Opinion

DOMINICI v. READING HOSPITAL/TOWER HEALTH

Court: District Court, E.D. Pennsylvania
Filed: Jun 3, 2020
Cited by: 0 cases
Authority: More cited than 28.8%

concluding that although the coworker’s “name calling is certainly inappropriate, it does not create evidence showing that Defendants’ decisionmakers fired [the employee] because of her gender”

How later courts described this case

concluding that although the coworker’s “name calling is certainly inappropriate, it does not create evidence showing that Defendants’ decisionmakers fired [the employee] because of her gender”
stating that the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts”
holding that a plaintiff “may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii
holding that “the mere favorable treatment of one younger manager as compared to one older manager may not be sufficient to infer age discrimination”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

LUCIA DOMINICI, :

Plaintiff, :

v. : No. 5:18-cv-04181

READING HOSPITAL/TOWER HEALTH, :

Defendant. :

__________________________________________

O P I N I O N

Defendant’s Motion for Summary Judgment, ECF No. 35 – Granted

Joseph F. Leeson, Jr. June 3, 2020

United States District Judge

I. INTRODUCTION

Plaintiff Lucia Dominici, a European-Italian woman born in 1960, claims her former

employer, Defendant Reading Hospital / Tower Health, harassed, discriminated, and retaliated

against her based on her race, national original, and age. The Hospital has filed a Motion for

Summary Judgment asserting its entitlement to judgment on all claims. For the reasons set forth

below, the Motion is granted.

II. PROCEDURAL BACKGROUND

Dominici initiated this action pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 1981, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634,

and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951 – 963. The Complaint

was dismissed, however, because nothing in Dominici’s allegations “plausibly suggest[ed] that

her treatment was based on her nationality, race, age, or gender” or that she was retaliated

against for “oppos[ing] conduct made unlawful by the statutes prohibiting employment

discrimination.” See Opn. 6, ECF No. 5. Dominici was given leave to amend.

Dominici thereafter filed an Amended Complaint reasserting her federal claims, but not

her claim under the PHRA.1 See Am. Compl., ECF No. 8. Generally, Dominici, a Psych Tech,

alleges that the conduct of her supervisor, Nurse Manager Noel Lojeski, in assigning her to rotate

shifts, with additional duties, and in not offering her counseling or verbal reprimands before

issuing written warnings was “discriminatory” and “retaliatory.” Dominici contends she endured

harassment by Lojeski and by two coworkers, Tracy Koch and Thomasine Peterson, resulting in

a hostile work environment. Dominici alleges that the Hospital was aware of the harassment and

discrimination, which was based on her national origin, race, and/or age, but did nothing to stop

or prevent it. Dominici claims that her termination was also an act of discrimination and

retaliation.

The Hospital has filed a Motion for Summary Judgment on all claims. See SJ Mot. &

Brief, ECF No. 35. The Hospital argues, first, that it is entitled to summary judgment on the §

1981 claim because Dominici is not a member of a racial minority. See id. Next, the Hospital

asserts that it is entitled to summary judgment on the disparate treatment claims because

Dominici cannot establish a prima face case of discrimination. See id. It asserts that summary

judgment should be granted in the Hospital’s favor on the hostile work environment claims

because there is no evidence Dominici received any work assignment based on her age, race, or

1 Even if Dominici intended to renew her PHRA claim, “interpretation of the PHRA is

identical to that of federal anti-discrimination laws, including the ADEA;” therefore, the Court’s

analysis would be identical. See Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638,

643 (3d Cir. 2015). See also Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001) (“The

proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as

Pennsylvania courts have construed the protections of the two acts interchangeably.”).

national origin or that the comments of Dominici’s coworkers rise to the level of a hostile work

environment. See id. Finally, the Hospital contends that because Dominici cannot make a prima

facie case of retaliation, it is entitled to summary judgment on the retaliation claims. See id.

Additionally, the Hospital asserts that even if Dominici could establish a prima facie case on any

of her claims, it has provided legitimate, non-discriminatory, non-retaliatory reasons for its

actions, for which Dominici cannot establish pretext. In support of its Motion, the Hospital has

filed a Statement of Undisputed Material Facts. See Def.’s Stmt. Facts, ECF No. 35-3. Dominici

has filed a brief in opposition to the Motion for Summary Judgment, but has not filed a counter

statement of material facts in response to the Hospital’s statement. See SJ Resp. ECF No. 38.

Both parties have also filed reply briefs. See SJ Reply, ECF No. 39; SJ Sur-reply, ECF No. 41.

III. FACTUAL BACKGROUND

A. Federal Rule of Civil Procedure 56(e)(2)

Rule 56(e)(2) of the Federal Rules of Civil Procedure provides: “If a party fails to

properly support an assertion of fact or fails to properly address another party’s assertion of fact

as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the

motion.”

In the Hospital’s Statement of Undisputed Material Facts, filed in support of its Motion

for Summary Judgment, each fact is properly supported by a citation to the record and the cited

record is attached as an exhibit. See Def.’s Stmt. Facts; SJ Exs., ECF Nos. 35-4 through 35-11.

Dominici, however, has not filed a statement of material facts in opposition to the Motion for

Summary Judgment, as required by this Court’s scheduling Order dated May 7, 2019, and by its

Policies and Procedures, both of which outline the required content for briefs and responses to

dispositive motions. See Policies and Procedures Section II(F); Order 2-3, ECF No. 21. Each

warns the parties that “[a]ll facts set forth in the moving party’s statement of undisputed facts

shall be deemed admitted unless controverted.” See id. Dominici was again reminded of these

requirements in an Order dated October 18, 2019. See ECF No. 37. Thus, consistent with Rule

56(e)(2) of the Federal Rules of Civil Procedure, the Hospital’s Statement of Undisputed

Material Facts may be deemed undisputed. See Fed. R. Civ. P. 56(e)(2); Robinson v. N.J.

Mercer County Vicinage - Family Div., 562 F. App’x 145, 147, 149 (3d Cir. 2014) (holding that

the district court did not err in concluding that the defendants’ material facts were undisputed

where the plaintiff failed to oppose the defendants’ statement of material facts); Schuenemann v.

United States, No. 05-2565, 2006 U.S. App. LEXIS 4350, at *15 n.7 (3d Cir. 2006) (holding that

the district court properly deemed the defendants’ statement of facts as undisputed for purposes

of deciding the motion for summary judgment where the plaintiff failed to respond to each

numbered paragraph of the defendants’ statement of facts). However, in light of Dominici’s pro

se status, the Court will not deem any fact undisputed to the extent such fact is contested in

Dominici’s responses to the summary judgment motion and has any support in the record,

including Dominici’s deposition testimony. To the extent any of the facts discussed below are

disputed, they are so noted and distinguished accordingly.

B. Undisputed Material Facts

Dominici commenced employment with the Hospital on or about April 3, 2017, as a

Psych Tech. See Offer Letter, ECF No. 35-6; Pl.’s Dep. 48:2-6, ECF No. 35-5. Dominici, like

all of the Hospital’s Psych Techs, worked in the Hospital’s Spruce Pavilion, which houses the

adult psychiatric department (the “Department”). See Pl.’s Dep. 49:11-12. The Department has

two floors in the Spruce Pavilion, known as “PG” or “P ground” and “P1.” See id. 52:24 - 53:13.

PG is where geriatric psychiatric patients are housed, and P1 is the location of non-geriatric adult

psychiatric patients. See id. 52:24 - 53:13. Dominici was hired to work on “Spruce P1.” See

Offer Letter; Pl.’s Dep. 49:5-19. Dominici’s Offer Letter provides that she would be an at-will

employee and that her “employment is not intended to be for any specific duration.” See id.

As a Psych Tech, Dominici’s job duties included assisting with the provision of patient

care to psychiatric patients. See id. 49:5-19. The written job responsibilities state that Psych

Techs shall assist patients with “Bathing, Toileting, Feeding and other activities as needed.” See

Ex. 4, ECF No. 35-8. Dominici testified, however, that aside from occasionally assisting with

showering or in emergency situations, a Psych Tech on the adult floor does not perform these

duties. See Pl.’s Dep. 49:13-23, 62:2-15. According to Dominici, these are the job duties of a

Patient Care Assistant (“PCA”). See id. 113:6-7. Dominici acknowledges, however, that all

Psych Techs on PG perform such duties. See id. 114:16-21. The written job description for the

Psych Tech position further states that it does not provide an exhaustive list of all position duties

and that nothing “restricts management’s right to assign or reassign duties and responsibilities to

this job at any time.” See Ex. 4 at 2.

Dominici was hired to work two different shifts: days shift (hours 07:00-15:30) and night

shift (hours 15:00-23:30). See Offer Letter; Pl.’s Dep. 50:12 – 51:15. Her schedule rotated such

that she would work two weeks on the day shift and then the next two weeks on the night shift.

See id. 51:2-15, 54:7-13. Initially, Dominici worked both shifts on P1, but that changed

immediately after Nurse Manager Noel Lojeski took over managerial duties, on or about May 29,

2017. See id. 54:14-19; Lojeski Dec. ¶¶ 1-2. Lojeski declared that under his management, “all

Psych Techs were expected to perform the job duties of the PCA position, which duties also

were associated with the Psych Tech position, and to work in a PCA role as assigned when

staffing needs so required” and “all Psych Techs, including Ms. Dominici, worked in a PCA role

at times and performed direct patient care duties both as a PCA and as Psych Tech consistent

with patient care needs.” See Lojeski Dec. ¶ 6, ECF No. 35-7. Lojeski informed employees,

during a staff meeting, that all employees, including Psych Techs, would need to rotate between

PG and P1. See Pl.’s Dep. 58:22 - 60:15.2 Thereafter, Dominici worked day shifts on PG and

night shifts on P1. See Pl.’s Dep. 53:21 – 54:1.

At some time after the staff meeting, Lojeski told Dominici that seniority played a role in

which floors Psych Techs worked. See Pl.’s Dep. 58:5-10; Lojeski Dec. ¶ 11. Although

Dominici disputes that floor assignment was based on seniority, her disagreement is based solely

on Lojeski’s statement during the staff meeting that all employees would need to rotate, which is

undisputed. See Pl.’s Dep. 59:20 - 60:12; SJ Resp. 2. Also not in dispute is the fact that all of

the other Psych Techs with whom Dominici worked were more senior. See Lojeski Dec. ¶ 11;

Pl.’s Dep. 58:5-20.

Sometime before the summer of 2018, Dominici asked Lojeski if she could work on only

P1, to which Lojeski stated that she could if she worked all night shifts. See Pl.’s Dep. 51:19 -

52:23. Dominici’s schedule was thereafter changed to all night shifts on P1. See id. 52:11-2.

i. Dominici’s Written Warnings

The Hospital maintains a policy setting “Guidelines For Corrective Action” to be used by

managers to address an employee’s behavior and performance. See Rex Ex. F, ECF No. 35-9.

The policy states that “performance issues will be addressed through progressive style

counseling and written discipline process.” See id. 7. In ascending order of severity, “managers

may use . . . based on their evaluation of the situation:” counseling, written warning, and final

2 In his declaration, Lojeski attested that “the Hospital has had the prerogative to assign

Psych Techs (and other employees) to either floor in the Spruce Pavilion, as well as to specific

locations on those floors, consistent with the staffing needs of the Hospital.” Lojeski Dec. ¶ 9.

written warning. See id. 7-8. The policy explains that these tools are only a guide, as some

behavior/performance deficiencies may warrant “additional corrective action tools as substitute

for, or in conjunction with” these tools. See id. 8. Additionally, “[t]here may be performance,

conduct or safety incidents so problematic and harmful that the most effective action may be the

immediate removal of the employee from the workplace.” See id.

a. First Written Warning

On or about February 7, 2018, the Hospital issued Dominici a First Written Warning. See

Pl.’s Dep. 121:6-24; Lojeski Dec. ¶ 12. The First Written Warning provides, in relevant part:

Employee deviated from organizational and departmental policies on three separate

occasions within two week[s]. 1) Employee allowed a patient to have [a] visitor

that was not on the patient’s visitor list. 2) Employee did not park in assign[ed]

parking after receiving a written warning from security. 3) Employee left her unit

keys unattended on the counter in PG.

The following improvement is expected to occur (Future):

1) Employee will park in assigned parking area

2) Employee will only allow approved visitors on the unit

3) Employee will keep her unit keys secure at all times

Any future infractions could result in future progressive discipline up to and

including termination.

First Warning, Ex. 6, ECF No. 35-8. Lojeski presented Dominici with the First Written Warning

on or about February 7, 2018, and she signed the First Written Warning on that date. See Pl.’s

Dep. at 121:21 - 122:5; Lojeski Dec. ¶ 12.

Dominici denies leaving her keys “unattended,” but acknowledges that when a coworker

returned Dominici’s borrowed keys to her, the coworker placed the keys on the counter while

Dominici was washing her hands. See Pl.’s Dep. 124:19 – 126:3; Pl.’s Grievance dated April 2,

2018, Ex. 9, ECF No. 35-8 and Ex. 14, ECF No. 35-10.3 Dominici admits to the other alleged

3 In the April 2 Grievance, Dominici wrote to Lojeski:

Noel; you accused me of leaving my keys on the nurse station counter. That was

not the case. Doctors, pool staff and many other employees do not have access to

violations for admitting a patient’s unlisted visitor and repeatedly4 failing to park in the assigned

area. See Pl.’s Dep. 124:1 - 129:7. She alleges other employees allowed unlisted visitor’s in and

contends that other employees parked illegally, but cannot name any employee that violated the

visitor policy or whom Lojeski permitted to receive two different parking notifications without

being disciplined. See id. 126:4 – 128:12, 134:1 - 136:13. Dominici is also not aware of any

other employee, whether known or unknown to Lojeski, who allegedly left keys on the counter.

See id. 119:22 - 120:3.

Lojeski attests that Dominici’s failure to maintain control of her unit keys presented a risk

to patient safety and welfare, as any Hospital psychiatric patient could have grabbed the keys and

utilized them to access an area that was not secure for psychiatric patients. See Lojeski Dec. ¶

14. Similarly, allowing an unauthorized person to visit a psychiatric patient posed a risk to

patient safety and welfare. See id. ¶ 15. Lojeski declares he has “never permitted any employee

to allow a patient visitor who was not on that patient’s approved visitor list.” See id. ¶ 16.

b. Final Written Warning

The following month, on or about March 16, 2018, Lojeski was provided with a copy of

an email from Registered Nurse Brooke Mickshaw, which states that Dominici had been

observed on March 6, 2018, punching in for work at the time clock and then leaving the facility

to park her car. See Lojeski Dec. ¶ 17. Four days later, Registered Nurse Jamie Wolfe sent an

places like bathrooms, kitchen and other facilities. A staff asked me for the keys to

use the bathroom and after she returned, she left the keys on the counter right when

I was in the middle of washing my hands. You saw the keys there and took them

quickly. You knew what happened, but took the opportunity to write me up, instead

of following protocol. I apologized and explained it will never happen again and

that I will never, give my keys to anyone.

Grievance 2.

4 Dominici committed the parking violations on July 10, 2017, and on January 23, 2018,

and Lojeski was notified of the same shortly thereafter. See Lojeski Exs. D-E, ECF No. 35-7.

email to Lojeski stating that she had taken a cell phone belonging to Dominici from a psychiatric

patient and that when she confronted Dominici about it, Dominici stated, “oh I was just letting

them listen to music.” See id. ¶ 18.

On or about March 21, 2018, Lojeski and Operations Manager Loni Francis met with

Dominici. See id. ¶ 19. Lojeski explained to Dominici that permitting a patient to utilize a cell

phone without employee supervision presented a risk to the safety and welfare of the Hospital’s

psychiatric patients, who are not permitted to utilize communications devices without

supervision. See id. ¶ 20. Although Dominici responded that she did not understand the severity

of her conduct, she understood it was wrong. See Lojeski Dec. ¶ 19; Francis Notes, Lojeski Ex.

H, ECF No. 35-7. Dominici also told Lojeski that she failed to understand the severity of her

admitted conduct of clocking in and then moving her car. See id. Lojeski explained to Dominici

that clocking in and then returning to her car constituted a “theft of time” because she was being

paid for time that she was not working. See id. and Lojeski Dec. ¶ 22. Sherry Rex, a Human

Resources Business Partner (“HRBP”) at the Hospital, declares that the Hospital has maintained

a policy that prohibits “theft, dishonesty (direct or by omission) or fraud of any kind[.]” See Rex

Dec. ¶ 17, ECF No. 35-9. The Hospital has considered the act of clocking in before parking

one’s car to violate the aforementioned policy. See id. ¶ 18.

The following week, on or about March 29, 2018, the Hospital issued Dominici a Final

Written Warning regarding these violations, which states, in relevant part:

On March 6, 2018 it was reported by staff that Lucia was clocking in for work and

going back out to park in her car. After a thorough investigation it was discovered

the employee continues to deviate from organizational and departmental policies.

Lucia, allowed a group of patients to use her personal cell phone without

supervision[,] jeopardizing the safety and welfare of the patients[.] In addition,

when Lucia was asked about clocking in and parking her car on work time she

admitted that she would swipe in for work then return her car and proceed to park

in her assigned parking. This is resulting in a final written warning.

The following improvement is expected to occur (Future):

Lucia is expected to adhere to the [Hospital’s] policies and procedures. Any future

violations will result in termination of employment.

Final Warning, Ex. 11, ECF No. 35-8. Lojeski and Nurse Manager Kelly Mohn issued the Final

Written Warning to Dominici during a meeting on March 29, 2018. See Lojeski Dec. ¶ 22; Pl.’s

Dep. 139:11-24. Dominici named one other employee that allegedly allowed a patient to use her

cell phone, but could not testify as to when or whether Lojeski was that employee’s supervisor.

See id. 145:11 -147:15. Dominici is unaware of any other employee that Lojeski allowed to

clock in and then go park his/her car without being disciplined. See id. 141:23 - 142:3.

At the meeting on March 29, 2018, Dominici was wearing workout pants and a t-shirt.

See Lojeski Dec. ¶ 24. However, the Hospital maintained a dress code for employees working in

the Psychiatry Department, which states that “Appearance must be professional at all times.”

See Lojeski Dec. ¶¶ 25-26 and Lojeski Ex. J, ECF No. 35-7. Immediately after the meeting,

Lojeski advised Dominici that her attire was not professional dress and she needed to change.

See id. ¶ 26; Pl.’s Dep. 156:8-19. Dominici went to Human Resources first, then after securing

different clothes, was permitted to return to work. See Lojeski Dec. ¶ 27; Pl.’s Dep. 158:1 -

160:10. Dominici testified that Lojeski had seen her dress similarly on previous occasions, but

did not discipline her, and also that Lojeski did not send other employees home for wearing

street clothes. See Pl.’s Dep. 165:17-24; SJ Resp. 3-4. When asked to name another employee

that was not disciplined for violating the dress code, Dominici referred only to a doctor that was

not supervised by Lojeski, and to unnamed staff members who wore “strange skirts, . . . makeup,

earrings, tattoos.” See id. 163:10 - 164:24.

ii. Dominici’s Fair Treatment Grievances

At all times relevant, the Hospital maintained a Fair Treatment Policy pursuant to which

non-management employees may make suggestions and discuss work-related problems with

supervisors. See Rex Dec. ⁋⁋ 3-4; Rex Ex. A, ECF No. 35-9. In relevant part, the Fair

Treatment Policy provides for a multi-step review of employee issues and permits the

complaining employee to withdraw a complaint in writing at any time. See id.

Consistent with the Policy, Dominici provided Lojeski a document with the subject

heading “Grievance.” See Grievance; Pl.’s Dep. 73:1 - 75:4. Dominici submitted the Grievance

on or about April 2, 2018, approximately four days after receiving her Final Written Warning.

See id. The Grievance, a four-page, single-spaced document addressed to Lojeski, sets forth a

number of discrete complaints, all arising after Lojeski took over as the nurse manager,

including, in relevant part, the following:

. . . I noticed that things changed fast, several coworkers lost their jobs and new

rules and regulations were put into place.

. . . All of the sudden the rules changed and now, all staff from P1 and [PG] needed

to rotate.

. . . I had numerus conversations with you with regard to this situation and you

never gave me a credible reason why I was the only one that rotated and was always

put in PG . . . . You kept making excuses and favored other co workers [such as

Nicki Angelisanti]5 who did not rotate and were not honest about claiming it

involved seniority. . . .

Grievance 1. Dominici writes to Lojeski: “Every time I approach you for any reason whether it

be for requesting PTO, you always make me feel as though I am not understanding things.” Id.

at 2. She contends:

. . . I never expected the work environment at the hospital to be so hostile &

unfriendly. . . . I have been treated poorly by some of the staff to the point that I

have been threatened & yelled at, which you are aware of. I have had my privacy

invaded and have been picked on by several people who you are well aware of.

5 See Pl.’s Dep. 58:5-10.

. . . I have been bullied, intimidated and frankly targeted by you.

Id. at 2-3.

The Grievance also comments on the various alleged misconducts. As to the dress code

violation, Dominici asserts:

. . . As a psych tech I wear regular clothing. At times I go to the gym before working

and on Thursday 3/29, this was the case. I was not wearing sweat pants, however[,]

a very nice pair of black Adidas climate slacks and a nice t-shirt. There were many

other times I have worn the exact same clothes and you never said anything. . . .

. . . After you called me in the office for letting a patient listen to music on my

phone, you called me right back and humiliated me for the clothing I was wearing.

. . . Humiliating me in front of other staff for violating a dress code that I actually

did not violate.

Id. at 2. In addressing the written warning for allowing a visitor to see a patient that was not on

the approved visitor list, Dominici states: “I never received a formal training on how to do

visiting . . . it was a very busy environment . . . I also suggested [ways] to improve the situation. .

. .” Id. at 3. Dominici also discusses the parking violation and offers a similar explanation for

leaving her keys unattended that was discussed above. See id. As to the misconduct for

permitting a patient to use her cell phone, Dominici complains to Lojeski: “you never responded

to my email” about “tak[ing] a patient to the gym” and because “the television does not work,”

and “we do not have any radio’s [sic] for appropriate usage,” she allowed a patient to listen to

music on her phone. See id. at 3. Dominici concludes the Grievance as follows:

In conclusion; I would like to state that you have not followed the proper protocol

for the issuance of a “corrective action warning notification” using the progressive

discipline form. According to the policy for corrective action, the understanding of

progressive discipline is a method of attempting to correct deficiencies through

counseling, warning, representing or other forms of remedial action appropriate to

the employee’s behavior and the circumstances surrounding the behavior.

Constructive methods of problem solving for the benefit of the patients, Reading

Health System, and employees is to council [sic], discuss and frankly give the

employee an opportunity to become educated as to how to correct, improve and

understand what is need [sic] to satisfy management that they understand what is

needed for improvement. Sending me home to change my clothing in my opinion,

was NOT beneficial to the patients, Reading Health System and to me, and solved

nothing. Especially since it wasn’t even a justified violation of the dress code.

Counseling before any written warning should have been done prior to any

disciplinary action. Noel, this was not done. Grabbing the keys from the counter,

when they were borrowed by a staff & put down for me while I was washing my

hands, and then having them grabbed by you, solved nothing. A conversation with

me about the importance of keeping your keys with you at all times would have

been the appropriate thing to do. Not proceeding immediately to a disciplinary

action. Counseling to me is approaching the employee to talk about the problem,

educate the employee about a better way to do what was done wrong and wait and

see for the future behavior. If you Noel, received information that I am repeating

my previous behavior and wrong doing, then a written warning should be given. I

feel that the two warnings you gave me were not appropriate based on the

progressive counseling process of the hospital and the associated protocol. You

should have provided me with the education and counseling necessary to

understand what I did wrong. For this reason I feel that the two warnings that you

gave me should be immediately annulled and withdrawn.

Id. at 3-4. The Grievance asserts Dominici was treated differently and unfairly, and experienced

a hostile work environment, but never alleges the disparate treatment or hostile environment was

in any way connected to her age, race, national origin, or any other protected class. See

generally id. Rather, Dominici questions “why” her coworkers would think Lojeski was

targeting her and states “there is no reason for the treatment” she was receiving. See id. at 2.

After reviewing Dominici’s Grievance, Lojeski decided that it did not set forth any

legitimate reason to rescind the First Written Warning or Final Warning and, on or about April 6,

2018, issued a determination upholding the discipline. See Lojeski Dec. ¶ 37. Lojeski’s written

response to the Fair Treatment Grievance states:

I have read the Fair Treatment issue/complaint and uphold the decision of the final

warning as the Behavioral and Performance Expectations Policy allows the

manager to skip steps in the discipline process depending upon the circumstances

of the performance issues.

Grievance Resp., Ex. 15, ECF No, 35-10. Lojeski provided his response to Dominici, who

understood that she had to proceed to the next step. See Pl.’s Dep. 75:21 - 78:14.

On or about April 8, 2018, Dominici appealed Lojeski’s decision through the Fair

Treatment Process to Lojeski’s supervisor, Division Director Anne Blankenhorn. See id. at

79:20 - 80:17; Grievance Appeal, Ex. 16, ECF No. 35-10. The appeal states, in relevant part:

I am in receipt of the response from my supervisor, Noel Lojeski . . . .

Unfortunately, his response is unacceptable and discriminatory. He has failed to

offer any reason as to why he has violated my rights to fair and equal treatment

under the Hospitals [sic] “Fair Treatment Procedure” guidelines. Additionally, he

has failed to follow proper steps in the progressive disciplinary action protocol.

Instead, he has proceeded right to the final step of writing written warnings and

threatening termination. This in itself is harassment and discriminatory. The

circumstances of the issues involving the written warnings were not at all egregious.

They were in fact quite minor and should have been handled with a counseling and

educational conversation. Instead they were handled as an egregious incident and

used as a form of harassment causing me both fear and anxiety. His managerial

behavior towards me is one of constant harassment through negativity, fear and

continual purposeful misunderstanding of communication.

See Grievance Appeal 1. On or about April 12, 2018, Blankenhorn issued a written response to

Dominici’s appeal, stating: “I have received all documents related to this fair treatment and

uphold the decision to discipline.” See Appeal Resp., Ex. 17, ECF No. 35-10; Pl.’s Dep. 91:16 -

92:20. Although Dominici did not speak with Blankenhorn during the appeal process, she did

speak with Blankenhorn, about working on PG and her job duties, on at least two occasions prior

to beginning the Fair Treatment Process. See Pl.’s Dep. 83:6 - 87:10.

Following her receipt of Blankenhorn’s decision, Dominici met with Rex to discuss the

Fair Treatment Grievance. See Pl.’s Dep. 94:16 - 98:20; Rex Dec. ¶¶ 3-8. This was not the first

time they discussed the Fair Treatment Policy and Dominici’s alleged mistreatment by Lojeski.

See id. In their prior discussions, Dominici did not inform Rex of any alleged conduct that was

not included in her Grievance to Lojeski. See Pl.’s Dep. 74:9-13. During the meeting following

the denial of her Grievance Appeal, Dominici told Rex that she was “willing to drop” her Fair

Treatment Grievance because she “wanted to go to work and do [her] job and go home” and

“just wanted to be treated fairly.” Se id. 96:1-9. Dominici withdrew her Fair Treatment

Grievance on or about April 18, 2018. See Rex Dec. ¶ 9; Rex Ex. C, ECF No. 35-9. Dominici’s

letter withdrawing the Grievance reads: “Per our conversation; I agree to drop the fair treatment

complaint against the hospital and Noel Lojeski at this time for your agreement to waive the

[]written warnings that were issued by Mr. Lojeski, and not use them against me in the future.”

See Rex Ex. C.6

Neither the initial Grievance to Lojeski nor the written appeal to Blackenhorn alleged that

Dominici was discriminated against on the basis of age, race, or national origin. Although

Dominici complained in the Grievance that Lojeski “favored other coworkers,” she did not state,

or even insinuate, that the unfavored treatment was based on her membership in any protected

class, such as age, race, or national origin. See Grievance. Similarly, in her written appeal from

the Grievance, although Dominici alleged that Lojeski’s treatment of her was “a clear act of

discrimination and harassment,” she did not suggest that such allegedly discriminatory treatment

was based on her age, race, or national origin. See Grievance Appeal. It is unclear from

Dominici’s testimony whether she mentioned Peterson’s comment, which might suggest a basis

for the discrimination, to Rex when they were discussing the fair treatment complaint. See Pl.’s

Dep. 100:20 - 101:20. Rex declared, however, that Dominici never complained to Human

6 At her deposition, Dominici testified that Rex responded to Dominici’s offer to drop the

complaint by saying that the written warnings would not be considered. See Pl.’s Dep. 96:10 -

97:17. Rex denies this, asserting that she “explained to Ms. Dominici that, while she could

appeal [Blackenhorn’s] decision, all that she needed to do in order to avoid future disciplinary

action was to follow Hospital and departmental policies and procedures” and [i]n response to the

same, Ms. Dominici stated that she agreed to withdraw her Fair Treatment Complaint and abide

by all applicable policies and procedures.” See Rex Dec. ¶¶ 8-10. Rex further attests that she

does not have the authority to set aside any employee’s progressive discipline. See id.

Although the reason Dominici withdrew her Fair Treatment Grievance is in dispute, this

disputed fact is not “material,” nor does it create a “genuine” issue for trial.

Resources that she believed she had been mistreated by Lojeski or any other employee because

of her age, race. or national origin. See Rex Dec. ¶ 23.7

iii. Dominici’s Termination

On July 26, 2018, a psychiatric patient utilized Dominici’s ID badge to elope from

Spruce Pavilion at approximately 10:00 P.M. See Rex Dec. ¶¶ 12-13. Around that time,

Dominici asked Hospital Security officers if they had seen her hospital employee ID badge. See

Rex Dec. ¶ 13; Rex Ex. E, ECF No. 35-9. Dominici informed them that she had left her badge

on the nurse station desk and when she came back it was gone. See id. Hospital Security then

called the command center to deactivate her ID, and learned that Dominici’s ID badge had been

used approximately eight minutes earlier on the east stairwell. See id. Dominici suspected

which patient had taken her ID badge, but when Hospital Security officers checked outside, the

patient could not be located. See id.; Rex Ex. D, ECF No. 35-9. Hospital Security officers

thereafter contacted local police because the patient was supposed to be discharged the following

day into the custody of the local sheriff. See id.

Dominici entered a Progress Note into the Hospital’s electronic medical record system at

10:38 P.M. on July 26, 2018, which provides in relevant part:

[Patient] was noticed by the nurse station often this evening, appearing restless and

asking for meds. The environment on the unit seemed very hostile, [patients]

talking about not wanting to be there, talking loudly and using poor language. The

[patient] of concern was noticed going up and down by the nurse station when this

writer was at the computer trying to check some information by using the ID on the

badge. As I was attempting to do so, a coworker showed me the art work ripped

from the wall by another restless [patient]. My instinct was to go and help out my

coworker and I left the badge by the computer. I assumed that this was the time the

[patient] took my badge w/ the intention to leave the Unit and not thinking of the

consequences from his action [sic].

7 Although this fact is therefore disputed, for the reasons set forth below, it is not

“material” to the summary judgment analysis and does not create a “genuine” issue for trial.

See Rex Dec. ¶ 12; Rex Ex. D. During her deposition, Dominici provided a similar explanation

for her conduct and has never denied leaving her badge unattended. See Pl.’s Dep. 174:8 -

175:8, 178:22 - 180:14. At all times relevant, the Hospital maintained an ID Badge Policy that

provides, “Badges are to be worn on outer clothing . . . . Employees must have their Photo ID

and it must be legible and visible at all times.” See Rex Dec. ¶ 16; Rex Ex. F, ECF No. 35-9.

On the morning of July 27, 2018, Lojeski and Rex met to discuss how to proceed as to

Dominici’s misconduct. See Lojeski Dec. ¶ 31; Rex Dec. ¶ 14. Lojeski and Rex each declared

that based on Dominici’s admission and the fact that she was, at that time, on a Final Written

Warning for conduct that posed a threat to patient safety and welfare, they recommended the

Hospital terminate Dominici’s employment. See id. Division Director Ann Blankenhorn

approved of the recommendation. See Rex Dec. ¶ 14. Rex thereafter recommended Dominici’s

termination to, and received approval from, Vice President and Chief Nursing Officer Mary

Agnew. See id. Executive Vice President and Chief Operating Officer Therese Sucher then

made the final decision to terminate Dominici’s employment. See id. Blankenhorn informed

Dominici of the Hospital’s decision to terminate her employment at a meeting the same day. See

id.; Lojeski Dec. ¶ 32. At that meeting, Blankenhorn presented Dominici with a written

termination notice stating: “On the evening of 7/26/18 Lucy [Dominici] left her identification

badge unattended, this resulted in a patient elopement. This is a violation of the [ID] Badge

Process Policy.” See id.; Termination Notice, Ex. 13, ECF No. 35-10.

During Lojeski’s employment as Nurse Manager at Spruce Pavilion, no other

employee left his or her ID badge in a location that permitted a psychiatric patient to elope from

the Hospital. See Lojeski Dec. ¶ 39. Dominici testified she knows of one other patient that had

eloped from the unit, but does not know how the patient escaped. See Pl.’s Dep. 180:15 -

181:12. She also does not know whether anyone was disciplined for this incident. See id.

181:13-16.

iv. Dominici’s Allegations of Discrimination and Retaliation

Dominici testified at her deposition that Blankenhorn discriminated or retaliated against

her because Blankenhorn “knew about the issues, the relationship, the harassment, the

discrimination that [Dominici] endured and she didn’t do nothing about it.” See Pl.’s Dep.

176:8-17. However, when asked whether Blankenhorn discriminated against her on the basis of

age, Dominici responded, “I don’t know. I don’t really know. I know that Noel did.” See id.

177:6-10. Similarly, when asked whether Blankenhorn discriminated against her because she is

Italian, Dominici stated, “It’s up to her. I’m not talking about Ann [Blankenhorn] on this -- on

this -- on this complaint.” See id. 177:11-16. Dominici was also questioned whether she

believed Blankenhorn discriminated against her on the basis of race, to which she answered: “I

can’t say Ann [Blankenhorn] discriminated against me because of my race. My complaint is

against Noel Lojeski.” See id. 178:2-8. Dominici then testified that Lojeski is the only person

who allegedly discriminated against her on the basis of age, race, or national origin, and is also

the only person that allegedly retaliated against her. See id. 178:9-13, 196:19-24.

As to her age discrimination claim, Dominici, who was born on January 6, 1960, see Pl.’s

SJ Resp. 1, ECF No. 38, mentioned in her deposition one alleged age-related comment by

Lojeski, see Pl.’s Dep. 191:5 - 194:23. She testified that, at some unspecified time, Lojeski told

her that she was “too old to work on P1.” See id. Dominici testified Lojeski made this comment

during an interaction in which she and Lojeski were looking at a schedule posted on the wall and

Lojeski asked if Dominici had completed an activity group, to which she replied it was not easy

for her to remember everything when she rotated between working day and night shifts. See

Pl.’s Dep. at 191:5 - 192:19. She did not report or complain about this comment to anyone. See

id. 193:3 - 195:5. Dominici testified that Lojeski made one other memory-related comment to

her. See id. 194:13-16. Dominici also complains that Lojeski did not require the “younger”

Psych Tech Angelisanti to rotate shifts. See id. 56:9 - 58:10. Dominici could not testify as to

how much younger Angelisanti is, nor is there any evidence as to Angelisanti’s age. See id.

54:15-23. Dominici acknowledges Angelisanti had more seniority, which is the explanation

Lojeski provided Dominici when questioned about the different schedules. See id. 58:5-15,

191:15-18.

As to Dominici’s claim that she was discriminated against on the basis of race and/or

national original (European/Italian), Dominici, who was born in Italy, see Pl.’s SJ Resp. 1,

testified she believed her termination “was discriminatory because of fair treatment and because

[she was] from another country, Noel Lojeski abused his power because if it wasn’t for all these

frivolous issues that he gave a written warning to me, I probably have still my job,” see Pl.’s

Dep. 175:9-20. She testified that Lojeski, who is of Italian descent ,8 would “mock” her and

“have this smile on his face” when they spoke” and that her “impression was this man is really

kind of ridiculing me.” See id. 186:13-187:1. Dominici testified that Lojeski’s behavior “was

kind of ridiculous” and one day when she asked for a pass to go get some fresh vegetables,

Lojeski handed her a banana. See id. 187:9-14. She further testified that on one occasion when

she answered Lojeski’s telephone call on the unit phone by saying “P1,” Lojeski said “Oh, come

on Lucy, P1” and then hung up the phone. See id. 187:6 - 188:5. Lojeski declares that he

8 Lojeski’s grandmother spoke only Italian, and his mother maintains a home in San

Lucido, Italy, where his family originated, and cousins still reside. See Lojeski Dec. ¶ 35.

Lojeski’s aunt and mother are fluent in Italian, and Lojeski is extremely proud of his Italian

heritage. See id.

instructed all unit employees to answer the phone in a professional manner by stating “Hello,

P1/PG, how may I help you.” See Lojeski Dec. ¶ 36. However, Dominici testified that she was

unaware of this instruction. See Pl.’s Dep. 188:11-14.9

With respect to the hostile work environment claim, in addition to this alleged harassment

by Lojeski, Dominici testified two coworkers, Tracy Koch and Thomasine Peterson,10

“continually harassed her” and complained she was not pulling her weight. See id. 102:4 -

103:24. Dominici testified that prior to filing her Grievance someone, whom she believes to be

Koch, informed Lojeski about comments Dominici posted to her Facebook page complaining

that the duties she was being required to perform were against the rules. See id. 104:6 - 107:10.

Dominici also testified that at some unspecified time, Peterson said in reference to Dominici,

“Look at that, she’s standing there like a dope, go back to your country where you come from,

we don’t want you here.” See id. 107:11-109:5. Dominici testified that she told Lojeski about

this alleged comment, Lojeski said that he would talk to the employee, and the employee never

made any similar comments again. See id. 108:21-110:15.

As to her retaliation claim, Dominici testified that Lojeski’s conduct was retaliatory

because “every time [she] complained about the schedule, seems like after that, [she] receiv[ed]

those warnings, those warnings. Never counseling, never. All always written warnings.” See

Pl.’s Dep. 197:1-5.

9 Whether or not Lojeski gave this instruction is not “material” for purposes of deciding

this motion, nor does it create a “genuine” issue for trial.

10 Rex declares that the Hospital has no record of any employee by the name of “Thomasine

Peterson.” See Rex Dec. ¶ 24. Although the existence of Peterson, and by extension her alleged

comment and the report to Lojeski, is disputed, for the reasons discussed herein, this fact is not

“material” because summary judgment is warranted even if Dominici’s allegation is true.

At all times relevant, the Hospital maintained an Anti-Harassment Policy. See Rex Dec.

¶ 19. On or about April 3, 2017, Dominici attended a Respectful Workplace training and signed

an acknowledgement of the Hospital’s Anti-Harassment Policy. See Ex. 19, ECF No. 35-10;

Pl.’s Dep. 63:13 - 64:21. The Hospital’s Anti-Harassment Policy provides that employees who

feel they are being harassed should first ask the offending party to stop the harassing behavior.

See Rex Dec. ¶ 20. Pursuant to the Hospital’s Anti-Harassment Policy, if the offended employee

does not feel comfortable asking the offending party to stop the harassing behavior, then the

employee is to report the same to a supervisor, manager, or Human Resources. See id. ¶ 21. If

the offending party is the employee’s direct supervisor, then under the Hospital’s Anti-

Harassment Policy, the employee should report the harassing behavior to Human Resources or to

the supervisor’s supervisor. See id. ¶ 22.

Aside from what has been discussed, Dominici never complained to Lojeski or to Human

Resources that she believed she had been mistreated by Lojeski or by any other employee

because of her age, race, or national origin. See Lojeski Dec. ¶ 42; Rex Dec. ¶ 23.

v. Discipline to Other Employees

During the time period of Dominici’s employment, the Hospital terminated the

employment of other employees within the Department upon the recommendation of Lojeski for

reasons similar to those for which Dominici received discipline. See Lojeski Dec. ¶¶ 40-41. For

example, on or about February 14, 2018, upon Lojeski’s recommendation, the Hospital

terminated the employment of Holly Jones for failure to follow the departmental visitation

policy. See id. Jones was not an Italian national and was approximately twenty-three years old

at the time of her termination. See id. ¶ 40; Lojeski Ex. M, ECF No. 35-7; Rex Dec. ¶ 26. On or

about June 8, 2017, also upon Lojeski’s recommendation, the Hospital terminated the

employment of Cynthia King for theft of Hospital time and subsequent dishonesty. See Lojeski

Dec. ¶ 41; Lojeski Ex. M, ECF No. 35-7; Rex Dec. ¶ 27. King was not an Italian national and

was approximately thirty-one years old at the time of her termination. See id.

Dominici also refers to an alleged incident with a Registered Nurse (“RN”) by the name

of “Denise Jacobs.” According to Dominici, in late 2017, “Denise Jacobs” was performing a

medical task when a patient grabbed surgical scissors from Jacobs’s hand and cut a surgically

implanted feeding tube. See Am. Compl. ¶ 18, ECF No. 8. Dominici alleges Jacobs was not

terminated for this incident. See id. Rex declares, however, that the Hospital has never

employed any person by the name “Denise Jacobs.” See Rex Dec. ¶ 25. In opposition to the

Motion for Summary Judgment, Dominici refers to the RN as being named “Denise Jacobs

Ernesto.” See SJ Resp. 4. In its reply brief, the Hospital states that “it has never denied that it

employed a nurse by the name of Denise Ernesto[; r]ather, the Hospital has consistently stated

that it lacks any record of a nurse named ‘Denise Jacobs’ and, with regard to Denise Ernesto, that

the Hospital has no knowledge of the allegations made by Plaintiff.” See SJ Reply 5 n.3.

Although Dominici was provided an opportunity to inspect the personnel file of Denise Ernesto,

she did not respond to this offer. See id.11

IV. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A disputed fact is “material” if proof of its existence or nonexistence might affect the

11 In the absence of any evidence to support Dominici’s allegations in this regard, she has

failed to show that this disputed fact creates a “genuine issue.” Moreover, for the reasons

discussed herein, this disputed fact is not “material” to the outcome.

outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). An issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Id. at 257.

The party moving for summary judgment bears the burden of showing the absence of a

genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once

such a showing has been made, the non-moving party must go beyond the pleadings with

affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the

non-moving party “must do more than simply show that there is some metaphysical doubt as to

the material facts”). The party opposing the motion must produce evidence to show the

existence of every element essential to its case, which it bears the burden of proving at trial,

because “a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The court must

consider the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 378 (2007).

B. The Law Pertaining to 42 U.S.C. § 1981

Section 1981 provides: “All persons within the jurisdiction of the United States shall

have the same right in every State and Territory . . . as is enjoyed by white citizens.” 42 U.S.C. §

1981(a). To establish a basis for relief under section 1981 a plaintiff must show:

(1) he belongs to a racial minority;

(2) an intent to discriminate on the basis of race12 by the defendant; and

(3) discrimination concerning one or more of the activities enumerated in § 1981.

Estate of Oliva v. N.J., Dep’t of Law & Pub. Safety, Div. of State Police, 604 F.3d 788, 797 (3d

Cir. 2010) (quoting Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002)).13

“In employment discrimination cases, [§ 1981] claims are subject to the same analysis as

discrimination claims under Title VII of the Civil Rights Act of 1964.” Castleberry v. STI Grp.,

863 F.3d 259, 263 (3d Cir. 2017).

C. The Law Pertaining to Disparate Treatment

Federal law prohibits employment discrimination based on race, color, religion, sex,

national origin, age, and disability. See E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 448-49 (3d

Cir. 2015). Disparate treatment claims brought under Title VII and the ADEA are analyzed

12 There is conflicting authority as to whether discrimination on the basis of national origin,

as opposed to race, is actionable under § 1981. Cf. Saint Francis Coll. v. Al-Khazraji, 481 U.S.

604, 613 (1987) (holding that “Congress intended to protect from discrimination identifiable

classes of persons who are subjected to intentional discrimination solely because of their

ancestry or ethnic characteristics [and s]uch discrimination is racial discrimination that Congress

intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern

scientific theory”); Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174 (3d Cir. 2020) (“Section

1981 of Title 42 of the United States Code also prohibits employment discrimination on the basis

of race and national origin.” (citing St. Francis Coll., 481 U.S. at 609); Bennun v. Rutgers State

Univ., 941 F.2d 154, 172 (3d Cir. 1991) (holding that discrimination on the basis of national

origin “would not be sufficient for a § 1981 claim under Al-Khazraji” (citing Saint Francis Coll.,

481 U.S. at 613).

13 The Third Circuit Court of Appeals has also recognized a claim of reverse discrimination,

for which the plaintiff must “present sufficient evidence to allow a fact finder to conclude that

the employer is treating some people less favorably than others based upon a trait that is

protected under Title VII.” See Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). “[T]o

sufficiently allege a prima facie reverse discrimination claim, a plaintiff must allege facts to

show that: (1) he or she was qualified for the position in question, (2) he or she suffered an

adverse employment action, and (3) the evidence is adequate to create an inference that the

adverse employment action [or less favorable treatment] was based on a trait protected by Title

VII.” Angelini v. U.S. Facilities, Inc., No. 17-4133, 2018 U.S. Dist. LEXIS 107615, at *15 (E.D.

Pa. June 27, 2018) (internal quotations omitted).

using the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Rabinowitz v. AmeriGas Partners, L.P., 252 F. App’x 524, 527 (3d Cir. 2007). “Under the

McDonnell Douglas paradigm, an employee must first establish a prima facie case of

discrimination, after which the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its adverse employment decision.” Fasold v. Justice, 409 F.3d 178,

184 (3d Cir. 2005). The Third Circuit Court of Appeals has “defined ‘an adverse employment

action’ under Title VII as an action by an employer that is ‘serious and tangible enough to alter

an employee’s compensation, terms, conditions, or privileges of employment.’” Storey v. Burns

Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 269 F.3d 251,

263 (3d Cir. 2001)). “If the employer articulates one or more such reasons, the aggrieved

employee must then proffer evidence that is sufficient to allow a reasonable finder of fact to find

by a preponderance of the evidence that the employer’s proffered reasons are false or

pretextual.” Id. “It is important to note that although the burden of production may shift during

the McDonnell Douglas inquiry, the ultimate burden of persuading the trier of fact that the

[employer] intentionally discriminated against the [employee] remains at all times with the

[employee].” Id. See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (explaining

that once the plaintiff establishes a prima facie case, the law creates a “presumption” of unlawful

discrimination, which is rebutted if the employer articulates a legitimate nondiscriminatory

explanation for the employer’s action, but the “presumption does not shift the burden of proof,

and ignores our repeated admonition that the Title VII plaintiff at all times bears the ultimate

burden of persuasion”).

To establish a prima facie case of employment discrimination, a plaintiff must show that:

(1) he is a member of a protected class;

(2) he was qualified for the position in question;

(3) he suffered an adverse employment action; and

(4) the adverse action occurred under circumstances giving rise to an inference of

discrimination.

See McDonnell Douglas Corp., 411 U.S. at 802; see also Sarullo v. U.S. Postal Serv., 352 F.3d

789, 797 (3d Cir. 2003). “The central focus in a discrimination case is “whether the employer is

treating ‘some people less favorably than others because of their race, color, religion, sex, or

national origin.’” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (quoting Int’l Bhd.

of Teamsters v. United States, 431 U.S. 324, 335 n.15. (1977)).

To state a claim for age discrimination, a plaintiff must allege that:

(1) he is over forty,

(2) he is qualified for the position in question,

(3) he suffered from an adverse employment decision, and

(4) his replacement was sufficiently younger to permit a reasonable inference of age

discrimination.

Hill v. Borough of Kutztown, 455 F.3d 225, 247 (3d Cir. 2006). Alternatively, a plaintiff may

establish a prima facie case of age discrimination by showing that younger employees were

treated more favorably. Steinagel v. Valley Oral Surgery, No. 12-cv-05645, 2013 U.S. Dist.

LEXIS 141146, at *19-20 (E.D. Pa. Sept. 30, 2013). “There is no magical formula to measure a

particular age gap and determine if it is sufficiently wide to give rise to an inference of

discrimination.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 699 (3d Cir. 1995) (explaining that

case law assists the inquiry).

To avoid summary judgment, the plaintiff 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.

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (holding that a plaintiff “may defeat a

motion for summary judgment by either (i) discrediting the proffered reasons, either

circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that

discrimination was more likely than not a motivating or determinative cause of the adverse

employment action”). “[T]he plaintiff’s evidence rebutting the employer’s proffered legitimate

reasons must allow a factfinder reasonably to infer that each of the employer’s proffered non-

discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually

motivate the employment action (that is, the proffered reason is a pretext).” Id. (internal citations

omitted). “It is not sufficient to show that the employer’s decision was wrong, mistaken,

imprudent or incompetently made.” Rabinowitz, 252 F. Appx. at 527. “In carrying his/her

ultimate burden of persuasion in a pretext case, the employee must establish a basis from which

the trier of fact can conclude by a preponderance of the evidence ‘that there is a ‘but-for’ causal

connection between the plaintiff’s age and/or national origin and the employer’s adverse

[employment decision] - i.e., that age and/or national origin ‘actually played a role in [the

employer’s decisionmaking] process and had a determinative influence on the outcome of that

process.’” Rocco v. Am. Longwall Corp., 965 F. Supp. 709, 713 (W.D. Pa. 1997) (quoting Miller

v. CIGNA Corp., 47 F.3d 586, 595-96 (3d Cir. 1995)). The plaintiff “must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reason for its action that a reasonable factfinder could rationally find them

unworthy of credence and hence infer that the employer did not act for [the asserted] non-

discriminatory reasons.” Fuentes, 32 F.3d at 765 (internal citations and quotations omitted).

“While this standard places a difficult burden on the plaintiff, ‘it arises from an inherent tension

between the goal of all discrimination law and our society’s commitment to free decisionmaking

by the private sector in economic affairs.’” Id. (quoting Ezold v. Wolf, Block, Schorr & Solis-

Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).

D. The Law Pertaining to Hostile Work Environment

To establish a hostile work environment claim, the plaintiff must show:

(1) he suffered intentional discrimination because of his national origin, race, or age;

(2) the discrimination was pervasive and regular;

(3) it detrimentally affected him;

(4) it would have detrimentally affected a reasonable person of the same protected class

in his position; and

(5) there is a basis for vicarious liability.

Cardenas, 269 F.3d at 260; Tate v. Main Line Hosps., Inc., No. 03-6081, 2005 U.S. Dist. LEXIS

1814, at *60-61 (E.D. Pa. Feb. 8, 2005). In deciding whether an environment is “hostile,” the

court may consider “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Harris v. Forklift Sys., 510 U.S. 17, 23

(1993). Title VII “does not reach the ordinary tribulations of the workplace, for example,

sporadic use of abusive language or generally boorish conduct.” Vance v. Ball State Univ., 570

U.S. 421, 452 (2013) (internal quotations omitted). “‘[O]ffhanded comments and isolated

incidents (unless extremely serious)’ are not sufficient to sustain a hostile work environment

claim.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005). The “standards for judging

hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility

code.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). A plaintiff claiming a

hostile work environment based on regular and pervasive harassment must likewise establish that

any harassment was due to her membership in a protected class or protected activity. See Culler

v. Sec’y of U.S. Veterans Affairs, 507 F. App’x 246, 249 (3d Cir. 2012) (per curiam) (citing

Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007)).

E. The Law Pertaining to Retaliation

Federal law prohibits an employer from retaliating against an employee for opposing any

act made unlawful by the employment discrimination statutes or because the employee made a

charge, testified, assisted, or participated in an investigation, proceeding, or hearing under the

employment discrimination statutes. See E.E.O.C., 778 F.3d at 449. To establish a prima facie

case of illegal retaliation, a plaintiff must show:

(1) protected employee activity;

(2) adverse action by the employer either after or contemporaneous with the employee’s

protected activity; and

(3) a causal connection between the employee’s protected activity and the employer’s

adverse action.

See id.; Selvato v. SEPTA, 658 Fed. Appx. 52, 56 (3d Cir. 2016) (internal quotations omitted).

“With respect to ‘protected activity,’ the anti-retaliation provision of Title VII protects those who

participate in certain Title VII proceedings (the ‘participation clause’) and those who oppose

discrimination made unlawful by Title VII (the ‘opposition clause’).” Moore v. City of Phila.,

461 F.3d 331, 341 (3d Cir. 2006). “Whether the employee opposes, or participates in a

proceeding against, the employer’s activity, the employee must hold an objectively reasonable

belief, in good faith, that the activity they oppose is unlawful under Title VII.” Id. “Once a

plaintiff establishes a prima facie case, the burden shifts to the employer to advance a legitimate

non-retaliatory reason for its conduct. If an employer advances such a reason, a plaintiff then

must show that the proffered reason was a pretext for retaliation.” State of Oliva, 604 F.3d at

798.

V. ANALYSIS

A. Neither the allegations nor the evidence support a claim under § 1981.

The Hospital argues it should be awarded summary judgment on Dominici’s § 1981

claim because her asserted race, “European,” does not constitute a racial minority. See SJ Mem.

4-6. It also asserts that although the Third Circuit has recognized that a Caucasian plaintiff may

assert a claim of “reverse discrimination” under § 1981, it has never recognized the ability of a

European plaintiff to assert such a claim. See id. In her opposition, Dominici does not offer any

legal authority to support the theory that being European, or Italian, is protected under § 1981.

Dominici claims she was discriminated against on the basis of being European and/or

Italian, but does not allege that she was perceived as a non-white. Accordingly, § 1981 offers no

relief because Dominici does not belong to a racial minority. See Petrone v. Reading, 541 F.

Supp. 735, 738-39 (E.D. Pa. 1982) (dismissing the plaintiff’s § 1981 claim, which was

predicated upon his Italian heritage, because “there is no allegation that plaintiff is generally

perceived as a non-white”). There are also no allegations of reverse discrimination. Moreover,

for the reasons discussed below, Dominici has offered no evidence to show the Hospital had an

intent to discriminate on the basis of her race or that she endured any discrimination.

Summary judgment is entered in the Hospital’s favor on Dominici’s § 1981 claim.

B. Disparate Treatment

There is no dispute that Dominici is of a sufficient age and is qualified14 for the Psych

Tech position. Although the Hospital does not dispute that Dominici’s termination was an

adverse employment action, it asserts her performance of PCA duties and her assignment to PG

as opposed to P1 do not constitute adverse employment actions. See SJ Mem. 13-14 and n.2.

The Hospital does not clearly state its position as to whether the written warnings constitute

adverse action. See id. 7-18 (citing, inter alia, Walker v. Centocor Ortho Biotech, Inc., 558 F.

App’x 216, 219 (3d Cir. 2014) (“Employment actions such as lateral transfers and changes of

title or reporting relationships have generally been held not to constitute adverse employment

actions.” (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)))).

“To pass the summary judgment standard, the adverse employment action must be

sufficiently severe and concrete to affect the compensation, terms, conditions, or privileges of

employment.” Sconfienza v. Verizon Pa., Inc., 307 F. App’x 619, 621-22 (3d Cir. 2008).

Because Dominici was hired to work both day shift and night shift, the terms of her employment

were not affected by her shift schedule. She was, however, hired to work on P1, and a Psych

Tech working on PG must perform more patient care duties. Accordingly, the Court must

determine whether her assignment to rotate between P1 and PG was “adverse.” “To be sure,

reassignment of job duties is not automatically actionable. Whether a particular reassignment is

materially adverse depends upon the circumstances of the particular case, and should be judged

14 But see Nelson v. DeVry, Inc., No. 07-4436, 2009 U.S. Dist. LEXIS 38161, at *22-23

(E.D. Pa. Apr. 23, 2009) (concluding that the plaintiff could not establish the second element of a

prima facie case of discrimination because “[a]n employee who violates a company policy which

results in that employee’s discharge is not meeting the employer’s legitimate expectations”).

from the perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 71 (2006) (internal

quotations omitted).

A reasonable Psych Tech, whose written job description includes providing patient care

to psychiatric patients and assisting patients with bathing, toileting, and feeding, see Ex. 4, would

not find it materially adverse to have to perform the duties of the job. The undisputed facts show

all Psych Techs working on PG perform these duties. Even if these duties are undesirable, there

is no evidence to suggest a Psych Tech working on PG as opposed to P1 receives lower pay or is

of a lower status. See Henry v. City of Allentown, No. 12-1380, 2013 U.S. Dist. LEXIS 172792,

at *12-13 (E.D. Pa. Dec. 5, 2013) (“Assignment to different duties that are merely undesirable

does not constitute constructive demotion if the duties are not of a sort normally given to a lower

rank.”). Dominici’s job title and benefits did not change, nor did she experience a reduction in

pay by rotating to PG. See Burlington Indus., 524 U.S. at 761-64 (holding that an adverse

employment action “constitutes a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits,” but a “demotion without change in pay, benefits,

duties, or prestige insufficient,” “reassignment to [a] more inconvenient job,” and a “bruised ego

is not enough”). Further, while Dominici found these duties undesirable, she only had to

perform them while working on the more desirable day shift. Dominici has therefore failed to

present evidence to establish that working two weeks each month on PG, which involved PCA

duties, was sufficiently “severe and concrete to affect the compensation, terms, conditions, or

privileges of employment.” See Sconfienza , 307 F. App’x at 621-22.

Also not an adverse employment action was Dominici’s verbal reprimand for a dress

code violation, which led to no formal disciplinary action or change in pay, benefits, or

employment terms. See Leftwich v. Lew, No. 15-300, 2015 U.S. Dist. LEXIS 166725, at *19

(E.D. Pa. Dec. 14, 2015) (holding that “performance improvement plans, negative reviews,

verbal reprimands, and ‘write-ups’ do not constitute adverse employment actions under Title VII

without some change to pay, benefits or employment status”). Although written warnings, in

general, are not necessarily adverse actions, see Deans v. Kennedy House, Inc., 587 F. App’x

731, 734 (3d Cir. 2014) (holding that the oral and written warnings did not constitute adverse

employment action because they would remain in his file only temporarily and did not effect a

material change in the terms or conditions of employment), in light of the declarations of both

Lojeski and Rex that their recommendations to terminate Dominici’s employment were

influenced by the fact Dominici was on a Final Written Warning for conduct that posed a threat

to patient safety, see Lojeski Dec. ¶ 31; Rex Dec. ¶ 14, the written warnings here are sufficiently

adverse. See Allen v. Nutrisystem, Inc., No. 11-4107, 2013 U.S. Dist. LEXIS 59650, at *16 n.6

(E.D. Pa. Apr. 25, 2013) (“When a warning is part of a progressive disciplinary policy such that

each previous infraction raises the penalty for a subsequent infraction, courts in the Third Circuit

have classified it as an adverse employment action.”). Accord Weston, 251 F.3d at 431 (finding

that the written reprimands were not adverse because the plaintiff “suffered no reduction in pay,

reassignment, firing, or any similar employment action”). The evidence therefore shows that the

written warnings, in addition to Dominici’s termination, are adverse employment actions.

1. Dominici has failed to show a prima facie case of age discrimination.

There is no evidence regarding Dominici’s replacement; therefore, the only way to make

a prima facie case is for Dominici to establish that younger employees were treated more

favorably. She has failed to do so. Although Dominici alleges other employees committed the

same conduct for which she received a verbal reprimand and written warnings, she is unable to

name any such employees, let alone provide information as to the age (or race or national origin)

of these employees. Thus, they are not proper comparators. See Gutknecht v. SmithKline

Beecham Clinical Labs., 950 F. Supp. 667, 677 n.13 (E.D. Pa. 1996) (concluding the evidence

did not show that similarly situated younger employees were treated more favorably where the

plaintiff failed to produce evidence that the three alleged comparators were similarly situated in

terms of their seniority, performance evaluations, and other relevant factors).

Also not a relevant comparator is RN Ernesto. Her alleged conduct, assuming it is true,15

was not a violation of any Hospital policy. According to Dominici, a patient took surgical

scissors from Ernesto’s hand, the patient did not take them because Ernesto left the scissors

unattended. This alleged conduct was therefore not as serious as Dominici’s decision to leave

her ID badge unattended, in violation of Hospital policy, in an area that a patient was able to take

it without being seen and flee the Hospital before Dominici even reported her badge missing.

Moreover, Dominici fails to offer any evidence or allegations as to the age of Ernesto, or details

about her disciplinary record, if any. See Young v. City of Phila. Police Dep’t, 651 F. App’x 90,

99 (3d Cir. 2016) (concluding that even if the alleged comparators’ conduct is comparable, there

is no evidence that either of the comparators had similar disciplinary records; therefore, they

were not relevant comparators).

15 Although the Hospital disputes that this incident occurred, Dominici’s allegations, if true,

nevertheless fail to support a prima facie case, such that there is no “genuine” issue of “material”

fact in this regard.

To the extent Dominici offers Lojeski as a comparator,16 he may not “be used for the

purpose of demonstrating discrimination because he was not similarly situated, as he and

Dominici hold different positions, different levels of seniority, have different supervisors, and

did not commit the same conduct. See Durst v. City of Phila., 798 F. App’x 710, 713 (3d Cir.

2020) (“Relevant factors include whether the comparators had the same supervisor, were subject

to the same standards, and had engaged in similar conduct.”). Dominici also fails to provide

evidence regarding the age of Lojeski at the time of these alleged misconducts.

Dominici also provides no information as to the age of Psych Tech Angelisanti.

Dominici alleges only that Angelisanti is “younger,” which is insufficient. See Andy v. UPS, 111

F. App’x 670, 670-71 (3d Cir. 2004) (affirming the district court’s conclusion that the plaintiff,

who was fifty-two years old when he was terminated, had not made out a prima facie case of age

discrimination where his replacement was seven years younger); Simpson v. Kay Jewelers, 142

F.3d 639, 645 (3d Cir. 1998) (holding that “the mere favorable treatment of one younger

manager as compared to one older manager may not be sufficient to infer age discrimination”).

Regardless, the undisputed evidence shows that Angelisanti had more seniority than Dominici

and is therefore not a relevant comparator. See McKenna v. Healthease, Inc., No. 10-3940, 2013

U.S. Dist. LEXIS 56083, at *25 (E.D. Pa. Apr. 18, 2013) (determining that a reasonable

factfinder has no basis to make an inference of discrimination where the alleged comparator had

more seniority). A “decision adversely affecting an older employee does not become a

discriminatory decision merely because one younger employee is treated differently. The

16 Dominici asserts that Lojeski issued the wrong medications to a patient, left work without

clocking out, and took leave without advanced notice, but received written warnings with

counseling and not termination. See SJ Resp. 4; Sur-Reply SJ 3, ECF No. 41.

ultimate inquiry is whether the decision was motivated by the affected employee’s age.”

Simpson, 142 F.3d at 645-46 (internal citations omitted).

Dominici also offers no evidence to show that Lojeski’s actions were motivated by

Dominici’s age (or race or national origin). The undisputed evidence shows that Lojeski made,

at most, two age-related comments to Dominici: one about her age and one about her memory.

At that time, however, Dominici was already working on PG. Even if Dominici’s assignment to

PG, and the PCA duties associated therewith, were adverse employment actions, Dominici offers

no evidence to connect such assignment to discrimination because the assignment occurred

“[r]ight after Noel Lojeski took his managerial duties.” See Pl.’s Dep. 54:14-19. There is also

no evidence as to when these comments were made or to connect these comments to either the

written warnings or Dominici’s termination. “Stray remarks by . . . decisionmakers unrelated to

the decision process are rarely given great weight, particularly if they were made temporally

remote from the date of decision.” Ezold, 983 F.2d at 545. With no other evidence that

Lojeski’s decisions were motivated by Dominici’s age, she has failed to make a prima facie case

of age discrimination. See Keller v. Orix Credit All., 130 F.3d 1101, 1111-14 (3d Cir. 1997)

(granting summary judgment to the employer because the employer’s comments to the plaintiff-

employee, “If you are getting too old for the job, maybe you should hire one or two young

bankers,” which was made approximately four months before the employee was discharged and

did not refer to the termination decision, was insufficient to establish that age was a

determinative factor in the termination). This alone is a sufficient basis to grant summary

judgment in favor of the Hospital on the ADEA claim.

2. Dominici has failed to establish a prima facie case of discrimination on the

basis of race or national origin.

For many of the reasons just explained, Dominici has also failed to establish a prima facie

case of discrimination based on race and/or national origin. Dominici’s proposed comparators

fail for the reasons discussed above and she offers no additional comparators to her race and

national original claims.17 Further, the undisputed evidence shows that Lojeski never made any

derogatory comments to Dominici about being European or Italian. Although Dominici believes

Lojeski was “mocking” her at times, she offers no evidence to connect any of this perceived

behavior to her race or national origin, or to any of Lojeski’s allegedly adverse actions.

Moreover, Lojeski is also of Italian descent. See Elwell v. PP&L, Inc., 47 F. App’x 183, 189 (3d

Cir. 2002) (holding that the employee’s discrimination case was weakened by the fact that the

supervisor allegedly discriminated against him was a member of the employee’s protected class).

The only statement Dominici contends anyone at the Hospital made pertaining to either

her race or national origin was made by her coworker, Peterson,18 who lacked any decision-

making authority. See James v. Tri-Way Metalworkers, Inc., 189 F. Supp. 3d 422, 438 (M.D. Pa.

2016) (granting summary judgment in favor of the defendant because the plaintiff did not present

any evidence of an alleged animus on the part of any decision maker). Dominici offers no

evidence as to when this comment was made. There is also no evidence to connect this comment

to Lojeski’s decisions to issue written warnings or to recommend her termination (or to assign

her to work on PG). See Sarullo, 352 F.3d at 798 (agreeing with the district court that the

17 Although Lojeski’s race and national origin are not identical to Dominici’s, the evidence

shows that Lojeski is of Italian heritage. However, Lojeski is not a relevant comparator due to his

position, seniority, and misconduct, as previously discussed.

18 Although the Hospital disputes that it employed someone named Thomasine Peterson,

Dominici’s allegations, if true, nevertheless fail to support a prima facie case, such that there is

no “genuine” issue of “material” fact in this regard.

plaintiff failed to make a prima facie case of race discrimination where he offered little more

than his own affidavit that some of his coworkers and supervisors called him derogatory

nicknames referencing his Native American heritage); LaRochelle v. Wilmac Corp., 210 F. Supp.

3d 658, 681 (E.D. Pa. 2016) (concluding that although the coworker’s “name calling is certainly

inappropriate, it does not create evidence showing that Defendants’ decisionmakers fired [the

employee] because of her gender”). Rather, after Dominici told Lojeski about Peterson’s

comment, Lojeski said that he would talk to Peterson. Afterward, Peterson never made any

similar comments again, which further separates Peterson’s statement from Lojeski’s actions.

See Peake v. Pa. State Police, 644 F. App’x 148, 151 (3d Cir. 2016) (affirming the district

court’s decision that the plaintiff had not made out his prima facie case for race discrimination

because he could not show a causal link between his membership in a protected class and the

adverse employment action). There is also no evidence connecting Dominici’s report, if true, of

this comment to Rex during the fair treatment process to her termination three months later. See

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing a case that determined a

three-month gap between the employer’s knowledge of protected activity and an adverse

employment action was insufficient evidence of causality to establish a prima facie case).

Consequently, Dominici has not made out a prima facie case of discrimination on the basis of

race or national origin. Dominici’s failure to make a prima facie case of discrimination on the

basis of her race or national origin is grounds to grant summary judgment in the Hospital’s favor.

The Court will nevertheless continue the McDonnell Douglas inquiry on all of

Dominici’s disparate treatment claims.

3. The Hospital has presented legitimate, non-discriminatory reasons for

Dominici’s written warnings and termination.19

Assuming Dominici had made a prima facie case of discrimination, the Hospital can

nevertheless rebut the presumption of unlawful discrimination because it has articulated

legitimate, nondiscriminatory reasons for the written warnings and Dominici’s termination.20

19 The Hospital has also presented a legitimate, nondiscriminatory reason for Dominici’s

assignment to PG and to PCA duties. The undisputed evidence shows that prior to any changes

in Dominici’s floor and duty assignments, Lojeski informed all employees that they would need

to rotate between PG and P1. Dominici testified that Psych Techs working on PG have to

perform PCA duties, which is consistent with Lojeski’s declaration that under his management,

“all Psych Techs were expected to perform the job duties of the PCA position, which duties also

were associated with the Psych Tech position, and to work in a PCA role as assigned when

staffing needs so required.” See Lojeski Dec. ¶ 6. Although Dominici disputes Lojeski’s

contention that he gave priority to more senior Psych Techs as to their preferred floor, she offers

no evidence to support her belief that the assignments were discriminatory. Rather, she admits

that all the other Psych Techs with whom she worked were more senior. Consequently, the

Hospital has asserted legitimate, nondiscriminatory reasons for Dominici’s floor and duty

assignments. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000) (holding that

“an employer would be entitled to judgment as a matter of law if the record conclusively

revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff

created only a weak issue of fact as to whether the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence that no discrimination had occurred”).

20 In response to the summary judgment motion, Dominici repeatedly complains that the

Hospital did not produce any evidence that Lojeski had the authority to act. This is not relevant

to the summary judgment analysis. Moreover, it is incorrect. The written job description for the

Psych Tech position states that nothing “restricts management’s right to assign or reassign duties

and responsibilities to this job at any time.” See Ex. 4 at 2. See also Lojeski Dec. ¶ 9 (stating

that “the Hospital has had the prerogative to assign Psych Techs (and other employees) to either

floor in the Spruce Pavilion, as well as to specific locations on those floors, consistent with the

staffing needs of the Hospital”). The Hospital’s policy on Behavioral and Performance

Expectations provides that managers shall “assess behavior,” “may use . . . Written Warning

[and] Final Written Warning,” and may make a “recommendation to terminate employment.”

See Rex Ex. F. In addition to these written Hospital policies, the fact the Final Written Warning

was presented to Dominici by Nurse Manager Mohn is evidence of Lojeski’s authority.

Similarly, her Grievance Appeal was denied by Lojeski’s supervisor. As to Dominici’s

termination, the decision was not Lojeski’s. Rather, both he and Rex “recommended”

Dominici’s termination to Blankenhorn, the recommendation was then considered by the Vice

President and Chief Nursing Officer, and then ultimately determined by the Executive Vice

President and Chief Operating Officer.

Lojeski issued the First Written Warning to Dominici for three infractions: failing to park

in an assigned parking area; failing to follow the Hospital’s visitor policy by allowing

unapproved visitors on the unit; and failing to keep her unit keys secure at all times. Because

Dominici violated Hospital policies, Lojeski had a legitimate, non-discriminatory reason for

issuing the First Written Warning. See DeCicco v. Mid-Atl. Healthcare, LLC, 275 F. Supp. 3d

546, 555-56 (E.D. Pa. 2017) (recognizing that “violation of internal company policies may

constitute facially legitimate, non-discriminatory reasons for termination”). Further, because

Lojeski explains that the latter two infractions posed a risk to patient safety and welfare, he has

provided a legitimate, non-discriminatory reason for issuing the First Written Warning and for

skipping the counseling option. See McLean v. Abington Mem’l Hosp., No. 15-671, 2015 U.S.

Dist. LEXIS 122495, at *11-12 (E.D. Pa. Sep. 15, 2015) (finding that the hospital offered a

legitimate, nondiscriminatory reason for terminating the plaintiff, a medical technologist,

because her errors posed a threat to patient safety); George, 2014 U.S. Dist. LEXIS 51690, at

*16-17 (holding that an employee’s misconduct which affects safety is cause to skip earlier steps

in a progressive disciplinary system).

The Final Written Warning was based on two infractions: punching in for work at the

time clock and then leaving the facility to park her car; and allowing a psychiatric patient to use

her cell phone while unattended. Both infractions violated Hospital policy/practice.

Because Dominici violated Hospital policies, Lojeski had a legitimate, non-discriminatory reason

for issuing the Final Written Warning. See DeCicco, 275 F. Supp. 3d at 555-56. These

violations occurred approximately one month after Dominici received the First Written Warning.

Given Dominici’s additional policy violations and continued conduct that posed a risk to the

safety and welfare to patients, Lojeski has presented a legitimate, non-discriminatory reason for

issuing the Final Written Warning. See DeCicco, 275 F. Supp. 3d at 555-56; Zalenski v. Wilkes-

Barre Hosp. Co., LLC, No. 3:15-CV-2428, 2017 U.S. Dist. LEXIS 134232, at *31-32 (M.D. Pa.

Aug. 21, 2017) (determining that the hospital demonstrated a legitimate reason for terminating

that plaintiff because she “had a work history that was marked by dozens of infractions,

violations, write-ups, counseling, and even suspensions, many of which related directly to

concerns over the plaintiff’s violations of patient safety and identification protocols”).

The Hospital has also presented a legitimate, non-discriminatory reason for terminating

Dominici’s employment. Specifically, Dominici left her ID badge unattended, in violation of

Hospital policy that required ID badges to be worn on outer clothing at all times, and a

psychiatric patient was able to take her badge and use it to elope from the Hospital. This

incident occurred approximately four months after Dominici was issued the Final Written

Warning, which advised: “Any future violations will result in termination of employment.” See

Final Warning. Considering the serious nature of the infraction that not only posed a risk to

patient safety and welfare, but actually resulted in the patient’s elopement, as well as Dominici’s

prior violations, the Hospital terminated Dominici’s employment. The Hospital has therefore

presented a legitimate, non-discriminatory reason for its decision. See Jeffrey v. Thomas

Jefferson Univ. Hosps., Inc., No. 17-0531, 2019 U.S. Dist. LEXIS 81493, at *17 (E.D. Pa. May

14, 2019) (“In a hospital setting, where patient safety is a ‘universal standard,’ it is perfectly

legitimate for a nurse to be fired for endangering the life of a patient . . . .”); Riley v. St. Mary

Med. Ctr., No. 13-7205, 2015 U.S. Dist. LEXIS 135988, at *41 (E.D. Pa. Oct. 6, 2015)

(concluding that, particularly given the serious nature of the plaintiff-nurse’s job responsibilities,

the hospital set forth legitimate and non-discriminatory reasons for terminating her employment,

including her failure to improve her performance after numerous verbal and written warnings,

and ongoing patient safety concerns).

4. Dominici offers no basis that would allow a jury to conclude that the reasons

articulated by Lojeski and the Hospital for taking adverse employment

action are untrue, nor points to evidence that a discriminatory reason (age,

race, or national origin) was the actual motivation for the actions.

Although Dominici disputes the seriousness of her actions, suggesting the violations were

“trivial,” and fails to understand their impact,21 she generally admits to committing the conduct

for which she was cited and terminated. Accordingly, Dominici offers no reason to disbelieve

the Hospital’s articulated reasons and, instead, gives credibility to its rationale. See In re Tribune

Media Co., 902 F.3d 384, 403 (3d Cir. 2018) (holding that where the employee admitted to

engaging in conduct that violated the employer’s policies, there was no basis to discredit the

employer’s explanation for its employment decision and “[i]nstead, it lends credibility to the

[employer’s] rationale”); Willis, 808 F.3d at 647-48 (holding that the employee, although

21 Dominici’s complaint that Lojeski did not specify how she endangered patients by her

conduct is frivolous. If Dominici does not understand through basic common sense that

permitting unauthorized visitors to see psychiatric patients and leaving her ID badge (or keys)

unattended where a patient might take it and leave a locked building endangers patient safety, no

explanation will ever suffice. Dominici’s continued failure to grasp the problem with clocking in

for work and then leaving is also befuddling. The instant action is nothing more than evidence of

Dominici’s continued inability to recognize the seriousness of her behavior. See McLean, 2015

U.S. Dist. LEXIS 122495, at *11-12 (rejecting the argument of the plaintiff, a medical

technologist, that her errors were not severe enough to be a significant risk because they did not

actually result in harm to a patient); Haas v. Wyo. Valley Health Care Sys., 553 F. Supp. 2d 390,

401 (M.D. Pa. 2008) (holding that the “fact that this particular incident did not result in harm to

the patient does not establish that [the doctor] did not pose a direct threat to his patients[, as] the

question is whether an occurrence of such an episode could result in harm to a patient”).

Dominici simply wants to play the blame game. She argues, for example, that other

employees allowed unlisted visitor’s in and blames a poor visitor-list system. See Pl.’s Resp. to

Def. First Set of Interrogatories ¶ 10, Ex. 10, ECF No. 35-8; Pl.’s Grievance dated April 2, 2018

at 3. Dominici also asserts that the Hospital is responsible for the patient’s escape because it

failed to tell Dominici that the patient was a high risk for elopement, even though she admittedly

recognized the restlessness of the psychiatric patient “going up and down by the nurse station”

where she left her badge unattended in violation of Hospital policy. See SJ Resp. ¶ 12.

attempting to excuse or mitigate her actions, admitted to committing the conduct for which she

was terminated and could not show that the employer’s reason for its decision was “so weak as

to render it unworthy of credence”); Norman v. Kmart Corp., 485 F. App’x 591, 593 (3d Cir.

2012) (determining that because the employee admitted to committing the charged violations,

she could not show the employer’s proffered reason was false).

The only way to survive summary judgment is for Dominici to point to evidence that

would allow a jury to believe that an invidious discriminatory reason was a motivating or

determinative cause of the employment actions. As discussed previously, however, Dominici

offers nothing more than her own assumptions of discriminatory intent, which is insufficient.

See Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 853-54 (3d Cir. 2016) (concluding that the

employee’s “assertion that her admitted misconduct and performance issues are pretext since

other employees engaged in similar conduct and did not face discipline are bare assertions, and

are insufficient under this Court’s precedent to prove pretext”). Dominici cites to at most two

comments by Lojeski pertaining to her age, and none relating to her race or national origin.

These comments, unlike the written warnings and termination notice that were issued within

days of Dominici’s violations, occurred at some unknown time prior and do not show pretext.

See Parker v. Verizon Pa., Inc., 309 F. App’x 551, 558-59 (3d Cir. 2009) (concluding that stray

remarks made seven months before the plaintiff’s termination were not evidence of pretext).

Dominici did not report Lojeski’s statements to anyone, nor has she presented evidence of any

discriminatory statements or conduct by Rex, Blankenhorn, or any other decisionmaker. See

Dove v. Cmty. Educ. Ctrs., Inc., No. 12-4384, 2013 U.S. Dist. LEXIS 170081, at *59-60 (E.D.

Pa. Dec. 2, 2013) (determining that the plaintiff failed to meet his burden of proving that the

defendant’s legitimate, non-discriminatory reason for terminating him, his violation of employer

policy resulting in a safety threat, was pretextual because there was no evidence that “any of the

supervisors who were aware of or commented on his disability were actual decisionmakers for

his termination, or even that those supervisors bore any demonstrable discriminatory animus

towards Plaintiff [and he had] not shown that his admitted violation of [employer] policy was

disciplined more harshly than violations occurring under like circumstances”). Also insufficient

to establish pretext is the one comment pertaining to Dominici’s race and/or national origin made

by a coworker. See Ezold, 983 F.2d at 545 (finding that remarks made by a non-decisionmaker,

while inappropriate, were not sufficient to show pretext of the firm’s promotion decision).

Dominici’s failure to point to a relevant comparator to support a prima facie case of

discrimination further weakens her pretext argument. See Simpson, 142 F.3d at 646 (holding that

while there may be an “inference of discrimination anytime a single member of a non-protected

group was allegedly treated more favorably than one member of the protected group, . . . at the

prima facie stage of the analysis,” such inference is not necessarily appropriate “at the pretext

stage where the factual inquiry into the alleged discriminatory motives of the employer has risen

to a new level of specificity”). As discussed, Dominici’s named comparators, for whom there is

insufficient information, do not show pretext because, inter alia, Angelisanti is more senior than

Dominici and Ernesto’s misconduct was not as serious as that leading to Dominici’s termination.

See Norman, 485 F. App’x at 593-94 (concluding that the employee offered no evidence that

would permit a reasonable factfinder to find the employer’s real motivation for terminating her

was age or gender as the employees to whom she points were not similarly situated because they

either were her subordinates or did not commit violations of the same scope and scale).

Dominici also fails to present any comparators regarding whom Lojeski skipped the

counseling step of the Hospital’s progressive disciplinary policy that might establish pretext. See

Edgerton v. Wilkes-Barre Home Care Servs., LLC, 600 F. App’x 856, 859 (3d Cir. 2015)

(rejecting the employee’s attempt to discredit the employer’s proffered justification by referring

to another employee that was given the benefit of the employer’s progressive discipline policy,

while the plaintiff-employee was not, because the other employee’s conduct was less serious);

Brasher v. Thomas Jefferson Univ. Hosps., No. 13-4103, 2015 U.S. Dist. LEXIS 171038, at *26-

27 (E.D. Pa. Dec. 22, 2015) (distinguishing the employee’s comparator in the pretext stage

because the hospital’s procedures allow a supervisor to skip one of the progressive disciplinary

steps based on, inter alia, the nature of behavior and the ramification for patient care and safety,

whether the behavior was an isolated occurrence, and the employee’s disciplinary records).

Moreover, given Lojeski’s explanation that Dominici’s behavior posed a risk of safety to

Hospital patients, Dominici has failed to show that Lojeski’s decision to issue written warnings

instead of counseling was pretext for discrimination. See Lamb v. Montgomery Twp., No. 15-

6759, 2016 U.S. Dist. LEXIS 177927, at *37 (E.D. Pa. Dec. 23, 2016) (concluding that the

employer’s failure to utilize the progressive disciplinary policy did not undermine its proffered

rationale for its actions because the policy did not guarantee any specific termination procedure);

George v. Lehigh Valley Health Network (Muhlenberg Hosp.), No. 12-2239, 2014 U.S. Dist.

LEXIS 51690, at *16-17 (E.D. Pa. Apr. 15, 2014) (holding that even if the hospital’s disciplinary

options were “a strict progressive sequence,” the plaintiff, a radiologic technologist, could have

been terminated earlier because her angry outbursts affected the safety and peace of mind of

other employees).

Further weakening Dominici’s arguments of pretext is the fact that the Hospital

terminated the employment of other employees upon the recommendation of Lojeski for reasons

similar to those for which Dominici received discipline.

For all these reasons, summary judgment is granted in the Hospital’s favor on Dominici’s

disparate treatment claims.

C. Hostile Work Environment

There is no evidence that the isolated comments by Lojeski, even when coupled by his

allegedly “mocking” behavior, were so frequent or severe as to create a hostile work

environment. See Harris, 510 U.S. at 21 (holding that a “mere utterance of an . . . epithet which

engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of

employment to implicate Title VII” (internal quotations and citations omitted)); LaRochelle, 210

F. Supp. 3d at 694-95 (concluding where, inter alia, a supervisor repeatedly called the employee

(a nursing assistant) a “stupid immigrant” and a “bitch,” stated that “all aliens should be made to

return to their countries,” and instructed coworkers not to work with the employee, and, also,

where a coworker refused to work with that employee and ridiculed the way she spoke English,

that “[e]ven taken as a whole, these comments and isolated incidents do not rise to the level of

severity or pervasiveness necessary to sustain a hostile work environment claim”). Moreover,

there is no evidence to support Dominici’s argument that such behavior was based on her age,

race, or national origin. See Ortiz v. Delta Dental of Pa., No. 1:18-CV-456, 2020 U.S. Dist.

LEXIS 40242, at *45 (M.D. Pa. Mar. 6, 2020) (holding that an employee’s subjective

apprehensions based on personal feelings, “without more, are insufficient to indicate a hostile

work environment”); Lucas v. City of Phila., No. 11-4376, 2013 U.S. Dist. LEXIS 70689, at *33

(E.D. Pa. May 17, 2013) (holding that “mistreatment that is not motivated by the plaintiff’s

protected class, but rather by a bad working relationship or mistaken belief of insubordination

does not create a hostile work environment”). For the reasons discussed above, there is also no

evidence that Lojeski, in assigning the PG floor and PCA duties to Dominici, or in issuing her

written warnings, or in recommending her termination, created an abusive environment. See

Bartos v. MHM Corr. Servs., No. 3:09-CV-1018, 2011 U.S. Dist. LEXIS 167165, at *12-13

(M.D. Pa. Mar. 18, 2011) (concluding that the plaintiff’s being disciplined for a series of discrete

violations of the employer’s policies were not tantamount to a pervasively abusive

environment”).

Lojeski’s behavior, even when coupled with that of Dominici’s coworkers, did not create

a hostile work environment. Aside from the one comment by Peterson telling Dominici to go

back home to her country, Dominici offers no evidence to suggest that her coworkers’

“harassing” behavior was due to her membership in a protected class. Instead, the coworkers

“harassed” Dominici for not pulling her own weight. See Hanna v. Giant Eagle Inc., No. 15-

1009, 2017 U.S. Dist. LEXIS 34699, at *59-60 (W.D. Pa. Mar. 9, 2017) (concluding that being

called “stupid,” “lazy,” and “spacey” were not connected to racism and the employee’s “difficult

or unpleasant working conditions do not rise to the level of being so intolerable that a reasonable

person would be forced to quit”). “[N]ot all workplace conduct that may be described as

‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title

VII.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “[C]onduct that is merely

offensive or which has the effect of making an employee’s life at work unpleasant or

uncomfortable is, without more, not actionable.” Lucas, 2013 U.S. Dist. LEXIS 70689, at *33.

Dominici offers no evidence regarding the frequency of such comments, nor any evidence to

suggest that they were severe or physically threatening, or that it interfered with Dominici’s

work performance. See Hamm v. Cent. Bucks Sch. Dist., NO. 92-6721, 1994 U.S. Dist. LEXIS

16304, at *35-36 (E.D. Pa. Nov. 15, 1994) (determining that the employee, who was referred to

as “lazy” and was “snubbed” for filing suit, did not present evidence of conduct of such a nature

or frequency as required to sustain a hostile work environment claim). Further, after Dominici

reported Peterson’s comment about returning to her country to Lojeski, who said he would speak

with the employee, no other similar comments were ever made. See Huston v. P&G Paper

Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (holding that where the alleged harassment did

not occur by a supervisor, “employer liability for co-worker harassment exists only if the

employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer

knew or should have known of the harassment and failed to take prompt and appropriate

remedial action”). Considering all the working conditions, the Court finds that Dominici has not

provided evidence of “discrimination [that] was pervasive and regular.”

Consequently, summary judgment is granted in the Hospital’s favor on Dominici’s

hostile work environment claim.

D. Retaliation

Dominici has not presented any evidence to show a prima facie case of retaliation. As to

the first factor, assuming for purposes of this Opinion that Dominici’s testimony is true22 about

Peterson’s comment telling her to go back to her country and that she reported this comment to

Lojeski and to Rex, the reports might be considered protected activity. See Crawford v. Metro.

Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (“When an employee

communicates to her employer a belief that the employer has engaged in . . . a form of

employment discrimination, that communication virtually always constitutes the employee’s

opposition to the activity.” (internal quotations omitted)); Hoff v. Spring House Tavern, No. 13-

0662, 2013 U.S. Dist. LEXIS 78782, at *15-16 (E.D. Pa. June 4, 2013) (holding that the plaintiff

22 Although the Hospital disputes this fact, because Dominici’s claim would otherwise fail,

it is not an obstacle to summary judgment because there is not a “genuine” issue of “material”

fact.

“engaged in protected conduct when he reported to his employer racially derogatory comments

made by his coworkers”). But see Obergantschnig v. Saw Creek Estates Cmty. Ass’n, No. 12-cv-

5911, 2013 U.S. Dist. LEXIS 150016, at *25-31 (E.D. Pa. Oct. 17, 2013) (determining that a

coworker’s statement that the plaintiff had to be a hooker, without more, was too isolated for a

reasonable person to believe it was sexual harassment, and therefore could not be the subject of

the retaliation claim). Other conduct of Dominici that might be considered protected activity

was, perhaps, her filing of a Fair Treatment Grievance. “Filing grievances unrelated to

discrimination does not, however, constitute protected activity for purposes of a Title VII

retaliation claim.” Paradisis v. Englewood Hosp. Med. Ctr., 680 F. App’x 131, 138 (3d Cir.

2017). See also Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135

(3d Cir. 2006) (“A general complaint of unfair treatment is insufficient to establish protected

activity under Title VII.”). Although Dominici’s Fair Treatment Grievance alleged that she

experienced disparate treatment and a hostile work environment, there were no allegations that

either was due to discrimination based on her membership in any protected class. See Barber, 68

F.3d at 701-02 (holding that the employee’s “letter to Human Resources[, which] complains

about unfair treatment in general and expresses his dissatisfaction with the fact that someone else

was awarded the position, but [] does not specifically complain about age discrimination . . . does

not constitute the requisite ‘protected conduct’ for a prima facie case of retaliation”).

Dominici’s written appeal from the Grievance to Blankenhorn similarly fails. Although

Dominici did use the word “discrimination” in the appeal, she did not suggest the basis for any

such discrimination or her membership in any protected class. See Fisher v. Catholic Soc.

Servs., No. 18-CV-04653, 2019 U.S. Dist. LEXIS 133322, at *19 (E.D. Pa. Aug. 7, 2019)

(explaining that “an employee has engaged in a protected opposition activity when she

complains about unfair treatment with specific reference to a protected characteristic as the

basis for the unfair treatment” (emphasis added)). Dominici offers no other evidence of a

protected activity.23

Moreover, Dominici fails to offer any evidence connecting any (possibly) protected

activity and any adverse action.24 As to her complaint to Lojeski about Peterson’s comment, if

true, Dominici offers no evidence as to when this occurred in relation to the written warnings.

Additionally, she does not offer any evidence to suggest Lojeski retaliated against her because

she reported the comment; rather, Dominici contends that Lojeski made his decisions (including

issuing the written warnings) because of her age, race, or national origin. See Hoff, 2013 U.S.

Dist. LEXIS 78782, at *15-16 (dismissing the retaliation claim because the employee failed to

plead that the supervisor chose to punish the employee because he complained about a racial

comment made by a co-worker). Similarly, Dominici does not suggest that Rex recommended

her termination, which is the only subsequent adverse action, because Dominici complained

23 Although Dominici asserts that she was retaliated against for requesting vacation time,

see Pl.’s Dep. 162:1 - 163:9; SJ Resp. 3-4, simply requesting vacation is not a protected activity

under Title VII. See McCormick v. Allegheny Valley Sch., No. 06-3332, 2008 U.S. Dist. LEXIS

8533, at *45-47 (E.D. Pa. Feb. 4, 2008) (holding that merely requesting leave, which involves no

protest (formal or informal) of an unlawful practice, cannot constitute a statutorily protected

activity for purposes of a Title VII retaliation claim).

24 The Court need not even discuss Dominici’s schedule, duty, and floor changes, which

occurred immediately after Lojeski became her supervisor, because they necessarily occurred

prior to Dominici’s complaint to Lojeski. See Winkelman v. Hose, No. 14-259ERIE, 2017 U.S.

Dist. LEXIS 109336, at *15-16 (W.D. Pa. July 13, 2017) (holding that “the constitutionally

protected action of filing a grievance could not have ‘caused’ a prior scheduling change, and thus

cannot support a claim for retaliation”). Furthermore, for the reasons previously explained, these

actions, as well as the verbal reprimand for a dress code violation, were not “adverse.” See

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997) (holding that “the

‘adverse employment action’ element of a retaliation plaintiff’s prima facie case incorporates the

same requirement that the retaliatory conduct rise to the level of a violation of 42 U.S.C. §

2000e-2(a)(1) or (2)” and that “not everything that makes an employee unhappy qualifies as

retaliation” (internal quotations omitted)).

about Peterson’s comment. Even if she had made this argument, in the absence of any evidence,

Dominici’s termination three months later is too remote to show a causal connection. See

Theriault v. Dollar Gen., 336 F. App’x 172, 175 (3d Cir. 2009) (determining that the employee

“did not establish causation because she was terminated several months after her alleged

protected activity”). If the Grievance and/or subsequent appeal were “protected activity,” they

too, which were even earlier in time, are too temporally remote from her termination. See id. See

also Monn v. Gettysburg Area Sch. Dist., No. 1:12-CV-2085, 2013 U.S. Dist. LEXIS 47371, at

*11-12 (M.D. Pa. Apr. 2, 2013) (concluding that “failure to act on a complaint is not a retaliatory

or adverse action”).

Dominici has therefore failed to make a prima facie case of retaliation. Moreover, for the

reasons previously discussed regarding Dominici’s disparate treatment claims, the Hospital has

offered legitimate, non-retaliatory reasons for its decisions and there is no evidence of pretext.25

VI. CONCLUSION

Summary judgment is entered in the Hospital’s favor on Dominici’s § 1981 claim

because her “European” race does not place her in a “racial minority.” Additionally, she fails to

point to any evidence to suggest that the Hospital intended to discriminate against her on the

basis of race. The undisputed facts also show that Dominici cannot make a prima facie case of

25 Further evidencing the absence of pretext is the timing between Dominici’s misconduct

and the issuance of the written warnings and her termination. Unlike Dominici’s protected

activity, which was temporally remote from the adverse actions, Dominici’s misconduct

occurred within a few weeks or days of the written warnings and of her termination: (1) the First

Written Warning was issued approximately a week after Lojeski was notified of one of the cited

violations, and all the violations occurred within a two-week time period; (2) Lojeski issued the

Final Written Warning less than two weeks after he learned of one of the violations contained

therein; and (3) Dominici was terminated the day after she allowed a patient to elope by leaving

her ID badge unattended. The close temporal proximity between Dominici’s behavior and the

adverse actions tends to negate any suggestion that Lojeski or the Hospital acted for some

retaliatory reason, and not because of Dominici’s violations.

disparate treatment, hostile work environment, or retaliation because there is no evidence she

was discriminated against on account of race, national origin, or age. Moreover, even if she had

made a prima facie case, the Hospital has offered legitimate non-discriminatory and non-

retaliatory reasons for its decisions. Dominici offers no evidence to show that the reasons are

pretextual and essentially admits to the charged conduct. Consequently, the Motion for

Summary Judgment is granted. Judgment is entered in favor of the Hospital and against

Dominici on all claims.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._____

JOSEPH F. LEESON, JR.

United States District Judge

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