PHILADELPHIA – A Newtown Square continuing care facility won its motion for dismissal of three of four of a plaintiff’s discrimination claims, due to said plaintiff allegedly not responding to the motion in question.

On April 4, U.S. District Court Judge Cynthia M. Rufe granted White Horse Village Inc.’s motion to dismiss the aforementioned claims made by Marlene McIntosh, who has been employed by White Horse Village as a licensed practical nurse (LPN) since 2010.

McIntosh’s employment began on a per-diem basis in September of that year, and transitioned into a full-time role three months later, in December 2010. Though full-time LPNs at White Horse Village usually work on Sundays, McIntosh said she was granted a religious exemption to attend regular services on Sundays.

In May 2014, McIntosh requested and was approved for Family and Medical Leave Act (FMLA) leave so she could undergo surgery on her foot. She was on medical leave until Aug. 6, 2014, when she returned to work as a full-time employee.

When McIntosh returned, she began working under a new Director of Nursing, Noreen Beam, who allegedly told McIntosh that all nursing staff were now required to work every other weekend and her request for a religious accommodation was denied. McIntosh also alleged she was “treated rudely” and “suffered pretextual discipline” under Beam. Specifically, because McIntosh was unwilling to work every other Sunday, she returned to per diem status in November 2014 and currently remains a per diem employee to this date.

After filing an Equal Employment Opportunity Commission (EEOC) complaint subsequent to these events and being given a right-to-sue letter by the agency in return, McIntosh filed a lawsuit against White Horse Village in September 2015, alleging discrimination through “religious discrimination, religious-based retaliation, and failure to accommodate her religion; race discrimination and retaliation; violations of the FMLA; violations of the Americans with Disabilities Act (ADA); and violations of the Pennsylvania Human Relations Act (PHRA).”

After earlier motion practice, the only claims remaining were: “(1) Religious discrimination, religious-based retaliation, and failure to accommodate her religion (Count I); (2) Race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Count II); Race discrimination and retaliation in violation of 42 U.S.C. Section 1981 (Count III); And (4) violations of the FMLA (Count IV).

White Horse Village then moved for summary judgment on those same remaining claims, with McIntosh not offering a response. The matter then came before Rufe.

“In Counts II and III, plaintiff alleges that defendant discriminated against her and retaliated against her on the basis of her race, in violation of Title VII and Section 1981. Because “the substantive elements of a claim under [Section] 1981 are generally identical to the elements of an employment discrimination claim under Title VII,” the Court addresses Counts II and III together,” Rufe stated.

“Assuming that the adverse employment action was plaintiff’s change in employment status from full-time to pool employee and that she was qualified (based on her previous full-time experience), plaintiff has failed to establish a prima facie pretext claim because she has presented no evidence that she was replaced by a similarly qualified person who was not African-American. On the contrary, the parties agree that plaintiff was replaced by an African-American woman. Accordingly, summary judgment will be granted on this claim,” Rufe added.

Rufe felt similarly on both the mixed-motive and retaliations claims McIntosh put forth.

“A mixed-motive claim is one where both legitimate and illegitimate reasons motivated the adverse decision, and requires showing that plaintiff’s race was a ‘motivating’ factor in the employment decision. Plaintiff has not set forth any evidence that her race was a motivating factor in her change in employment status, and therefore summary judgment in favor of defendant will be entered on this claim,” Rufe stated.

“Finally, a retaliation claim under Title VII or Section 1981 requires plaintiff to show that “(1) She engaged in a protected activity, (2) She suffered an adverse employment action, and (3) There was a causal connection between the participation in the protected activity and the adverse action. The Court has not been presented with any evidence that suggests that plaintiff engaged in protected activity with respect to her race, let alone a causal connection between protected activity and her change in employment status. Accordingly, summary judgment will be granted on this claim,” Rufe continued.

Rufe also outlined the process by which she dismissed McIntosh’s FMLA claims.

“To succeed on a FMLA interference claim, plaintiff must establish that she was eligible for FMLA leave, she was entitled to FMLA leave, and she was denied benefits to which she was entitled under the FMLA. Plaintiff has not established these requirements, and in fact, the parties agree that plaintiff requested and was granted FMLA leave. Thus, summary judgment will be granted on plaintiff’s FMLA interference claim,” Rufe said.

“To establish a prima facie FMLA retaliation case, Plaintiff must establish that “(1) She invoked her right to FMLA-qualifying leave, (2) She suffered an adverse employment decision, and (3) The adverse action was causally related to her invocation of rights. Plaintiff has not established a prima facie FMLA retaliation claim because she has not set forth evidence to show a causal connection between her FMLA leave and her change in employment status. She has shown neither that her change in employment status occurred in close temporal proximity to her FMLA leave, nor that there had been ongoing antagonism toward her. Accordingly, summary judgment will be entered on her FMLA retaliation claim,” Rufe added.

As a result, the only claim left remaining in McIntosh’s case is one for “religious discrimination, religious-based retaliation, and failure to accommodate her religion.”

The plaintiff is represented by Ari Risson Karpf and Zachary J. Zahner of Karpf Karpf & Cerutti, in Bensalem.

The defendant is represented by Andrew P. Dollman and Glenn R. Davis of Latsha Davis & McKenna, in Mechanicsburg.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05157

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

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