some miscalculating words, some of the "..." in the report of deficiencies were important contextual things left out." (ECF No. 111-5 at 109.) A reasonable jury could find that Medved in the email was explaining to Roth and Owens what plaintiff told her or that Medved believed Bachowski "miscalculated" and left out plaintiff's words. Although Medved testified that she believed plaintiff's performance was terrible, a reasonable jury could discredit that testimony and find that based upon the text of the email she wrote to Roth and Owens, Medved understood and believed that plaintiff fully explained the ambulatory record review process to Bachowski and communicated that belief to Roth and Owens. To the extent the evidence shows Medved, a final decisionmaker, believed plaintiff did not perform poorly as Bachowski indicated, yet made the decision to fire plaintiff anyway, a reasonable jury could find defendants' proffered legitimate nondiscriminatory reason for firing plaintiff was pretextual.
With respect to whether defendants honestly believed that plaintiff's performance according to Bachowski warranted her termination, plaintiff explains that the evidence of record shows that in all the years she was employed by UPMC, she received favorable performance evaluations and accolades, with the most recent
With respect to plaintiff's past performance, the undisputed evidence of record shows:
With respect to plaintiff's performance evaluation, the undisputed evidence of record shows:
Plaintiff argues that based upon her past performance and the performance review dated April 30, 2010, a reasonable jury could find that defendants did not honestly believe plaintiff's performance during the February 23, 2010 interview with Bachowski warranted her termination, and, therefore, the proffered legitimate nondiscriminatory reason for firing plaintiff is pretext for age discrimination. The court agrees with plaintiff.
Defendants assert that plaintiff was fired because she negated responsibility for the DEC medical records during her interview with Bachowski, which resulted in a loss of confidence in plaintiff's ability to lead the HIM department. This evidence, however, is contradicted by plaintiff's performance evaluation conducted by Medved and shared with Roth and Devine. In the performance evaluation, Medved included plaintiff's goals for the upcoming work year; rated her as someone who consistently meets expectations; expressed that defendants were confident that plaintiff "possess[ed] the skill and talents
Plaintiff pointed to evidence of record to create a genuine dispute of material fact with respect to whether Medved believed her account about what took place during the February 23, 2010 interview with Bachowski and whether defendants actually believed her performance during that interview, even as recounted by Bachowski, warranted her termination. Under those circumstances, plaintiff met her burden to adduce sufficient evidence to show defendants' proffered legitimate nondiscriminatory reason for firing her is pretext for age discrimination. Defendants' motion for summary judgment will be denied on that basis.
Plaintiff attempts to prove pretext by pointing to evidence of record to contradict defendants' reliance on her performance causing the condition level deficiencies cited by the CMS to fire her. Plaintiff argues a reasonable jury could find that "DEC personnel and practices not involving the HIM Department, which DOH observed on February 17-18 (before Plaintiff was interviewed on the 23rd), were the sole cause of the single condition-level deficiency following the February 2010 complaint investigation." (ECF No. 114 at 10.) In other words, plaintiff argues the evidence of record shows her performance during the February 23, 2010 interview did not cause Bachowski to recommend condition-level deficiencies to the CMS. Defendants allege based upon Bachowski's testimony that plaintiff negating responsibility for the DEC medical records was a "significant" reason that condition-level deficiencies were found at WPIC and that plaintiff was fired because "she made egregious errors which led to condition-level violations." (J.C.S.F. ¶¶ 68, 85 (ECF No. 125 at 28, 41.)
Bachowski gave conflicting testimony with respect to the significance of plaintiff's alleged comment that she was not responsible for the DEC medical records. Bachowski testified to the following:
(Bachowski Dep. at 133-34, 177, 209-11 (ECF No. 100-3 at 44-46; ECF No. 111-4 at 66-67, 105.) In light of this conflicting testimony, there is a dispute of fact with respect to the significance of plaintiff's comments during her interview with Bachowski on February 23, 2010, i.e., whether plaintiff's comments caused the condition-level deficiency at WPIC. As discussed above, an employer's mistaken or wrong belief is not a ground to deny summary judgment in favor of the employer, and, therefore, if defendants were wrong about plaintiff causing the condition-level deficiency, that—in and of itself—is not a ground to deny defendants' motion for summary judgment. Whether the dispute of fact with respect to the significance of plaintiff negating responsibility for the DEC medical records is material depends upon whether there is evidence of record for a reasonable jury to find that defendants knew plaintiff's February 23, 2010 interview with Bachowski was not a cause of the condition-level deficiencies and blamed her for that result anyway. Under those circumstances, there would be evidence of record to show defendants' reasoning for firing plaintiff is pretext for discrimination.
Plaintiff argues that "Roth understood that the sole cause of the condition-level deficiency following the February 17-18, 23, 2010 DOH investigation was deficient administrative and clinical practice in the DEC." (J.C.S.F. ¶ 85(c) (ECF No. 125 at 42-43.) If plaintiff is correct that Roth knew the condition-level deficiency was based "solely" upon the internal workings of the DEC, then Roth would know plaintiff negating responsibility for the DEC was not a cause of the condition-level deficiency. Plaintiff cites to the following exchange between plaintiff's counsel and Roth from Roth's deposition in support of her argument that Roth knew plaintiff was not the cause of the condition-level deficiency at WPIC:
(Roth's Dep. at 201-03 (ECF No. 111-7 at 60-62.) This testimony, if believed by a jury, demonstrates Roth's knowledge about the condition-level deficiencies with respect to the DEC's medical records. A reasonable jury could find based upon this evidence that Roth knew the condition-level deficiency with respect to the DEC medical records was based upon violations of protocol that occurred within the DEC and did not encompass plaintiff negating responsibilities with respect to those medical records.
Plaintiff attempts to prove pretext by pointing to evidence of record to contradict defendants' reliance on her performance causing EMTALA investigation as a reason to fire her. Roth testified that "[Plaintiff's comments to Bachowski] led to a further—had Diane not negated her responsibility for the management of health information in the emergency department, in the DEC, the ensuing investigation would not have commenced." (Dep. of Roth at 192 (ECF No. 111-7 at 54).) Plaintiff argues, however, that a reasonable jury could find based upon the evidence of record "that the EMTALA investigation at the DEC was triggered days before Ms. DeCecco was interviewed on February 23, 2010...and that the EMTALA deficiencies were caused solely by DEC personnel and DEC clinical practices not involving Ms. DeCecco." (ECF No. 114 at 10.) Plaintiff also argues that a reasonable jury could find based upon the evidence of record that "Presbyterian-Shadyside flunked its recertification survey for reasons that had nothing to do with Ms. DeCecco at all." (Id. at 10-11.)
With respect to whether plaintiff caused the EMTALA investigation, the undisputed evidence of record shows:
Based upon this evidence, and drawing all reasonable inferences in favor of plaintiff, a reasonable jury could find Bachowski requested permission from the CMS to conduct the EMTALA investigation prior to Bachowski's interview with plaintiff on February 23, 2010; indeed, on March 3, 2010, Owens sent an email to Innocenti and Roth, among others, indicating that "On Tuesday, Feb. 23, the DOH arrived to do an unannounced EMTALA investigation, based on their findings from the previous week." (ECF No. 111-6 at 1114.) Under those circumstances, a reasonable jury could conclude plaintiff did not cause the EMTALA investigation because Bachowski sought permission to conduct the EMTALA investigation before he spoke to plaintiff. As discussed above, Roth's mistaken or wrong belief that plaintiff caused the EMTALA investigation is not sufficient to preclude summary judgment in favor of defendants. Owens, however, sent the email to Roth explaining the EMTALA investigation was a result of Bachowski's findings the week before he interviewed plaintiff, and Roth was president of WPIC, a final decision maker in this case, and privy to the results of the DOH and EMTALA investigations. Roth blaming plaintiff for causing the EMTALA investigation in light of contradicting evidence that plaintiff did not cause the EMTALA investigation shows weaknesses or implausibilities in Roth's reasoning that is probative of pretext in this case and may show that despite what plaintiff may have told Bachowski during the February 23, 2010 interview, defendants did not honestly believe that performance warranted plaintiff's termination. Under those circumstances, and in light of the other evidence set forth by plaintiff, defendants' motion for summary judgment will be denied.
Plaintiff argues Devine's lack of an investigation into Roth's and Medved's criticisms of plaintiff is evidence of pretext in this case. It is undisputed that Devine spoke with Roth, the president of WPIC, and Medved, plaintiff's direct supervisor, prior to making the decision with them to terminate plaintiff's employment. Plaintiff argues that a reasonable jury could conclude that Devine did not conduct an investigation "because she knew that the decisionmakers were not honestly motivated by concerns about Ms. DeCecco's performance." (ECF No. 114 at 17.) Defendants argue that the "lack of investigation" does not create an issue of fact with respect to pretext. (ECF No. 121 at 10) (citing Geddis v. Univ. of Delaware, 40 Fed.Appx. 650, 653 (3d Cir.2002); Epps v. First Energy Nuclear Operating Co., Civ. Action No. 11-1462, 2013 WL 1216858, at *29 (W.D.Pa. Mar. 25, 2013).)
In Geddis, the Third Circuit Court of Appeals held that "the lack of investigation
Plaintiff argues that defendants relying upon the anonymous letter sent to Medved is a post-hoc rationale that is evidence of pretext in this case. Plaintiff cites Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 67 (3d Cir.1996), in support of this argument. In Lawrence, a former employee sued his employer, claiming age and handicap discrimination. During his employment, the employee sustained back injuries in a June 30, 1987, car accident. After the accident, the employee returned to work. Id. at 64. On September 3, 1993, at the age of sixty, the employee was terminated. The employer asserted that he was terminated for substandard performance and "behavior not befitting a manager." Id. at 65. The employee contended that this reason was a pretext for age or disability discrimination. Id. The Court of Appeals for the Third Circuit held that the employee presented sufficient evidence to cast doubt on the employer's stated nondiscriminatory reason for his termination to create a material issue of fact. Id. at 66. The employer argued the employee's final performance evaluation demonstrated his substandard performance. The employee noted, however, that the evaluation was unsigned and undated, and his supervisor admitted the evaluation was never presented to the employee. Id. The employer additionally argued that a March 1993 memorandum detailing several reasons why the employee was not "the right person to lead" the employer in the future supported its nondiscriminatory reason. Id. at 67. The employee contended that the memorandum was prepared as an after-the-fact justification, because it was written at the direction of the employer's human resources office after the termination decision was made. Id. To support his arguments, the employee also presented depositions of subordinates who portrayed his performance in a positive light. Based upon the evidence of record, the court of appeals held that a reasonable jury could infer that the employer did not act for a nondiscriminatory reason. Id.
Here, defendants in their brief cite to the anonymous letter as evidence
Plaintiff argues defendants' reason for terminating plaintiff has changed many times, which is evidence of pretext. (ECF No. 114 at 19.) In UPMC's position statement to the EEOC dated September 30, 2011, UPMC wrote plaintiff was fired "as a direct result of her failure in the audit process," explaining:
(ECF No. 111-11 at 8, 13.) In UPMC's response to plaintiff's first set of interrogatories, UPMC wrote plaintiff was fired
(ECF No. 111-11 at 16.) Medved, Roth, and Devine testified that plaintiff was fired because she negated responsibility for the DEC medical records during her February 23, 2010 interview with Bachowski. Plaintiff argues that a reasonable jury could find defendants' position statement to the EEOC and their response to plaintiff's first set of interrogatories shows defendants also cited to the "utter disarray" of the HIM department and UPMC Presbyterian Shadyside being subjected to a plan of correction as additional reasons for firing plaintiff. Plaintiff's argument lacks merit.
In defendants' position statement and their response to plaintiff's interrogatories, defendants indicate that plaintiff's performance during the DOH audit is the reason they fired her. Defendants explain that plaintiff's performance and the "general disarray" in the HIM department caused UPMC Presbyterian to implement a plan of correction and to submit to additional surveys and audits. Defendants mention the disarray of the HIM department, but do not cite that as a reason for
Plaintiff argues that Medved and Roth gave varying reasons for why plaintiff was fired. In plaintiff's argument, however, she cites testimony of Medved and Roth in which they state, in various ways, defendants' reason for firing plaintiff, i.e., plaintiff negated responsibility for the DEC medical records during the February 23, 2010 interview with Bachowski. That Medved or Roth used different words in explaining the same concept is not evidence of pretext in this case.
Plaintiff argues paragraphs 55 and 85 of defendants' statement of material facts "represent yet another evolution in Defendants' reason." (ECF No. 114 at 20.) Again, plaintiff's argument lacks merit. Paragraph 55 provides:
(D.J.C.S.F. (ECF No. 125) ¶ 55.)
Paragraph 85 provides:
(Id. ¶ 85.) The reason defendants set forth in each of these paragraphs is consistent with the testimony of Roth, Medved, and Devine. Paragraph 55 provides what defendants argue plaintiff told Bachowski during the February 23, 2010 interview. Paragraph 85 describes what Roth viewed as the result of plaintiff's performance during the February 23, 2010 interview with Bachowski. These paragraphs do not represent an "evolution" with respect to defendants' reason for firing plaintiff.
Although plaintiff pointed to other evidence of record sufficient to meet her burden and preclude the entry of summary judgment in favor of defendants, the evidence plaintiff points to show defendants' changing reason for firing plaintiff is not sufficient to show pretext or that defendants' reason changed overtime.
Plaintiff, relying upon Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir.1995), argues that Roth describing potential UPMC employees as "young lady" or "young woman" "constitutes relevant circumstantial evidence of discrimination." (ECF No. 114 at 21.) Defendant argues plaintiff's argument is unavailing under the factors set forth in Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir.1997), and "[n]one of the four people [to whom Roth referred] has anything to do with Plaintiff or her case or
Stray remarks are generally not sufficient standing alone to warrant a finding of pretext. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101 (3d Cir.1997). The Court of Appeals for the Third Circuit established three factors to determine whether a stray remark is probative of discrimination: (1) the relationship of the speaker to the employee and within the corporate hierarchy; (2) the temporal proximity of the statement to the adverse employment decision; and (3) the purpose and content of the statement. Keller v. Orix Credit Alliance, Inc., 130 F.3d at 1112; Ryder, 128 F.3d at 133. These factors must be considered in toto in light of the nature and context in which the comment was made. Keller, 130 F.3d at 1112.
The Keller decision, which specifically addressed a comment made by a decisionmaker is illustrative of this premise.
Id. at 1112 (emphasis added). The court of appeals determined that the conversation took place four or five months prior to the time the decisionmaker decided to terminate Keller, and the comment did not refer to the specific employment question whether Keller should be terminated. Id. at 1112. Based upon this finding, the court of appeals determined that the comment, standing alone, lacked the probative force to survive summary judgment. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101 (3d Cir.1997).
With respect to the first factor in this case, i.e., the relationship of the speaker to the employee, Roth, president of WPIC and a final decision maker in this case, made the comments describing the potential employees, most of whom Roth knew on a personal basis, as "young." Unlike in Keller, the decisionmaker in this case did not make a comment about age directly to plaintiff. With respect to the second factor, i.e., the temporal proximity of the statement to the adverse employment decision, plaintiff was informed about her termination on June 1, 2010. Roth wrote the emails describing the potential employees as young on August 11, 2010, February 18, 2011, June 15, 2011, January 11, 2012, and January 14, 2012. The August 11, 2010 email was written a little more than two months after plaintiff was terminated. With respect to the third factor, i.e., the purpose and content of the statement, the
The second prong of the Fuentes framework permits the plaintiff to survive summary judgment if she can demonstrate, through evidence of record, that "discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes, 32 F.3d at 762. The kinds of evidence relied upon by the court of appeals under this prong of the Fuentes analysis are: 1) whether the employer previously discriminated against the plaintiff; 2) whether the employer has discriminated against other persons within the plaintiff's protected class or within another protected class; and 3) whether the employer has treated more favorably similarly situated persons not within the protected class. Simpson v. Kay Jewelers, Division of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir.1998). Plaintiff in this case does not argue pretext under the second prong of Fuentes. The court having found plaintiff met her burden under the first prong need not consider this prong.
Plaintiff points to evidence of record sufficient to show a genuine dispute of material fact with respect to whether defendants' proffered legitimate nondiscriminatory reason for firing her is the actual reason defendants fired plaintiff or the actual reason is plaintiff's age. Defendants' motion for summary judgment will, therefore, be denied with respect to plaintiff's allegation that she was fired because of her age.
In plaintiff's facial retaliation claim, she argues the Separation Agreement violates 29 U.S.C. § 623(d) because it expressly conditions a privilege of employment on abstention from activities protected by the ADEA. (ECF No. 96 at 5.) According to plaintiff, covenants against engaging in activities protected under the ADEA are discriminatory per se and, therefore, she is entitled to summary judgment on her facial retaliation claim. (Id. at 7.) Defendants argue § 623(d) does not provide for a facial retaliation claim, and they are entitled to summary judgment on that basis. (ECF No. 103 at 3.)
Section 623(d) provides:
29 U.S.C. § 623(d). This provision is known as the retaliation provision of the ADEA. To establish a prima facie case of retaliation under the ADEA, i.e., § 623(d), a plaintiff must show: "`(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.'" Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.2002) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997)). Defendants argue plaintiff's claim for facial retaliation fails as a matter of law because she did not establish any element of the prima facie case for retaliation. Plaintiff argues that her claim is a facial retaliation claim, which does not require proof of the elements of the prima facie case. According to plaintiff, although the language of § 623(d) does not expressly provide for a facial retaliation claim, "courts interpret provisions such as § 623(d) not only to prohibit retaliation, but also to `prohibit a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities.'" (ECF No. 96 at 1 (quoting Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983)).) Plaintiff cites two decisions in support of her facial retaliation claim: E.E.O.C. v. Board of Governors of State Colleges and Universities, 957 F.2d 424 (7th Cir. 1992), and E.E.O.C. v. U.S. Steel Corporation, 671 F.Supp. 351 (W.D.Pa.1987). Plaintiff argues that the courts in each of these decisions recognized a claim for facial retaliation, and this court should follow those decisions in granting plaintiff summary judgment in this case.
In Board of Governors, the court held that a provision of a collective bargaining agreement between the defendant and its employees requiring the employees to choose between their contractual right to an in-house grievance proceeding or filing a complaint in federal court or with the EEOC was a retaliatory policy actionable under § 623(d). Board of Governors, 957 F.2d at 431. The court in Board of Governors based its decision on § 623(d) not requiring a showing of intent in retaliatory policy cases. Id. at 427. The court explained: "To the contrary, Section 4(d) is concerned with the effect of discrimination against employees who pursue their federal rights, not the motivation of the employer who discriminates. Section 4(d) explicitly prohibits discrimination against employees who engage in protected activity." Id. The court concluded:
Id. at 428. In other words, the court in Board of Governors held that because retaliatory action is actionable under § 623(d), policies providing for impermissible retaliation are invalid under that provision. The court agreed with the EEOC and held that because the provision in issue in the collective bargaining agreement "authorize[d] [the defendant] to take an adverse employment action (termination of the in-house grievance proceeding)
In U.S. Steel, the EEOC sued the defendant-employer for "engaging in employment practices that violate section 4(d) of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d), by requiring certain employees to sign a release of rights under the ADEA in order to obtain a pension plan known as a 70/80 retirement under mutually satisfactory conditions." U.S. Steel, 671 F.Supp. at 353. Also in issue in the lawsuit was the defendant-employer's policy requiring all employees requesting the 70/80 retirement plan to release or waive all claims and causes of action under the ADEA. Id. at 354. The release also:
Id. at 354-55. The EEOC argued the provisions of the release were "impermissible" and "deter[red] individuals from filing charges or otherwise opposing practices made unlawful by the ADEA, as well as hindering the EEOC from performing its Congressionally mandated duty to enforce the provisions of the ADEA." Id. at 356-57.
The court in U.S. Steel agreed with the EEOC and held the "counsel and assist," "charge or claim," and "withdrawal" provisions were invalid and enjoined the defendant-employer from enforcing them. U.S. Steel, 671 F.Supp. at 357-59. The court based its decision on "the express provisions of § [623](d)" and public policy. The court determined that in light of the threat of reclassification of the more favorable 70/80 pension set forth in the agreement, the "counsel and assist" and "charge or claim" provisions, if permitted to stand, would deter signatories from discussing their situations with the EEOC and participating in ADEA claims in fear their 70/80 pensions would be immediately reclassified to less favorable pensions. Id. at 358. On that basis, the court held the provisions were invalid as a matter of law and enjoined their enforcement.
Plaintiff argues that like the defendant-employers in Board of Governors and U.S. Steel, defendants conditioned receipt of a privilege of employment, i.e., severance benefits, on plaintiff's promise not to engage in protected activities under the ADEA. According to plaintiff, defendants "forc[ing] separated employees to choose between a privilege of employment and exercising rights protected by § 623(d)" constitutes facial discrimination under § 623(d). (ECF No. 96 at 11.)
The weight of the authority and the text of § 623(d), however, support defendants' position with respect to the facial retaliation claim in this case, i.e., § 623(d) does not provide for a claim for facial retaliation. In E.E.O.C. v. SunDance Rehabilitation Corp., 466 F.3d 490, 503 (6th Cir.2006), the court held the "mere offer" of an unenforceable separation agreement is not a facial violation of the retaliation provision of the ADEA. The separation
On appeal to the Court of Appeals for the Sixth Circuit, the EEOC argued the separation agreement was a per se violation of, among other statutes, § 623(d) of the ADEA. SunDance, 466 F.3d at 497. The EEOC relied upon Board of Governors in support of its position. The court in SunDance rejected the EEOC's argument and distinguished Board of Governors from the case before it, explaining:
Id. at 498. The court did not address the enforceability of the separation agreement in issue, but noted that to the extent it prevented "mere participation in EEOC proceedings," it was unenforceable. Id. at 501. The court explained that a provision of the separation agreement being unenforceable did not make the offering of that agreement retaliatory, and the employees were not without recourse as they were free to "accept the agreement and argue later that parts of it may be unenforceable under existing or expanded precedent." Id.
Other courts considering the validity of a facial retaliation claim have followed SunDance and declined to recognize a claim for facial retaliation under § 623(d). See e.g. E.E.O.C. v. Nucletron Corp., 563 F.Supp.2d 592 (D.Md.2008); Quattrone v. Erie 2 Chautauqua-Cattaraugus Bd. of Cooperative Educational Services, Civ. Action No. 08-367, 2011 WL 4899991 (W.D.N.Y. Oct. 13, 2011); Perez v. Faurecia Interior Sys., Inc., Civ. Action No. 08-4046, 2009 WL 2227510 (D.S.C. July 22, 2009); E.E.O.C. v. Sears, Roebuck & Co., 857 F.Supp. 1233 (N.D.Ill.1994).
In Nucletron, the EEOC sued the defendant-employer, Nucletron, for retaliation under two theories:
Similar to the facts of this case, the defendant-employer in Nucletron "set[] out its official policy regarding the provision of severance benefits in its employee handbook." Id. As part of that policy, the defendant-employer required its employees to sign a severance agreement upon their termination in order to receive severance benefits. Id. The court described the severance agreement as follows:
Id. at 595-96. The defendant-employer in Nucletron offered twelve employees the severance agreement. Id. at 596. Unlike plaintiff in this case who signed the separation agreement and received severance benefits, one of the twelve employees in Nucletron did not sign the severance agreement or receive severance benefits. Id. at 596. The other eleven employees, like plaintiff in this case, signed the agreement and received the severance benefits. Id.
The parties in Nucletron, i.e., the EEOC and the defendant-employer, both agreed "that the portion of the severance agreement that require[d] an employee to waive his right to file or to participate in an EEOC discrimination charge [was] unenforceable." Nucletron, 563 F.Supp.2d at 597. The parties disagreed, however, with respect "to whether the mere offer of an unenforceable severance agreement constitute[d] retaliation under... the ADEA." Id. According to the EEOC, even if the defendant-employer did not enforce the waiver and the employee did not file a charge with the EEOC, the defendant-employer's "policy of conditioning the receipt of severance benefits on a waiver of the right to file a charge with the EEOC constitute[d] `facial retaliation.'" Id. The court disagreed with the EEOC, and distinguished Board of Governors from the case before it. The court explained:
Nucletron, 563 F.Supp.2d at 598. The court noted that the defendant-employer in Nucletron, unlike the defendant-employer in Board of Governors, did not attempt to enforce the severance agreement, and, therefore, did not take any action in retaliation to an employee's protected activity. The court recognized that "[t]he term `discrimination' in the anti-retaliation provision of Title VII includes any action that `well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,'" but "[t]he mere offer of a severance agreement does not fit this definition." Id. (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Accordingly, the court held: "the employer's action only reaches the level of retaliation if it denies severance benefits that are otherwise promised or owed or if the employer sues to enforce the agreement. The mere offer of the agreement, without more, is not adverse and therefore not `discrimination' under the statute." Nucletron, 563 F.Supp.2d at 599.
The EEOC in Nucletron, argued that policy reasons supported its facial retaliation claim. Similar to plaintiff in this case, the EEOC in Nucletron argued "the offer of the severance agreement may chill employees who sign the agreement from filing an informational charge with the EEOC or participating in an EEOC proceeding." Id. The court recognized the EEOC's policy argument, but was ultimately unpersuaded. The court reiterated that the mere offer of the severance agreement did not constitute sufficiently adverse employment action under the pertinent statutes, and the employee was not without recourse. Id. The court explained:
Nucletron, 563 F.Supp.2d at 599.
With respect to EEOC's second theory of recovery, i.e., the defendant-employer retaliated against the employee who did not sign the severance agreement by withholding severance benefits otherwise owed to him, the court held that theory of recovery was "viable" under the McDonnell Douglas burden shifting framework and permitted the EEOC to develop it throughout discovery. Id. The court explained the elements of the prima facie case of retaliation and noted:
Nucletron, 563 F.Supp.2d at 600.
Based upon review of the authority cited by the parties, which weighs in favor of defendants' position, and the text of § 623(d), there is insufficient support for the court to recognize a facial retaliation claim under § 623(d). That section provides:
29 U.S.C. § 623(d) (emphasis added). The Supreme Court and the Third Circuit Court of Appeals have never recognized a facial retaliation claim stemming from this provision of the ADEA.
Plaintiff argues, however, that SunDance and Nucletron are distinguishable from this case and should not be followed. Plaintiff argues SunDance is inapplicable to this case because in that case and unlike this case, the severance payment was not an employee benefit "woven into the terms, conditions and privileges of an employment relationship pursuant to a contract (as in Board of Governors) or an employee benefits plan (as in this case and U.S. Steel)." (ECF No. 96 at 14.) Plaintiff argues this distinction is relevant in light of the Supreme Court's pronouncement that "[a] benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all." Hishon v. King & Spalding, 467 U.S. 69, 75, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The error in plaintiff's argument, however, is that plaintiff signed the Separation Agreement and received the severance benefit. She was not denied anything that she was owed pursuant to the employee benefits plan by defendants. This case would be different if plaintiff, like the plaintiff in Nucletron, refused to sign the Separation Agreement and defendants refused to pay her the severance benefit. Under those circumstances, plaintiff may be able to establish a prima facie case of retaliation, i.e., defendants failed to pay plaintiff a benefit she was owed in retaliation to her refusing to waive her rights to file a claim with the ADEA or EEOC. Those are not the facts of this case because plaintiff received the severance benefit. Distinguishing SunDance on that basis will not preclude the entry of summary judgment as a matter of law in favor of defendants; indeed, the severance payments in Nucletron "were part of the standard severance package promised or owed all terminated employees," but the court still found the "mere offer" of the severance agreement was insufficient to constitute retaliation under § 623(d). Nucletron, 563 F.Supp.2d at 599.
Plaintiff also distinguishes SunDance on the basis that the severance offer in that case "was made ad hoc; it occurred once, following a one-time [reduction in force] and was not repeated." (ECF No. 96 at 14.) Plaintiff argues that in this case, like in Board of Governors and U.S. Steel, the employer, i.e., defendants, had "an explicit employment policy that establishes discriminatory conditions to accessing an `employee benefit' provided as part of the
(P.J.C.S.F. (ECF No. 116) ¶ 12; Summary Plan Description (ECF No. 95-1) at 23.) This policy as set forth in the UPMC Welfare Benefits Plan is not unenforceable on its face; it does not contain the provisions in the Separation Agreement that plaintiff argues are unenforceable, and the evidence of record does not show that the Separation Agreement given to plaintiff was given to all UPMC employees.
Plaintiff also argues this court should not follow SunDance because the court in that decision failed to conduct a "deterrence analysis." In support of this argument, plaintiff cites to the quotation from Bill Johnson's that "[t]he [Supreme] Court has liberally construed these laws as prohibiting a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities." Bill Johnson's, 461 U.S. at 740, 103 S.Ct. 2161 (emphasis added). In this quotation, the Supreme Court was referring to the antiretaliation provisions of the National
To the extent the Supreme Court's analysis of the antiretaliation provision of the National Labor Relations Act has any relevance to this court's analysis of the ADEA, the Supreme Court in Bill Johnson's was analyzing "whether the [National Labor Relations Board] may issue a cease-and-desist order to halt the prosecution of a state court civil suit brought by an employer to retaliate against employees for exercising federally-protected labor rights, without also finding that the suit lacks a reasonable basis in fact or law." Bill Johnson's, 461 U.S. at 733, 103 S.Ct. 2161. Whether a facial retaliation claim exists—even under the National Labor Relations Act—was not before the court. Plaintiff does not cite to any decisions in which a court conducted a "deterrence analysis" under the ADEA as plaintiff argues is set forth in Bill Johnson's. The courts in Board of Governors and U.S. Steel did not cite to Bill Johnson's in support of any such analysis. The courts in Board of Governors and U.S. Steel relied upon the deterrent effect of the defendant-employers actions, i.e., offering terminated employees severance agreements with unenforceable provisions, in holding the severance agreements were retaliatory on their face. The courts in SunDance and Nucletron also considered the "chilling" or deterrent effect separation agreements containing unenforceable provisions may have on the exercise of an employee's rights to file a charge with or participate in EEOC proceedings. Those courts, however, recognized that the mere offer of a severance agreement is not sufficient to constitute a "sufficiently adverse employment action" under the ADEA. Nucletron, 563 F.Supp.2d at 599; see SunDance, 466 F.3d at 501.
In further support of a "deterrence analysis" and her facial retaliation claim, plaintiff cites to the Supreme Court's pronouncement in Burlington Northern that an adverse employment action for the purposes of Title VII, includes "those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination." Burlington Northern, 548 U.S. at 70, 126 S.Ct. 2405. The Supreme Court's pronouncement in Burlington Northern, however, was made in the context of a McDonnell Douglas retaliation claim, which requires a plaintiff to prove the elements of the prima facie case discussed above. In any event, it is unclear what plaintiff means by a "deterrence analysis." Neither Bill Johnson's nor Burlington Northern address whether a facial retaliation claim exists under the ADEA based upon a defendant-employer's offering of a severance agreement containing unenforceable provisions to a terminated employee. Based upon the foregoing, the court's failure in SunDance to conduct a "deterrence analysis" is not a ground upon which this court will grant plaintiff summary judgment with respect to her facial retaliation claim.
Plaintiff next argues that "[t]he panel majority in SunDance misconstrued Board of Governors and created incentives for employers to discriminate." (ECF No. 96 at 15.) Plaintiff argues the court's attempt
Plaintiff argues the court's decision in SunDance "perversely encourages employers to threaten retaliation with the goal of eliminating statutorily protected activities from the workplace." (ECF No. 96 at 16.) According to plaintiff, under SunDance, "a discriminatory employment policy so threatening as to be 100% successful in deterring protected activities could never be challenged." (Id.) As the court explained in SunDance, however, employees are not without recourse because they are free to "accept [unenforceable] agreement[s] and argue later that parts of [the agreement] may be unenforceable under existing or expanded precedent." SunDance, 466 F.3d at 501. In Nucletron, the court noted the ability of a plaintiff to seek declaratory or injunctive relief under the OWBPA. Nucletron, 563 F.Supp.2d at 599. Furthermore, to the extent an employee refuses to sign an agreement similar to plaintiff's Separation Agreement, and defendants withhold a privilege or condition of the employee's performance, e.g., the severance benefit, the defendants' conduct may be actionable under ADEA as set forth in Nucletron. Similar to the policy arguments made in Nucletron by the EEOC, plaintiff's policy arguments are insufficient for the court to read into § 623(d) a claim that is not supported by the text of the statute and has not been recognized by the Supreme Court or the Third Circuit Court of Appeals.
Plaintiff argues her facial retaliation claim is supported by the EEOC's Enforcement Guidance on Non-Waivable Employee Rights under Equal Employment Opportunity Commission Enforced Statutes, No. 915.002 (Apr. 10, 1997) ("EEOC's Guidance"), available at http://www.eeoc.gov/policy/docs/waiver.html (last visited February 27, 2014). In the EEOC's Guidance, it provides:
Id. (emphasis added.) Plaintiff argues the EEOC's Guidance "is entitled to considerable deference" under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). (ECF No. 96 at 10.) As the Supreme Court recently noted: "The weight of deference afforded to agency interpretations under Skidmore depends upon `the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.'" Nassar, 133
The main contention in the EEOC's Guidance is that agreements between employers and employees pursuant to which employees waive their rights to file a charge with the EEOC or participate in EEOC proceedings are null and void. Defendants in this case do not contest the validity of this statement. The EEOC's Guidance, however, also provides that "[a]greements extracting such promises from employees may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights statutes." Enforcement Guidance on NonWaivable Employee Rights under Equal Employment Opportunity Commission Enforced Statutes, No. 915.002 (Apr. 10, 1997) ("EEOC's Guidance"), available at http://www.eeoc.gov/policy/docs/waiver.html (last visited February 27, 2014). This pronouncement is in issue in this case. To support this statement, the EEOC sets forth the following two public policy considerations:
Id. Section B of the EEOC's Guidance, entitled "Prohibitions Against Retaliation," provides:
Id. Section C of the EEOC's Guidance provides that the policy set forth in the Guidance is "Consistent with the Public Interest in the Voluntary Settlement of Employment Discrimination Disputes." Id. The EEOC's Guidance concludes with the following:
Id.
In issue in this case with respect to the EEOC's Guidance is the weight the court should give the EEOC's pronouncement that "[a]greements extracting [promises not to file a charge or participate in an EEOC proceeding] from employees may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights statutes." Id. Considering the factors relevant to the inquiry in this case, i.e., "`the thoroughness evident in its consideration, [and] the validity of its reasoning,'" the court is unable to afford the EEOC's Guidance any weight with respect to whether the existence of a separation agreement with unenforceable provisions may constitute actionable retaliation under § 623(d). Nassar, 133 S.Ct. at 2533 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). The policy rationale set forth by the EEOC in the EEOC Guidance supports the statement that an employee's promise not to file an EEOC charge or participate in an EEOC proceeding are unenforceable as a matter of law. The policy reasons, however, do not support that there can be a claim of facial retaliation under § 623(d). The EEOC does not analyze the text of § 623(d), which requires a plaintiff to prove a protected activity and an adverse employment action, or provide any other basis for a claim for facial retaliation. The EEOC cites four decisions in support of its position, but does not consider other decisions that stand in opposition to the decisions it cites in support of the Guidance. The EEOC's Guidance does not provide the circumstances under which such a claim "may" arise or any other guidance in that respect. Under those circumstances, the EEOC's Guidance "lack[s] the persuasive force that is a necessary precondition to deference under Skidmore." Nassar, 133 S.Ct. at 2532. The court is unable, therefore, to accord any weight to the EEOC's Guidance in this case. Nassar, 133 S.Ct. at 2532 ("The manual's failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual's conclusions into serious question.").
Based upon the foregoing, the court finds there is insufficient authority to support plaintiff's facial retaliation claim under § 623(d). Defendants' motion for summary judgment with respect to the facial retaliation claim will be granted; plaintiff's partial motion for summary judgment with respect to the facial retaliation claim will be denied and her claim for facial retaliation will be dismissed. To the extent the provisions in issue in the Separation Agreement are unenforceable, however, plaintiff "can bring an action under the OWBPA seeking a declaration that the unenforceable provisions of [UPMC's] severance agreement are void." Nucletron, 563 F.Supp.2d at 599 (citing Krane v. Capital One Servs. Inc., 314 F.Supp.2d 589, 609 (E.D.Va.2004)).
Plaintiff argues paragraph 10(c) of the Separation Agreement "facially violates
29 C.F.R. § 1625.23(a).
Section 10(c) of the Separation Agreement provides:
(Separation Agreement (ECF No. 95-3) at 5.)
Section 1625.23(a) of the regulations provides that contract principles of tender back and ratification do not apply to ADEA waivers. Under this section, an employee challenging an ADEA waiver, like plaintiff, is not required to tender back any consideration in exchange for his or her agreement to waive his or her ADEA claims. Here, plaintiff filed a charge with the EEOC and a lawsuit in this court against defendants under the ADEA. Plaintiff has not tendered back the severance benefits paid to her by defendants. With respect to paragraph 10(c), this court has already held that the ADEA claims waiver in the Separation Agreement is invalid because it violates the OWBPA. Because there cannot be "continuing ratification" of an invalid release, paragraph 10(c) is no longer applicable to plaintiff. Plaintiff already challenged the validity of the ADEA claims release and won that challenge. Section 1625.23 of the regulations is, therefore, inapplicable to this case, and the court does not need to address whether paragraph 10(c) of the Separation is a facial violation of the OWBPA.
There are genuine issues of material fact with respect to whether the actual reason defendants fired plaintiff was her performance during the February 23, 2010 interview with Bachowski or the actual reason was her age. Defendants' motion for summary judgment with respect to plaintiff's first claim of McDonnell Douglas age discrimination will be denied.
The text of § 623(d) and the weight of authority does not support the existence of a facial retaliation claim under § 623(d). Defendants' motion for summary judgment with respect to the facial discrimination claim will be granted; plaintiff's motion for partial summary judgment will be denied, and the claim for facial retaliation will be dismissed.
An appropriate order will be entered.
(Pl.'s Dep. at 241 (ECF No. 111-3 at 22).) Medved agreed with plaintiff's suspicions that Growden wrote the letter. (Pl.'s Dep. at 240-41 (ECF No. 111-3 at 21-22); Dep. of Medved at 331 (ECF No. 111-5 at 45); ECF No. 111-5 at 139.)
