NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2960 ______________

LAURA A. YINGST,

Appellant

v.

COATESVILLE HOSPITAL COMPANY, LLC, d/b/a Brandywine Hospital

______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 2-18-cv-04558) Honorable Nitza I. Quiñones Alejandro, United States District Judge

______________

Submitted under Third Circuit L.A.R. 34.1(a) June 2, 2021

BEFORE: HARDIMAN, PHIPPS , and COWEN, Circuit Judges

(Filed: July 14, 2021) ______________

OPINION* ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. COWEN, Circuit Judge.

Plaintiff Laura A. Yingst appeals from the order of the United States District Court

for the Eastern District of Pennsylvania granting the motion for summary judgment filed

by Defendant Coatesville Hospital d/b/a Brandywine Hospital (“Brandywine”). We will

affirm.

I.

Yingst began working as a nurse at Brandywine in 1987, and after holding several

positions at the hospital she decided to take a temporary travel nurse position in Florida

in November of 2016. Since 1997, she worked as a per diem nurse, and, since 2010, she

was assigned to Brandywine’s Post-Anesthesia Care Unit (“PACU”). Yingst was

diagnosed with breast cancer in July 2014. Yingst’s cancer caused her to be unavailable

for work on several occasions in 2014 and 2015. Her unavailability often lasted two to

three weeks but at one point lasted almost two months. After Yingst returned to work,

the hospital filled three nursing positions but did not promote Yingst.

Yingst filed this action alleging disability discrimination and retaliation under the

Americans with Disabilities Act,

et seq., and the Pennsylvania Human

Relations Act, 43 Pa. Stat. Ann. § 951 et seq. “Yingst alleged that Brandywine

discriminated against her because of her disability (breast cancer), and retaliated against

her for complaining about the discrimination, when her supervisor [Justine Murphy,

Brandywine’s Director of Perioperative Services] refused to hire her for three regular

nursing positions [(Positions 1, 2, and 3)].” (Appellant’s Brief at 16.) Brandywine

moved for summary judgment. The District Court granted the motion and entered

2 judgment in favor of Brandywine and against Yingst. According to the District Court,

“[b]ecause Defendant has articulated legitimate, nondiscriminatory reasons for failing to

hire Plaintiff, and Plaintiff has not identified sufficient evidence in the record to support a

conclusion that Defendant’s reasons were pretextual, Defendant’s motion for summary

judgment is granted.” Yingst v. Coatesville Hosp. Co., LLC, CIVIL ACTION NO. 18-

4558,

, at *1 (E.D. Pa. Sept. 18, 2020).

II.

Yingst acknowledges that the District Court “correctly identified the legal

framework applicable to Yingst’s discrimination and retaliation claims as set forth in

McDonnell Douglas Corp. v. Green,

(1973), which proceeds in three

steps.”1 (Appellant’s Brief at 19.) The District Court, in turn, disposed of this case at the

third “pretext” step of the analysis. Yingst contends that the District Court, instead of

permitting the jury “to weigh the credibility of both Murphy and Yingst, as well as other

witnesses, and evaluate the persuasiveness of conflicting evidence relating to each of the

three hiring decisions at issue,” conducted its own assessment of the conflicting evidence

to determine that Brandywine’s reasons for refusing to hire her were not pretextual. (Id.

at 17.) “In doing so, the district court failed to apply the summary judgment standard,

and instead ignored facts in the record, improperly weighed competing evidence, and

refused to construe all reasonable inferences in Yingst’s favor.” (Id. at 18.)

We conclude that the District Court appropriately disposed of this matter on

1 The District Court had subject matter jurisdiction pursuant to

and 1367. We have appellate jurisdiction under

. 3 summary judgment. In order to defeat summary judgment at the pretext stage, a plaintiff

must point to evidence from which a reasonable finder of fact could either disbelieve the

employer’s articulated legitimate reasons or find that an invidious reason was more likely

than not a motivating or determinative cause of the adverse employment action. See,

e.g., Fuentes v. Perskie,

(3d Cir. 1994) (stating that, in meeting

burden to discredit, plaintiff must demonstrate such weaknesses, implausibilities,

inconsistencies, or contradictions in articulated reasons that could cause reasonable

factfinder to find them unworthy of credence and thereby infer that employer was not

motivated by asserted non-discriminatory reasons). Given the record in this case, a

reasonable juror could not find that Brandywine’s proffered reasons for its hiring

decisions were pretextual.

Yingst asserts that the District Court improperly dismissed evidence of biased

statements made by Murphy herself. Specifically, Murphy stated in a memorandum

dated May 3, 2016 that “Laura Yingst is one of the 4 staff left and has had 4 surgeries

over the past year and been out a good amount of time.” (A2172.) “Second, about six

weeks later, when Yingst confronted Murphy about not hiring her [for Position 3] after

seeing [Michael] Sheridan scheduled for full-time in the PACU, Murphy admitted that it

was ‘because [Yingst] missed too much time.’” (Appellant’s Brief at 22 (quoting

A1984).) However, “Murphy’s memorandum was drafted for the purpose of obtaining

approval for additional PACU positions (further, Plaintiff does not dispute the veracity of

Murphy’s comment).” Yingst,

, at *7. “Murphy’s June comment was

made at the time between Plaintiff’s application for Position 1 and her interview for

4 Position 2; during that time, according to Plaintiff, ‘Murphy and Ms. [Kelly] Besack

[Brandywine’s Human Resources Director] were discussing [Plaintiff’s] eligibility for a

transfer,’ which included a standard review of her employee file,”

(See also, e.g.,

Appellant’s Brief at 12 (acknowledging that, while Besack would have only checked for

“call outs” if the hiring manager had specifically requested it, “Besack also provided

Murphy with a list of Yingst’s prior disciplinary warnings from 2011 and earlier, which

is something she reviews for any internal candidate looking to transfer” (citing A2289-

A2292)).) Significantly, the records produced by Besack implicated absences (and

related disciplinary actions) predating Yingst’s cancer diagnosis by several years, and

accordingly none of the referenced absences relate to her breast cancer. Yingst was

thereby deemed eligible for Position 2 because the attendance issues were so old (as

Besack put it, extremely dated absences “all rolled off” (A1721)).

With respect to Position 1 (a part-time position in the PACU), Brandywine

proffered that, prior to Yingst’s application on May 31, 2016, an external candidate

named Denise Childs had already applied, been interviewed, and been hired for the

position. According to Yingst, “there is a genuine issue of material fact as to when

Brandywine made the decision to offer the job to Childs.” (Appellant’s Brief at 25.)

Specifically, she points to data from Brandywine’s recruiting database indicating that no

written offer was made to Childs until June 20, 2016. Yingst observes that Brandywine’s

database indicated that Childs was “hired” on June 20 “even though [Human Resources

Manager Dina] Criniti testified that a candidate is hired only after pre-employment

screenings are complete” and the background check was not completed until after July 8,

5 2016 (and Childs did not sign the authorization form for the background checks until

June 27, 2016). (Id. at 25-26 (citing A2175, A2107, A2312), see also Appellant’s Reply

Brief at 8 n.2 (noting that database indicated “Offer created” on June 16, 2016 and “Offer

1 – Extended (Verbally)” on June 20, 2016 (quoting A2107-A2108)).) However, we

agree with the District Court that, at best, this evidence merely indicated that the position

was not formally filled until June 20, 2016. In fact, “both Murphy and Criniti

consistently and repeatedly testified that an offer was made to Childs on May 27th, and

that post-offer, pre-employment screenings, which typically take ‘about a month,’ had to

be conducted prior to officially marking the position as filled.” Yingst,

, at *5 (citing A646, A1457, A1466); see also, e.g.,

(“[B]oth Murphy and

Criniti testified that the decision to hire Childs was made on May 27, 2016 – several days

before Plaintiff had even applied for Position 1. ([A630, A644, A1458, A1461, A1468,

A1470]).”). We further note that Yingst was not the only internal candidate to apply for

Position 1 after May 27, 2016 (and who was then allowed to interview for Position 2).

“Rather, much like Plaintiff, Nurse [Jeannette] Maerz, an internal and qualified candidate

[and breast cancer survivor] who applied to Position 1 after it had been offered to

someone else but before it was officially marked as filled, was considered for Position 2.”

at *6 n.4.

With respect to this other part-time PACU position (Position 2), the District Court

properly determined that Yingst cannot show that Brandywine’s stated reasons for

selecting Maerz over Yingst for that position were pretextual in nature. “Murphy

testified that Maerz was hired over Plaintiff based on Plaintiff’s poor interview

6 performance and, perhaps to some extent, on reports by staff members of past conflicts

with Plaintiff.”

at *6 (citing A670-A672) (noting that Murphy testified that she had

some awareness of interpersonal difficulties, that she generally did not go against the

staff consensus on hiring decisions, and that Yingst’s potential unavailability played no

role in interview process). The two employees were interviewed on the same day, and

Maerz was given even less advance notice of the interview than Yingst. In fact, “Plaintiff

testified that she ‘had the privilege of having [her] interview in a conference room, while

[Maerz] had hers in a . . . utility room.’”

at *7 (quoting A300).

As the District Court succinctly put it, “Plaintiff’s interview did not go well.”

. Admittedly, Yingst observes that, according to Maerz, she was not asked the same

question that so upset Yingst herself (i.e., what she could bring to the PACU), the

interviewers evidently did not read out their questions from a script (even though

Brandywine claims that they did so), and, “although Maerz described herself as being

‘polite’ during her interview, it is clear that she, like Yingst, asked probing questions of

the Charge Nurses to address her concerns about the fairness of scheduling in the PACU”

(Appellant’s Brief at 38 (citing A2279, A2282-A2283); see also, e.g.,

(taking

issue with failure to produce interview “score sheets”)). “On its own, the interview

question which triggered Plaintiff’s unprofessional response—whether or not it was also

asked of Maerz—even if intentionally insulting, does not suggest any discriminatory

animus related to Plaintiff’s disability.”

at *7 (citing Cross v. New Jersey, 613

F.App’x 182, 186 n.1 (3d Cir. 2015)). In any event, Yingst’s conduct at the interview

went beyond merely asking some probing questions. Yingst admitted in her deposition

7 testimony that she found the first question to be insulting and degrading and then

responded: “I can’t believe that you asked me that. I thought I was part of the PACU

team. How can you ask me about my skills? You’ve worked shoulder to shoulder with

me. You know my skills. You know my strong points, my weak points.” (A297-A298.)

“Though Plaintiff testified that she did not ‘yell at anybody or throw things,’ multiple

witnesses present during the interview felt that her reaction to the question was

unprofessional and reflected poorly on her candidacy.”

. One of her interviewers

(Denise Ricken) went so far as to describe Yingst’s interview as “a complete disaster,”

claiming that Yingst was “rude, unprofessional, and obnoxious.” (A1279.) Even if (inter

alia) Maerz may have had her own problems with her co-workers and Murphy may have

continued to evaluate Yingst positively, the disastrous nature of Yingst’s own interview

still cannot be overlooked. Furthermore, even if “the Charge Nurses expressed upset to

Maerz about Yingst’s unavailability to work during her cancer treatments because it

made it harder to manage the schedule in the PACU” (Appellant’s Brief at 36 (citing

A2277)), Yingst’s co-workers clearly had other non-discriminatory issues with her in

addition to her troubling behavior at the interview (e.g., Ricken claimed that “I have

never worked with such an unprofessional and two-faced nurse in my entire professional

career” (A1278)).

Finally, “Defendant argues that Plaintiff’s failure to apply directly for [full-time]

Position 3 (in contrast with the applicant ultimately hired, Michael Sheridan, who

submit[ted] an application for Position 3) constitutes a legitimate reason for having hired

Sheridan.”

. “A review of the record reveals that Plaintiff indicated her interest

8 in full-time positions in the PACU sporadically.”

As the District Court explained:

Plaintiff identifies only one occasion “in Spring 2015” when she indicated to Murphy that she would be interested in a regular (as opposed to per diem) position, and a handful of text messages “in the late winter/early spring 2016” about her interest in interviewing for a regular position in the PACU. Moreover, beginning in February 2016, Plaintiff expressed repeated interest to Murphy in nursing positions outside of Brandywine, particularly in Florida. For example, on February 29, 2016, Plaintiff texted Murphy to advise her that she had used her as a reference for a Florida- based travel nursing agency in Florida. A week later, Plaintiff texted Murphy again, having listed her as a reference for another nursing agency in Florida. This Court agrees with Defendant that Plaintiff’s occasional communications of interest in regular employment, coupled with her demonstrated pursuit of outside opportunities, did not constitute “every reasonable attempt to convey [her] interest” in Position 3, see [EEOC v. Metal Servs. Co.,

(3d Cir. 1990)], particularly in comparison to Sheridan, who proactively sought Murphy’s attention and ensured [or at least attempted to ensure] that his application for Position 3 was received despite technical difficulties. That Murphy advised Sheridan of the position but did not mention it to Plaintiff, under these circumstances, cannot cause a reasonable jury to conclude that Defendant’s articulated reasons for hiring Sheridan, and not Plaintiff, were pretextual.

III.

For the foregoing reasons, we will affirm the order of the District Court.

9