PHILADELPHIA – According to a federal appellate court, a former hospital nurse in Philadelphia did not meet the burden of proof required to substantiate her age discrimination claims.

On Jan. 27, judges Thomas I. Vanaskie, Cheryl Ann Krause and Richard L. Nygaard ruled to uphold the trial court’s judgment in favor of Thomas Jefferson University Hospitals, and dismissing the claims of plaintiff Barbara Brasher.

Brasher initially 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. She later allegedly administered insulin therapy to a diabetic patient improperly and was confronted with termination, before choosing to resign. The U.S. District Court for the Eastern District of Pennsylvania ruled in December 2015 that Brasher had not proven her wrongful termination case, leading her to appeal to the U.S. Court of Appeals for the Third Circuit.

Krause authored the Court’s opinion in this matter.

“First, Brasher points to the Hospital’s failure to fire JiJi Joseph, ‘a nurse in her 20’s,’ who, like Brasher, had made a serious medication error. But, as the District Court correctly noted, Johnson was not similarly situated to Brasher, for there was no evidence that Johnson had Brasher’s history of documentation errors, which had been a factor in the Hospital’s decision to terminate Brasher’s employment. Thus, because Johnson lacked some of ‘the particular criteria or qualifications identified by the employer as the reason for the adverse action,’ the Hospital’s failure to fire Joseph is not evidence of pretext,” Krause said.

“Second, Brasher cites the ‘considerable animosity’ she experienced from her former colleagues at the Hospital. However, this evidence also cannot establish pretext, whether we consider it as grounds for a hostile work environment claim or as evidence of more favorable treatment toward a similarly situated member of a non-protected group. And to the extent Brasher intends to cite her former colleagues’ behavior as evidence of more favorable treatment toward similarly situated comparators, she fails to establish that her former colleagues were similarly situated, as she neither asserts that they were younger nor that their transgressions were as serious as her own,” Krause added.

Finally, Brasher claimed evidence indicating she had followed a physician’s instructions during “the insulin incident” that led to the Hospital’s decision to terminate her employment, but Krause countered she had not proven the hospital acted with “discriminatory animus”.

“Brasher’s evidence does not satisfy this standard. Even assuming that Brasher had followed a physician’s instructions during ‘the insulin incident,’ Brasher does not dispute the facts underlying the Hospital’s other reasons for deciding to terminate her employment: (a) her failure to follow the Hospital’s protocols, which, among other things, required two nurses to approve insulin infusions, and (b) her history of documentation errors,” Krause said.

“Because Brasher produced evidence to discredit only one of the Hospital’s multiple reasons for deciding to terminate her employment, and because that evidence is unaccompanied by weaknesses or inconsistencies underlying the Hospital’s other reasons, Brasher’s third source of evidence does not create a genuine issue of fact as to whether the Hospital’s reasons for deciding to terminate Brasher’s employment were pretextual,” Krause added.

“We conclude that, whether considered singly or in the aggregate, Brasher’s cited sources of evidence do not establish a genuine issue of material fact and the Hospital was entitled to summary judgment. We will therefore affirm the judgment of the District Court,” Krause said.

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

The defendant is represented by Sidney R. Steinberg, Kate A. Kleba, Charlene A. Barker, David E. Renner and Mehreen Zaman of Post & Schell, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-1146

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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