Antonia Udasco-Kist v. Thomas Jefferson University Ho

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1146
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ANTONIA UDASCO-KIST,
Appellant
v.
THOMAS JEFFERSON UNIVERSITY HOSPITAL, INC.
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cv-03176)
U.S. District Judge: Honorable Nitza I. Quinones Alejandro
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Submitted Under Third Circuit L.A.R. 34.1(a)
July 5, 2022
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Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges.
(Filed: July 18, 2022)
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OPINION *
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Antonia Udasco-Kist appeals the District Court’s order granting summary
judgment to her former employer, Thomas Jefferson University Hospital, Inc., on her age
discrimination claims. Because the District Court correctly held that Udasco-Kist failed
to show a reasonable jury would find that the Hospital’s proffered reason for her
termination was pretextual, we will affirm.
I
A
Udasco-Kist began working at the Hospital’s Methodist campus as a nuclear
medicine technologist (“NMT”) when she was in her mid-forties. As an NMT, Udasco-
Kist assisted radiologists, provided patients with radiopharmaceuticals, and performed
tests using nuclear medicine equipment. Initially, she received positive performance
reviews.
After about a decade, Udasco-Kist’s performance slipped. First, in January 2013,
she injected a patient with the wrong radiopharmaceutical. 1 A supervisor had a
“Documented Discussion” with her about the error. 2 A919. Second, in January 2015,
1
During 2013, she also mislabeled images, improperly dosed patients, and
admitted to having trouble concentrating but could not remember why. She received
counselling following these errors.
2
The Hospital’s progressive disciplinary policy generally consisted of four steps:
(1) a “First Written Warning” or “Documented Discussion,” which was typically an
informal notice to an employee of unsatisfactory conduct; (2) a “Second Written
Warning,” which was a formal notice to an employee of unsatisfactory conduct; (3) a
2
she “drew up the wrong radiopharmaceutical for a patient,” and received a “First Written
Warning.” A921-22.
In the summer of 2015, the Hospital’s Methodist and Center City campuses
merged, NMTs began cross-training at both locations, and Cheryl Rickley became
Udasco-Kist’s supervisor. Udasco-Kist voiced concerns about Center City’s fast-paced
environment, patient volume, and different machines and struggled to keep up. A co-
worker, Anthony Juliani, told Udasco-Kist that Rickley said to another co-worker, Tirath
Nahar, that Rickley “wished that [Udasco-Kist] would just retire.” 3 A734-35.
In November 2015, Udasco-Kist provided a patient with a radiopharmaceutical
even though the order directing the dosage was cancelled and department policy required
her to “review” and “verify” all orders before dosing a patient. A927, 931. As a result,
she received a “Final Warning,” which stated that she would be “terminat[ed]” if “an
incident occurs again.” A924-25.
In January 2016, another incident occurred. Center City used a machine to detect
radioactive particles. NMTs were responsible for calibrating the machine. Udasco-Kist
“Final Warning,” which was “intended to provide the employee a clear and definitive
understanding that the next violation w[ould] result in termination of employment”; and
(4) “Discharge,” which terminated the employment relationship based on “the
seriousness of the offense, overall record of service, and the number of warnings.”
A1047-48. That said, “progressive disciplinary steps [could] be skipped in instances of
serious violations . . . or . . . repeated violations.” A1049. Further, “[s]ome violations . . .
result[ed] in immediate termination,” such as “providing false . . . information of any
nature.” A1049-50.
3
Nahar denies hearing such a statement from Rickley.
3
admits that she engaged in a “pattern” of inputting incorrect data into the machine so that
it would accept the values she input and appear properly calibrated. A423. She believed
that “since the number[s] w[ere] so close [to the correct values,] . . . it would not impose
a dangerous situation.” A423-24. Udasco-Kist admits, however, that she knew this was
“not what [she] w[as] supposed to do.” A428. Eventually, the machine stopped working
and her supervisors discovered her conduct. She was terminated (at the age of sixty) for
engaging in this misconduct and replaced by an equally qualified NMT in her twenties. 4
B
Udasco-Kist asserts she was fired because of her age and sued the Hospital for age
discrimination under the (1) Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., and (2) Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.
Stat. § 955 et seq.
After discovery, the Hospital moved for summary judgment, which the District
Court granted because it found Udasco-Kist failed to “produce[] evidence from which a
reasonable factfinder could find that [the Hospital]’s articulated legitimate, non-
discriminatory reason for her termination was a pretext for age discrimination.” Udasco-
4
Two other NMTs were disciplined for calibration misconduct: (1) Christopher
Dihn similarly “rounded [] up” numbers, A689, and received a “[F]inal [W]arning” for
the conduct even though it was his first disciplinary infraction, A692; and (2) Mai
Nguyen entered correct numbers into the machine, but then manually overrode the
system so that it would accept the values, and received a written warning for her conduct,
which supervisors deemed less serious than Udasco-Kist’s and Dihn’s conduct because
Nguyen did not enter false numbers into the machine.
4
Kist v. Thomas Jefferson Univ. Hosps., Inc., No. 19-cv-03176, 2021 WL 254584, at *4
(E.D. Pa. Jan. 25, 2021).
Udasco-Kist appeals.
II 5
The only issue on appeal is whether Udasco-Kist adduced sufficient evidence,
when viewed in her favor, to show that the Hospital’s proffered legitimate, non-
discriminatory justification for termination was pretextual. 6 To show pretext, a plaintiff
5
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court’s order granting summary judgment de novo, applying
the same test as the district court under Federal Rule of Civil Procedure 56(c). Kautz v.
Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). Summary judgment is “proper only if
it appears ‘that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). The
“non-moving party[] is entitled to every favorable inference that can be drawn from the
record.” Id.6
The “same legal standard” applies to age discrimination claims brought under the
ADEA and PHRA, and “it is proper to address them collectively.” Kautz, 412 F.3d at466 n.1. When a plaintiff like Udasco-Kist does not provide “direct evidence” of age
discrimination, “our inquiry . . . is governed by the three-part [McDonnell Douglas
burden shifting] framework.” Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013)
(citations omitted). Under this framework, “the plaintiff [first] bears the burden of
making out a prima facie case of discrimination,” that is: (1) the plaintiff is “forty years
of age or older,” (2) “the defendant took an adverse employment action against her,” (3)
“she was qualified for the position in question,” and (4) “she was ultimately replaced by
another employee who was sufficiently younger to support an inference of discriminatory
animus.” Burton, 707 F.3d at 426 (citing, inter alia, McDonnell Douglas, 411 U.S. at
802-03). Second, “[o]nce the plaintiff makes out her prima facie case, ‘the burden of
production [] shifts to the defendant to offer a legitimate non-discriminatory
[justification] for the adverse employment action.’” Id. at 426 (quoting Smith v. City of
Allentown, 589 F.3d 684, 690 (3d Cir. 2009)). The parties do not dispute that Udasco-
Kist made out her prima facie case and that the Hospital offered a legitimate, non-
5
“‘must point to some evidence, direct or circumstantial, from which a factfinder 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 of the employer’s action.’” Burton v. Teleflex Inc., 707 F.3d 417,
427 (3d Cir. 2013) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
Udasco-Kist has not satisfied her burden. First, Udasco-Kist does not dispute her
disciplinary record leading up to the incident that prompted her termination. She does
not dispute that she received (1) a Documented Discussion for incorrectly injecting a
patient in 2013; (2) a First Written Warning for drawing up the wrong
radiopharmaceutical in January 2015; and (3) a Final Written Warning for wrongly
dosing a patient in November 2015. After the November 2015 incident, the Hospital
notified her that another infraction would result in termination.
Second, Udasco-Kist does not dispute that she committed another infraction in
January 2016. She admits that she engaged in improper conduct by knowingly inputting
incorrect numbers into the Hospital’s machinery. Under the Hospital’s progressive
discipline policy, it could have terminated her based on (1) her “number of [prior]
warnings,” including a Final Written Warning, see A1047-48; and/or (2) the nature of the
discriminatory reason for Udasco-Kist’s termination. The issue here is whether Udasco-
Kist sustained her burden to produce “evidence from which a factfinder could reasonably
infer that the employer’s proffered justification is [] a pretext for discrimination.” Id. at
426.
6
violation, as she “provid[ed] false . . . information,” which permits “immediate
termination,” A1049-50. Indeed, Udasco-Kist admits that she does not “believe that [the
Hospital] violated any disciplinary policy . . . by terminating [her]” for her January 2016
conduct. A438. Thus, viewing these undisputed facts in her favor, no reasonable
factfinder could disbelieve the Hospital’s articulated legitimate non-discriminatory reason
or believe that an invidious discriminatory reason was more likely than not the
motivating factor for her termination.
Udasco-Kist points to several pieces of evidence in support of her position to the
contrary but to no avail. Her prior positive performance reviews do not negate her
misconduct because they predate her disciplinary infractions. See Kautz v. Met-Pro
Corp., 412 F.3d 463, 474 (3d Cir. 2005) (“The attempt to use past positive performance
reviews to show that more recent criticism was pretextual fails as a matter of law.”).
Moreover, Rickley’s alleged comment to a co-worker that she wished Udasco-Kist would
“just retire” is insufficient to show pretext because even if Rickley was the
“decisionmaker” in Udasco-Kist’s termination, Udasco-Kist has not identified when the
comment was made or how the comment related to Rickley’s decision to recommend
termination. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d
Cir. 1992) (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the
decision process are rarely given great weight, particularly if they were made temporally
remote from the date of decision.”). Instead, the record shows that Rickley recommended
7
terminating Udasco-Kist (as well as her co-worker, Dihn) for “falsif[ying] quality control
data,” which was a ground for “automatic termination” under the Hospital’s disciplinary
policy. A818; A1049-50. 7
Therefore, the District Court appropriately granted summary judgment to the
Hospital.
III
For the foregoing reasons, we will affirm the District Court’s order.
7
The Hospital’s decisions to not terminate Dihn and Nguyen despite seemingly
similar misconduct also do not show pretext. Neither of them had a disciplinary record
before their respective incidents. Dihn received a Final Warning for rounding up
numbers like Udasco-Kist (skipping several disciplinary steps because of the severity of
the misconduct), and Nguyen received a First Written Warning for manually overriding
the system after she input correct numbers that were outside the acceptable range. In
each instance, the Hospital applied its disciplinary policy based on the employees’ past
and present misconduct. See In re Trib. Media Co., 902 F.3d 384, 404 (3d Cir. 2018)
(holding no evidence of pretext when an allegedly similarly situated employee “who
participated in the same incident and was investigated at the same time by the same
people . . . received the same treatment” under the employer’s disciplinary policy
(quotation omitted)).
8