Dececco v. Upmc & Upmc Presbyterian Shadyside

3 F.Supp.3d 337

Diane DECECCO, Plaintiff,

v.UPMC and UPMC Presbyterian Shadyside, Defendant.

Civil Action No. 12–272.

United States District Court, W.D. Pennsylvania.

Signed March 7, 2014.

Charles A. Lamberton, Lamberton Law Firm, Pittsburgh, PA, for Plaintiff.

Andrew T. Quesnelle, John J. Myers, Allison Feldstein, Eckert Seamans Cherin & Mellott LLC, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

CONTI, Chief Judge.

I. Introduction

Pending before the court is a motion for partial summary judgment (ECF No. 94) filed by plaintiff Diane DeCecco (“plaintiff” or “DeCecco”) and a motion for summary judgment (ECF No. 97) filed by DeCecco's former employer, defendants UPMC and UPMC Presbyterian Shady side (collectively “defendants” or “UPMC”).

Plaintiff initiated this action on March 2, 2012 by filing a complaint alleging UPMC discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”). (ECF No. 1.) In the complaint, plaintiff requests

individual legal and equitable remedies under 29 U.S.C. §§ 626(b) and (c)(1) for Defendants' age-based termination of her employment in violation of 29 U.S.C. § 623(a), and for Defendants' retaliation against Plaintiff in violation of 29 U.S.C. § 626(d) for having filed an EEOC Charge, obtained a Cause Finding and/or for communicating to UPMC in writing her opposition to age discrimination at UPMC[; and]

individual and systemwide declaratory and injunctive remedies under 29 U.S.C. §§ 626(b) and (c)(1) for UPMC's systemic violations of 29 U.S.C. § 626(f) and § 623(d), and systemic violations of publicpolicy, as manifest on the face [sic] UPMC's standardized Release Agreements, and set forth in ¶ 4 of this Complaint.

( Id. ¶¶ 12, 13.) On April 12, 2012, defendants filed their answer asserting, among other defenses, that

Plaintiff's claim which is founded upon the Age Discrimination in Employment Act (“ADEA”) is barred by reason of plaintiff's having entered into an Agreement whereby, for good and valuable consideration, she waived all claims against the defendants, including claims under the ADEA.

(ECF No. 10 at 4.)

On April 24, 2012, plaintiff filed a motion for partial judgment on the pleadings and a brief in support of the motion arguing “[n]umerous ADEA and public policy violations appear on the face of UPMC's standardized Release Agreement” and it, therefore, violates public policy and § 623(d) and § 626(f)(1), (f)(3) and (f)(4) of the ADEA. (ECF No. 12 ¶ 2.) Plaintiff in her motion for judgment on the pleadings requested the court

a. Declar[e] the challenged provisions of the UPMC Release Agreement unlawful under the ADEA and contrary to public policy,

b. Afford[ ] prospective injunctive relief by enjoining Defendants from further use of the Release Agreement, ordering Defendants to draft and henceforth use a legally compliant Release Agreement, ordering Defendants to expunge the unlawful Release Agreement from their computer systems, and ordering Defendants to create policies, procedures and safeguards to ensure continuing compliance with the law, and,

c. Order[ ] that restorative injunctive relief will be afforded for older workers who received an unlawful Release Agreement from UPMC in the past, subject to further proceedings and further order of court.

( Id. ¶¶ a-c.) On May 29, 2012, defendants filed a response in opposition to plaintiff's motion for judgment on the pleadings. (ECF No. 19.) On June 11, 2012, after receiving leave of court, plaintiff filed a reply to defendants' brief in opposition. (ECF No. 21.) At a hearing held on August 9, 2012, the court granted in part and denied in part plaintiff's motion for judgment on the pleadings. The court on the record at the hearing stated:

With respect to the part of the judgment on the pleadings that's seeking a declaration, in essence, that the release is invalid under the applicable—under the standards set forth in Rupert and Bogatz, that it violates the Older Workers Benefit Protection Act and the ADEA, the Court will find that it does so violate the—it is an invalid waiver, and we'll so order, thereby granting in part the motion for judgment on the pleadings.

The Court denies that aspect of the motion for judgment on the pleading seeking the specific prophylactic relief with respect to enjoining the Defendant from continuing to utilize these types of waivers and any other form of injunctive relief. And that will be for another day. Okay? Now—so it's granted in part and denied in part. Thank you.

(H.T. 8/9/12 (ECF No. 40) at 31.) The court determined it would consider plaintiff's claims for systemwide relief separate from her claims for individual relief. Fact discovery proceeded with respect to the claims for individual relief, but not with respect to claims for systemwide relief.

On January 26, 2013, defendants filed a motion to dismiss with respect to plaintiff's claims for systemwide equitable intervention and a brief in support of the motion. (ECF Nos. 63, 64.) On February 28, 2013, plaintiff filed a response in opposition to defendants' motion. (ECF No. 73.) On May 20, 2013, the court held a hearing on defendants' motion to dismiss. The court analyzed the motion to dismiss as a motion for judgment on the pleadings because defendants filed an answer to the complaint prior to filing the motion to dismiss. The court denied the motion to dismiss on the record holding plaintiff may be entitled to systemwide relief under the ADEA.

On July 1, 2013, plaintiff filed a partial motion for summary judgment with respect to her claim for facial retaliation under the ADEA, a brief in response to that motion, and a concise statement of material facts. (ECF Nos. 94, 95, 96.) On August 22, 2013, defendants filed a motion for summary judgment with respect to both claims asserted by plaintiff in the complaint, i.e., plaintiff's claims for age discrimination and facial retaliation under the ADEA, a brief in support of the motion, and a concise statement of material facts. (ECF No. 97, 98, 102.) On the same day, defendants filed their response in opposition to plaintiff's partial motion for summary judgment and a response to plaintiff's concise statement of material facts. (ECF Nos. 102, 103.) On October 3, 2013, plaintiff filed a response to defendants' concise statement of material facts and a reply to defendants' brief in opposition to her partial motion for summary judgment. (ECF Nos. 109, 113.) On October 4, 2013, plaintiff filed a brief in opposition to defendants' motion for summary judgment. (ECF No. 114.)

On October 17, 2013, the parties filed their joint concise statement of material facts with respect to plaintiff's partial motion for summary judgment. (ECF No. 116.) On November 4, 2013, defendants filed a reply to plaintiff's counter statement of facts and a reply brief with respect to their motion for summary judgment. (ECF Nos. 119, 121.) On November 6, 2013, plaintiff with leave of court filed a surreply brief in further opposition to defendants' motion for summary judgment. (ECF No. 124.) On November 8, 2013, the parties filed their joint concise statement of material facts with respect to defendants' motion for summary judgment. (ECF No. 125.)

The parties' motions for summary judgment having been fully briefed are now ripe for disposition by the court.

II. Factual Background

The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”).

A. Plaintiff's claim that her employment was terminated based upon her age1. Background

a. WPIC

UPMC Presbyterian Shadyside consists of UPMC Shadyside, UPMC Presbyterian, Western Psychiatric Institute and Clinic (“WPIC”), and approximately thirty to forty hospital-based clinics. (Dep. of Brian Bachowski (“Bachowski”) at 53, 56 (ECF No. 111–4 at 14, 17).) Hospital-based clinics are outpatient facilities typically separate from the main UPMC Presbyterian, UPMC Shadyside, and WPIC buildings that do not have patient beds, but share UPMC Presbyterian Shadyside's Medicare certificate number, and are considered part of UPMC Presbyterian Shadyside for Medicare certification purposes. (Dep. of Bachowski at 53–56 (ECF No. 111–4 at 14–17).)

Within WPIC, there are inpatient units and ambulatory programs. ( Id. ¶ 13.) Inpatient units admit patients, and ambulatory programs are akin to outpatient services. ( Id.) The Diagnostic Evaluation Center (the “DEC”) is one of WPIC's ambulatory programs; it is licensed as an outpatient facility and functions as WPIC's emergency room. (D.J.C.S.F. (ECF No. 125) ¶¶ 14, 15); Pl.'s Dep. at 21, 64 (ECF No. 101–1 at 6; Dep. of Eleanor Medved (“Medved”) at 15, 16 (ECF No. 111–5 at 1).) The clinical administrator is the responsible manager for the DEC. (Dep. of Medved at 68 (ECF No. 111–5 at 5.) In other words, the clinical administrator is the senior leadership person who reports directly to the vice president of inpatient and emergency services. ( Id.)

Dr. Cynthia Roth (“Roth”) has been the president of WPIC since August 2004. (Defendants' Joint Concise Statement of Facts (“D.J.C.S.F.”) (ECF No. 125) ¶ 12).

In 2004, Eleanor Medved (“Medved”) was the risk manager and director of quality for WPIC. (Dep. of Medved at 100 (ECF No. 100–2 at 7.) Between 2004 and 2005, Medved became the staff associate and vice president of ambulatory services for WPIC. ( Id.) In 2008, the title “vice president of ambulatory and crisis operations” was added to Medved's job description. ( Id.)

Kim Owens (“Owens”) was the vice president of inpatient and emergency services for WPIC at all times relevant to this lawsuit. (D.J.C.S.F. (ECF No. 125) ¶ 18.) Owens was responsible for running the DEC. (D.J.C.S.F. (ECF No. 125) ¶...