Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`ANTONIA UDASCO-KIST
` Plaintiff
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`v.
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`THOMAS JEFFERSON
`UNIVERSITY HOSPITALS, INC.
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`Defendant
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`CIVIL ACTION
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`NO. 19-3176
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`NITZA I. QUIÑONES ALEJANDRO, J.
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`MEMORANDUM OPINION
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` JANUARY 25, 2021
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`INTRODUCTION
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`
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`Plaintiff Antonia Udasco-Kist (“Plaintiff”) filed this employment discrimination action
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`against her former employer, Defendant Thomas Jefferson University Hospitals, Inc.
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`(“Jefferson”), asserting claims of unlawful termination based on her age in violation of the Age
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`Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Pennsylvania
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`Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 955 et seq. Before this Court is Jefferson’s
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`motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure (“Rule”) 56, in
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`which Jefferson argues that Plaintiff has not produced sufficient evidence from which a reasonable
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`factfinder could find that Jefferson’s proffered legitimate, non-discriminatory reason for her
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`termination is pretextual. [ECF 16, 17]. Plaintiff opposes the motion. [ECF 20]. The issues raised
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`in the motion are fully briefed and ripe for disposition. For the reasons set forth herein, Jefferson’s
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`motion for summary judgment is granted, and judgment is entered in favor of Jefferson on
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`Plaintiff’s ADEA and PHRA claims.
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 2 of 15
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`BACKGROUND
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`When ruling on a motion for summary judgment, a court must consider all record evidence
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`and supported relevant facts in the light most favorable to the non-movant; here, Plaintiff. See
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Galena v. Leone, 638 F.3d 186, 196
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`(3d Cir. 2011). The relevant facts are summarized as follows:1
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`In 2000, Plaintiff, then forty-five years old, began working at Jefferson as a
`Nuclear Medicine Technologist (“NMT”). As an NMT, Plaintiff’s primary duties
`were to operate and maintain nuclear medicine imaging technology, perform
`diagnostic imaging, ensure radiation safety, and accurately perform quality control
`procedures. Plaintiff spent most of her career at Jefferson’s Methodist Hospital
`Division (“MHD”), initially under the direct supervision of Chief NMT Marie Carr,
`and later, when Jefferson hired Cheryl Rickley as Chief NMT for both MHD and
`Jefferson’s Center City Campus (“CCC”) in April 2015, under Rickley’s
`supervision.
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`Over the course of her employment, Plaintiff was generally well-regarded
`by her fellow NMTs and by Carr, and received mostly positive performance
`evaluations. However, beginning in 2013, Plaintiff made several serious errors for
`which she was disciplined in a manner consistent with Jefferson’s Employee
`Disciplinary Procedures policy manual.
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`Jefferson’s Employee Disciplinary Procedures policy manual provides that
`“when deemed appropriate,” four stages of progressive discipline are to be used:
`“First Written Warning (Documented Discussion/Verbal Warning), Second
`Written Warning, Suspension/Final Warning, and Termination.” [ECF 17-7 at 25].
`“Depending on the particular circumstances, progressive discipline may be skipped
`in instances of serious violations of policy and/or procedures, or where there are
`repeated violations of policy and/or procedures.” Id. at 27. The policy manual also
`provides that “[f]alsifying or providing false records, reports or information of any
`nature” is misconduct for which an employee “may” be “immediately dismissed.”
`Id. at 27-28. The policy manual also includes a grievance procedure, which
`employees are reminded of when they receive Employee Disciplinary Action
`forms. Id. at 29.
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`Plaintiff’s disciplinary record includes the following events: in January
`2013, Plaintiff injected a patient with the wrong radiopharmaceutical. Carr had a
`“documented discussion” with Plaintiff concerning the error. In April 2013, Carr
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`These facts are taken from the parties’ briefs, exhibits, and statements of facts. To the extent that
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`any evidence is disputed, such disputes will be noted and construed in the light most favorable to Plaintiff.
`Galena, 638 U.S. at 196.
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`2
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 3 of 15
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`counseled Plaintiff about multiple errors, including mislabeling images, dosage
`errors, and imaging errors. In January 2015, Plaintiff again injected a patient with
`the wrong radiopharmaceutical. For this serious, repeated error, Carr gave Plaintiff
`a formal First Written Warning and required Plaintiff to undergo further training.
`In November 2015, while under Rickley’s supervision, Plaintiff injected another
`patient with a radiopharmaceutical the patient did not need because the ordering
`physician had canceled the patient’s test. In disclosing the error to Dr. Charles
`Intenzo, the patient’s treating physician, Plaintiff omitted that she had seen the
`cancelation order before she administered the dosage.2 When Dr. Intenzo learned
`that Plaintiff had known about the cancelation, he recommended that she be
`terminated both for the error and for her failure to admit the complete truth.
`However, Rickley instead gave Plaintiff a Final Warning in accordance with
`Jefferson’s progressive discipline policy.
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`Plaintiff admits that she committed the aforementioned errors and that she
`knew her actions constituted violations of Jefferson’s policies. Plaintiff did not
`pursue grievances for any of these disciplinary actions, nor does she argue that any
`of the discipline imposed was inappropriate or influenced by age discrimination.
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`In late 2015, Jefferson implemented an initiative to train its NMTs to work
`at both its MHD and CCC campuses, rather than at only one location. Under this
`initiative, MHD NMTs like Plaintiff trained at CCC, and vice versa. At some point
`during Plaintiff’s training at CCC, Plaintiff claims that she heard from a coworker
`that Rickley told another NMT that she [Rickley] “wished [Plaintiff] would just
`retire.”3
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`Though Plaintiff was used to performing quality control (“QC”) tests on the
`machines at MHD, she received training on how to perform the same tests using
`the machines at CCC. The purpose of the QC test is to ensure that NMTs are not
`exposed to dangerous radiation from the radiopharmaceuticals they use. The QC
`test at the CCC campus required the NMTs to wipe down boxes containing the
`radiopharmaceutical chemicals, then place both the wipes and a chip that emitted a
`certain amount of radiation within a predefined range (the “Cs137 Source”) into the
`machine, called “the Wizard,” which would then print out the QC test results.
`NMTs were required to enter those test results precisely into Jefferson’s computer
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`In her response, Plaintiff contends she did not know the test had been canceled before she dosed
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`the patient. [ECF 20 at 23]. However, in her deposition, she also admitted that she saw the cancelation in
`the computer system before she dosed the patient, and that she assumed the cancelation was an error because
`the ordering physician had not told her about the cancelation when they spoke the previous day. [Udasco-
`Kist Dep., ECF 17-3 at 235:5-237:22, 246:1-23, 247:24-248:8].
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`Plaintiff asserts that Rickley made this statement and relies on NMT Anthony Juliana’s deposition
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`in which he allegedly learned of Rickley’s comment from NMT Tirath Nahar. However, NMT Nahar
`denies having heard the comment. In its filings, Jefferson denies that Rickley made the comment, and
`further argues that even if Rickley had said this, such testimony would be inadmissible hearsay. For the
`purpose of this analysis only, this Court will assume Rickley made the statement.
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` 3
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`3
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 4 of 15
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`system. If the value for the Cs137 Source fell outside the acceptable range, the QC
`protocol required the NMT to run the test again. If the value for the Cs137 Source
`was in an unacceptable range for a second time, the NMT was to notify a supervisor
`and take the Wizard out of service.
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`In January 2016, Plaintiff attempted to perform a QC test, but the Wizard
`did not produce a print-out with the results. Plaintiff then manually entered a made-
`up number within the acceptable range in order to bypass the system. When this
`attempt failed, Plaintiff had to notify a supervisor that the Wizard required service.
`When the supervisor notified Rickley, Plaintiff admitted to Rickley that she made
`up a value in an attempt to override the system. Plaintiff also admitted that she had
`previously rounded up the print-out values on several occasions (because they were
`“so close to the range”) to bypass the QC test and be able to use the
`radiopharmaceuticals for procedures.4 Upon learning of Plaintiff’s actions, Rickley
`spoke with her own supervisors, the Administrator and the Associate Administrator
`at Jefferson. All three supervisors agreed that this particular instance of misconduct
`was so serious as to necessitate Plaintiff’s termination. At the time of her
`termination on February 2, 2016, Plaintiff was sixty years old and had thirty-five
`years’ experience as an NMT, fifteen of those years at Jefferson. Following
`Plaintiff’s termination, Jefferson promoted part-time NMT Samantha Lockerby,
`then twenty-five years old, to Plaintiff’s former position as a full-time NMT.
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`After discovering Plaintiff’s wrongful actions, Rickley conducted an
`internal audit to ensure no other NMTs were falsifying QC inputs. This audit
`revealed that two other NMTs, Chris Dihn (age thirty) and Mai Nguyen (age
`twenty-eight), had made QC test errors. Neither employee had a prior disciplinary
`record. It was discovered that Dihn, like Plaintiff, rounded up the print-out values
`if the values were out of range but, unlike Plaintiff, did not make up values for
`incomplete tests. The Associate Administrator issued Dihn a Final Warning.
`Nguyen failed to run a repeat test, as required, when the values were out of range.
`Because Nguyen did not falsify or round up data, the Associate Administrator gave
`Nguyen a Coaching Record instead of more serious discipline.
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`LEGAL STANDARD
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`Rule 56 governs summary judgment motion practice. Fed. R. Civ. P. 56. Specifically, this
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`rule provides that summary judgment is appropriate “if the movant shows that there is no genuine
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`In her deposition, Plaintiff stated for the first time that NMT Nahar had told her during training that
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`rounding up was acceptable. Nahar denied this. NMT Dihn, who also rounded up, stated that no one told
`him that doing so was acceptable. Construing this dispute in Plaintiff’s favor, this Court will assume
`Plaintiff was told during training that rounding up was acceptable. However, Plaintiff has not asserted that
`anyone told her to input false values when no print-out values were received.
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`4
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 5 of 15
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. A
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`fact is “material” if proof of its existence or non-existence might affect the outcome of the
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`litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a
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`verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Under Rule 56, a court must view
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`the evidence in the light most favorable to the nonmoving party. Galena, 638 F.3d at 196.
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`Pursuant to Rule 56(c), the movant bears the initial burden of informing a court of the basis
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`for the motion and identifying those portions of the record that the movant “believes demonstrate
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`the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
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`(1986). This burden can be met by showing that the nonmoving party has “fail[ed] to make a
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`showing sufficient to establish the existence of an element essential to that party’s case.” Id. at
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`322. After the movant has met its initial burden, summary judgment is appropriate if the
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`nonmoving party fails to rebut the moving party’s claim by “citing to particular parts of materials
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`in the record, including depositions, documents, electronically stored information, affidavits or
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`declarations, stipulations . . . , admissions, interrogatory answers, or other materials” that show a
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`genuine issue of material fact or by “showing that the materials cited do not establish the absence
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`or presence of a genuine dispute.” Fed. R. Civ. P 56(c)(1)(A)-(B). The nonmoving party must
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`“do more than simply show that there is some metaphysical doubt as to the material facts.”
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving
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`party may not rely on “bare assertions, conclusory allegations or suspicions,” Fireman’s Ins. Co.
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`of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the
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`pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must “go beyond the pleadings”
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`and “designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotations
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`and citations omitted).
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`5
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`DISCUSSION
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`Plaintiff claims that Jefferson unlawfully terminated her employment because of her age
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`in violation of the ADEA5 and PHRA.6 Jefferson disputes those assertions and moves for summary
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`judgment on Plaintiff’s claims on the basis that Plaintiff has not produced evidence from which a
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`reasonable factfinder could find that Jefferson’s articulated legitimate, non-discriminatory reason
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`for her termination was a pretext for age discrimination. This Court agrees with Jefferson.
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`Plaintiff’s claims are examined under the analytical burden-shifting framework set forth in
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`McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which applies to age discrimination
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`claims under the ADEA and PHRA.7 See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330
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`(3d Cir. 1995) (holding that McDonnell Douglas framework applies to ADEA claims). To state a
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`prima facie case for age discrimination under this framework, a plaintiff must show that:
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`(1) she is more than forty years old; (2) she “was qualified for the position” in
`question; (3) she “was subject to an adverse employment action despite being
`qualified;” and (4) the adverse action occurred under circumstances that raise an
`inference of discriminatory action. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797-
`98 (3d Cir. 2003). This inference may be drawn through the more favorable
`treatment of similarly situated employees outside of the protected class. Id. at 797
`n.7. If a plaintiff establishes a prima facie case of age discrimination, the burden
`shifts to the employer to show a legitimate, non-discriminatory reason for the
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`The ADEA provides: “[i]t shall be unlawful for an employer . . . to discharge any individual or
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`otherwise discriminate against any individual with respect to his compensation, terms, conditions, or
`privileges of employment, because of such individual’s age . . . .” 29 U.S.C. § 623.
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` 6
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`The PHRA provides: “[i]t shall be an unlawful discriminatory practice . . . (a) For any employer
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`because of the . . . age . . . of any individual or independent contractor, to refuse to hire or employ or contract
`with, or to bar or discharge from employment such individual or independent contractor, or to otherwise
`discriminate against such individual or independent contractor with respect to compensation, hire, tenure,
`terms, conditions or privileges of employment or contract.” 43 Pa. Cons. Stat. § 955.
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` 7
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`The United States Court of Appeals for the Third Circuit (“Third Circuit”) has stated “that the
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`PHRA is to be interpreted as identical to federal anti-discrimination laws except where there is something
`specifically different in its language requiring that it be treated differently.” Fasold v. Justice, 409 F.3d
`178, 184 n.8 (3d Cir. 2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)).
`Finding no such distinguishing language, the Third Circuit has interpreted the relevant provisions of the
`ADEA and the PHRA “as applying identically . . . and as being governed by the same set of decisional
`law.” Id. (citing Fogleman, 283 F.3d at 567).
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`6
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`adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
`802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). If the employer meets this
`burden, the burden shifts back to the plaintiff to show that the employer's proffered
`reason for the decision is pretext. Id. at 804, 93 S. Ct. at 1825. A plaintiff must
`show “that the employer's proffered reasons were merely a pretext for
`discrimination, and not the real motivation for the unfavorable job action.” Sarullo,
`352 F.3d at 797. She must prove that age was the “but-for” cause of the employer's
`adverse decision to prevail on an age discrimination claim. Gross v. FBL Fin.
`Servs., Inc., 557 U.S. 167, 177-78, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009).
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`Lackey v. Heart of Lancaster Regional Medical Ctr., 704 F. App’x 41, 45-46 (3d Cir. 2017).
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`Here, Jefferson does not dispute that Plaintiff has set forth sufficient facts to establish a
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`prima facie case for age discrimination under the applicable statutes. Similarly, Plaintiff does not
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`argue that Jefferson’s proffered reason for her termination—that Plaintiff falsified data for a
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`necessary QC test while on Final Warning for other serious errors of improper administration of
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`dosages to patient—is not a legitimate, non-discriminatory reason. However, Plaintiff argues that
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`Jefferson’s proffered reason was a pretext for age discrimination. Consistent with the McDonnell
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`Douglas framework, the burden now shifts back to Plaintiff to present evidence of pretext.
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`Pretext
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`To meet her summary judgment burden on pretext, Plaintiff must point to evidence
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`sufficient for a reasonable factfinder to find that Jefferson’s proffered reason for her termination
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`was merely a pretext for age discrimination and not the actual motivation for her termination. This
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`can be a “difficult task” for a plaintiff, arising “from an inherent tension between the goal of all
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`discrimination law and our society’s commitment to free decisionmaking by the private sector in
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`economic affairs.” Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir.
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`1992). In essence, Plaintiff must present evidence sufficient to show “not merely that the
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`employer’s proffered reason was wrong, but that it was so plainly wrong that it cannot have been
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`the employer’s real reason.” Grochowski v. Wilkes-Barre Behavioral Hospital Co., LLC, 2019
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`7
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`WL 361131, *6 (M.D. Pa. Jan. 29, 2019) (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d
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`1101, 1108-09 (3d Cir. 1997)).
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`To meet this burden, a plaintiff must “present evidence contradicting the core facts put
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`forth by the employer, as the legitimate reasons for its decision,” Kautz v. Met-Pro Corp., 412
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`F.3d 463, 467 (3d Cir. 2005), so that “a factfinder could reasonably conclude that each reason was
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`a fabrication” or “that discrimination was more likely than not a motivating or determinative cause
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`of the adverse employment action.” Fuentes, 32 F.3d at 762. A plaintiff must “demonstrate such
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`weaknesses, implausibilities, inconsistencies, incoherencies[,] or contradictions” that show the
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`employer’s proffered reasons to be “unworthy of credence,” Fuentes, 32 F.3d at 765, showing not
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`merely that the employer’s proffered reasons were wrong or mistaken but that the employer acted
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`with discriminatory animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d
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`Cir. 2001). A plaintiff may meet this burden by presenting evidence to show, for example, that
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`(1) the employer subjected the plaintiff to unlawful discriminatory treatment in the past, (2) the
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`employer “treated other, similarly situated persons not of [the plaintiff’s] protected class more
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`favorably,” or (3) the employer has discriminated against other members of the plaintiff’s
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`protected class or against other protected classes. Id. at 765.
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`Here, Plaintiff argues that Jefferson’s proffered reason for her termination was pretextual
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`because: (1) Plaintiff had a strong employment record prior to being supervised by Rickley and
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`was in training at the time of the QC test incident that lead to her termination; (2) Rickley’s remark
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`that she wished Plaintiff would “just retire” supports an inference of discrimination; and (3)
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`Jefferson treated similarly situated, younger employees who committed the same misconduct as
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`Plaintiff more favorably. This Court will address each argument in turn.
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`8
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`1. Plaintiff’s Employment Record and Training Status
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`Plaintiff contends that a reasonable factfinder could find her more than thirty-five-year
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`employment record as an NMT, including fifteen years at Jefferson, with overall positive
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`evaluations sufficient, on its own, to show that Jefferson’s proffered reason for termination was
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`pretextual. Plaintiff argues that her disciplinary record began after Rickley became her supervisor,
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`which indicates Rickley’s animus and a discriminatory motive. In response, Jefferson argues that
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`Plaintiff’s employment record actually shows that she was disciplined on several occasions prior
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`to Rickley becoming her supervisor and, thus, her employment record does not provide any
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`evidence of animus or discriminatory motive.
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`The issue before this Court is strictly whether a reasonable factfinder could infer from
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`Plaintiff’s career record that Jefferson’s proffered reason for termination was “so plainly wrong”
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`that it was a pretext for a true motive of age discrimination. Grochowski, 2019 WL 361131, at *6.
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`This Court’s role is not to “sit as a super-personnel department” that reexamines an employer’s
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`business decisions. Brewer v. Quaker State Oil Refining Co., 72 F.3d 326, 332 (3d Cir. 1995).
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`Nor is the Court’s consideration whether, on balance, Plaintiff’s positive performance evaluations
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`justified her retention. See Ezold, 983 F.2d at 528 (“Pretext is not established by virtue of the fact
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`that an employee has received some favorable comments in some categories or has, in the past,
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`received some good evaluations.”).
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`Based on the facts, this Court finds Plaintiff’s argument regarding her employment record
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`and overall positive evaluations insufficient to support a reasonable inference of pretext. Contrary
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`to Plaintiff’s suggestion, her disciplinary record indisputably began years before Rickley became
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`Plaintiff’s supervisor. For example, in January 2013, Carr disciplined Plaintiff for giving a patient
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`the wrong pharmaceutical; in April 2013, Carr again disciplined Plaintiff for mislabeling images,
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`9
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`dosing errors and imaging errors resulting; in January 2015, after Plaintiff administered another
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`unnecessary dose to a patient, Carr imposed a First Written Warning and mandated she undergo
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`further training. Carr, not Rickley, imposed each of these disciplinary actions. Under Rickley’s
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`supervision, Plaintiff gave a patient an unnecessary pharmaceutical dosage and failed to disclose
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`that she knew the relevant order had been canceled—a serious and repeated offense for which
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`Plaintiff could have been summarily terminated under Jefferson’s Employee Disciplinary
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`Procedures policy manual. Instead of terminating her employment as recommended by the
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`ordering physician, Rickley gave Plaintiff a Final Warning.8 Significantly, as noted, Plaintiff does
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`not deny committing any of the misconduct that resulted in her progressive discipline and,
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`ultimately, her termination, nor does she assert that any of the discipline she received—including
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`the Final Warning from Rickley—was inappropriate under Jefferson’s policies or motivated by
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`age discrimination.
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`In addition, Plaintiff contends that Rickley “papered Plaintiff’s file with disciplinary
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`actions for minor infractions.” [Pltf.’s Response, ECF 20 at 6]. However, nothing in the record
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`indicates that these minor infractions had any bearing on the ultimate decision to terminate her
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`employment. Ultimately, Plaintiff’s employment record is not sufficient evidence from which a
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`reasonable factfinder can infer that Jefferson’s proffered reason for Plaintiff’s termination was “so
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`plainly wrong” that it was a pretext for age discrimination. Grochowski, 2019 WL 361131, at *6.
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`Plaintiff also argues that she should not have been terminated while she was still in training.
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`In response, Jefferson contends that Plaintiff had received sufficient training on the importance of
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`Jefferson’s progressive discipline policy permitted Rickley to issue Plaintiff a Final Warning
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`(rather than a Second Written Warning) for her repeated, serious misconduct of mis-dosing a patient.
`“Depending on the particular circumstances, progressive discipline may be skipped in instances of serious
`violations of policy and/or procedures, or where there are repeated violations of policy and/or procedures.”
`Ex. 33, ECF 17-7 at 25. The mis-dosing incident that resulted in Plaintiff’s Final Warning was both a
`serious and repeated violation of policy. Notably, Dr. Intenzo recommended termination for this incident.
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`10
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`not falsifying data at the time she falsified the data that led to her termination, such that the fact
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`that Plaintiff was technically still in training does not support any inference of pretext. Further,
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`Plaintiff’s training argument is disingenuous when she admits she knew not to falsify QC data,
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`[Udasco-Kist Dep., ECF 17-4 at 421:11-21, 427:11-18], which she did, and when she admits that
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`using the Wizard was an “easier” form of a QC test she had been performing for years. [Udasco-
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`Kist Dep., ECF 17-3 at 353:11-354:4]. None of Plaintiff’s arguments related to her training
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`support a reasonable inference of pretext.
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`2. Rickley’s Comment
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`Plaintiff argues that Rickley’s comment that she wished Plaintiff would “just retire”
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`supports an inference that Jefferson terminated her because of her age. In its motion, Jefferson
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`contends that if Rickley made such a comment, it was a “stray remark” insufficient, on its own, to
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`support an inference of age discrimination. In evaluating pretext, courts may consider as
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`circumstantial evidence “the atmosphere in which the company ma[kes] its employment
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`decisions.” Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993).
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`Circumstantial evidence may include “statements of a person involved in the decisionmaking
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`process that reflect a discriminatory or retaliatory animus of the type complained of in the suit . . .
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`even if the statements are not made at the same time as the adverse employment decision.” Fakete
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`v. Aetna, Inc., 308 F.3d 335, 339 (3d Cir. 2002). However, “[s]tray remarks by non-
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`decisionmakers or by decisionmakers [but] unrelated to the decision process are rarely given great
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`weight, particularly if they were made temporally remote from the date of decision.” Ezold, 983
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`F.2d at 545 (emphasis added). To determine whether a statement can constitute evidence of
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`discriminatory animus, courts within the Third Circuit consider “whether the speaker was a
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`decisionmaker, the content of the statement, and whether the statement was related to the
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`11
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 12 of 15
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`decisional process.” Kargbo v. Philadelphia Corp. for Aging, 16 F. Supp. 3d 512, 524 (E.D. Pa.
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`2014). A stray remark “standing on its own” is generally “insufficient to demonstrate age-related
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`animus.” Id. at 528 (internal quotations and citation omitted).
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`Here, the comment in question was (allegedly) made by a decisionmaker, as Rickley was
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`one of the three supervisors who decided to terminate Plaintiff. However, the comment was said
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`to have been made in late 2015—months prior to Plaintiff’s termination—and the record is devoid
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`of any evidence suggesting that the comment “was related to the decisional process” to terminate
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`Plaintiff. Kargbo, 16 F. Supp. 3d at 524. In a similar case, Ortiz v. Cedar Crest College, a recent
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`panel of the Third Circuit considered whether a plaintiff’s secondhand account of his supervisor
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`calling him “old and antiquated” months before his dismissal was sufficient to show pretext in an
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`age discrimination claim. 764 F. App’x. 257, 259-60 (3d Cir. 2019). In Ortiz, the Court held that,
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`while such remarks may have been sufficient to get the plaintiff to trial in other circumstances, the
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`record “overwhelmingly support[ed] [defendant’s] reason for terminating [plaintiff]: he failed an
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`essential duty of his job by not maintaining a reliable data backup scheme, resulting in a permanent
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`loss of important data[.]” Id. at 260. In this case, this Court similarly finds that, while Rickley’s
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`comment may have been sufficient to allow an inference of discrimination in other circumstances,
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`the evidentiary record here “overwhelmingly supports” Jefferson’s proffered reason for Plaintiff’s
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`termination: Plaintiff’s admitted falsification of data on a critical safety test while she was on Final
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`Warning status due to multiple prior patient dosage errors. As noted, Plaintiff offers no evidence
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`to indicate Rickley’s comment was related to the decision to terminate Plaintiff, nor does she offer
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`any evidence that, for example, Rickley made the comment to the other decisionmakers or that any
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`decisionmaker considered (or was even aware of) the comment in making their decision to
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`terminate Plaintiff. In fact, Plaintiff does not offer evidence that the other decisionmakers
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`Case 2:19-cv-03176-NIQA Document 22 Filed 01/25/21 Page 13 of 15
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`considered anything other than Plaintiff’s misconduct in reaching their decision. Critically,
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`Plaintiff admits to the conduct for which she was terminated and that she knew she was engaging
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`in inappropriate conduct when she falsified values for the QC test. Under these circumstances,
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`Rickley’s comment constitutes a stray remark, “standing on its own,” Kargbo, 16 F. Supp. 3d at
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`528, and “unrelated to the decision process.” Ezold, 983 F.2d at 545. Therefore, the comment is
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`insufficient to support an inference of pretext.
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`3. Jefferson’s Treatment of Younger Employees
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`Lastly, Plaintiff argues that Jefferson did not discipline NMTs Dihn and Nguyen similarly
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`when they committed the same misconduct as Plaintiff. Specifically, Plaintiff argues that these
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`two younger coworkers constitute comparators who were treated more favorably for the same
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`misconduct. As noted, a plaintiff may show pretext through evidence that the employer “treated
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`other, similarly situated persons not of [the plaintiff’s] protected class more favorably[.]” Fuentes,
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`32 F.3d at 765. However, as Jefferson argues, NMTs Dihn and Nguyen were not similarly situated
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`to Plaintiff because they did not have similar disciplinary records as Plaintiff and committed
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`factually dissimilar misconduct. It is the “plaintiff’s task to demonstrate that similarly situated
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`employees were not treated equally.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258
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`(1981). Here, Plaintiff has failed to do so.
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`While all three employees—Plaintiff, Dihn, and Nguyen—committed misconduct by
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`violating the QC test protocol, their specific misconduct is distinct from each other. That is,
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`Plaintiff entered a fabricated number for a QC test that was not performed—Dihn and Nguyen did
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`not. Instead, Dihn rounded up numbers for tests he did run, and Nguyen failed to run a repeat QC
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`test, as required by Jefferson’s policy. Neither Dihn nor Nguyen fabricated print-out values for
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`tests that