Opinion
Civil Action No. 16-1440
08-27-2018
ANTHONY SAWL, Plaintiff, v. DAVID J. SHULKIN, Secretary of the Department of Veterans Affairs, Defendant.
Judge Nora Barry Fischer
Re: ECF No. 36 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Anthony Sawl ("Plaintiff") brings this case against David J. Shulkin, the Secretary of the Department of Veterans Affairs ("Defendant"). Presently before the Court is a Motion for Summary Judgment filed by Defendant. ECF No. 36. For the reasons set forth herein, it is respectfully recommended that the Motion for Summary Judgment be granted.
II. REPORT
A. PROCEDURAL HISTORY
Plaintiff filed his initial Complaint on September 19, 2016. ECF No. 1. Defendant filed an Answer on November 25, 2016. ECF No. 4. Plaintiff filed the operative Amended Complaint on February 10, 2017. ECF No. 13. Therein, Plaintiff raised three claims of violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.: Count I - age discrimination; Count II - retaliation; and Count III - hostile work environment. Id. Defendant filed an Answer to the Amended Complaint on March 15, 2017. ECF No. 14.
In the Amended Complaint, Plaintiff lists multiple terms in the headings under each count; however, the above-stated titles reflect the claims as litigated by the parties.
On February 14, 2018, Defendant filed the instant Motion for Summary Judgment and supporting documents. ECF Nos. 36-37, 39. Also on February 14, 2018, the parties filed a Joint Concise Statement of Material Facts. ECF No. 38.
On March 16, 2018, Plaintiff filed his Opposition to Defendant's Motion for Summary Judgment, Brief in Opposition, and supporting documents. ECF Nos. 40-43. On June 22, 2018, Defendant filed his Reply in Support of Summary Judgment and supporting documents. ECF Nos. 50-52. On July 5, 2018, Plaintiff filed a Sur-Reply Brief in Opposition to Motion for Summary Judgment. ECF No. 53. The Motion for Summary Judgment is now ripe for consideration.
B. FACTUAL BACKGROUND
The parties agree on the following facts. Plaintiff was born in September 1966. ECF No. 38 ¶ 2. Plaintiff worked as a police officer for the Department of Veterans Affairs (the "VA") from March 2005 to March 2016. Id. ¶ 1.
1. October 2014 Performance Evaluation
Thomas Bennett assumed the Police Chief position ("Chief Bennett") at the Butler VA facility in May 2013. ECF No. 39-1 at 10. In October 14, 2014, Chief Bennett gave Plaintiff an overall "Fully Successful" performance rating for the period October 1, 2013 through September 30, 2014. ECF No. 38 ¶ 3; ECF No. 39-2 at 2-6. The "Fully Successful" rating is defined in the VA Handbook as: "Performance standards for the particular element when taken as a whole are being met. This level is a positive indication of employee performance and means the employee is effectively meeting performance demands for this component of the job." Id. ¶ 4. Plaintiff had received the higher performance rating of "Outstanding" on all prior performance evaluations. ECF No. 42 ¶¶ 2-3; ECF No. 51 ¶¶ 2-3.
2. December 2014 Reprimand
On September 6, 2014, Chief Bennett announced a non-mandatory meeting of the Butler VA police officers to take place on September 18, 2014. ECF No. 42 ¶ 4; ECF No. 51 ¶ 4. Lieutenant Randall Eury ("Eury") informed Plaintiff that he had to go to the meeting. ECF No. 42 ¶ 6; ECF No. 51 ¶ 6.
At the September 18, 2014, meeting, Sergeant Alfred Crowther ("Crowther") accused Plaintiff of being the cause of dissension in the department and told Plaintiff that people should go to the chief with problems and not the union. ECF No. 42 ¶ 7; ECF No. 51 ¶ 7. Plaintiff replied that Crowther could not stop anyone from going to the union and that if Crowther had an issue with him, they could go outside and talk about it. ECF No. 42 ¶ 8; ECF No. 51 ¶ 8. Chief Bennett, Eury and Rebecca Hubscher ("Hubscher"), Associate Director of the Butler VA, accused Plaintiff of threatening to fight Crowther. ECF No. 42 ¶ 9; ECF No. 51 ¶ 9. Plaintiff left the meeting and returned to the VA police department office, where Eury relieved Plaintiff of his weapon and instructed him to report to the Associate Director's office. ECF No. 42 ¶¶ 10-11; ECF No. 51 ¶¶ 10-11. In a subsequent meeting in the Associate Director's office, Plaintiff was accused of threatening Crowther and of being in distress. ECF No. 42 ¶ 13; ECF No. 51 ¶ 13. An internal investigation was commenced into Plaintiff's threatening conduct.
In October 2014, Plaintiff contacted an EEO counselor to initiate an EEO complaint regarding the September 18, 2014, meeting. ECF No. 42 ¶ 17; ECF No. 51 ¶ 17. On November 5, 2014, Plaintiff's attorney faxed a hand-written EEO complaint to the VA Office of Resolution Management in Lyons, New Jersey, alleging age discrimination and stating that he wanted "to begin an EEO." ECF No. 56-1 at 2. Chief Bennett receive notice of the EEO investigation on November 5, 2014. ECF No. 42 ¶ 18; ECF No. 51 ¶ 18. On November 7, 2014, Chief Bennett issued to Plaintiff a notice of a proposed reprimand concerning the September 18, 2014, meeting. ECF No. 42 ¶ 19; ECF No. 51 ¶ 19." On December 3, 2014, Plaintiff was issued a written reprimand for unprofessional conduct stemming from his behavior during the September 18, 2014, meeting. ECF No. 42 ¶ 20; ECF No. 51 ¶ 20.
3. Non-selection for Supervisory Police Officer Position
In March 2015, the Butler VA posted a Notice of Vacancy Announcement for the position of Supervising Police Officer. ECF No. 39-9 at 2. Plaintiff and Charles Namachar ("Namachar") applied for and were interviewed for the position. ECF No. 38 ¶ 8. Namachar was born in November 1971. Id. ¶ 12. The interviews were conducted by a panel of four people: Sheila Howard, John Bridges, Donna Mitchell and Eric Saeler. Id. ¶ 9. The panelists were members of management at the Butler VA. None of the panelists had any experience in law enforcement. ECF No. 42 ¶ 23; ECF No. 51 ¶ 23. Donna Mitchell scored Plaintiff higher than Namachar. ECF No. 42 ¶ 22; ECF No. 51 ¶ 22. At the conclusion of the interviews, the scores of the four panelists for each applicant were tallied. Plaintiff received a total score of 176 and Namachar received a total score of 192. ECF No. 39-1 at 16-17; ECF No. 43-2 at 5.
Plaintiff had twelve years of military experience, eighteen years of law enforcement experience, had previously served as a chief of police, was a certified EMT, had the VA police officer certification and advanced crime scene certification, was certified to test the fitness of the department's breathing apparatus, had provided PPE training, testing and certification to the department's officers, and was certified through the American Heart Association as a CPR and first aid instructor. ECF No. 42 ¶ 24; ECF No. 51 ¶ 24. A coworker of both men, Robert Wisneski ("Wisneski"), testified that Namachar had less time and knowledge as a police officer and often sought Plaintiff's advice about cases before he was promoted to Lieutenant. ECF No. 42 ¶ 21; ECF No. 51 ¶ 21.
Plaintiff testified that he was asked his age during the interview. ECF No. 42 ¶ 26; ECF No. 51 ¶ 26. Chief Bennett was the selecting official for the position. ECF No. 42 ¶ 25; ECF No. 51 ¶ 25. Chief Bennett selected Namachar for the position in April 2015. ECF No. 39-1 at 13. Plaintiff was notified that he was not selected on April 6, 2015. ECF No. 39-15 at 4.
4. July 2015 Suspension
On April 25, 2015, Plaintiff and Charles Lamielle ("Lamielle") responded to a call that two patients at a privately owned mental health facility, located on Butler VA property, had ingested hand sanitizer. ECF No. 42 ¶ 27; ECF No. 51 ¶ 27. The staff at the mental health facility did not have medical training and were uncertain how to respond to the situation. ECF No. 42 ¶ 28; ECF No. 51 ¶ 28. Plaintiff suggested that they contact their supervisor and call 911 for ambulances to take the patients to the hospital. ECF No. 42 ¶ 29; ECF No. 51 ¶ 29. The 911 dispatcher contacted the VA fire department in addition to dispatching ambulances. ECF No. 42 ¶ 30; ECF No. 51 ¶ 30.
When a firefighter came out of the building adjoining where Plaintiff and Lamielle were standing waiting for the ambulances, the firefighter inquired if his department was needed. ECF No. 42 ¶ 31; ECF No. 51 ¶ 31. It was standard past practice to call off the fire department if they were not needed. ECF No. 42 ¶ 38; ECF No. 51 ¶ 38. Lamielle and Plaintiff told the firefighter that ambulances were en route and that they were not really needed. ECF No. 42 ¶ 31; ECF No. 51 ¶ 31. Plaintiff told the firefighter that he could respond if he wanted to, but that the patients were not having any major symptoms. ECF No. 42 ¶ 32; ECF No. 51 ¶ 32. Plaintiff, who was certified as an EMT, based his response to the firefighter on his assessment of the patients and his training as an EMT. ECF No. 38 ¶¶ 13-14. The patients were transported to nearby Butler Memorial Hospital via ambulance. ECF No. 42 ¶ 33; ECF No. 51 ¶ 33.
On July 2, 2015, Plaintiff was given a two-day suspension for acting in an unauthorized capacity for telling the VA fire department that it was not necessary to respond to the call. ECF No. 42 ¶ 35; ECF No. 51 ¶ 35. The suspension was proposed by Chief Bennett. ECF No. 38 ¶ 15. Lamielle, who graduated from high school in 1990, was not questioned or disciplined as to this incident. ECF No. 42 ¶¶ 36-37; ECF No. 42 ¶¶ 36-37.
5. February 2016 Suspension
On or about December 8, 2015, Plaintiff submitted a letter from Jamal M. Alijari, M.D., stating that Plaintiff could not participate in Ground Defense Recovery Quarterly Drills due to his current medical condition. ECF No. 38 ¶ 18. On December 15, 2015, Plaintiff submitted leave applications and supporting medical documentation for the period of December 23, 2015, through January 4, 2016. ECF No. 42 ¶ 43.
Plaintiff suffers from degenerative joint disease, sacroiliac dysfunction and osteoarthritis in his right knee. ECF No. 42 ¶ 46. Such conditions make it painful for him to kneel or bend for prolonged periods. Id.
By letter dated December 23, 2015, Plaintiff was advised by David P. Cord ("Cord"), Director of the Butler VA, that he was scheduled for a physical examination with the Occupation Health Unit to determine whether his medical restrictions impacted his ability to perform the essential functions of his position as a police officer. ECF No. 38 ¶ 19. Plaintiff was required to relinquish his badge and his credentials on December 23, 2015. ECF No. 42 ¶ 45; ECF No. 51 ¶ 45.
By letter dated January 19, 2016, Plaintiff was given advance notice of a 14-day suspension for unauthorized absence from December 25, 2015, through January 4, 2016, and unprofessional conduct on December 23, 2015. ECF No. 39-19 at 5-8. The letter was signed by Chief Bennett. Id. Plaintiff was notified of his right to submit a written reply in opposition within fourteen (14) days showing why the charges were unfounded. Id. Plaintiff did submit a rebuttal to the proposed suspension. Id. at 9-13. On February 23, 2016, Associate Director Hubscher issued a detailed letter to Plaintiff imposing of a 14-day suspension for unauthorized absence/being absent without leave from December 25, 2015, through January 4, 2016, and for unprofessional conduct. ECF No. 38 ¶ 23. The suspension letter was signed by Hubscher. ECF No. 39-19 at 2-4. Plaintiff grieved the suspension. However, the grievance was denied by Director Cord on March 18, 2016. Id. at 18.
6. March 2016 Resignation
Plaintiff resigned effective March 2016. ECF No. 38 ¶ 25. He testified that he had been thinking of resigning since 2014. Id.
C. STANDARD OF REVIEW
Summary judgment may only be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007)(abrograted on other grounds by Miles v. Twp. of Barnegat, 2008 WL 89910 (D.N.J. Jan. 7, 2008), aff'd, 343 F. App'x 841 (3d Cir. 2009).
In ruling on a motion for summary judgment, the court's function is not to weigh the evidence, make credibility determinations, 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. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citing decisions); Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998). The mere existence of a factual dispute, however, will not necessarily defeat a motion for summary judgment. Only a dispute over a material fact—that is, a fact that would affect the outcome of the suit under the governing substantive law—will preclude the entry of summary judgment. Liberty Lobby, 477 U.S. at 248.
D. DISCUSSION
1. Count I: Age Discrimination
Plaintiff bases Count I on three of the above-described incidents: (1) the non-selection for Supervisory Police Officer position; (2) the July 2015 suspension; and (3) the March 2016 resignation. ECF No. 41 at 5-11.
In his Brief in Opposition to Defendant's Motion for Summary Judgment, Plaintiff withdrew any claim of age discrimination with respect to the October 2014 performance evaluation, the December 2014 reprimand and the February 2016 suspension. ECF No. 41 at 1.
The ADEA prohibits discrimination on the basis of age. Specifically, the ADEA prohibits employers from discriminating against individuals in hiring, discharge, compensation, terms, conditions, or privileges of employment on the basis of their age. See 29 U.S.C. § 623(a)(1).
In the instant case, Plaintiff has not provided direct evidence of discrimination. As such, Plaintiff seeks to establish his claims under the ADEA through circumstantial evidence. As a result, this Court must apply the three-part burden shifting analysis developed for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Burton v. Teleflex, Inc., 707 F.3d 417, 425-26 (3d Cir. 2013) (reaffirming use of McDonnell Douglas standard in ADEA cases). Under the McDonnell Douglas analysis, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To establish a prima facie case of age discrimination under the ADEA, the plaintiff must demonstrate that: (1) the plaintiff is forty years of age or older; (2) the defendant took an adverse employment action against the plaintiff; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Burton v. Teleflex, Inc., 707 F.3d at 426 (citing Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)).
To establish a prima facie case at summary judgment, "the evidence must be sufficient to convince a reasonable factfinder to find all of the elements of [the] prima facie case." Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (alteration in original) (internal quotation marks omitted). If a plaintiff fails to raise a genuine dispute of material fact as to any of the elements of the prima facie case, he has not met his initial burden, and summary judgment is properly granted for the defendant. See Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 580 (3d Cir. 1996).
Once the plaintiff makes out a prima facie case, the burden of production shifts to the employer to identify a legitimate non-discriminatory reason for the adverse employment action. Smith, 589 F.3d at 690; see also Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d at 644 n.5. This burden is "'relatively light'" and is satisfied if the employer provides evidence, which, if true, would permit a conclusion that it took the adverse employment action for a non-discriminatory reason. Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see also Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 302 (3d Cir. 2012) (describing this step as a "minimal burden").
If the employer articulates such a reason, "the burden of production returns to the plaintiff to demonstrate that the employer's proffered rationale was a pretext for age discrimination." Smith, 589 F.3d at 689-90 (citations omitted). "To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). "Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons." Id. (citations omitted). The plaintiff must make this showing of pretext to defeat a motion for summary judgment. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (explaining that, "to defeat a motion for summary judgment, [the plaintiff] must show that the employer's articulated reason was a pretext for intentional discrimination"). To make a showing of pretext, "the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764.
In this case, the sole disputed element of this claim concerns Plaintiff's final burden of production. In support of the instant Motion for Summary Judgment, Defendant argues that Plaintiff cannot show that Defendant's legitimate non-discriminatory reasons for its actions are pretext for age discrimination. ECF No. 37 at 4-14.
a. Non-selection for Supervisory Police Officer Position
Defendant advances the legitimate nondiscriminatory reason that Plaintiff was not selected for the Supervisory Police Officer position was because he received a lower total score of 176 from the interview panel than did Namachar, the successful candidate, who received a total score of 192. Id. at 8. In opposing the Motion for Summary Judgment, Plaintiff argues that he has proffered sufficient evidence to establish a genuine issue of material fact that this reason is a pretext for age discrimination. ECF No. 41 at 6. Specifically, Plaintiff cites to his experience and certifications in contrast with Namachar's "less time and knowledge as a police officer." Id. at 5. Plaintiff further cites to the facts that the interview panel asked him his age and that Chief Bennett has a demonstrated negative attitude towards older employees. Id. at 6.
Plaintiff was born in September 1966, ECF No. 55-2 at 2, and Namachar was born in November 1971, ECF No. 38 ¶ 12. Thus, at the time of interviews with the panel is March/April 2015, Plaintiff was 48 years old and Namachar was 43 years old.
(1) Comparative experience
As to the contrast between Plaintiff's experience and that of Namachar, Plaintiff has not proffered any specific evidence concerning Namachar's experience. Further, he fails to provide any evidence as to the job requirements or the interview/scoring procedure and what role experience played therein. Furthermore, Plaintiff does not and cannot dispute that the applicant selected for the position received the highest score in a performance based interview with the four-person panel. See, e.g., Puntillo v. Mineta, 2009 WL 142219, at *10 (M.D. Pa. May 19, 2009)(in a Title VII action, finding that defendant's reason that selection based on highest interview scores was a legitimate nondiscriminatory reason for non-selection). In short, Plaintiff has failed to establish a genuine issue of material fact as to whether Namachar's experience was so inadequate as to render his selection a pretext for age discrimination.
(2) Panelist question
As to the question about Plaintiff's age during his interview with the panel for the Supervisory Police Officer position, Plaintiff offers no evidence of a connection between the question by one panel member and his non-selection by Chief Bennett. Plaintiff does not establish, for example, who asked the question, the context of the question, whether he answered the question, which panel members heard the question and/or answer, or whether any panel member factored the question and/or answer into the score Plaintiff received. Plaintiff also fails to proffer any evidence whatsoever that any panel member communicated the question and/or answer to Chief Bennett prior to his selection of Namachar. While the question itself may raise a possible specter of age bias, without more, its existence does nothing more than invite speculation as to the effect, if any, of the question on the selection process. "An inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment." Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
(3) Chief Bennett
It is undisputed that the scores of the interview panel were provided to Chief Bennett and he selected the highest ranked applicant. ECF No. 39-15 at 4. Nonetheless, Plaintiff argues that Chief Bennett's purported negative attitude toward older employees. Plaintiff advances only two "incidents" which are unrelated to Plaintiff. First, Plaintiff cites to Wisneski's testimony that Chief Bennett "promoted people who were still on probation over senior officers who had been there a while." ECF No. 41 at 6. This vague testimony, which, inter alia, fails to specify the ages of any of the "people" or "officers" involved, is not relevant to the instant claims. Plaintiff additionally cites to Chief Bennett's inquiry of Wisneski "just out of nowhere" about when Wisneski was going to retire "as he was getting up there in years." Id. As the United States Court of Appeals for the Third Circuit has explained: "[s]tray remarks ... by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision." O'Connell v. Associated Wholesalers, Inc., 558 F. App'x 286, 292 (3d Cir. 2014). Plaintiff does not identify the timing of Chief Bennett's single remark/question of another employee and he provides no meaningful connection between the proffered evidence of Chief Bennett's attitude and any age-based animus beyond mere speculation or conclusive assertions. Furthermore, Plaintiff testified in his deposition that Chief Bennett never said anything to Plaintiff directly or otherwise that gave him the impression that Chief Bennett did not like people over the age of 40. ECF No. 39-1 at 20.
Construing all of the evidence in the light most favorable to Plaintiff, this Court finds that Plaintiff has not proffered sufficient evidence of pretext to survive summary judgment as it relates to the selection of the Supervisory Police Officer position. As such, it is recommended that the Motion for Summary Judgment be granted as to this portion of Count I.
b. July 2015 Suspension
As to the July 2015 suspension, Defendant advances that Plaintiff was suspended for "Acting in an Unauthorized Capacity" based on his instruction to the Butler VA Fire Department not to respond to the medical emergency call on April 25, 2015, from the privately owned mental health facility on the Butler VA property. ECF No. 37 at 9. Plaintiff first argues that Lamielle, the younger VA police officer, "who was also involved in telling the fire department that they were not really needed," was not questioned or disciplined about the incident. ECF No. 41 at 7. Plaintiff further argues that "the record evidence shows that [Plaintiff] did not tell the fire department not to respond." Id.
By his own admission, it was Plaintiff who gave the instruction to the VA fire department not to respond based on his assessment of the two patients and his training as an EMT. ECF No. 38 ¶ 14. The Court notes that Plaintiff testified in his deposition that he "totally disagrees" with management and that his assessment of the situation was the correct one. ECF No. 39-1 at 29. Further, Plaintiff proffers no evidence that indicates the suspension was age-related. Thus, Plaintiff's dispute as to the factual basis for the suspension does not demonstrate such weaknesses, implausibilities, incoherencies, or contradictions in Defendant's proffered legitimate reason for its action and thus does not raise a genuine question of fact material to pretext. Accordingly, this Court finds that Plaintiff has not made the requisite showing of pretext as to this suspension. Therefore, it is recommended that the Motion for Summary Judgment be granted as to this portion of Count I.
c. March 2016 Resignation
In support of the Motion for Summary Judgment as to Plaintiff's March 2016 resignation, Defendant argues that all of the employment actions taken against Plaintiff were in response to his own conduct and that he has adduced no evidence that his resignation, which he had been considering since 2014, was the result of a construction discharge. ECF No. 37 at 11-12.
In opposition to the Motion for Summary Judgment, Plaintiff cites to Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir. 1993), wherein the United States Court of Appeals for the Third Circuit set forth relevant factors to consider in determining whether a constructive discharge occurred. ECF No. 41 at 8. The cited factors include the existence of: (1) a threat of discharge; (2) a suggestion of retirement; (3) a demotion or reduction of pay or benefits; (4) an involuntary transfer to a less desirable position; (5) an alteration of job responsibilities; or (6) an unsatisfactory job evaluation. Id. (citing Clowes, 991 F.2d at 1161).
Despite his citation to these factors, Plaintiff does not proffer evidence of any of the Clowes factors. Instead, he acknowledges that there was no threat of discharge, but nonetheless cites to three incidents of discipline in December 2014, July 2015 and February 2016, as evidence that "he was rapidly approaching the final stage of progressive discipline." ECF No. 41 at 9. However, Plaintiff has not proffered evidence that the disciplinary incidents were related to each other in any way and thus he does not establish any progression. Further, it is well-settled that "[t]he law of constructive discharge is not concerned with subjective fears of possible future dismissal." Tunis v. City of Newark, 184 F. App'x. 140, 143 (3d Cir. 2006). As the United States Court of Appeal for the Third Circuit explained:
While the law protects employees from concerted, calculated efforts to expel them or the imposition of unduly harsh conditions not visited upon their co-worker in order to force them to quit, it does not guarantee that they will not suffer frustrations, challenges, disappointments and discipline.
Id.
Plaintiff also proffers evidence that his supervisors scrutinized him more critically than other employees. ECF No. 41 at 8-9. However, in Clowes, the Third Circuit declined to find that overzealous supervision of the plaintiff's work was a basis for a claim of constructive discharge. Clowes, 991 F.2d at 1162.
Plaintiff also cites to a performance evaluation in October 2014 in which he dropped to "fully successful." ECF No. 41 at 9. However, Plaintiff does not, and cannot, allege that this rating constituted an unsatisfactory job evaluation.
Plaintiff also argues that he had an alteration of job responsibilities when he was required to relinquish his badge and credentials while his fitness for duty was being evaluated. Id. at 9-10. Defendant proffers that the fitness evaluation was prompted, not by Plaintiff's age, but by a letter that Plaintiff submitted from his doctor stating that he could not participate in quarterly ground defense recovery drills due to his current medical conditions. ECF No. 37 at 10; ECF No. 38 ¶¶ 18-20. In response, Plaintiff argues that Defendant's stated reason is implausible because his injuries were neither sudden nor new. ECF No. 41 at 10. However, Plaintiff does not offer any evidence to establish that Defendant had any earlier knowledge of Plaintiff's medical conditions or physical restrictions. Secondly, Plaintiff offers no evidence that the fitness evaluation was age-related in any way.
The following deposition testimony from Plaintiff is revealing:
Q. ... Sir, do you believe that anybody conspired against you to get you to resign from your position?Id. at 38-39. In addition, the Court notes, as argued by Defendant, that Plaintiff has not and cannot cite to any evidence that he was threatened with termination for no reason or encouraged to resign from his position or involuntarily transferred to a less desirable position. ECF No. 37 at 11. As set forth more fully supra, subjective beliefs are insufficient to defeat a Motion for Summary Judgment. Ekhato v Rite Aid Corp., 529 F. App'x 152, 156 (3d Cir. 2013).
A. I believe.
Q. Who?
A. I believe Chief Bennett, Rebecca Hubscher, Sergeant Crowther.
Q. That they conspired. What did they do to conspire?
A. Christine Burns, Seth Coyle. I believe they were all in this little group, that conspired to force me to leave.
Q. And, by conspire, what do you mean by that, in lay terms?
A. To write me up, to continue to write me up, to follow and suspend me, and/or next terminate me. You know, if I would have stayed there, what was the next step? What would they write me up for next? You know. Would I just be terminated? Do I think they all conspired? Sure.
Q. And when you say conspired, what do you mean by that? They got together, had a meeting, and said, "Let's get him out of here"?
A. I have to doubt.
Q. What is your evidence of that?
A. I have none, but I have -- just me, personally, that's what I think.
Because Plaintiff has not produced sufficient evidence from which a reasonable fact finder could find that a constructive discharge occurred due to age discrimination, it is recommended that the Motion for Summary Judgment be granted as to this final basis for Count I.
Based on this Court's findings as to Plaintiff's three alleged bases for his ADEA claim, it is respectfully recommended that as to Count I, the claim of age discrimination, Plaintiff has failed to make the requisite showing of pretext to survive summary judgment and that Defendant's Motion for Summary Judgment should be granted.
2. Count II: Retaliation
Where, as here, there is no direct evidence of retaliation in violation of the ADEA, the Court again employs the burden-shifting framework of McDonnell Douglas set forth above. Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). As the United States Court of Appeals for the Third Circuit set forth in Daniels:
Under the McDonnell Douglas framework, a plaintiff asserting a retaliation claim first must establish a prima facie case by showing "(1) [that the plaintiff engaged in] 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." Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (quoting Fogleman v. Mercy Hosp. Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)). If the plaintiff makes these showings, the burden of production of evidence shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action. Id. If the employer advances such a reason, the burden shifts back to the plaintiff to demonstrate that "the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action." Id. (quoting Moore [v. City of Philadelphia], 461 F.3d [331,] 342 (3d Cir. 2006)). Although the burden of production of evidence shifts back and forth, the plaintiff has the ultimate burden of persuasion at all times. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000).Daniels, 776 F.3d at 193.
For purposes of this Motion for Summary Judgment only, Defendant does not dispute that Plaintiff states a prima facie case of retaliation in connection with the six incidents he complains about. Defendant also contends that its actions were legitimate, non-discriminatory and non-retaliatory. ECF No. 37 at 16. The sole disputed element of Plaintiff's retaliation claim concerns the final burden of production. In support of the instant Motion for Summary Judgment, Defendant argues that Plaintiff cannot show that Defendant's proffered explanations are false and that retaliation was the real reason for the adverse employment action. Id.
In opposing the Motion for Summary Judgment, Plaintiff argues that he has produced sufficient evidence to establish a genuine issue of material fact on the issue of pretext with regard to his retaliation claims. ECF No. 41 at 12-18. He makes the broad brush argument that there is evidence that discredits all of Defendant's proffered reasons for its adverse employment actions. Id.
As noted by Defendant, Plaintiff's burden to establish a prima facie case of discrimination is different from Plaintiff's burden to show causation at the pretext stage of the McDonnell Douglas analysis. The United States Court of Appeals for the Third Circuit has recently explained:
[T]o prove causation at the pretext stage, the plaintiff must show that she would not have suffered an adverse employment action "but for" her protected activity. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013). In Nassar, the Supreme Court analyzed Congress's use of the term "because" in Title VII's retaliation provision, 42 U.S.C. § 2000e-3(a), and compared it with the "motivating factor" language in the status-based discrimination provision. See id. at 2527-28. While decided in the context of a review of rulings on post-trial motions and not in the context of the McDonnell Douglas burden-shifting
framework, the Nassar Court held that a retaliation plaintiff must prove traditional "but-for" causation to prevail on the claim, and that the "mixed-motive" standard is appropriate only in status-based discrimination cases, where Congress used the term "motivating factor." Id. at 2532-34.Young v. City of Phila. Police Dep't, 651 F. App'x 90, 96 (3d Cir. 2016). Therefore, as Defendant correctly points out, at the pretext stage of the analysis, to survive summary judgment, Plaintiff must show proof that, in the absence of his prior protected activity, Defendant would not have taken any of the actions that it did. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013); see also Stone v. Johnson, 2016 WL 4037292, at *5 (E.D. Pa. 2016) (plaintiff must "prove that this reason was pretext, and that retaliation was the 'but-for' cause of the TSA's refusal to restore him to his previous position."). As with claims of discrimination, a plaintiff can show pretext by offering evidence, "direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious [retaliatory] reason was more likely than not a ... determinative cause of the employer's action." Daniels, 776 F.3d at 198-99 (quoting Fuentes, 32 F.3d at 764); Krouse v. American Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997). Thus, a plaintiff shows causation at the pretext stage only when he provides some evidence that "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Nassar, 570 U.S. at 360.
In review of the evidence of the six discrete incidents that form the basis of Plaintiff's retaliation claim, this Court finds that Plaintiff fails to proffer evidence from which a reasonable factfinder could determine that the adverse employment actions about which he complains would not have happened "but for" for the protected activity of submitting EEO complaints.
a. December 2014 reprimand
As to the December 3, 2014, reprimand, it is critical at the outset to take note of the chronology of events related to the September 18, 2014, meeting and prior to the submission of the EEO complaint by Plaintiff on November 5, 2014. It is undisputed that the meeting at issue, with the VA police department and management of the Butler VA, took place on September 18, 2014. ECF No. 43-1 at 5. The purpose of the meeting was to discuss issues in the Butler VA police department. Id. at 6. The meeting was attended by Assistant Director Hubscher, Chief Bennett, Lieutenant Eury, Sergeant Crowther and a number of VA police officers. Id. A total 12 and 13 people attended. Id. at 9. It is also undisputed that Plaintiff told Sergeant Crowther "if he had an issue with me, we can go outside one-on-one," id. at 10, and that Plaintiff got up and walked out of the meeting after two minutes. Id. at 6-7. Shortly thereafter, Lieutenant Eury came to Plaintiff in the VA police office, took his gun away, and told him to sit there for five minutes and cool off and then to report to Assistant Director Hubscher's office. Id. at 12. During the meeting in Assistant Director Hubscher's office, concern was expressed to Plaintiff that he was angry and he had asked Sergeant Crowther "to go out and duke it out - - outside." Id. at 12-13. Thereafter, an investigation was commenced into Plaintiff's conduct during the September 18, 2014, incident.
Detailed Reports of Contact documenting the incident were prepared by Chief Bennett, Sergeant Crowther, Lieutenant Eury, and other VA police officers. ECF No. 39-6 at 5-11.
As part of the investigation, on October 23, 2014, Plaintiff was interviewed by Chief Bennett, his supervisor, relative to his conduct during the September 18, 2014, meeting. During the interview, Plaintiff acknowledged that "certain people in the room may have felt threatened" as a result of Plaintiff's actions. ECF No. 43-2 at 3; ECF No. 39-6 at 16-17.
By letter from Chief Bennett dated November 7, 2014, Plaintiff was given advance notice of a proposed reprimand decision for unprofessional conduct during the September 18, 2014, meeting. The letter noted that "[d]uring that meeting you raised your voice and asked Officer AC to 'step outside.'" ECF No. 43-3 at 29-30. Plaintiff's response was due by November 21, 2014. Id. Thereafter, by letter dated December 3, 2014, from Assistant Director Hubscher, Plaintiff was issued a reprimand for unprofessional conduct during the September 18, 2014, meeting. ECF No. 43-2 at 3-4.
Plaintiff claims that the December 3, 2014, reprimand by Assistant Director Hubscher was issued in retaliation for his first EEO complaint that was submitted on November 5, 2014 by Plaintiff's counsel via fax and mail to the VA Office of Resolution Management in Lyons, New Jersey. ECF No. 56-1 at 2. However, Plaintiff's argument in support of the alleged retaliation focuses primarily on his treatment at the September 18, 2014, meeting, which was the subject of both the reprimand and the EEO complaint. Id. Obviously, the triggering event for the issuance of the reprimand was Plaintiff's threatening conduct during the meeting on September 18, 2014, that took place six (6) weeks before Plaintiff made the EEO complaint on November 5, 2014. Thus, those events and could not be retaliatory thereto. Plaintiff also cites the close temporal proximity between the notice of the proposed reprimand, which was issued on November 7, 2014, and Chief Bennett's receipt of notice of the EEO complaint two days earlier. Id. However, the notice of proposed reprimand states that Plaintiff was interviewed about the events of the September 18, 2014, meeting on October 23, 2014, which indicates that the investigation into the meeting events clearly predated the notice of the EEO complaint. Further, Plaintiff does not dispute the merits of the reprimand, thus precluding a finding that it would not have happened "but for" the submission of the EEO complaint.
The VA Office of Resolution Management could not perform intake based on the initial fax of 11/5/14 because of insufficient information. Plaintiff's counsel provided two subsequent faxes on 11/13/14 and 11/14/14. Thereafter, an initial intake was conducted on 11/17/14. ECF No. 55-2 at 2-4. --------
b. October 2014 Performance Evaluation
On October 14, 2014, Chief Bennett completed a performance evaluation for Plaintiff for the period October 1, 2013 through September 30, 2014. ECF No. 39-2 at 2-6. Plaintiff was rated "Fully Successful" and received levels of achievement ratings of "Exceptional" or "Full Successful" as to the five elements of his position. No "Unacceptable" ratings were given for these elements. Id. As such, it is problematic for Plaintiff to characterize the evaluation as an adverse employment action. Furthermore, as to Plaintiff's October 14, 2014 performance evaluation in which Chief Bennett gave Plaintiff a lower rating than he had received from his prior supervisor, it is critical to understand that this performance evaluation predates Chief Bennett's notice of Plaintiff's EEO complaint, which he received on November 5, 2014. ECF No. 42 at 4. Plaintiff proffers no evidence to establish how Chief Bennett's performance evaluation dated October 14, 2014 could be retaliatory for protected activity in November 2014.
c. Non-selection for Supervisory Officer Position
As to Plaintiff's non-selection for the Supervisory Police Officer Position in April 2015, discussed in detail above, Plaintiff argues that Chief Bennett, the selecting official, had a demonstrated bias against individuals who made complaints outside of the department. ECF No. 41 at 16. However, Plaintiff proffers no evidence as to this claim. Defendant points to the following relevant testimony from Plaintiff:
Q. So, your retaliation claims in your complaint include that you were not selected for the supervisory police officer position, I think that we talked about the underlying facts there, but what is it about your nonselection that makes you believe that it was retaliatory on the part of Chief Bennett and Rebecca Hubscher, specifically?
A. I believe all the previous EEO's, that were already in place, the reprimand, the decision.ECF No. 39-1 at 22-23.
Q. Did either one of them ever say to you that they were displeased that you were filing EEO's?
A. No.
Q. Did you ever hear that they were displeased that you were filing EEO's?
A. No.
Plaintiff has not proffered any evidence that his non-selection for the Supervisory Police Officer position would not have happened "but for" the submission of the EEO complaint.
d. July 2015 Suspension
As to the July 2015 suspension, as discussed above, by his own admission, Plaintiff gave the instruction to the VA fire department not to respond based on his assessment of the two patients and his training as an EMT. ECF No. 38 ¶ 14. Plaintiff has not proffered sufficient evidence that this suspension would not have happened "but for" the submission of the EEO complaint.
e. February 2016 Suspension
As to the February 2016 suspension for unauthorized leave and unprofessional conduct, Plaintiff does not dispute that the detailed reasons set forth in the letter imposing the suspension. He makes no argument concerning the unprofessional conduct basis of the suspension, and as to the unauthorized leave, he admits that he took such leave on his own assumption that his leave request had been granted. ECF No. 41 at 18. This evidence falls well short of establishing a question of fact as to whether the suspension would not have happened "but for" the submission of the EEO complaint.
f. Constructive Discharge
As to Plaintiff's claim that he was constructively discharged in retaliation for submitting an EEO complaint, he cites specifically, as evidence of his work conditions, statements made by Sergeant Crowther and Lieutenant Eury referencing Plaintiff's EEO complaint. Id. However, Plaintiff does not proffer evidence that he had knowledge of the alleged statements. Further, the following deposition testimony from Plaintiff is telling:
Q. Did you ever hear that Lieutenant Eury didn't like that you were filing EEO's, or didn't like people filing EEO's?ECF No. 39-1 at 23-24.
A. Not that I am aware of.
Q. What about Chris Bruns, Seth Coyle or Sergeant Crowther?
A. Nobody has ever came [sic] to me.
Q. So, what gives you the belief that they retaliated against you, is the fact that you did file EEO's; is that right?
A. Correct.
Q. Anything else, other than that?
A. No.
Q. Why do you think filing EEO's would lead them to have any influence over what happened to you as an employee here?Id. at 36.
A. I think because of the September incident, and again, as I said previously, "Let's get rid of the older guys."
Q. Have you ever heard them say that?
A. No.
Q. Have you ever heard that they said that to anybody else?
A. No.
Q. It's just a hunch, what you feel?
A. It's just my -- my thoughts.
Q. Did Mr. Namachar ever say anything to you that gave you the impression that he didn't like the fact that you were filing EEO's?
A. No.
Q. Did -- have you heard that he has either said, or done something that would give you the impression that he doesn't -- that he wanted to retaliate against you --
A. No.
Q. -- because of your EEO's?
A. He never said anything to me.Id. at 41.
Q. Just generally speaking, did you have any impression of him disfavoring people who filed EEO's?
A. Not that I am aware of.
The sole evidence on which Plaintiff bases his claims of retaliation is his subjective belief that the actions taken against him were retaliatory in nature. Plaintiff's subjective belief, based on the mere fact that he submitted EEO complaints, that every subsequent action on the part of Defendant was retaliatory, is insufficient to defeat a motion for summary judgment. See Ekhato v. Rite Aid Corp., 529 F. App'x at 156 (holding that subjective belief in discriminatory intent in employment decision is insufficient to raise a genuine fact dispute material to determining pretext) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 414 (3d Cir. 1999) (finding that beliefs without factual support are insufficient to show a pretext for discrimination); see also Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) ("[M]ere personal belief, conjecture[,] and speculation are insufficient to support an inference of . . . discrimination." (internal quotation marks omitted)); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (explaining that conclusory allegations without evidentiary support are insufficient)).
In short, as to each of the adverse employment actions alleged to be retaliatory, Plaintiff fails establish a genuine issue of fact as to whether Defendant's proffered explanation was false and that retaliation was the real reason for the action. Accordingly, it is recommended that the Motion for Summary Judgment be granted as to Count II.
3. Count III: Hostile Work Environment
The relevant law as to this claim has been summarized by this Court as follows:
The Third Circuit has not formally recognized a cause of action for hostile work environment under the ADEA. However, district courts within the
Third Circuit have recognized a cause of action for hostile work environment based on the ADEA.Laneve v. Latrobe Steel Co., Civ. A. No. 14-216, 2015 WL 4911824 at *14-15 (W.D. Pa. Aug. 17, 2015) (quotation marks, brackets and citations omitted).
Assuming that such a cause of action exists, to state a facially plausible hostile work environment claim under the ADEA, a complaint must allege that: (1) the employee suffered intentional discrimination because of his age; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected him; (4) the discrimination would detrimentally affect a reasonable person of the same age in that position; and (5) the existence of respondeat superior liability.
As set forth above, Plaintiff has failed to present sufficient evidence for a reasonable fact finder to conclude that he suffered age discrimination. In addition, Plaintiff conceded in his deposition that he never heard any supervisor or member of management of Defendant make a comment about forcing Plaintiff out based on his age.
Q. Did you ever hear from anybody in either a supervisory capacity, or management, or HR, that you were trying to be pushed out, or that they wanted to push you out?ECF No. 39-1 at 37. Thus, he has necessary failed to present sufficient evidence for a reasonable fact finder to conclude that a hostile work environment based on based age discrimination. See Sauchelli v. United States Postal Serv., 407 F. App'x 610, 612 (3d Cir. 2010) (holding that hostile work environment claim necessarily failed where plaintiff did not present sufficient evidence for a reasonable fact finder to conclude that any adverse actions were taken against plaintiff for a discriminatory reason).
A. No.
Accordingly, it is recommended that the Motion for Summary Judgment be granted as to Count III.
E. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion for Summary Judgment, ECF No. 36, be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
BY THE COURT:
/s/_________
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE Dated: August 27, 2018 cc: The Honorable Nora Barry Fischer
United States District Judge
All counsel of record via CM/ECF