Nicholas Malfitano Dec. 31, 2015, 10:46am


PHILADELPHIA – A former emergency room nurse at Thomas Jefferson University Hospital who alleged she was fired due to her age, has had those same allegations refuted in federal court.

In a Dec. 22 decision, Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania granted a motion for summary judgment in favor of Jefferson and against plaintiff Barbara Brasher. 

Brasher filed suit in July 2013, charging Jefferson with violating the Age Discrimination Employment Act (ADEA) and Pennsylvania Human Relations Act (PHRA), in firing her from the hospital in January 2013.

Brasher, 52, began working at Jefferson in January 2009, having 26 years of prior nursing experience upon starting there. Jefferson records show Brasher was subject to disciplinary actions and complaints related to improper documentation of care in computer systems used by the nursing staff at the hospital.

As a result, Brasher was placed on a formal employee action plan, before being subject to formal discipline.

According to the hospital, a four-step process of discipline is used with employees: first written warning, second written warning, suspension, termination. Brasher received her first and second written warnings in January and August 2012 for documentation offenses, respectively, allegedly while colleagues of hers made similar or more egregious mistakes without facing the same punishment.

At the start of her shift on Jan. 16, 2013, Brasher was told a diabetic patient was transferring to a Jefferson Insulin Infusion Protocol (JIIP), a form of insulin therapy. After administering the therapy, Brasher was cited for not stopping distribution or changing the insulin used during the procedure, not using the correct insulin rate calculator or having a second nurse verify her actions during the JIIP; a clear violation of hospital policy. 

Though claiming she merely followed instructions from the nurse on the prior shift, Brasher was suspended pending an internal investigation into her actions. On the recommendations of her colleagues to senior staff, Brasher was confronted with termination for the aforementioned violations, but chose to resign instead.

Brasher unsuccessfully appealed her departure through Jefferson’s internal grievance procedure and filed complaints through the Equal Employment Opportunity Commission (EEOC) and Pennsylvania Human Relations Commission (PHRC), before filing a lawsuit for unlawful discrimination in July 2013.

Brasher’s burden was to “prove that age was the ‘but-for’ cause of the employer’s adverse decision” to terminate her, and if that was established, to prove “by a preponderance of the evidence that Jefferson’s reason is merely a pretext for age discrimination” – a burden Brody felt the plaintiff failed to meet.

“Construing the facts in the light most favorable to Brasher, she has still failed to demonstrate that there is a genuine issue of material fact as to whether Jefferson’s decision to terminate her was pretextual,” Brody said.

As Brody said Brasher proved her initial prima facie case, the judge also believed Jefferson’s aforementioned procedural-violation rationale for terminating Brasher was of a “legitimate, nondiscriminatory nature.” Therefore, the burden shifted back to Brasher to still show her termination was pretextual and based on discrimination.

Though Brasher attempted to reiterate her version of events versus that of the hospital and allege other nurses were disciplined more lightly for serious infractions, Brasher’s prior disciplinary history and the lack of indication of Jefferson being “motivated by discriminatory animus” in this case did not sway Brody. 

“Brasher has failed to establish that there is a genuine issue of material fact as to an essential element of her ADEA and PHRA claims: Whether Jefferson’s reasons for firing her were pretext for age discrimination,” Brody said.

The plaintiffs are represented by Timothy M. Kolman, W. Charles Sipio and Wayne A. Ely of Kolman Ely, in Penndel.

The defendants are represented by Sidney R. Steinberg and Kate A. Kleba of Post & Schell, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-04103

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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