Opinion
Civil Action No. 99-6501
September 21, 2001
MEMORANDUM
I. Introduction
Plaintiffs have asserted claims pursuant to 42 U.S.C. § 1981 and 1985(3) for discrimination and conspiracy to discriminate in employment decisions because of race, creating a hostile work environment and retaliation. Presently before the court is defendants' motion for summary judgment.
II. Legal Standard
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). Only facts that may affect the outcome of a case are "material."See Anderson, 477 U.S. at 248. All reasonable inferences from the record must be drawn in favor of the non-movant. See id. at 256.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 499 U.S. 921 (1991). A plaintiff cannot avert summary judgment with speculation or conclusory allegations, such as those found in the pleadings, but rather must present evidence from which a jury could reasonably find in his favor. See Anderson, 477 U.S. at 248;Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D.Pa. 1995).
III. Facts
From the evidence of record, as uncontroverted or otherwise viewed in a light most favorable to plaintiffs, the pertinent facts are as follow.
Plaintiffs are three African American women who worked as assistants in the Occupational and Physical Therapy Department ("OT/PT") at the Hospital of the University of Pennsylvania ("HUP").
Plaintiff McBride worked at HUP from January 1995 until July 1998 when she requested and received a medical leave of absence which continued to November 19, 2000 when she resigned.
Plaintiff Anderson worked at HUP from October 1989 until August 1998 when she requested and received a medical leave of absence which continued to October 28, 1998 when she resigned.
Plaintiff Martin was interviewed and hired by defendant Malloy in June 1994. She worked until August 10, 1998 when she requested and received a medical leave of absence which continued to October 26, 1998 when she resigned.
Defendant Malloy was employed by HUP from 1993 to 1999. She began her career at HUP as a Clinical Specialist. She then became the Outpatient Unit Supervisor for the Physical Therapy Department and in June 1994 became the Ambulatory Care Coordinator. The Physical Therapy Department merged with the Occupational Therapy Department in June 1996, creating the OT/PT Department which was relocated to a facility at 37th and Market Streets. Ms. Malloy was promoted to Director of Ambulatory Services for the OT/PT Department. She left HUP in June 1999.
Defendant Thompson was employed by HUP from 1992 to 2000. She was Director of the Physical Therapy Department from 1992 to 1995. From 1995 to 1997 Ms. Thompson was a hospital director and from 1997 to 2000 she was the chief administrative officer for the trauma network.
Plaintiffs' duties included scheduling patients' physical therapy appointments, maintaining the gym area, including stocking supplies, and sometimes assisting patients on the therapy equipment. After the merger of the Occupational and Physical Therapy Departments and the relocation to the new facility, plaintiffs' responsibilities changed. Plaintiffs were all situated at the front desk of the reception area and were responsible for answering the telephones, scheduling patient appointments and greeting the incoming patients. The OT/PT Department hired an athletic trainer to perform the patient care duties and as a result, the plaintiffs' patient care responsibilities were terminated.
At times never specified, Ms. Anderson applied for other "clerk positions" and some "patient care positions" which she did not receive. No other details are provided. At unspecified times, Ms. McBride applied for a nursing assistant position in a department she could not recall and clerk positions in departments she could not recall except for one which was in the otolaryngology department. She testified that she went to Human Resources "all the time" to see what positions were available. Ms. Martin applied for various patient registrar positions. The only one she could recall was in gynecology.
Ms. Anderson acknowledged that Ms. Malloy did not want her to transfer because Ms. Malloy depended on her in the OT/PT Department. Ms. McBride testified that Ms. Malloy did not want her to transfer out of OT/PT because of the "good job" Ms. McBride did. When plaintiffs complained sometime in 1997 to Ms. Malloy about their classification and salary, she approved their promotion from Clerk II to Clerk III. Ms. Malloy believed plaintiffs would receive some retroactive pay as a result. When they complained to Ms. Malloy that they had not received such pay, she advised them that she was too busy to deal with the matter.
Plaintiffs assert that defendants Malloy and Thompson acted in concert to discriminate against them in filling these other positions because of race and took actions which created a racially hostile work environment. These actions included not allowing plaintiffs to all have lunch hours at the same time; not providing plaintiffs with voice mail on their office telephones; installation of a security camera in the front reception area where plaintiffs' desks were located; locking of the thermostat at a set temperature in the front reception area; failure to provide a coat rack for plaintiffs; and, a prohibition on leaving personal belongings in the front reception area. Plaintiffs assert that they were forced to resign because of the resulting hostile working environment created by these allegedly discriminatory acts.
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Plaintiffs assert that Ms. Thompson denied them other positions, and Ms. Malloy denied them retroactive pay for the promotion they received from Clerk II to Clerk III, in retaliation for "complaining to [HUP's] Human Resource Department." At an unspecified time, Ms. McBride complained to Diane Allen at Human Resources about not receiving interviews for positions she had applied for. Ms. McBride did not recall what else she may have said to Ms. Allen but assumes she would "have said something about race" because "I know Diane Allen's husband was black." Ms. Anderson complained to Marilyn Caldwell at Human Resources about being treated unfairly by Ms. Malloy. There is no competent evidence of record that Ms. Anderson was any more specific or ever related that the alleged unfair treatment was because of race. Ms. Anderson could not recall when, even by year, she spoke with Ms. Caldwell.
IV. Discussion
§ 1981 Claim for Intentional Discrimination
To sustain a § 1981 discrimination claim, a plaintiff must show that the defendant intentionally discriminated against her because of race in the making, performance, enforcement or termination of a contract or for such reason denied her the enjoyment of the benefits, terms or conditions of the contractual relationship. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987);Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 385 (3d Cir. 1999); Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994); Mian v. Donaldson, Lufkin Jenrette Securities, 7 F.3d 1085, 1087 (2d Cir. 1993); Williams v. Carrier Corp., 889 F. Supp. 1528, 1530 (M.D.Ga. 1995); Flagg v. Control Data, 806 F. Supp. 1218, 1223 (E.D.Pa. 1992).
The McDonnell Douglas analytic framework for Title VII claims also applies to employment discrimination claims under § 1981. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);Patterson v McLean Credit Union, 491 U.S. 164, 186 (1989) (applying McDonnell Douglas framework to claims under 42 U.S.C. § 1981); Pamintuan, 192 F.3d at 385 (same); Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (same); Hampton v. Borough of Tinton Falls Police Dep't, 98 F.3d 107, 112 (3d Cir. 1996) (same).
The plaintiff has the initial burden of establishing a prima facie case of employment discrimination. See McDonnell Douglas, 411 U.S. at 802; Pamintuan, 192 F.3d at 385. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. See McDonnell Douglas, 411 U.S. at 802; Hampton, 98 F.3d at 112. The plaintiff may then discredit the defendant's articulated reason and show that it was pretextual from which a factfinder may infer that the real reason was discriminatory or otherwise present evidence from which one reasonably could find that unlawful discrimination was more likely than not a determinative cause of the adverse employment action.Id. at 112-3.
To discredit a legitimate reason proffered by the employer, a plaintiff must present evidence demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in that reason that one could rationally conclude it is incredible and unworthy of credence, and ultimately infer that the employer did not act for the asserted non-discriminatory reasons. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). The ultimate burden of proving that a defendant engaged in intentional discrimination remains at all times on the plaintiff.See Hicks, 509 U.S. at 508. To establish a prima facie case of racial discrimination in the circumstances presented, a plaintiff must show that plaintiff belongs to a racial minority; that plaintiff applied and was qualified for a position for which the employer was seeking applicants; that plaintiff was rejected; and, that thereafter, the position was filled by another or remained open while the employer continued to seek applications from persons of plaintiff's qualifications. See McDonnell Douglas, 411 U.S. at 802.
Plaintiffs are members of a racial minority. Plaintiffs, however, have failed to show that they applied for any position which was filled by another with comparable or lesser qualifications, or that they were qualified for any position for which they did apply.
Ms. Anderson, an outpatient clerk at level two, claims that she applied for another clerk position which was given to someone else. There is no showing, however, that she was qualified for the level five inpatient position that she applied for.
Ms. McBride testified that she applied for several clerk positions outside of the physical therapy department and never received an interview. She cannot recall which positions she applied for. She provides no evidence that any such position was filled with a person of comparable or lesser qualifications. An employer is not required to interview every applicant for a position. A mere failure to receive an interview is not sufficient to establish a prima facie case of intentional discrimination.
Ms. Martin states she applied for several patient registrar positions and only received one interview. Ms. Martin never asked why she did not get the position. She was simply told it was given to somebody else. Ms. Martin provides no evidence that the position was given to someone with comparable or lesser qualifications than hers. Indeed, she acknowledges that one position was filled by someone with a degree that Ms. Martin did not have.
That plaintiffs may have been qualified for positions within HUP filled by others, even others less qualified, would not satisfy the second requirement of a prima facie case that plaintiffsapplied for and were qualified for particular positions. In response to defendants' argument that plaintiffs have provided no evidence they applied for other positions, plaintiffs state only that defendant HUP failed to provide notice of new positions. It appears, however, from Ms. McBride's testimony that she went to Human Resources "all the time" to see what positions were available that HUP did not withhold or obscure such information.
Plaintiffs assert that there is rarely direct evidence of discriminatory motive. This may be true, however, plaintiffs have failed to produce any evidence, direct or indirect, to demonstrate that defendants intentionally discriminated against them on the basis of race. Indeed, there is no competent evidence of record that Ms. Malloy or Ms. Thompson had authority to place any plaintiff in any position for which she did apply or were involved in the pertinent decisionmaking.
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Conclusory assertions of discrimination are insufficient to raise an issue of material fact. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). A prima facie case of discrimination cannot be established by conjecture or speculation. See Bray v. L.D. Caulk Dentsply Int'l, 2000 WL 1800527, *5 (D.Del. July 31, 2000).
B. § 1981 Hostile Work Environment Claim
To sustain a racially hostile work environment claim, a plaintiff must prove that she suffered intentional discrimination because of her race; the discrimination was pervasive and regular; the discrimination detrimentally affected her; the discrimination would detrimentally affect a reasonable person in the same position; and, respondeat superior liability. See Andrews, 895 F.2d at 1482; Lanzot v. Sacred Heart Healthcare Sys. , 2001 WL 872685, *4 (E.D.Pa. July 5, 2001).
An employer is subject to liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate, or successively higher, authority over the employee.See Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998). When no tangible adverse employment action is taken, a defending employer may raise an affirmative defense that it exercised reasonable care to prevent and correct promptly any harassing behavior and that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or otherwise to avoid harm. See Id.
A hostile work environment exists when a workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Kohn v. Lemmon Co., 1998 WL 67540, *4 (E.D.Pa. Feb. 19, 1998). Conduct that is not severe or pervasive enough to create an objectively hostile or abusive environment is not actionable. See Harris, 510 U.S. at 21; Kohn, 1998 WL 67540, *4. Incidents of harassment are pervasive if they occur in concert or with regularity. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990).
In determining whether a work environment is hostile or abusive, the pertinent factors include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; [and] whether it unreasonably interferes with an employee's work performance."Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (quotingHarris, 510 U.S. at 23).
Defendants assert that the security camera was installed as a safety measure for the protection of the front desk employees and to record anyone who harmed the employees to aid the police in apprehending the assailant. Plaintiffs have produced no evidence to show that the placement of the security cameras in the front lobby was for any reason other than security.
The only evidence proffered that the thermostat in the front waiting area was pre-set and locked because of plaintiffs' race is Ms. McBride's testimony that "most black people, by nature, are cold most of the time and most Caucasian people that I know are more warm-blooded" and thus she was were more comfortable with a warm temperature. Plaintiffs have presented no competent evidence to refute defendants' assertion that the thermostat was locked to control sharp fluctuations in temperature which had resulted when persons in the waiting area variously complained that it was too warm or too cold. Plaintiffs Anderson and McBride acknowledged that at plaintiffs' request, the thermostat would be unlocked by Bob LaBelle to adjust the temperature. Moreover, there is no evidence that the thermostat was set at an unusually low temperature, and no evidence to support a conclusion that the thermostat was locked as an act of intentional racial discrimination.
The only evidence proffered that plaintiffs' lunch hours were staggered in half hour increments for racial reasons is Ms. McBride's statement that she perceived this as a reversion "to slavery days" when "they never wanted African Americans to talk to each other because that means divide us and you can conquer us." It is uncontroverted that plaintiffs were the only employees who covered the reception area. Ms. Malloy avers that plaintiffs were unable to all take lunch together because someone always had to be available to answer the phones and interact with the patients as they entered the facility. Plaintiffs have presented no competent evidence to show that this was not the true reason or otherwise that lunch schedules were racially motivated. That other employees with different responsibilities may have been able to take lunch together is irrelevant.
There is no competent evidence that plaintiffs were not permitted to leave their personal belongings at the front desk or were required to keep their pocketbooks and coats in a locker for reasons of race. That professional staff in the back area may have put purses in their desks or placed coats on hooks in the professional offices for lab coats is simply not probative in connection with rules regarding security and appearances at the front desk and reception area.
Plaintiffs have presented no competent evidence from which one could find they did not receive voice mail on their telephones for reasons of race. They have presented no competent evidence to refute Ms. Malloy's testimony that there was no voice mail during hours of operation on the telephone lines covered by plaintiffs because all calls had to be handled as they came in and that the professional staff in the back offices had voice mail because there was no one to answer their direct lines when they were away from their desks.
Plaintiffs also suggest that racism may be inferred from their having to sit together and being physically separated from the other white employees in the OT/PT Department. This is fatuous. Plaintiffs performed reception functions at the front desk while the physical therapists and others in the department worked with the patients in the back area.
A reasonable factfinder could not conclude from the competent evidence of record that plaintiffs were subjected to intentional racial discrimination, let alone on a regular and pervasive basis.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996). Even assuming the acts complained of were racially motivated, they clearly did not create an abusive working environment. See Weston, 215 F.3d at 426. Placing a security camera at the reception area of a busy urban hospital, pre-setting a thermostat, staggering lunch hours of those assigned to the reception area and requiring that personal belongings be secured were not remotely threatening, humiliating or disruptive to plaintiffs' work performance and would not detrimentally affect any reasonable person in the same position.
C. § 1981 Retaliation Claim
A retaliation claim is also cognizable under § 1981. See Kohn, 1998 WL 67540, *5. To make out a prima facie case of retaliation, a plaintiff must show that she engaged in protected conduct; the employer took adverse action against her; and, there was a causal link between the protected conduct and the adverse action. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); Twyman v. Dilks, 2000 WL 1277917, *8 (E.D.Pa. Sept. 8, 2000).
Plaintiffs claim that after complaining to HUP's Human Resources Department and Ms. Thompson about poor treatment by Ms. Malloy, they did not receive promotions or transfers from Ms. Thompson and were denied retroactive pay by Ms. Malloy for promotions they did receive from Clerk II to Clerk III.
Protected activity includes formal charges and informal complaints of unlawful discrimination to management. See Abramson v. William Patterson College, 260 F.3d 265, 287-88 (3d Cir. 2001) EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997); Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (same). Expressions of dissatisfaction and grievances about working conditions, however, are not protected activity. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 n. 4 (3d Cir. 1997); Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995). There is no competent evidence of record that any plaintiff related a complaint to anyone at HUP to racial discrimination. The closest thing to such evidence is the testimony of Ms. McBride, who said "I don't recall" if I complained of racial discrimination, that she assumes she must "have said something about race" to Diane Allen because "I know [her] husband was black." This kind of assumption is not evidence.
Further, even if there were competent evidence of protected activity, there has been no showing of a causal link between plaintiffs' complaints and the allegedly retaliatory acts.
Plaintiffs provide no dates and there is otherwise no evidence of when they made complaints to Human Resources. In the absence of a pertinent time line, one cannot reasonably infer that Ms. Thompson declined to promote or transfer plaintiffs because of any complaints to Human Resources. There is no competent evidence that Ms. Thompson had authority to promote or transfer plaintiffs at the pertinent time. Ms. Thompson was not connected to the OT/PT Department after 1995.
Plaintiffs incorrectly assert that Ms. Thompson was the Director of Human Resources. It is uncontroverted on the evidence that Ms. Thompson never held this position or any other position with Human Resources.
There is no competent evidence of record that Ms. Malloy promised or could have provided the retroactive pay sought by plaintiffs. Moreover, there is no competent evidence of record that Ms. Malloy ever knew plaintiffs had complained about her. When plaintiffs complained to Ms. Malloy about their classification and salary, she approved a reclassification to Clerk III. It was Ms. Malloy's "understanding and belief that [plaintiffs] received retroactive pay increases" as a result of the reclassification. There is no evidence that she could ensure such pay or interfered with any plaintiff receiving it.
Plaintiffs state that when they complained to Ms. Malloy that they had not received retroactive pay, she said she was too busy to address the matter. There is no evidence that Ms. Malloy was not in fact busy with more pressing matters at the time and no evidence that plaintiffs were prevented from pursuing the retroactive pay issue directly with Human Resources or the Payroll Office.
D. § 1985(3) Conspiracy Claim
To sustain a claim of conspiracy under § 1985(3), a plaintiff must prove the existence of a conspiracy, motivated by racial discriminatory animus, for the purpose of depriving a personor class of persons of the equal protection of the law or equal privileges and immunities under the laws, and an act in furtherance of the conspiracy whereby a person is injured. See United Brotherhood of Carpenters Joiners of America, Local 610 v. Scott, 463 U.S. 825, 829 (1983). See also Jackson, 2000 WL 562741, *5 ; Armstrong v. School Dist., 597 F. Supp. 1309, 1313 (E.D.Pa. 1984).
Plaintiffs have failed to provide competent evidence from which one could reasonably find that Ms. Malloy or Ms. Thompson engaged in any racially discriminatory acts, let alone that they conspired to do so. There is no competent evidence to show an agreement or that the conduct complained of involved concerted action by these defendants.
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V. CONCLUSION
If there is evidence to support plaintiffs' claims, they have failed to adduce or produce it. Subjective perceptions, contrived or strained interpretations, suppositions and sheer speculation are not competent evidence.One cannot reasonably conclude from the record presented to the court that any plaintiff applied for a position which was given to someone else with comparable or lesser qualifications. One cannot reasonably conclude from the record that the acts which purportedly constitute a hostile work environment were abusive, would detrimentally affect a reasonable person similarly situated or resulted from intentional racial discrimination. One cannot reasonably find that any plaintiff was a victim of retaliation. One cannot reasonably find from the record that Ms. Thompson or Ms. Malloy engaged in any act of intentional race discrimination, or that they entered into a conspiracy to deprive any plaintiff or a secured right.
Defendants are entitled to summary judgment. Their motion will be granted. An appropriate order will be entered.
ORDER
AND NOW, this day of September, 2001, upon consideration of defendants' Motion for Summary Judgment (Doc. #12) and plaintiffs' response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED and accordingly, JUDGMENT is ENTERED in the above action for the defendants.