Jeffrey v. Thomas Jefferson University Hospitals, Inc.

RESPONSE in Support re MOTION for Summary Judgment

E.D. Pa.January 8, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _______________________________________ WILLIAM T. JEFFREY, JR., : : Plaintiff, : : v. : CIVIL ACTION NO. 2:17-cv-00531 : THOMAS JEFFERSON UNIVERSITY : HOSPITALS, INC. t/d/b/a THOMAS : JEFFERSON UNIVERSITY HOSPITAL, : : Defendant. : _______________________________________: DEFENDANT THOMAS JEFFERSON UNIVERSITY HOSPITALS, INC.’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and Your Honor’s Policies and Procedures, Defendant Thomas Jefferson University Hospitals, Inc. (“Defendant” or “TJUH”), by and through its counsel, Greenberg Traurig LLP, respectfully submits its Reply Brief in Further Support of its Motion for Summary Judgment for the limited purpose of responding to arguments and evidence raised for the first time in William T. Jeffrey, Jr.’s (“Plaintiff” or “Mr. Jeffrey”) Brief in Opposition to Defendant’s Motion for Summary Judgment (“Pl.’s Memo”) (Dkt. 25). I. INTRODUCTION1 To avoid summary judgment, Mr. Jeffrey has provided the Court with a counter- statement of alleged facts that he argues give rise to an inference that Mr. Jeffrey was terminated for reasons of age, gender, and disability discrimination. The attempt fails because Mr. Jeffrey 1 Mr. Jeffrey included full transcripts of depositions taken in this case in his Appendix to Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment (“Plaintiff’s Appendix”) (Dkt. 25-2). For ease of reference, TJUH has cited to Plaintiff’s Appendix when relying on deposition testimony. Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 1 of 10 2 provided no disputed issues of material fact relating to the basis for Mr. Jeffrey’s termination from employment. The undisputed record evidence shows that TJUH terminated Mr. Jeffrey’s employment because of his gross failure to follow safe medication practices in treating a patient, and his equally serious failure to respond to the crisis that he created by not attending to his patient who had lost consciousness. Mr. Jeffrey’s contemporaneous admission at the time of the incident (confirmed by a text message he sent and by his deposition testimony) that he was primarily at fault, and not the Surgical Technician who administered the medication, eliminates any possible argument that her lesser discipline creates an inference that he was selected for termination because of his age, gender, or disability. Moreover, Mr. Jeffrey’s reliance on a Seventh Circuit case involving wholly distinct facts is misplaced and ignores the law of the Third Circuit regarding the proper role of a District Court in considering a motion for summary judgment in an employment termination case where a clear and undisputed non-discriminatory triggering act for the termination occurs. II. ARGUMENT A. Mr. Jeffrey’s Opposition Fails to Support His Age, Gender, and Disability Discrimination Claims. Mr. Jeffrey’s age, gender, and disability discrimination claims cannot survive TJUH’s Motion for Summary Judgment for three reasons: (1) he fails to meet the forth prong of the age and gender discrimination prima facie test (i.e., more favorable treatment of similarly situated colleagues outside of his protected class or a casual nexus between his membership in a protected class and the adverse employment decision complained of) and the third prong of the disability discrimination prima facie test (i.e., that TJUH discharged him “because of” his bipolar disorder); (2) TJUH had a legitimate non-discriminatory reason for terminating his employment; Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 2 of 10 3 and (3) no evidence supports his belief that TJUH’s non-discriminatory reason for terminating him was pretextual. i. Mr. Jeffrey Failed to Establish A Prima Facie Case of Age, Gender, or Disability Discrimination. Mr. Jeffrey failed to establish a prima facie case of age, gender, or disability discrimination. The undisputed record demonstrates that he was terminated for a reason unrelated to his age, gender, or disability – namely, his failure to follow safe medication practices and failure to provide continuous care for a patient in distress while on a performance improvement plan. Significantly, Mr. Jeffrey concedes, in his response to TJUH’s Statement of Uncontested Material Facts in Support of its Motion for Summary Judgment (“SOF”) (Doc. 25- 1), that:  It was completely reasonable for doctors to want nurses to perform their jobs satisfactorily (SOF ¶ 28.)  In October 2015, Mr. Jeffrey was placed on a performance improvement plan that TJUH was hopeful Mr. Jeffrey would complete in a satisfactory manner (SOF ¶¶ 30, 32, 34.)  While on the performance improvement plan, Mr. Jeffrey was assigned to a non-complex case that he had the ability to perform (SOF ¶ 37.)  During this procedure, all Mr. Jeffrey was required to do was pull the correct drug, sodium citrate, from pyxis, TJUH’s automated medication dispensing system, and hand it off to the surgical technician, Jemma Reinhardt, to be injected into the patient’s catheter (SOF ¶ 38.)  As a nurse who had worked at TJUH for over 30 years, Mr. Jeffrey was responsible for knowing how drugs were stored in the pyxis (SOF ¶ 40.)  Mr. Jeffrey pulled the wrong drug from pyxis and admits that he had no excuse for retrieving the wrong drug from pyxis (SOF ¶ 41.)  Mr. Jeffrey understood that Ms. Reinhardt was relying on him to perform his job properly (SOF ¶ 42.)  The patient lost consciousness and Mr. Jeffrey failed to react (SOF ¶¶ 50, 52.) Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 3 of 10 4  Following the incident, Mr. Jeffrey texted Ms. Reinhardt “I am so sorry. I take full responsibility for getting the wrong drug out.” (SOF ¶ 68.)  Mr. Jeffrey admits this was a very serious incident that occurred a few days after he was placed on a performance improvement plan (SOF ¶¶ 59, 61.) Mr. Jeffrey attempts to establish an inference of discrimination by arguing that (1) he was replaced by “significantly younger females”; (2) that Ms. Reinhardt, a Surgical Technician, and Shrenik Shah, M.D., an Interventional Radiology Medical Fellow, are appropriate comparators because they were also involved in treating the patient who was injected with the wrong medication that Mr. Jeffrey retrieved from pyxis, but were not discharged from employment; and (3) because Mr. Cullen and Ms. Sesto were aware that Mr. Jeffrey had issues with anxiety, the October 9, 2015 incident gave TJUH the “excuse” it needed to terminate Mr. Jeffrey. Mr. Jeffrey’s arguments ignore the undisputed record evidence and do not create a genuine issue of material fact of an inference of age, gender, or disability discrimination. First, the undisputed record evidence does not support Mr. Jeffrey’s assertion that he was replaced by significantly younger females. To support this point, Mr. Jeffrey points to Dianne Sesto’s deposition testimony; yet, Ms. Sesto never testified that Mr. Jeffrey was replaced by a number of younger female nurses. Rather, Ms. Sesto testified about the names and ages of the nursing staff she currently supervises at TJUH. The current make-up of the Interventional Radiology nursing staff is irrelevant to Mr. Jeffrey’s claims. The record is clear: TJUH made the termination decision based on Mr. Jeffrey’s long history of disciple and because, while on a performance improvement plan, he retrieved the wrong medication from pyxis and failed to respond to a patient in distress. (SOF ¶ 77.) Additionally, Ms. Sesto testified that the current Interventional Radiology nursing staff includes “a pretty wide range of ages,” including at least two men who are in their fifties. See Tr. of Oct. 5, 2017 Dep. of Dianne Sesto (“Sesto Dep.”) at Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 4 of 10 5 69:14-70:19, Doc. 25-24. Mr. Jeffrey’s transparent attempt to demonstrate genuine issues of material fact based on staffing decisions made after Mr. Jeffrey was terminated fails. Second, Mr. Jeffrey fails to offer any comparators for the purpose of establishing an inference of discrimination. Contrary to Mr. Jeffrey’s suggestion, Ms. Reinhardt and Dr. Shah are not viable comparators. Coleman v. Donahoe, 667 F.3d 835, 846-47 (7th Cir. 2012), the principal case on which Mr. Jeffrey relies, is distinguishable and actually demonstrates why summary judgment is appropriate here. In Coleman, the plaintiff was terminated for violating a generally applicable workplace rule that prohibited “Violent and/or Threatening Behavior” when she told her psychiatrist that she had thoughts of killing her supervisor. 667 F.3d at 841, 851. By contrast, two other employees violated the same rule when they threatened another employee at knife point and were only suspended for one week. See id. at 841. The district court found that plaintiff and the other two employees were not similarly situated because they reported to different supervisors and held a substantially different job, and the Seventh Circuit reversed. Critically, the Seventh Circuit noted that comparisons between employees who hold different positions is more useful in misconduct cases where a specific workplace rule is violated, as opposed to employee performance cases. See id. at 849.2 This is not a misconduct case involving a specific rule of workplace conduct; it is a job performance case where Mr. Jeffrey’s job performance history and his level of culpability for a specific performance deficiency negate any comparison between him and others involved in the incident of patient care in question. No one disputes that Dr. Shah, a medical fellow, was not 2 Freeman v. Brennan, No. CV 15-1102, 2017 WL 1550198, at *5 (W.D. Pa. May 1, 2017), the only other case cited by Mr. Jeffrey to support using Dr. Shah and Ms. Reinhardt as comparators, also flatly rejects this argument. There, as in the Coleman case, the plaintiff was terminated for violating a general workplace rule (not driving safely), and not based on the quality of his job performance. Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 5 of 10 6 present when the patient incident occurred, and his performance was therefore not compared to that of Mr. Jeffrey by the nursing and interventional radiology managers who were the decision makers regarding Mr. Jeffrey. (SOF ¶ 66.) Nor was he alleged to have retrieved the wrong medication from pyxis or failing to provide continuing care for a patient in distress. (SOF ¶ 62.) Likewise, Ms. Reinhardt, unlike Mr. Jeffrey, had no record of prior discipline, did not retrieve the wrong medication from pyxis, and did react immediately to the patient emergency while Mr. Jeffrey panicked and froze. (SOF ¶¶ 38, 49, 74.) Additionally, Ms. Reinhardt was harshly disciplined for her involvement in the incident when she received a three day Suspension/Final Warning, skipping over the first two of TJUH’s progressive disciplinary steps. As a matter of law, Mr. Jeffrey cannot create an inference of discrimination based upon the vast differences between his record of discipline and level of culpability in the incident compare to Ms. Reinhardt. Third Circuit law clearly states that in weighing a termination decision, this Court does not sit as a super-personnel department to consider the wisdom of an employer’s personnel action. See, e.g., Boyle v. Penn Dental Med., 689 F. App'x 140, 144 (3d Cir. 2017) (quoting McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (“No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [Title VII, the ADEA, and the PHRA do] not interfere. “[T]he issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers.”); Capps v. Mondelez Glob., LLC, 847 F.3d 144, 154 n.9 (3d Cir. 2017) (quoting McCoy, 957 F.2d at 373) (“[W]e do ‘not sit as a super-personnel department that reexamines an entity’s business decisions.’”). In this case, the second-level review of the Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 6 of 10 7 employment decision by the Human Resources Department of TJUH confirmed the validity of the action. (SOF ¶¶ 84, 93, 94.) Finally, Mr. Jeffrey has provided no support whatsoever for the assertion that his termination was because of his bipolar disorder diagnosis. Mere awareness of the fact that Mr. Jeffrey had issues with anxiety is not evidence that his diagnosis had anything to do with the decision to terminate his employment.3 Sampson v. Methacton Sch. Dist., 88 F. Supp. 3d 422, 440 (E.D. Pa. 2015) (Surrick, J.) (plaintiff could not establish prima facie case of disability discrimination because the decision not to hire her as principal and suspending and terminating her were made “because of” her torn meniscus). Far from creating an inference of discrimination, Mr. Jeffrey’s assertion that his job performance was being negatively impacted by changes in his medication establishes that his supervisors were responding to his job performance and not “because of” a disability that had been disclosed to his managers years earlier. ii. Mr. Jeffrey Has Failed To Establish That TJUH’s Legitimate Non- Discriminatory Reason for Terminating Him Was Pretextual. Beyond his failure to establish a prima facie case of age, gender, or disability discrimination, Mr. Jeffrey has not provided any admissible, supporting evidence to prove that TJUH’s reason for terminating Mr. Jeffrey was a pretext for age, gender, or disability discrimination. See Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 324 (3d Cir. 2014) (once the employer articulates a legitimate, non-discriminatory reason “plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve 3 The record contains no evidence that Mr. Cullen either lied or deliberately misrepresented the truth at his deposition. Rather, Mr. Cullen’s testified that Mr. Jeffrey’s disciplinary record, coupled with his gross failure to follow safe medication practices in treating a patient, and his equally serious failure to respond to the crisis that he created by not attending to his patient who had lost consciousness, was the reason for his termination. See Tr. of October 5, 2017 Dep. of Edward Cullen (“Cullen Dep.”) at 10:8-17, 12:16-21, 48:7-19, Doc. 25-19. Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 7 of 10 8 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.”). In an attempt to manufacture pretext, Mr. Jeffrey repeats his effort to cast doubt on the legitimacy of TJUH’s termination decision by pointing to Ms. Reinhardt’s suspension (rather than termination), the current makeup of the Interventional Radiology nursing staff, the manner in which Mr. Cullen investigated the incident, and Ms. Sesto’s observations of Mr. Jeffrey’s work performance leading up to his termination. However, the record evidence does not support these theories. Rather, the timeline of events leading to Mr. Jeffrey’s termination is clear and the uncontested record refutes any claim of pretext or discrimination, including evidence that it was completely reasonable for doctors to want nurses to perform their jobs satisfactorily (SOF ¶ 28); while on the performance improvement plan, Mr. Jeffrey was assigned to a non-complex case that he had the ability to perform (SOF ¶ 37); Mr. Jeffrey pulled the wrong drug from pyxis and admits that he had no excuse for retrieving the wrong drug from pyxis (SOF ¶ 41); the patient lost consciousness and Mr. Jeffrey failed to react (SOF ¶¶ 50, 52); following the incident, Mr. Jeffrey texted Ms. Reinhardt “I am so sorry. I take full responsibility for getting the wrong drug out.” (SOF ¶ 68); and Mr. Jeffrey admits this was a very serious incident that occurred a few days after he was placed on a performance improvement plan. (SOF ¶¶ 59, 61.) As demonstrated above, TJUH harshly disciplined Ms. Reinhardt, who had never before been disciplined while at TJUH and had a stellar work history, based on the severity of the incident. Issuing Ms. Reinhardt a three day Suspension/Final Warning, skipping over the first two of TJUH’s progressive disciplinary steps, rather than terminating her, does not demonstrate pretext or lack of seriousness of the incident. Nor do staffing decisions made after Mr. Jeffrey’s termination – especially considering the Interventional Radiology nursing staff includes at least Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 8 of 10 9 two males over the age of fifty. See Sesto Dep. at 69:14-70:19, Doc. 25-24. Mr. Jeffrey similarly fails to satisfy his burden by questioning Mr. Cullen’s investigation into the incident. TJUH conducted a full and thorough investigation into the incident that involved both written and verbal statements. Contrary to Mr. Jeffrey’s nefarious attempts to insinuate otherwise, the record contains no evidence that Mr. Cullen destroyed or threw away any documents relating to this investigation or to Mr. Jeffrey.4 Finally, Ms. Sesto’s opinions about Mr. Jeffrey’s work performance do not establish pretext. The record is clear: Mr. Jeffrey had a lengthy disciplinary record and was on a performance improvement plan when he failed to follow safe medication practices and failed to provide continuous care for a patient in distress. Given his work history, it is understandable that Ms. Sesto would tell Mr. Cullen that she did not think Mr. Jeffrey was a “good fit” for the department. The words “good fit” are simply not ageist or sexist comments by any measure, let alone comments that are disability related and Mr. Jeffrey’s attempt to argue that they are suspect simply demonstrates that he has no evidence of pretext. No reasonable fact-finder could conclude that TJUH’s reason for terminating Mr. Jeffrey was anything other than the well-documented reason that was communicated to him at the time of his termination. There is no competent evidence of pretext. III. CONCLUSION For the foregoing reasons, and the reasons set forth in its Memorandum of Law in Support of its Motion for Summary Judgment (Dkt. 23), TJUH respectfully requests that this 4 Mr. Cullen testified that when he left his old office, he brought his personal possession home “and then any sensitive papers that weren’t needed anymore were destroyed.” See Cullen Dep. at 58:3-11, Doc. 25-19 (emphasis added). Mr. Cullen further testified that he was aware of his duty to preserve documents related to Mr. Jeffrey’s lawsuit and that he handed over any documents that he had before any documents were destroyed. See id. at 58:17-22. Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 9 of 10 10 Court grant its Motion for Summary Judgment and dismiss Mr. Jeffrey’s Complaint in its entirety with prejudice. Dated: January 8, 2018 Respectfully submitted, s/ Robert M. Goldich Robert M. Goldich, Esq. Sarah R. Goodman, Esq. GREENBERG TRAURIG LLP 2001 Market Street 2700 Two Commerce Square Philadelphia, PA 19103 (215) 988-7800 (215) 988-7801 (fax) goldichr@gtlaw.com goodmansa@gtlaw.com Attorneys for Defendant Thomas Jefferson University Hospital Case 2:17-cv-00531-RBS Document 26 Filed 01/08/18 Page 10 of 10