IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


MERVA K. MARTIN, 	 ) 


) 

Plaintiff 	 ) 


) 


v. 	 ) Civ. No.08-14E 

) 

PLEASANT RIDGE MANOR­ ) 

EAST, ) 

Defendant 	 ) 


) 


OPINION 

Pending before the Court is a Motion for Summary Judgment [Doc. #21] filed by 

Defendant Pleasant Ridge Manor-East ("Defendant" or "PRM-East") on the Complaint 

filed against it by its employee, Plaintiff Merva K. Martin ("Plaintiff' or "Martin"). 

Plaintiffs Complaint alleges: (1) race discrimination claims pursuant to Title VII ofthe 

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e -2 ("Title VII"), and the 

Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 955; and (2) an age 

discrimination claim pursuant to the Age Discrimination in Employment Act ("ADEA"). 

Plaintiff summarizes her case as follows: 

Despite her superior credentials, years of experience and loyalty with 

Defendant, bid submission in May of 2005, resubmission on October 26, 

2005, the advertisement by Defendant of an available RN supervisor 

position and Ms. Carr's resignation in the fall of2005, Plaintiff was never 

contacted about the posted positions let alone interviewed. Plaintiff 

contends that she was overlooked for any ofthe advertised full-time 

registered nurse positions with the Defendant due to her race. 

Plaintiffs Memorandum ofLaw in Opposition to Defendant's Motion for Summary 

Judgment ("Plaintiff s Opposition Brief'), p. 4. 

Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 1 of 19
For the reasons set forth below, Defendant's Motion for Summary Judgment will 

be granted in favor of Defendant with respect to all ofPlaintiffs claims against 

Defendant, 1 and judgment entered in favor ofDefendant pursuant to Fed.R.Civ.P. 58. 

I. Standard of Review. 

Summary judgment is appropriate "ifthe pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the party is entitled to a judgment as a 

matter of law." Fed. R. Civ. P. 56( c). In making this determination, we "view the facts in 

the light most favorable to the nonmoving party and draw all inferences in that party's 

favor." Farrell, 206 F.3d at 278 (citation omitted). "There must, however, be sufficient 

evidence for a jury to return a verdict in favor ofthe nonmoving party; if the evidence is 

merely colorable or not significantly probative, summary judgment should be granted." 

Armbruster v. Unisys Com., 32 F.3d 768, 777 (3d Cir. 1994). 

Where the non-moving party will bear the burden ofproof at trial, the moving 

party's burden can be "discharged by 'showing' ... that there is an absence of evidence 

to support the non-moving party's case." Celotex Com. v. Catrett, 477 U.S. 317, 325 

IAlthough Defendant inexplicably neglected to move for summary judgment with respect to Plaintiffs PHRA claims, 

we will sua sponte grant summary judgment in favor of Defendant and against Plaintiff with respect to Plaintiffs race 

discrimination claims brought against Defendant pursuant to the PHRA, 43 P.S. § 955, for the same reasons we have 

granted summary judgment in favor of Defendant and against Plaintiff with respect to Plaintiffs Title VII race 

discrimination claims. See Goosby v. Johnson & Johnson Medical. Inc, 228 F.3d 313, 317 n. 3 (3d. Cir. 2000) 

(citing Jones v. School District of Philadelphi!!, 198 F.3d 403, 410-11 (3d Cir. 1999» (explaining that the analysis 

required for adjudicating the plaintiffs race and gender discrimination claims under PHRA is identical to a Title VII 

inquiry and therefore, a court need not separately address said PHRA claims.). 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 2 of 19
(1986). Ifthe moving party has carried this burden, the burden shifts to the non-moving 

party to point to sufficient cognizable evidence to create material issues of fact "such that 

a reasonable jury can find in its favor." McCabe v. Ernst & Young, LLP, 494 F.3d 418, 

424 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e»; see Celotex, 477 U.S. at 332. 

"[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary 

judgment. Instead, the affiant must set forth specific facts that reveal a genuine issue of 

material fact." Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 

2009) (citing Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002); 

Maldonado v. Ramirez, 757 F.2d 48,51 (3d Cir. 1985». 

II. Statement of Relevant Facts. 

Following is a statement ofthe relevant facts contained in the record of this case 

viewed in a light most favorable to Plaintiff as the non-moving party. 

PlaintiffMerva K. Martin is African-American. (Defendant's Statement of 

Undisputed Material Facts ("DSUMF"), ~ 1.) Defendant PRM-East is Plaintiffs 

employer. @. at ~ 5.) PMR-East hired Martin as aper diem Registered Nurse ("RN") in 

1994. (Id. at ~ 3.) Depending on staffing needs, Plaintiff may work at PRM-East as a 

regular nurse, an RN supervisor, or an RN charge nurse. (Id. at ~ 6.) Defendant does not 

dispute that Plaintiff is qualified for all ofthese jobs. (Id.) 

Since being hired at PRM-East, Martin has bid for numerous nursing positions 

over the years, but has never been promoted or even been interviewed for a job on which 

she has bid. (Plaintiffs Statement of Undisputed Material Facts ("PSUMF"), ~~ 9-10.) 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 3 of 19
Emma Carr ("Carr") is a Caucasian female who currently works for Defendant as a 

full-time nurse. (Exhibit C to DSUMF, Carr Deposition, p. 31.) Sometimes Carr works as 

a charge nurse and sometimes she works as a supervisor nurse. (ld. at p. 33.) Carr 

originally had been hired by Defendant as an RN in February 2005, and she began 

working as an RN at PRM-East in April 2005. (Id. at pp. 15,38.) In the winter of 2004, 

Plaintiff had unsuccessfully bid for the position for which Carr originally was hired in 

February 2005. (Exhibit A to DSUMF, pp. 36-38.) 

When she first was hired, Carr worked only as a nurse or a charge nurse, not a 

nurse supervisor. (Exhibit C to DSUMF, pp. 35, 38.) When Carr first began working for 

PRM-East in April 2005, she "shadowed" Martin and other RNs in order to become 

oriented. (Id. at pp. 37-39.) 

Sometime in late October or early November 2005, PRM-East posted a position 

described on a PRM Human Resources form as "7-3/3-11 R.N. - Emma Carr's position." 

(Exhibit B to DSUMF, p. 6.) This PRM document, dated November 7, 2005, also 

indicated that as of November 7, 2005, noone had bid (applied) for Carr's job. (Id.) The 

document further stated "[t]he posting time for that bid has been completed. The purpose 

of this memo is to advise you ofthe bidders on the posting"and "[p]lease remember, the 

contract states, 'In filling a vacancy, the Employer shall select the bidding employee with 

the greatest seniority if that employee has the necessary skills and qualifications to do the 

job, provided that in cases of competing bidders, the job may be awarded to a less senior 

bidder when, and only when, the less senior bidder possesses substantially greater skills, 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 4 of 19
bona fide qualifications, and abilities'." (ld.) 

Carr's position opened and was posted because Carr submitted a letter of 

resignation to Defendant after she took a full-time nursing position at another nursing 

facility. (Exhibit C to DSUMF, pp. 29-31.) Within two weeks ofhaving given her 

resignation notice, however, Carr asked Defendant if she could not resign and instead stay 

on per diem as opposed to full-time. (Id. at p. 30). Defendant said yes. (Id.) Carr worked 

per diem for approximately one month, and then asked Defendant if she could return to 

work full-time as opposed to being per diem. (Id. at pp. 30-32.) PRM-East again said yes. 

PRM-East also posted two RN nursing supervisor positions as open in September 

2005. (Exhibit B to DSUMF, pp. 4-5.) One was a position for a "7-3 RN SUPV. ­

WANDA WESTGATE's POSITION" and one was a position for a "3-11 RN SUPV. ­

CATHY HANES"S POSITION." (ld.) On or about September 15,2005, Plaintiff applied 

for the RN Supervisor or "Nursing Supervisor" position to replace Wanda Westgate. (ld. 

at p. 4) 

With respect to one of these two open RN nursing supervisor positions, David 

McEldowney ("McEldowney"), Human Resources Director at PRM-East, said: 

In my role, I posted an opening for a Nursing Supervisor at [Pleasant Ridge]. That 

posting was up September 7, 2005 through September 16,2005. I also advertised 

the opening in the Erie Times newspaper on October 23, 2005 and October 26, 

2005. However, nothing further has been done in the recruitment process because 

we are trying to determine whether the position needs to be filled or whether the 

duties may be reassigned to other employees. 

5 

Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 5 of 19
(Exhibit D to DSUMF.) A copy ofa PRMjob posting from the Erie Times was attached 

to Defendant's Answer to Plaintiffs Complaint; the posting stated that the position was 

for a "RN Supervisor on the day shift at its East facility." (Defendant's Answer and New 

Matter, Exhibit A.) Plaintiff applied for the posted nursing supervisor position, which 

Plaintiff described in her deposition as a "Charge Nurse Position." (Exhibit A to 

DSUMF, pp. 43-44.) 

Ms. Westgate's position was never filled. (Exhibit D to DSUMF; DSUMF, ~ 9a.) 

Plaintiff believes that Ms. Westgate's position has been changed to a Registered Nurse 

Assessment Coordinator ("RNAC") position and that said position currently is held by 

Mark Yeagle (Exhibit A to DSUMF, p. 46.) Martin does not know what are the 

qualifications for a RNAC position, other than having a RN license. (ld. at p. 30.) Martin 

did not apply for this RNAC position. (DSUMF, ~ 9(a).) 

At the time ofthe alleged discriminatory incidents, Martin was the only AfricanAmerican RN employed at PRM-East, had over ten (10) years of nursing experience, and 

possessed an associate's degree from Gannon College. (Exhibit A to DSUMF, pp. 11,28, 

and 74.) Plaintiff continues to work at PRM-East as a per diem RN. (DSUMF, ~ 5; 

PSUMF, ~ 5). 

III. Legal Analysis. 

A. Exhaustion of Administrative Remedies. 

Defendant first moves for summary judgment on Plaintiffs race discrimination 

claims, to the extent they are based upon Plaintiff not being hired for a nursing position in 

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March 2005, for failure to exhaust administrative remedies. Defendant's Brief in Support 

of Motion for Summary Judgment ("Defendant's Supporting Brief'), p. 2. The basis for 

this argument is that Plaintiffs administrative charge, filed with the Pennsylvania Human 

Relations Commission ("PHRC") and cross-filed with the EEOC, only referenced Martin 

not being hired for nursing positions in May and October 2005 and never discussed a 

March 2005 position as Plaintiff referenced in her Complaint: "Martin has failed to 

exhaust her administrative remedies as to any claim arising from a failure to promote her 

prior to May 2005; her claims regarding March 2005 must therefore be dismissed." Id. at 

p.7. 

In response, Plaintiff explains that the reference to March 2005 in the Complaint 

was "the result of a mistaken transcription" and that it should have read May 2005. 

Plaintiffs Opposition Brief, p. 7. 

While the Complaint is sloppily drafted, when the allegations ofthe Complaint are 

read in conjunction with the evidence of record, including the administrative charge filed 

with the PHRC, it is clear that Plaintiffs claims against Defendant do not include a claim 

that Defendant failed to consider Plaintiff for a nursing position in March 2005. There 

being no March 2005 incident at issue, it is not necessary to further substantively address 

Defendant's failure to exhaust administrative remedies argument with respect to a March 

2005 event and we elect not to do so. 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 7 of 19
B. Abandonment of Claims. 

Defendant further argues that any discrimination claims related to Plaintiff 

applying for a nursing position in May 2005, applying for an RN Supervisor position in 

October-November 2005, or being retaliated against, must be dismissed because while 

Plaintiff complained about these events in her administrative charge, they are not alleged 

in this civil action. See Defendant's Supporting Brief, pp. 2 and 7. 

Reviewing the allegations contained in Plaintiffs Complaint, Plaintiff did not 

allege that Defendant retaliated against Plaintiff. Moreover, Plaintiff does not argue in 

her Opposition Brief that she is alleging a retaliation claim against Defendant. 

Accordingly, we find Plaintiff has abandoned any and all retaliation claims against 

Defendant and Defendant's motion for summary judgment on any retaliation claims shall 

be granted. 

The viability ofPlaintiffs race discrimination claims related to her applying for a 

nursing position in May 2005 and a nursing supervisor position in OctoberlNovember 

2005 are not as easily addressed. Plaintiff argues in her Opposition Brief that she has not 

abandoned these claims, and certainly there are times when a court has permitted a claim 

to withstand a motion for summary judgment even though it was not expressly stated in 

the Complaint. See, ~., Isse v. American University, 540 F.Supp.2d 9,28 and n. 22 

(D.D.C. 2008) (concluding that plaintiffs failure to accommodate claim, raised in for the 

first time in plaintiffs opposition to defendant's motion for summary judgment, was not 

barred, "even though not separately pled in his Complaint, because it 'could have 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 8 of 19
reasonably been expected to grow out of [his] earlier complaint,' and is 'like or related' to 

the claims of discrimination raised in his EEOC charge.") (quotation omitted). 

Upon review ofthe documents filed by both parties in this case, what the Court 

finds unique about this case is that here, Plaintiff was questioned during her deposition 

very specifically by defense counsel about the factual bases underlying her Complaint. 

Specifically, Plaintiff was asked during her deposition: "[a]nywhere in your Federal 

Complaint do you allege that you have been discriminated against, on any basis, age or 

race, because you were not given the opportunity to interview for the nursing supervisor 

position [that opened in the fall of2005]?" Plaintiff answered "No." She was then asked 

"So the only position that we're talking about in your Federal lawsuit is the charge nurse 

supervisor position that you say Emma Carr was awarded in October, November, 

December of 2005?" Plaintiff did not answer at that point. Instead she asked to speak to 

her counsel, permission was given, and a recess was taken for approximately half an hour. 

Upon the deposition resuming, the last question and answer were read back to Plaintiff by 

the court reporter and Plaintiff was asked "[y]ou understand what I meant - you now 

understand what I meant with that question?" Plaintiff answered "yes." Plaintiff was then 

asked "[a]nd your answer is?" Plaintiffs response was H[y]es. H Questioning of Plaintiff 

by defense counsel then continued, with the focus ofthe questioning being solely on 

Plaintiffs claims related to Emma Carr's position. 

Under this factual scenario, where: (1) Plaintiffs Complaint never alleges that 

Plaintiff was not interviewed or hired for a nursing position in May 2005 or for a RN 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 9 of 19
supervisor position in the fall of 2005 because of her race; and (2) Defendant expressly 

asked Plaintiff whether her discrimination claim was limited to the events surrounding 

Emma Carr's position and Plaintiff said yes, we find that Plaintiff has abandoned any and 

all racial discrimination claims premised upon her applying for a nursing position in May 

2005 or for a RN Supervisor position in the fall of2005. Any other conclusion would be 

prejudicial to Defendant. 

Moreover, we find with respect to any race discrimination claims related to 

Plaintiff applying for a nursing position at PRM-East in May 2005, that summary 

judgment must be granted with respect to this part of Plaintiffs race discrimination claim. 

Even viewing the evidence of record in a light most favorable to Plaintiff, she has failed 

to establish a genuine issue of material fact with respect to whether she applied for a 

charge nurse position at PRM-East in May 2005, a necessary element ofher prima facie 

case for race discrimination based Defendant's failure to interview and/or hire her for this 

position. See Bray v. Marriott Hotels, 110 F.3d 986, 889-990 (3d Cir. 1997) (stating that 

"in a case of failure to promote under Title VII, the plaintiff must carry the initial burden 

of establishing a prima facie case of unlawful discrimination. Thus, the plaintiff must 

establish that he or she ....applied for and was qualified for a job in an available position 

...."). More specifically, in ~ 8 of Defendant's Statement of Undisputed Material Facts, 

Defendant stated "[i]n fact, there was no Charge Nurse position open with PRM in May 

2005." (DSUMF, ~ 8, citing Exhibit B to DSUMF, pp. 1-6) Plaintiff did not deny or 

otherwise controvert the veracity of said fact in her Statement of Undisputed Material 

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Facts, stating only, without any supporting documentation, that "[i]n the [PHRC] charge 

of discrimination Plaintiff submitted in March of 2006, she alleges that she submitted 

applications for a charge nurse position in May of 2005 and for an RN supervisor position 

in October 2005 t1 and "Plaintiff alleges that she was not selected for the May and October 

2005 job vacancies because of her race." Local Rule 56(E) states: "Alleged material facts 

set forth in the moving party's Concise Statement of Material Fact or in the opposing 

party's Responsive Concise Statement, which are claimed to be undisputed, will for the 

purpose of deciding the motion for summary judgment be deemed admitted unless 

specifically denied or otherwise controverted by a separate concise statement of the 

opposing party." LR 56(E). Applying this rule, Plaintiff is deemed to have admitted that 

there was not a charge nurse position available at PRM-East in May, 2005. There not 

being a charge nurse position available in May 2005, clearly Plaintiff could not have 

applied for a charge nurse position in May, 2005 and any race discrimination claim 

premised upon such an application must fail as a matter oflaw. 

For the reasons stated above, summary judgment will be granted in Defendant's 

favor on Plaintiffs race discrimination claims to the extent they are premised upon 

Defendant retaliating against Plaintiff, Plaintiff applying for a nursing position in May 

2005, or Plaintiff applying for a RN supervisor position in the fall of2005. 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 11 of 19
C. Plaintiffs race discrimination claims related to Emma Carr's position. 

1. Analysis based upon a mixed-motive theory. 

Defendant also moves for summary judgment with respect to Plaintiffs race 

discrimination claims that are premised upon Plaintiff not being interviewed or hired for 

Emma Carr's charge nurse position when it opened up in OctoberlNovember 2005. 

Defendant first argues that summary judgment must be granted on Plaintiffs race 

discrimination claim related to Emma Carr's position because "she has failed to produce 

any evidence that PRM 'placed substantial negative reliance on an illegitimate criterion in 

reaching their decision' ." Defendant's Supporting Brief, p. 9. 

The standards ofproof in a mixed-motive case were set forth by Congress in the 

Civil Rights Act of 1991. See Desert Palace, Inc. v. Costa, 539 U.S. 90,94 (2003) 

(quoting Landgrafv. USI Film Prods., 511 U.S. 244, 251 (1994)) (noting that "§ 107 of 

the 1991 Act ... 'responded' to Price Waterhouse by 'setting forth standards applicable in 

mixed motive cases in two new statutory provisions' ."). Under the Civil Rights Act of 

1991, a mixed-motive plaintiff may establish an unlawful employment practice by 

demonstrating "that race, color, religion, sex, or national origin was a motivating factor 

for any employment practice, even though other factors also motivated the practice." 42 

U.S.C. § 2000e-2(m). 

Reviewing Plaintiffs Opposition Brief, Plaintiff has not attempted to demonstrate 

that this is a mixed-motive case, i.e. that race was a motivating factor for Defendant's 

failure to hire Plaintiff. Instead, she is proceeding under the burden shifting framework 

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ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Plaintiff's Opposition 

Brief, pp. 8-13. Therefore, we need not substantively address this contention. 

2. Analysis of Plaintiffs claim based upon a pretext theory. 

Defendant next argues that to the extent Plaintiff is proceeding under a pretext 

theory, summary judgment must be granted in its favor on Plaintiff's race discrimination 

claims related to Emma Carr's job because Plaintiff never applied for Emma Carr's 

position when it became available in the fall of2005, and therefore, she has not 

established a prima facie case of race discrimination. Defendant's Supporting Brief, p. 8. 

To make out a prima facie case for failure to promote, Plaintiff must show: (1) she 

is a member of a protected class; (2) she was qualified for the position; (3) she was 

rejected (Le., suffered an adverse employment action); and (4) that action occurred under 

circumstances giving rise to an inference ofdiscrimination (Le., nonmembers of the 

protected class were treated more favorably). Stewart v. Rutgers. The State Univ., 120 

FJd 426,432 (3d Cir.l997). 

Interestingly, Plaintiff does not contend that she bid on Carr's position when it 

opened up in OctoberlNovember, 2005. Rather, in response to Defendant's argument that 

Plaintiff never applied for Emma Carr's position when it was posted, Plaintiff contends 

Defendant's own admissions show that she applied for numerous available positions with 

Defendant, that these bids should be considered to be bids for Carr's position as well, and 

cites to the following evidence of record: 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 13 of 19
Paragraph 7.1 ofthe PHRC's Findings of the Investigation 

also states "Relative to the Nursing Supervisor position, 

Respondent admits that an advertisement was placed in the 

local publication on October 23 and 26,2005. It is further 

admitted that Complainant was aware ofthe opening as she 

submitted ajob bid for the position on September 15,2005." 

(Exhibit "B"). Also, paragraph seven (7) of Defendant's 

Answer to Plaintiffs PHRC Complaint states "it is believed 

and, therefore, averred that the Complainant, Merva Martin, 

submitted a bid for a 7-3 RN supervisor position on 

September 15,2005." (See Exhibit "A"). 

Plaintiffs Opposition Brief, p. 9. 

The difficulty with Plaintiffs position is that even viewing this evidence in a light 

most favorable to Plaintiff as the non-moving party, the RN supervisor position for which 

Plaintiff bid on September 15,2005 and for which PRM-East advertised on or about 

October 26,2005 was not Carr's position, which was a 7-3/3-11 RN position. Further, 

although Martin appears to be arguing in her Opposition Brief that both the bid she 

submitted in September, 2005 for the RN Supervisor position and a bid she argues she 

submitted in May 2005 for a nursing position should be considered as a bid for Emma 

Carr's job when it reopened in OctoberlNovember 2005 because these earlier bids were 

still on file at the time Carr's position reopened, See Plaintiffs Opposition Brief, p. 3, we 

find that Plaintiff has not submitted any evidence to support her argument. Certainly 

there has not been any evidence submitted that suggests that PRM-East had a policy in 

place that once an employee bid for a position, that bid was treated as a bid for any and all 

subsequent position openings. To the contrary, the evidence ofrecord suggests that to be 

eligible for an open position with Defendant, the individual had to specifically bid for that 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 14 of 19
open position. In particular, the standardized Human Resources form in use by Defendant 

in 2005 concerning "bids for job posting" lists the name ofthe position at issue and then 

states: (1) "[t]he posting time for that bid has been completed. The purpose of this memo 

is to advise you ofthe bidders on the posting;" and (2) "Please remember, the contract 

states, 'In filling a vacancy, the Employer shall select the bidding employee with the 

greatest seniority if that employee has the necessary skills and qualifications to do the job, 

provided that in cases of competing bidders, the job may be awarded to a less senior 

bidder when, and only when, the less senior bidder possesses substantially greater skills, 

bona fide qualifications, and abilities'." See Exhibit B to DSUMF. 

Accordingly, we find that even viewing the evidence of record in a light most 

favorable to Plaintiff as the non-moving party, there is not evidence of record from which 

a reasonable fact finder could conclude that Plaintiff actually or constructively applied for 

Carr's position when it opened up in the fall of2005. Therefore, Plaintiff has not 

established a prima facie case ofrace discrimination with respect to Carr's position and 

Defendant's motion for summary judgment on this part ofPlaintiffs race discrimination 

claim must be granted. 

While our analysis of Plaintiffs discrimination claims related to Emma Carr's 

position could end at this juncture, we take the time to analyze Defendant's alternative 

argument that even if Plaintiff had applied for Carr's position, summary judgment still 

must be granted because Defendant has articulated a legitimate non-discriminatory reason 

for not interviewing and/or hiring Plaintiff for Carr's position and Plaintiff cannot 

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establish that PRM-East's proffered reason for not hiring Plaintiff for Emma Carr's 

position was pretextual. Defendant's Supporting Brief, pp. 11-14. 

"If a plaintiff establishes a prima facie case of discrimination, then an inference of 

discriminatory motive arises and the burden shifts to the defendant to articulate a 

legitimate, non-discriminatory reason for the adverse employment action." Makky v. 

Chertoff, 541 FJd 205,214 (3d Cir. 2008) (citing st. Mary's Honor Ctr. v. Hicks, 509 

U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993». While Plaintiff argues that 

Defendant failed to articulate a legitimate, non-discriminatory reason for the adverse 

employment action, Plaintiff not being interviewed or hired for Carr's job, we disagree. 

We find that PRM-East articulated a legitimate, non-discriminatory reason for not hiring 

Plaintiff: "Emma Carr was doing the job; she thought she wanted to go elsewhere and so 

'resigned.' becoming a per diem employee, but stiU doing the job. Within a short period 

of time, she changed her mind and was allowed to rescind the resignation and return to 

full-time status. She never really left the job at all." Defendant's Supporting Brief, p.ll. 

Where as here, "the defendant [articulates a legitimate, non-discriminatory reason 

for the adverse employment action], the inference of discrimination drops and the burden 

shifts back to the plaintiff to show that the defendant's proffered reason is merely pretext 

for intentional discrimination." Id. (citing St. Mary's Honor Center, 509 at 507-08). 

Pretext is shown by the plaintiff presenting "some evidence, direct or circumstantial, from 

which a fact finder could reasonably either (1) disbelieve the employer's articulated 

legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely 

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than not a motivating or determinative cause of the employer's action." Fuentes v. 

Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994). "The non-moving plaintiff must demonstrate 

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 

employer's proffered legitimate reasons for its action that a reasonable fact finder could 

rationally find them 'unworthy of credence,' and hence infer 'that the employer did not 

act for [the asserted] non-discriminatory reasons' ." Id. at 765 (quotations omitted). The 

Fuentes standard "places a difficult burden on the plaintiff." Id. 

Plaintiffs argument with respect to the pretext element ofher race discrimination 

claim is as follows: 

As stated, the only "legitimate" reason proffered by 

Defendant for its actions is that "Emma Carr" was doing the 

job; she thought she wanted to go elsewhere and so 'resigned' 

becoming a per diem employee, but still doing the job. Within 

a short period of time, she changed her mind and was allowed 

to rescind the resignation and return to full-time status. She 

never really left the job at all." The problem with this 

explanation is that Defendant has previously admitted that 

following Ms. Carr's resignation, the position was posted as 

available. Defendant has failed to address why Plaintiff was 

not given the courtesy of an interview for this position despite 

plaintiff: (1) having an active bid for the position on record 

with Defendant which preceded the date of resignation and 

posting and (2) being more qualified than Ms. Carr for the 

position. Since 1994, Plaintiff has been the only AfricanAmerican hired as a registered nurse and acting shift 

supervisor for Defendant's East location. Plaintiff was hired 

as a per diem RN, a position she continues to hold. During 

this period oftime, Plaintiff has stated that she has bid on 

numerous positions without ever having been asked to 

interview. It is well known that Plaintiff has, for many years, 

desired to be promoted to a full time RN. Such a position 

would entitle her to medical and financial benefits for which 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 17 of 19
she does not qualify in her per diem status. At the time of Ms. 

Carr's rehiring following her resignation she had 

approximately five years of nursing experience, only two of 

which were with the Defendant. At the same time, Plaintiff 

had approximately twelve years of experience, all with the 

Defendant. 

Plaintiffs Opposition Brief, pp. 12-13. 

Contrary to Plaintiff s argument, we find that this evidence, even viewed in a light 

most favorable to Plaintiff, does not qualify as "some evidence, direct or circumstantial, 

from which a fact finder could reasonably either (1) disbelieve the employer's articulated 

legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely 

than not a motivating or determinative cause ofthe employer's action." Fuentes, 32 F.3d 

at 764-65. In other words, the evidence of record, even viewed in a light most favorable 

to Plaintiff, simply does not support the conclusion that Defendant's stated reason for not 

interviewing or hiring Martin for Carr's position when it opened in the fall of2005 is not 

to be believed or that a reason for Defendant's decision not to interview or hire Plaintiff 

for Carr's position was because Plaintiff is an African American. Therefore, even if 

Plaintiff had established her prima facie case ofrace discrimination related to Carr's 

position, summary judgment still would have to be granted in favor of Defendant with 

respect to this part ofPlaintiffs race discrimination claims due to Plaintiffs failure to 

create a genuine issue of material fact with respect to the pretext aspect of her race 

discrimination claims. 

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Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 18 of 19
D. Analysis of Plaintiff's ADEA claim against PRM-East. 

Finally, Defendant also moves for summary judgment in its favor on Plaintiffs 

ADEA claim against it on the basis that Plaintiff has failed to state a claim under the 

ADEA. Defendant's Supporting Brief, p. 13. In response, Plaintiff agrees that there is not 

evidence to support such a claim and requests to withdraw the ADEA claim. Plaintiffs 

Opposition Brief, p. 13. Plaintiffs request to withdraw her ADEA claim against 

Defendant is granted. 

IV. Conclusion. 

Defendant's Motion for Summary Judgment as to Plaintiffs Complaint against it 

is granted in its entirety. An appropriate Order follows. 

~ March ~, 2010 74iJM~ 6:C~ \v 

Maurice B. Cohill, Jr. 

Senior District Court Judge 

19 


Case 1:08-cv-00014-MBC Document 27 Filed 03/10/10 Page 19 of 19