Flemister v. Philadelphia

SIAH FLEMISTER v. MERAKEY IDD PHILADELPHIA

CIVIL ACTION NO. 20-1391

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 9, 2020

MEMORANDUM

KEARNEY, J.

Siah Flemister claims her former employer Merakey IDD Philadelphia fired her because of her Liberian national origin rather than as a disciplinary measure. The remaining issue is whether her former employer discriminated against her. The parties engaged in discovery. Merakey now moves for summary judgment arguing Ms. Flemister failed to establish a prima facie case of discrimination based on national origin, and, even if she did establish a prima facie case of national origin discrimination, she failed to demonstrate its articulated, legitimate, non-discriminatory reason for her termination is pretextual. Ms. Flemister raises conclusory challenges. We scrutinized the adduced evidence. We find no genuine issue of material fact precluding judgment for Merakey on Ms. Flemister's claim for discrimination based on national origin. We grant Merakey's motion for summary judgment and dismiss the case.

I. Undisputed Facts¹

Ms. Flemister is Liberian.² On July 17, 2017, Merakey hired Ms. Flemister as a Day Program Support Counselor.³ Merakey is an agency providing services to individuals with intellectual and developmental disabilities, including residential services, day program services, supported employment, supported living, and family living.⁴ Merakey refers to the individuals it services as "consumers."⁵ Merakey maintains two primary programs: the Day Program and the Residential Program.⁶ Ms. Flemister worked in the Day Program which provides eight hours of education and daily living support to its consumers in a classroom setting as well as field trips into the community.⁷

Merakey hired Ms. Flemister as a "replacement counselor" to fill-in on an as-needed basis and not assigned to a specific classroom or consumer.⁸ Ms. Flemister's responsibilities included providing day-to-day direct care and support to consumers, assisting consumers with daily life activities, daily lessons to develop life skills, and taking consumers on field trips into the community.⁹

Ms. Flemister's position is covered by a collective bargaining agreement between the National Union of Hospital and Health Care Workers, District 1199C and Merakey.¹⁰ The collective bargaining agreement governed the terms and conditions of Ms. Flemister's employment with Merakey.¹¹

Merakey's Standards of Professional Behavior Policy.

Merakey maintains a Standards of Professional Behavior Policy ("Policy") for its employees proscribing, among other things: "Engaging in fighting, horseplay, practical jokes or other disorderly conduct that causes or could cause injury to others or damage to property, or that could endanger the well-being of any employee, consumer, visitor or company property is prohibited"; "Threatening, intimidating or coercing others, using abusive or offensive or demeaning language, or interfering with the performance of others, are other examples of prohibited behavior"; and "To ensure a safe environment, Merakey prohibits abuse, mistreatment or neglect of a consumer."¹² Violations of the Policy may result in "disciplinary action up to and including termination."¹³Pennsylvania regulations governing Merakey's services.

Merakey is governed by the Pennsylvania Code's "Intellectual Disability and Autism Manual" for providers of services to the intellectually disabled or autistic.¹⁴ The Pennsylvania Department of Human Services (formerly Department of Public Welfare) issued a "Mental Retardation Bulletin" effective February 28, 2004.¹⁵ The Bulletin provides the procedure for "incident management" designed to "ensure that when an incident occurs, the response will be adequate to protect the health, safety and rights of the individual" and to provide "clear and specific methodologies to ensure appropriate responses at the provider, county and State levels."¹⁶

Pennsylvania requires verbal abuse be reported within twenty-four hours of an occurrence. Pennsylvania defines "verbal abuse" as "a verbalization that inflicts or may inflict emotional harm, invoke fear or humiliate, intimidate, degrade or demean an individual."¹⁷ Merakey immediately begins an investigation conducted by its Quality and Compliance Organization of an incident reported by an employee.¹⁸ Merakey's investigators undergo training to become certified investigators in Pennsylvania.¹⁹

National origin statements toward Ms. Flemister in 2017.

Ms. Flemister alleges support counselors with whom she worked—Laverne, Tara, and Danyelle Simmons—made disparaging comments about the food she and another Liberian co-worker, non-party Clara Russell, brought to work for lunch.²⁰ Ms. Flemister does not claim Laverne, Tara, and Danyelle Simmons are Ms. Flemister's supervisors.

Ms. Flemister brought in "ethnic food of Liberia" for lunch and other support counselors made comments such as, "This stinks? Why do you eat this food?"²¹ Ms. Flemister testified co-worker Laverne on at least one occasion said, "Why do you bring in this, quote, smelly African food?" and Danyelle Simmons said, "This African fish stinks. Why you keep bringing fish to heatup in here when it make the whole place stink? [sic]"²² Ms. Flemister testified "it was just their way of coming after the food. For what reason, I don't know."²³ Her admissions appear to conflict with her allegation she believed Ms. Simmons or Laverne directed these comments to her Liberian origin.²⁴ Ms. Flemister alleges the support counselors who commented on her food did not make similar comments to American-born employees who brought their food in for lunch.²⁵ Ms. Flemister provides no evidence to support this allegation.

Co-workers Laverne and Tara made comments about her accent and sometimes pretended not to understand her and said, "Speak English" and "We're not speaking African. Don't speak African."²⁶ Ms. Flemister also swore Laverne said on other occasions, "These people come in here and work here is from Africa [sic]. They don't know what to do in my space. Nobody should be sitting in my chair. Nobody should be working in my space" and "African people don't know how to do anything right."²⁷

Mr. Flemister alleges she complained to a manager and Day Program director about the food comments but they did not "properly address" her complaints.²⁸ Ms. Flemister swore after complaining in August 2017 to Brian Hancock, supervisor of the Day Program, about Laverne's comments he or another supervisor assigned Ms. Flemister to a different classroom away from Laverne.²⁹ Ms. Flemister agreed after Supervisor Hancock assigned her to a room away from Laverne, she heard no more comments about the food and Africans.³⁰

Ms. Flemister admits she never complained to Merakey's Human Resources about comments related to food or being African and no one other than Laverne, Tara, and Danyelle Simmons ever made any negative comments about her food.³¹

Ms. Flemister did not work in Laverne or Tara's classroom after late 2017 and her situation "got better" having moved away from them and into the classroom of another co-worker, Patrice,who enjoyed her African food.³² When asked about her allegation she complained in early March 2018 about Laverne's comments, Ms. Flemister testified she "probably" made her complaints in 2017.³³ She testified she may have made a complaint in March 2018 regarding either a food comment, a "speak English" comment, or a comment from Laverne telling her she could not sit in a certain seat on a field trip bus, but cannot specifically recall.³⁴ Ms. Flemister testified the seat on the bus comment did not refer to her being Liberian or African.³⁵

March 14, 2018 verbal altercation between Mses. Flemister and Simmons.

On March 14, 2018, Ms. Flemister and her co-worker Danyelle Simmons, an African-American, had a verbal altercation in the presence of consumers.³⁶ While waiting to load consumers on a bus to take them into the community for daily activities, Ms. Simmons asked Ms. Flemister to move her wheelchair-bound consumer out of the way so the bus could pull into Merakey's driveway.³⁷ Ms. Flemister, standing next to the wheelchair-bound consumer and close to several other consumers, became upset and, in a loud voice, called Ms. Simmons, a "f***ing b***h."³⁸ There is no dispute Ms. Flemister used this profanity.³⁹

Two other employees, Cherona Weems and Shavon Parker, witnessed the altercation and reported it to Merakey's incident hotline.⁴⁰ It is undisputed neither Ms. Weems nor Ms. Parker reported hearing Ms. Simmons use profanity.⁴¹ Ms. Flemister contends Ms. Simmons started the altercation by using profanity.

Merakey considered the incident reportable to Pennsylvania's Department of Human Services because it involved the use of profanity in the presence of a consumer which, if founded, constitutes a rights violation.⁴² Merakey put both Ms. Flemister and Ms. Simmons on leave under its Policy while it investigated the incident.⁴³Merakey investigates the March 14, 2018 incident.

Merakey assigned Brittany Dowling, a Quality and Compliance Organization investigator, to investigate the incident.⁴⁴ Investigator Dowling never met either Mses. Flemister or Simmons before her investigation and did not know either woman's race or national origin.⁴⁵

Investigator Dowling interviewed employee witnesses and one consumer witness to the altercation between Mses. Flemister and Simmons.⁴⁶ Investigator Dowling considered both Ms. Simmons and Ms. Flemister "targets" of her investigation.⁴⁷ There is a dispute as to how many person Investigator Dowling interviewed; Merakey contends she interviewed eight people (seven employees and one consumer) while Ms. Flemister argues Inspector Dowling may only have interviewed five or six people and the order in which she interviewed them.⁴⁸ We cannot imagine how the number of those interviewed is a material fact, but the parties dispute the number.

It is undisputed...