Opinion
Civil Action No. 00-3555
December 11, 2001
MEMORANDUM
Defendant has filed a motion for summary judgment, to which the plaintiff has not responded.
I. FACTS
The facts developed from discovery in this case are as follows:
On December 18, 1998, Lehigh Valley offered Ocasio a position as a Medical Assistant. January 4, 1999 was Ocasio's start date. (Dec. 18, 1998 offer letter) (Ex. "A", ex. "8").
Effective July 26, 1999, Lehigh Valley gave Ocasio a .50 ¢ an hour raise as part of a "market adjustment," which increased Ocasio's hourly wage to $10.25. (July 26, 1999 Personnel Action Form) (Ex. "C"). Soon thereafter, Lehigh Valley gave Ocasio a .25 ¢ an hour raise for "additional duties." This "additional duties" raise was effective August 2, 1999 and increased Ocasio's hourly wage to $10.50 an hour. (Aug. 2, 1999 Personnel Action Form) (Ex. "D"). A little over six months after starting at Lehigh Valley, Ocasio received, in total, a .75 ¢ an hour raise.
In August of 1999, Ocasio received her six-month performance review. (Aug. 1999 Performance Review) (Ex. "E", ex. "27). In this review, Ocasio received an overall performance score of 3.1. On a "5" point scale, "3" indicates that the "performance standard is consistently met." This review identified a number of problems, such as "being absent from the floor when needed"; "gets flustered easily"; "needs to consistently document patient's response to testing."
Significantly, among Ocasio's "strengths", as recognized by Lehigh Valley, was Ocasio's role as a "strong patient advocate for the Hispanic population." Id. Ocasio, however, "totally disagreed" with the performance review but did acknowledge that she had "some conflict with certain individuals" at work. Id.
Ocasio's performance problems at Lehigh Valley continued. On February 21, 2000, Ocasio received a written warning for seven (7) occurrences of absenteeism within a 12-month period. (Feb. 21, 2000 Written Warning). (Id. at ex. "11"). Ocasio acknowledged the validity of this written warning. (Occasion Dep. II at 57-58) (ex. "E").
On March 1, 2000, Ocasio underwent a "verbal counseling session" with Sherry Roth, the Practice Manager. (Verbal Counseling Session Memo) (Id. at ex. "12"). During this session, Ms. Roth counseled Ocasio for sending, to a co-employee, an inappropriate, unprofessional and insensitive e-mail. (Id.); (Occasion Dep. II at 59-64) (Ex. "E"). While Ocasio "believed" that Roth counseled her in retaliation for Ocasio's "complaints" of alleged patient mistreatment, Ocasio also testified that she did not know why Roth wrote the verbal counseling session memorandum. (Id. at 62-63). Ocasio also testified that Roth did not counsel her because Ocasio was Hispanic. (Id. at 62).
On April 6, 2000, Sherry Roth again met with Ocasio to counsel Ocasio about miscellaneous complaints concerning job performance. Roth counseled Ocasio about changing her work assignments without consulting designated supervisors and for "creating a hostile work environment" due to her attitude towards other employees as well as supervisors, managers and directors. (April 6, 2000 Personnel Report) (Id. at ex. "15"). Ocasio, at her deposition, conceded that other individuals could interpret her passionate and expressive communication style, as an Hispanic, as anger. (Ocasio Dep. II at 86-89) (Ex. "E").
On April 28, 2000, Ocasio received a second written warning regarding eight (8) absences within the last 12-month period. (April 28, 2000 Personnel Report) (Id. at ex. "16"). At her deposition, Ocasio conceded that this disciplinary action was justified. (Ocasio Dep. II at 102).
On May 4, 2000, Ocasio received yet another written confirmation of counseling. (May 4, 2000 Personnel Report) (Id. at ex. "19"). Among other things, Ocasio was counseled for leaving the flexible sigmoid scope in disinfecting solution for more than five (5) hours when Lehigh Valley's procedures required that the equipment remain in the disinfecting solution for at least 20 minutes, but for no more than 40 or 45 minutes. Ocasio was warned that failure, on her part, to improve her performance could result in further disciplinary action up to and including suspension or termination. (Id.).
Also on May 4, 2000, Ocasio received a Final Warning. (May 4, 2000 "Final Warning" Personnel Report) (Id. at ex. "20"). Ocasio received a Final Warning for breaking the chain of command when she e-mailed a physician to complain about her supervisors. (Ocasio Dep. II at 109-111) (ex. "E").
Shortly after Ocasio received her Final Warning, she filed this lawsuit.
On October 19, 2000, performance-based merit raises went into effect. Ocasio, however, did not receive a merit raise. (Oct. 27, 2000 Roth Memo) (Ex. "F", ex. "43"). Roth, in her managerial discretion, decided not to give performance-based merit raises to Lehigh Valley employees who, like Ocasio, had received a Final Warning during the past year — that is, from July 1, 1999 to July 1, 2000. (Id.). Ocasio testified. moreover, that she does not know of any Lehigh Valley employee, on "Final Warning" status, who ever received a performance-based merit raise. (Ocasio Dep. III at 117) (Ex. "F").
Although she received a Final Warning, Ocasio remains a Lehigh Valley employee.
II. DISCUSSION
In Count II of her complaint, plaintiff brings a claim for intentional infliction of emotional distress. While the complaint itself faults defendant for failing to prevent "white employees' racially hostile and aggressive behavior", there is nothing on this record to support that accusation.
Count III contains a claim for negligent supervision. Again, aside from the allegations in the complaint, there is little support for this in the record. What did take place in terms of the plaintiff's complained of injuries in this regard was at the workplace, and would be thus barred by the Pennsylvania Worker's Compensation Act.
As to plaintiff's § 1981 claims, the claim for discrimination based upon race fails for several reasons. There were two adverse employment actions: the failure to receive a merit raise, and receiving less of a market adjustment than her co-employees. Aside from the fact that the record does not support a finding of racial animus, defendant has stated a legitimate non-discriminatory reason against which plaintiff can show no evidence, direct or circumstantial, from which a reasonable jury could disbelieve defendant's reasons or believe that an invidious discriminatory reason was more likely than not a motivating or determinative factor.
Plaintiff has also claimed that there existed a race-based hostile work environment. This simply is not supported by plaintiff's own deposition. This is not to suggest that race-based slurs, for example, were non-existent. But there is no support that discrimination of this nature was pervasive and regular.
Finally, the retaliation claim cannot stand because as previously stated, the defendant had a legitimate non-discriminatory reason for that action.
An order follows.
ORDER
AND NOW, this 11th day of December, upon consideration of defendant Lehigh Valley Family Health Center's Motion for Summary Judgment (Docket No. 19), to which no response has been filed, it is hereby ORDERED that said Motion is GRANTED. Judgment is entered in favor of defendant Lehigh Valley Family Health Center and against plaintiff Mary Beth Ocasio.
This case is CLOSED.