Armstrong v. Wes Health Systems
Armstrong v. Wes Health Systems
Opinion of the Court
Plaintiff Mildred Armstrong filed this lawsuit pro se against her former employer Defendant Wes Health System, alleging that Defendant discriminated against her in violation of the Age Discrimination in Employment Act (ADEA)
I. FACTUAL AND PROCEDURAL HISTORY
Except as noted, the relevant facts are undisputed. In 2005, Plaintiff was hired to work for Defendant as a Business Manager in the Fiscal and Behavioral Health and Rehabilitation Services (BHRS) Departments. Plaintiff worked for Defendant in this role until she was terminated on July 12, 2012. At the time that she was terminated, Plaintiff was 67 years old.
Throughout her employment, Plaintiff received positive employee evaluations and Defendant admits that Plaintiff was not fired due to performance problems. Instead, Defendant argues that Plaintiff was laid off due to a reduction in force. Both parties agree that in 2012, Defendant was informed that it would suffer approximately one million dollars in funding cuts, and Defendant laid off twenty-six employees, who were between 23 and 67 years old.
Before Plaintiff was terminated, Plaintiffs supervisors, David Kittka and Lynne Hopper, and Senior Human Resources Manager Sharon Mackin offered Plaintiff a full time position in the BHRS department, with a four-thousand dollar reduction in salary. Although Plaintiff orally accepted the position and salary reduction, on July 11, 2012, she refused to sign an offer letter. Defendant contends that this refusal was a rejection of the offer, while Plaintiff contends that she only refused to sign the offer letter before speaking to Mr. Kittka, who was not in the office that day. Plaintiff alleges that the letter offered her a position titled BHRS Business/Utilization Analyst, which was different than the Business Manager position offered at the meeting. Around the time Plaintiff refused to sign the offer letter, Ms. Hopper told Plaintiff that no one wanted her and that she should be grateful that she had a job. As an alternative to her claim that the termination violated the ADEA, Plaintiff argues that the reassignment was a demotion that violated the ADEA. As there is no dispute that Plaintiff never assumed the new position, although the parties disagree about the reason for this, the reassignment is not an adverse employment action separate from the termination.
II. STANDARD OF REVIEW
Summary judgment is appropriate if “the materials in the record” show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. DISCUSSION
Under the ADEA, an employer may not fire or demote an employee who is at least forty years old because of her age.
A. Direct Evidence of Age Discrimination
“Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption.”
The Court must, however, determine whether this belated assertion conflicts with Plaintiffs testimony at her deposition, and thus constitutes a “sham affidavit.” Under the “sham affidavit doctrine,” “a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a .plausible explanation for the conflict.”
At Plaintiffs deposition, she testified that she never supervised anyone during the duration of her employment with Defendant and that she did not believe anyone treated her differently because of her age before the events of July 2012.
Even if the Court were to consider this as evidence, Plaintiff has raised nothing more than an inference of age-related discrimination. The Court has before it the May 2012 incident, Ms. Hopper’s statement to Plaintiff that no one wanted her and that Plaintiff should be grateful to have a job,
B. Circumstantial Evidence of Age Discrimination
Plaintiffs age discrimination claim may still survive summary judgment if she can establish a claim for age discrimination using indirect evidence under the McDonnell Douglas framework. To establish a prima facie case using indirect evidence a plaintiff must establish (1) that she was at least 40 years of age, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) in circumstances giving rise to an inference of discriminatory motive.
A. Prima Facie Case
Defendant does not dispute that Plaintiff was 67 years old, was discharged by Defendant, was qualified for her job, and thus that she satisfies the first three elements of her prima facie case on her termination claim. Defendant argues that Plaintiff. has failed to satisfy the fourth element of the prima facie case because she has not established that other sufficiently younger, similarly situated employees were retained. While Plaintiff has set forth evidence that Defendant retained employees who were as much as thirty-nine years younger than she was,
B. Pretext
Even if Plaintiff had established a prima facie case as to her termination, summary judgment would be warranted. Defendant has offered legitimate non-discriminatory reasons for the adverse employment action. Defendant contends that in 2012, its funding was reduced by approximately one million dollars, and Plaintiff was terminated due to a reduction in force. Defendant argues that Plaintiffs specific position was eliminated even though she did not have performance problems because (1) no employees in the Fiscal Department had performance problems, (2) other employees in the Fiscal Department worked on agency-wide issues, while Plaintiff only worked with one other department, (3) the only positions eliminated in the BHRS Department were non-clinical, non-revenue generating positions, and (4) Plaintiff was offered the opportunity to remain employed in the BHRS Department, but refused the position; the proposed reduced salary would have reflected her reduced responsibilities.
In support of its argument, Defendant has set forth the deposition testimony of
To establish that Defendant’s legitimate non-discriminatory reasons were pretextual, Plaintiff has two options.
Plaintiff first argues that Mr. Kittka’s testimony that Plaintiffs position was one of the" positions that supported only BHRS leaves open the possibility that there were other employees who also did not work in multiple departments and whose positions could have been eliminated. However, Plaintiff admits that she was the only employee in the Fiscal Department whose work applied to only one other department.
Next, Plaintiff set forth evidence that her position did generate revenue, as she helped Defendant collect over $500,000 in owed account receivables during her tenure.
Finally, Plaintiff has set forth evidence that she did not refuse the reassignment, but sought to speak with her supervisor before accepting the position, and was terminated before she had the opportunity to do so.
IV. CONCLUSION
For the reasons discussed above, the Court will grant Defendant’s Motion for Summary Judgment and dismiss Plaintiffs ÁDEA claim against it. An appropriate Order will follow.
. 29 U.S.C. § 621-634.
. An adverse employment action is a “serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (internal quotation marks and citations omitted).
. Fed. R. Civ. P. 56(a), (c)(1).
. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
. Walden v. Saint Gobain Corp., 323 F.Supp.2d 637, 641 (E.D.Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
. 29 U.S.C. §§ 623(a), 631(a).
. 557 U.S. 167, 178, 129 S.Ct. 2343, 174 L.Ed.2d 119(2009).
. Id. at 177-78, 129 S.Ct. 2343.
. Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (internal citations and quotations omitted).
. Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002).
. Gross, 557 U.S. at 180, 129 S.Ct. 2343.
. Cellucci v. RBS Citizens, N.A., 987 F.Supp.2d 578, 587-88 (E.D.Pa. 2013).
. Pi’s Opposition to Def's Motion for Summary Judgment, Doc, 36 at 4. Plaintiff does not assert a claim for discrimination based on the removal of this appointment, and argues only that it is evidence that she was later demoted and terminated based on her age.
. Fed. R. Evid. 801(d)(2).
. Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.’’).
. See Gumbs v. O'Connor, No. 10-1520, 2015 WL 2185696, at *2, n. 2 (D.N.J. May 8, 2015).
. Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004).
. Id. (internal quotation omitted).
. Id. at 625.
. Doc. No, 35, Ex. A to Def!s Mot, for-Summary Judgment at 45.
. Doc. No. 35, Ex. A to Def's Mot. for Summary Judgment at 20,
. Doc. No. 37, Ex. A to Def’s Reply at 24.
. Waldron v. SL Indus., Inc,, 56 F.3d 491, 502 (3d Cir. 1995) (finding that comment by decisionmaker that he wanted the plaintiff to lose weight and that it would make him look younger was relevant to his claim of age discrimination but likely insufficient standing on its own to demonstrate age-related animus),
. Doc. No. 36, Ex. G to Pi's Opposition to Def's Mot. for Summary Judgment at 18.
. Walden v. Georgia-Pac. Corp., 126 F.3d 506, 521 (3d Cir. 1997).
. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d Cir. 2002).
. Showalter v. Univ. of Pittsburgh Med, Ctr., 190 F.3d 231, 235 (3d Cir. 1999).
. Id. (internal citations and quotation marks omitted).
. See Doc. No, 13 (filed under seal). To establish that Defendant retained someone sufficiently younger than Plaintiff, no particular age difference need be shown, but Plaintiff must "point to a sufficient age difference between himself and his replacement such that ' a fact-finder can reasonably conclude that the employment decision was made on the basis of age," Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995). In Sempier, the Third Circuit held that the combined age differences between the plaintiff and two em
. See Doc. No. 13 (filed under seal).
. To determine whether any of the sufficiently younger employees were similarly situated to Plaintiff, the Court must conduct a “fact-intensive inquiry on a case-by-case basis,” to evaluate the relevant employees’ "job function, level of supervisory responsibility and salary, as well as other factors relevant to the particular workplace.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 305 (3d Cir. 2004) (applying the standard under the ADEA for the fourth element of the prima facie case to the New Jersey Law Against Discrimination),
. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (internal citations and quotation marks omitted).
. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999); Sesso v. Mercy Suburban Hosp., No. 11-5718, 2013 WL 961625, at *5, n. 21 (E.D.Pa. Mar. 13, 2013) ("Plaintiff does not need to put forth evidence that he was replaced by sufficiently younger employees to support an inference of discrimination; such evidence is but one way to support an inference of discrimination.”).
.Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003); accord Dunsmuir v. May Dep’t Stores Co., 120 Fed.Appx. 927, 929-30 (3d Cir. 2005) (holding that a stray remark by a non-decisionmaker did not support this claim). To the extent Plaintiff argues that Defendant's failure to pay her severance benefits gives rise to an inference of discrimination, the only potential evidence that other laid off employees were paid severance benefits is a statement by Defendant's attorney at the case management scheduling conference, which was held on the record, that some higher level employees received one week of severance pay, but that most employees did not receive severance benefits and no employees laid off from the BHRS department received severance benefits. This is insufficient to give rise to an inference of discrimination.
. Doc. No. 35, Ex. D to Defs Brief in Support of Mot. for Summary Judgment at 23-24.
. Doc. No. 35, Ex. I to Defs Brief in Support of Mot. for Summary Judgment at 4-5.
. Doc. No. 35, Ex. A to Defs Brief in Support of Mot. for Summary Judgment at 82.
. Doc. No. 35, Ex. A. to Defs Brief in Support of Mot. for Summary Judgment at 62, 67.
. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994),
. Id. at 644 (Internal citations omitted).
. Id. at 644-45 (Internal citations and quotation marts omitted).
. Id. at 645 (Internal citations and quotation marks omitted).
. Doc. No. 36, Pi’s Opposition to Def’s Mot. for Summary Judgment at 1-2, ¶ 11.
. Doc. No. 36, Pi’s Opposition to Def’s Mot. for Summary Judgment at 1-2, 1f 12. While Plaintiff again states this in her Opposition Brief and not in an affidavit, for the reasons discussed above, the Court will still consider this as evidence.
. Fuentes, 32 F.3d at 765.
. Willis, 808 F.3d at 647.
. Doc. No. 36, Pl's Opposition to Def's Mot. for Summary Judgment at 2, ¶ 13. Again, the Court will consider this as evidence even though Plaintiff did not submit an affidavit containing this information,
. Willis, 808 F.3d at 648 (internal citations and quotation marks omitted).
. Langley v. Merck & Co., 186 Fed.Appx. 258, 261-62 (3d Cir. 2006) (citations omitted).
. Doc. No. 35, Ex. A to Def’s Brief in Support of Mot. for Summary Judgment at 70-71; Doc. No. 36, Pi’s Opposition to Def’s Mot. for Summary Judgment at 3, ¶ 34, 36.
. Tomasso v. Boeing Co., 445 F.3d 702, 707 (3d Cir. 2006).
Reference
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- Mildred ARMSTRONG v. WES HEALTH SYSTEMS
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