MUDIE v. PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA MUDIE, CIVIL ACTION

Plaintiff,

NO. 21-2156-KSM

v.

PHILADELPHIA COLLEGE OF

OSTEOPATHIC MEDICINE, et al.,

Defendants.

MEMORANDUM

Marston, J. May 20, 2022

Plaintiff Andrea Mudie has sued her former employer, Defendant Philadelphia College of

Osteopathic Medicine (“PCOM”), alleging that PCOM discriminated against her because of her

national origin. (Doc. No. 14.) Mudie asserts hostile work environment, retaliation, and

discrimination claims under Title VII of the Civil Rights Act of 1964. (Id.)

PCOM has filed a motion for summary judgment, arguing that Mudie’s hostile work

environment claim is time-barred and that the continuing violation doctrine does not apply.

(Doc. No. 24.) PCOM also contends that Mudie cannot establish a retaliation claim based on

either her transfer to a different office or her termination, and that her discrimination claim must

be dismissed because she cannot show a causal connection between PCOM’s decision to

terminate her and her national origin nor can she show that PCOM’s stated reasons for

terminating her were pretextual. (Id.) Mudie opposes the motion. (Doc. No. 41.)

For the reasons that follow, the Court grants the motion.

I. Factual Background and Procedural History

Viewing the evidence in the light most favorable to Mudie, the relevant facts are as

follows.

A. Mudie’s Background

Mudie is from Trinidad and Tobago and has traveled back and forth between there and

the United States since she “was a kid.” (Doc. No. 41-2 (“Mudie Dep.”) at 13:14–17.) She

began training as a nurse in Trinidad and Tobago in 2003 and received her certification as a

nurse in 2005. (Id. at 13:6–11.)

In 2014, Mudie became a permanent resident of the United States. (Id. at 13:18–20.)

Afterwards, Mudie attended the Harris School of Business in Upper Darby, Pennsylvania and

became a Certified Medical Assistant. (Id. at 12:22–13:2, 13:21–25.)

B. Mudie’s Work at PCOM

PCOM is a non-profit health sciences university and provides patient health care services

at its main and branch campus facilities and off-campus healthcare centers. (Doc. No. 41-1 at

¶¶ 1–2.) PCOM Family Medicine operates from several office locations in Philadelphia,

including an office at PCOM’s main campus on City Avenue (also referred to as “Suite 100”), a

small, one-provider office at the Roxborough Medical Office Building, an office on Cambria

Street, and an office on Lancaster Avenue. (Id. at ¶ 3.) PCOM hired Mudie as a medical

assistant in its Family Medicine department in January 2018, and she began work in February

2018 at the City Avenue location. (Id. at ¶¶ 4–6; Mudie Dep. at 14:18–21.)

In the summer of 2018, Mudie began reporting to Charles Pascale, Clinical Operations

Manager. (Doc. No. 41-1 at ¶ 8.) Pascale worked out of PCOM’s City Avenue location. (Id. at

¶ 9.) By this time, Mudie worked primarily out of the Roxborough office, supporting one

provider, Dr. Joan Grzybowski. (Id. at ¶ 11.) Because Grzybowski only worked three days a

week at Roxborough, Mudie initially worked three days a week there and then two days a week

at the City Avenue location; later on, she worked three days a week at Roxborough and two days

a week from home. (Id. at ¶ 12.)

C. Mudie Experiences Scheduling Issues and Complains to HR

In May 2019, Pascale changed Mudie’s work schedule, effective immediately, while she

was on vacation. (Mudie Dep. at 29:16–31:17.) Mudie told Pascale that because she is a single

mom, her schedule could not change and she could only work certain hours and that she had

already made, and been granted, that request when she first took the job. (Id.) Pascale told

Mudie he did not “want to hear about [her] childcare issues” and “need[ed] people who can work

[sic] day shift.” (Id.) Mudie complained to Christina Mazella, the Director of Human Resources

(“HR”), twice concerning this issue. (Id.; see also Doc. No. 41-1 at ¶ 14.)

That same week, Mudie was upset about an encounter she had with Pascale concerning a

request for time off to attend the closing on her house. (Doc. No. 41-1 at ¶ 13; Mudie Dep. at

32:5–34:15.) Pascale called Mudie a “liar.” (See Doc. No. 40, Ex. 10 (showing that Pascale

texted Mudie, “You told me yesterday ‘might’ have been for your house closing. You lied to

me” and that Mudie responded with a screenshot of her closing information and said “I never

lied to you about my home closing”); Mudie Dep. at 32:14–21 (testifying that after Pascale sent

her a text message calling her a liar, she spoke to him face-to-face and told him that she was

honest with him and was “really going for a home, which he didn’t believe”).) After this

incident, Mudie complained to HR again. (Mudie Dep. at 32:22–33:2.)

According to Mudie, she also had difficulty getting permission from Pascale for time off

while applying for U.S. citizenship. (Id. at 45:24–47:11.) Mudie claims that she requested a day

to get her fingerprints taken at the immigration office and Pascale gave her trouble, told her to

have the immigration office expedite her fingerprints, and when she came back she “gave him

documentation” because her ordered her to do so. (Id.)

Mudie also alleges that Pascale did not allow her to take lunch breaks. (Id. at 43:21–

45:23.) Pascale told her that he was unable to get coverage for her during lunch breaks. (Id.)

D. Mudie Experiences Mistreatment from Pascale when Pascale Comments on

Her Culture and Background, and Mudie Complains to HR

According to Mudie, Pascale frequently told her that she needed to learn English. (Mudie

Dep. at 17:15–19.) For example, when Mudie was covering the front desk and Pascale arrived,

she said, “Good morning, how are you?” to which he replied, “I’m peachy.” (Id. at 17:20–18:7.)

Not understanding the phrase, Mudie asked Pascale whether that was “good or bad.” (Id.)

Pascale responded that Mudie needed to learn English and “the American way.” (Id.) Pascale

suggested that Mudie buy a “slang book to learn the American terminology.” (Id. at 20:2–7.)

On a separate occasion, Pascale put two fingers up to make the “peace sign” and when Mudie did

not understand what that meant, he told her “you need to learn our ways.” (Id. at 18:8–16.) At

another point, when Mudie was working the front desk, a patient used the word “Caucasian” and

Mudie did not understand what the word meant. (Id. at 24:12–25:6.) When Mudie asked

Pascale about this word, he laughed at her and again stated, “You need to learn the American

ways.” (Id.)

Mudie testified that, twice, Pascale told her not to speak in meetings. During an office

staff meeting, he told her not to speak because she is “too direct” and “not everybody can handle

the truth.” (Id. at 20:15–21:22, 22:17–22.) Upset that everyone else was permitted to speak and

she was excluded, Mudie wrote on a piece of paper, which she held up in front of her, “Can you

please give me permission to speak in your meeting?” (Id.) Everyone laughed at Mudie, and

Pascale denied her request. (Id.) During a separate meeting about a call center, Pascale

instructed Mudie not to speak, other than to identify herself, reiterating that she was too direct

and that people’s feelings would be hurt if she spoke. (Id.; see also id. at 22:1–16 (“[Pascale]

said Andrea, . . . don’t say a[] word; because if you say it, they all is [sic] going to be offended,

so I need you to just not say anything in my meeting.”).)

In chastising Mudie for being too direct, Pascale referred to her national origin, stating,

“maybe it’s where you came from, the way you guys speak, you know, just say it as it is.” (Id. at

23:18–24:2.) Mudie responded that she was brought up “to be honest and be fair,” and Pascale

replied, “Well, Andrea, you know, that’s how you grew up there. This is America.” (Id.) At

some point, Pascale also told Mudie that “islanders are more aggressive.” (Id. at 115:20–116:1,

116:12–15.)

Mudie also recounted an incident that occurred when a patient came to the office and was

sweating and remarked that he believed his blood sugar was low because he is a diabetic and had

not eaten all day. (Id. at 118:4–119:19.) Mudie offered her sandwich to the patient, who ate it.

(Id.) Pascale said, “Andrea, I know you’re not American, because I wouldn’t have done that. I

would have eat[en] my lunch and not give[n] it to the patient.” (Id.)

According to Mudie, Pascale also commented on her culture in September 2019. (Id. at

25:9–26:17, 117:13–23.) Pascale told Mudie that she had received two patient complaints in one

week. (Id.; see also Doc. No. 41-1 at ¶ 16) (noting that in September 2019, Pascale requested to

speak with Christine Keck, Executive Director, Human Resources, regarding patient complaints

about Mudie); Doc. No. 40-4 (Sept. 3, 2019 email from Pascale to Mudie stating that they

needed to discuss a patient complaint he received regarding her lack of professionalism).) Mudie

did not believe that the complaints had actually occurred and said “shh to him” to interrupt him.

(Id.) Pascale responded, “You don’t shh your boss . . . it’s a culture thing, you wouldn’t

understand.” (Id.) Mudie told Pascale that she was “tired of [him] talking about [her] culture

and [her] background” and then went to HR and complained to Mazella. (Id.)

That same week, Pascale also made a comment that “Trump should not only build a wall

for – for the Mexicans, he should build a wall for all outsiders.” (Id. at 27:4–12, 27:24–28:1.)

Mudie complained to Mazella for the second time that week that she was being discriminated

against. (See id.)

On September 27, 2019, Chief Compliance Officer Margaret (Peg) McKeon and Mazella

met with Mudie and later that day, McKeon met with Pascale. (Doc. No. 40-4, Ex. 20 at 13.) At

that meeting, McKeon informed Pascale he could not take any scheduling or disciplinary action

against Mudie “until further notice” without involving HR. (Id. at ¶ 18.) In addition, “as an

interim measure to address” Mudie’s “alleged inability” “to take a lunch hour break,” PCOM

decided to add a temporary employee to the Roxborough office on Monday through Wednesday.

(Doc. No. 40-4, Ex. 20 at 13.) Further, HR was instructed to review Mudie’s pay information

dating back to February 2019 “to identify time at issue related to lunch breaks.” (Id.) During

this meeting, Pascale told McKeon that he felt that Mudie’s report was “retaliatory in nature.”

(Id.)

E. Mudie Is Also Upset by Comments from Other Coworkers

According to Mudie, other coworkers, aside from Pascale, made comments or engaged in

behaviors that upset her. For example, once, a patient asked her if the doctor had “called in some

coochie cream” but Mudie did not know “the meaning of coochie cream.” (Id. at 18:22–19:15.)

When Mudie asked her coworkers what the term meant, everyone just laughed at her, leading

Mudie to “breakdown” and cry. (Id.)

In the end of 2019 and early 2020, Angela Solomon,1 a temporary employee who assisted

at the Roxborough office, told Mudie that she did not want to work with “islanders.” (Id. at

52:14–54:19, 55:8–18; see also id. (testifying that Solomon told her that “Nathalie Rios,

Michelle Turrentine, Michele Atkins, Janet Oquendo and Clarissa Singleby . . . all were saying

that I was the only outsider and that they were happy that I was gone”).) Solomon also told

Mudie that she had been warned about working with Mudie because the last employee who

worked with Mudie had been fired and she believed that Mudie had been the cause of that

employee’s termination. (Id. at 54:20–55:1.)

Mudie also alleges that Solomon, Michele Atkins, and Nathalie Rios2 told her that she

was going to be fired for repeatedly complaining to HR. (Id. at 91:9–25.) And in 2020, Linda

Mongo, another coworker, told Mudie that she “better hurry up and get the hell out of here

because [Mudie was] going to be fired soon.” (Id. at 93:8–14.)

F. Mudie Receives a Threatening Letter via Interoffice Mail

On October 16, 2019, Mudie reported that she had received an anonymous note through

PCOM’s interoffice mail. (Doc. No. 41-1 at ¶ 22.) The note said, “You should have never told

on us.3 You will pay. You might escape this time but next time you wont [sic].” (Doc. No. 43

1 On October 15, 2019, Mudie spoke with Mazzella in HR regarding concerns she had about Solomon.

(Doc. No. 41-1 at ¶ 21.)

2 Mudie also testified that Rios owed her money. Because Rios could not pay back the money on time,

Rios acted as “the information person”—i.e., she was the one to inform Mudie that “Charles [Pascale] [is]

going to HR.” (Mudie Dep. at 92:8–13.)

3 As discussed infra in connection with PCOM’s investigations of Mudie and potential compliance

concerns and supra in connection with Pascale and other coworkers’ treatment of Mudie, Mudie

complained multiple times to HR in September and October 2019. (See, e.g., Doc. No. 41-1 at ¶ 20

(“During Mudie’s October 10, 2019 meeting with McKeon and Keck, Mudie also raised certain concerns

about certain coworkers and Pascale.”); id. at ¶ 21 (“On October 15, 2019, Mudie spoke with . . . Mazella

regarding Mudie’s concern about . . . Solomon.”); Doc. No. 40-4, Ex. 20 at 13 (discussing Mudie’s

September 27, 2019 complaint about Pascale).)

at ¶ 91; Doc. No. 41-5 at 1.) PCOM investigated Mudie’s report (Doc. No. 41-1 at ¶ 23), and the

police were contacted (Doc. No. 43 at ¶ 91).

G. The October 24, 2019 Incident

Three days later, on October 24, an individual brought a note containing Mudie’s

username and password to the front desk of a PCOM building and claimed someone named

Charles had paid him to deliver it. (Doc. No. 41-1 at ¶ 25; see also Mudie Dep. at 92:8–18

(testifying that Rios told her that Pascale “got a hold of a crack head and gave him information

. . . about me”); Doc. No. 41-4 (“Monger Dep.”) at 22:8–24 (testifying that Mudie told her that

Rios told her that a “crackhead had come into the office with Andrea’s username and password

and a counterfeit $50 bill and said that he was paid to go in and delete Andrea’s email”).)

PCOM investigated the October 24 incident. (Doc. No. 41-1 at ¶ 26.)

H. Mudie Complains about Pascale’s Presence at the Roxborough Office

Next, on October 28, Mudie encountered Pascale (who worked at the City Avenue office)

very early in the morning at the Roxborough office for no apparent reason. (Doc. No. 41-1 at

¶ 27.) Mudie reported this incident to PCOM. (Id.) PCOM investigated Mudie’s allegation.

(Id. at ¶ 29.)

An email from Joseph Smith, Security and Public Safety Lieutenant at PCOM, to

Mazella, states that on November 4, he went to Roxborough Hospital and met with the hospital’s

Director of Security.4 (Doc. No. 40-7 at 8.) Smith explained that they went through video

footage of the hospital from October 28, 2019 to determine whether Pascale was at the hospital

that morning. (Id.) He wrote, “We looked at both entrances that he would have been able to

access without having the proper ID badge needed to gain entrance. We checked from 6:50 a.m.

4 However, Mudie testified that when she met with the head of security, she learned “that the cameras that

were located around Gryzbowski’s office were not working.” (Mudie Dep. at 83:12–24.)

to 7:30 a.m. and Mr. Pascale . . . never entered the building. He was not seen on any videos. At

7:14 AM, Andrea Mudie was seen entering the building.” (Id.; see also Doc. No. 40-8 at 4 (case

report from Smith stating, “After follow-up with Director Wayne Boyd from Roxborough

Hospital and looking at video I did not see Charles Pascale on any video entering the hospital.

After trying to contact Mr. Boyd to look at video again and receiving no response from him at

this time the investigation is inconclusive. This investigation is closed at this time.”); Doc. No.

40-4 at 11 (November 20, 2019 report stating that Pascale denied visiting the Roxborough office

on October 28, and the hospital security video footage and PCOM campus video footage did not

support Mudie’s allegation that Pascale had been present that morning).)

When Pascale learned about Mudie’s claim regarding his presence at the Roxborough

office that day, Pascale alleged that Mudie was harassing and retaliating against him because he

raised concerns about her job performance. (Doc. No. 41-1 at ¶ 30.)

I. PCOM Investigates Mudie

Meanwhile, amid these various incidents and complaints, PCOM investigated Mudie for

suspected violations involving compliance in the summer and fall of 2019. First, in August

2019, PCOM investigated a potential time fraud issue involving Mudie. (Id. at ¶ 15.) Then, the

following month, on September 20, PCOM’s Compliance Office opened an investigation into a

HIPAA violation alleged to have occurred on August 21, 2019 involving unauthorized access of

a patient record by Mudie. (Id. at ¶ 17.) Specifically, it was alleged that Mudie accessed a

patient’s record on August 21 at the Roxborough office location and created a false appointment

for 6:30 p.m. later that day at the Rowland Hall office, where Mudie was scheduled to work

during the 6:30 p.m. period. (Doc. No. 40-4, Ex. 19 at 8.)

On October 10, PCOM’s Chief Compliance Officer McKeon and Executive Director of

Human Resources Christine Keck met with Mudie to discuss a potential compliance issue

involving the processing of patient records and e-faxes. (Doc. No. 41-1 at ¶ 19.) During that

same meeting, Mudie raised concerns about certain coworkers and Pascale.5 (Id. at ¶ 20.) On

October 31, Mudie met with Mazzella and McKeon again, to discuss a HIPAA compliance

concern. (Id. at ¶ 28.)

On November 20,6 PCOM’s Compliance Office concluded its investigation into the

HIPAA violation and determined that Mudie had engaged in unauthorized access of a patient

record. (Id. at ¶ 33.) According to McKeon’s investigation report, as part of the investigative

process, four individuals were interviewed: Mudie, the patient, Pascale, and Clarissa Sydnor-

Daye, the Senior Patient Care Coordinator. (Doc. No. 40-4 at 8.) In addition, several documents

were reviewed in connection with the investigation, including the medical access report, Mudie’s

time records for August 21, the Roxborough office computer and call logs for that day, the

Central Call Center logs for that day, PCOM’s HIPAA policy, and PCOM’s Code of Conduct.

(Id. at 9.)

The report states that the patient confirmed that she did not contact the Roxborough

office, or any other PCOM Family Practice office, to request an appointment. (Id.) The patient

stated that she had not visited the practice in a few years and was on a scheduled vacation when

she received a call from Sydnor-Daye on the afternoon of August 21 to confirm that she had an

appointment later that day. (Id.)

According to the report, Mudie explained that her usual practice is to set up an

appointment either at the request of a clinician or upon receiving a call from a patient. (Id.)

5 Mudie met with Mazella and McKeon again on October 21 to discuss her concerns about her coworkers

and Pascale. (Id. at ¶ 24.)

6 As noted infra, Mudie filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on November 18—two days before the investigation was concluded.

However, “the findings [did] not support that explanation.” (Id. at 11.) An audit of call logs

showed that there were no calls made to the Roxborough office (either direct or routed through

the Call Center) on that day, at that time. (Id. at 9.) The report also states, “The only clinician

that has office hours at the Roxborough office is Joan Grabowski [sic], DO and the appointment

was not scheduled with this clinician. Further, [the patient] identified she was never seen at or

would call the Roxborough office location for services.” (Id.)

The audit also showed that Mudie clocked into the Roxborough office at 7:35 a.m. that

day, that her NexGen credentials were used from that office location to access the patient’s

record at 8:27 a.m., and that the appointment was created at 8:28 a.m. (Id. at 10.) According to

the report, “No other staff were working at the Roxborough location at the time the patient

appointment was created . . . [, and] [t]he possibility that the appointment was created for the

wrong patient does not appear feasible.” (Id.)

Under PCOM’s Code of Conduct, PCOM employees “are not permitted to access

confidential information,” including, but not limited to, patient records, “which they do not need

to know in order to perform their job duties.” (Id.) In addition, the PCOM Healthcare Standards

Manual allows record disclosure only to the extent “allowed by federal HIPAA regulations”;

disclosure, including accessing a patient record, is therefore “limited to an as needed [basis] for

treatment, payment and operations basis.” (Id.) McKeon determined that Mudie’s access of the

patient’s record did not fall under one of those three authorized categories. (Id. at 10–11.) The

Compliance Office also reported the HIPAA breach to the U.S. Department of Health and

Human Services per regulations. (Id. at 11.)

According to the report, Pascale and Syndor-Daye both alleged that Mudie had improper

motives for creating the patient appointment: specifically, Pascale alleged time abuse and

Syndor-Daye alleged that Mudie had retaliatory motives.7 (Id. at 10) However, given the

ongoing animosity and longstanding history between the parties—namely, that Mudie had

complained that Pascale had created a harassing work environment and Pascale and Syndor-

Daye had “made multiple reports related to [Mudie’s] poor work performance” to HR—McKeon

did not consider those alleged motives when making her determination that Mudie had

improperly accessed the patient’s medical records and did not make any credibility

determinations. (Id. at 10–11.)

The Compliance Office referred handling of the matter to HR. (Doc. No. 41-1 at ¶ 34.)

Mazella told Mudie that a HIPAA violation could result in termination.8 (Id. at ¶ 35.)

J. The November 18, 2019 Charge

On November 18, 2019—two days before the PCOM Compliance Office concluded its

investigation concerning the HIPAA violation—Mudie filed a Charge of Discrimination with the

EEOC and Pennsylvania Human Relations Commission (the “2019 Charge”). (Id. at ¶ 31.) The

Charge states:

Since working for Respondent, Complainant has been told by her

supervisor that she does not understand English well and does not

understand the American way. He has told her that she needs to go

out and learn about America because she knows nothing about it . . .

Complainants [sic] supervisor has also told her he can replace her

any time. Complainant has made several complaints to Human

Resources regarding the discriminatory treatment by her supervisor.

Since making complaints to HR, Complainant has been told by other

co-workers that she will be fired. On or about November 5, 2019,

Complainant was terminated from her employment without being

given a reason as to why.

7 To that end, the “matter was initially reported to [HR] by practice management based on suspicion of

retaliatory or improper motivation for creation of the appointment.” (Id. at 11.)

8 Mudie alleges that during 2019, Mazella threatened her with termination twice. (See Doc. No. 41-1 at

¶ 36; Mudie Dep. at 78:6–10.)

(Doc. No. 40-2, Ex. 9 at 10.)

Significantly, Mudie claimed in the 2019 Charge that PCOM had terminated her

employment on November 5, despite the fact that that was untrue and she remained employed

with PCOM. (Doc. No. 41-1 at ¶ 32.)

The EEOC issued its Dismissal and Notice of Rights in connection with the 2019 Charge

on March 16, 2020. (Id. at ¶ 40.) Mudie did not pursue her claims in court within 90 days. (Id.

at ¶ 41.)

K. Pascale Leaves PCOM

In February 2020, Pascale voluntarily resigned from PCOM.9 (Id. at ¶¶ 37–38.)

Following Pascale’s departure, Mudie began reporting to Tiffany Floyd. (Id. at ¶ 39.)

L. The New Chief Practice Operations Officer Changes Mudie’s Schedule and

Then Transfers Her

Five months later, in July 2020, PCOM hired a new Chief Practice Operations Officer,

Stephen Castellano. (Id. at ¶ 42.) Castellano reassigned certain individuals, including Mudie, to

different offices. (Id. at ¶ 43.) Castellano’s stated reason for this decision was that he believed

Family Practice personnel could be deployed more effectively.10 (Id.)

In August 2020, Mudie was transferred to the Cambria office. (Id. at ¶ 44.) Mudie told

9 Mudie claims that “in or around March 2020,” Pascale wrongly accused her or stealing patient co-pays

and office supplies. (See Doc. No. 41 at 9.) However, this timing is not accurate, given that Mudie

admits that Pascale left PCOM in February 2020. (Doc. No. 41-1 at ¶¶ 37–38.)

10 Castellano testified that because a history of conflict between Mudie and the employees at the City

Avenue location, he could not transfer Mudie to a location where individuals from the City Avenue

location worked, and because he wanted two people at the Roxborough office, he needed to move Mudie.

(See Doc. No. 43-3 (“Castellano Dep.”) at 11:9–12:5 (“I knew there was some history with conflict

between employees, so at the time when I arrived, Andrea – I don’t know . . . was the cause was – she

wasn’t to come to the City Ave. location. In other words, those – the individuals that worked there

weren’t to work in Roxborough and she wasn’t to work at City Ave. So I knew that she wouldn’t work at

City Ave. I wanted to have two people at Roxborough, so I moved her to Cambria so that I could move

two people to Roxborough.”).)

Castellano that she objected; she complained about childcare issues and that it was a dangerous

neighborhood. (Id. at ¶ 45; Mudie Dep. at 69:15–21; see also Mudie Dep. at 67:15–17, 67:24–

68:6 (“Q: Why do you consider it a dangerous neighborhood? A: At one point in time while I

worked there someone got shot outside[.]”).) She also told Mazzella that she objected to the

move, again citing childcare concerns. (Doc. No. 41-1 at ¶ 46; see also Mudie Dep. at 70:6–13,

75:17–21.)

Upset by the transfer, Mudie sent a letter of resignation to her new supervisor, Floyd, and

Gryzbowski, giving her two weeks’ notice. (Mudie Dep. at 70:17–19.) However, Floyd,

Gryzbowski, and Monger convinced Mudie not to leave. (See id. at 71:5–14, 76:9–77:2.) Mudie

testified that she told Floyd that she believed the move was retaliatory. (Doc. No. 41-1 at ¶ 48.)

Mudie disputes the stated reason for the transfer and suggests she was transferred because

she complained about Pascale’s discrimination. (See id. at ¶¶ 43–44; Mudie Dep. at 74:16–22

(“And what I mean by this is after going to HR numerous time [sic] on Charles, then I was

brought to the office for at least five consecutive weeks being audited, violating HIPAA, being

accused of these things, my things going missing. And here comes Steven telling me that he

can’t pleases [sic] everyone.”).)

M. Mudie Receives Another Threatening Letter

In the fall of 2020, a patient reported that he had been asked to deliver a note to Mudie

(the “2020 Halloween note”). (Doc. No. 41-1 at ¶ 49.) The note said, “Watch what you eat,

drink and be scary! Told you we would get you. This is only the beginning, your best bet is to

resign or lose your career. Your choice.” (Id.) Gryzbowski, the doctor who practiced at the

Roxborough office at which Mudie worked, testified that a patient told her that Rios had offered

him money to send a threatening letter to Mudie. (Doc. No. 41-3 at 33:3–24.)

The parties dispute whether PCOM properly investigated the incident. (See Doc. No. 41-

1 at ¶ 50.) Ultimately, PCOM dismissed the patient from the practice but did not discipline any

employee (i.e., Rios) in connection with the incident. (Id. at ¶ 51.)

N. An Audit Reveals that Mudie Made Many Calls to Trinidadian Numbers on

Company Time While Using Company Resources, and PCOM Terminates

Her

On December 1, 2020, PCOM Senior Infrastructure Analyst Shaun Carlin emailed

Castellano and Floyd a routine audit report, which showed that calls were made from the

Cambria office to 868 area code numbers. (Id. at ¶ 52.) The 868 area code is associated with

Mudie’s country of origin, Trinidad and Tobago. (Id. at ¶ 61.)

Castellano alerted Mazella about the audit report and, in turn, Mazella notified PCOM’s

Compliance Office. (Id. at ¶¶ 53–54.) The Compliance Office, in conjunction with the

Information Technology Services Department, conducted an investigation into the calls to the

868 area code. (Id. at ¶ 55; Doc. No. 40-1, Ex. 3 (“Mazella Dep.”) at 20:2–7.) The Compliance

Office asked Carlin to run a “control report” checking for any calls made to 868 numbers from

the City Avenue and Lancaster Avenue locations. (Doc. No. 41-1 at ¶¶ 55–56.) Carlin reported

back that it did not look like any calls were made to 868 numbers from those offices. (Id. at ¶

57.)

On December 3, Carlin provided the Compliance Office with a Call Detail Report for the

period of October 1, 2019 to October 1, 2020. (Id. at ¶ 58.) The Call Detail Report showed that

310 calls,11 totaling almost 27 hours,12 were made from the Cambria and Roxborough offices to

11 The Call Report also shows that, on 22 occasions, five or more calls were placed in a single day. (Id. at

¶ 65.) Ten or more calls were placed in a single day on five occasions. (Id.) Fifteen calls were placed on

January 31, 2020 alone. (Id. at ¶ 66.)

12 As for the timing of the calls, the Call Report indicates that 19 calls lasted 15 minutes or longer. (Id. at

¶ 67.) This includes six calls that were 30 minutes or longer and one call that lasted nearly two hours.

868 numbers. (Id.) These calls were all made from the offices to which Mudie was assigned,

and many were made during Mudie’s working hours. (Id. at ¶¶ 62, 64.) Mudie admitted that she

made the calls to the 868 numbers.13 (Id. at ¶ 63.) PCOM incurred a cost of $0.33 per minute

for these calls. (Id. at ¶ 59.)

On December 11, the Compliance Office provided Mazzella with its findings. (Id. at

¶ 60.)

On December 23, 2020, Mudie was informed that she would be terminated effective

January 2, 2021. (Doc. No. 40-9 at 28.) Castellano and Mazzella made the decision to terminate

Mudie’s employment; Floyd had no involvement in or knowledge of the decision. (Doc. No. 41-

1 at ¶¶ 69–70.) PCOM cited violations of its policies and code of conduct, including theft of

time and unauthorized use of PCOM resources, as the bases for terminating Mudie’s

employment. (Id. at ¶ 68.)

However, Mudie suggests that the firing was retaliatory (see, e.g., id.) and claims that

Mazzella and Westerberg14 had previously given her permission to make the calls. (Id.) Mudie

testified that Mazella first granted her permission to use PCOM’s phone to contact her family in

Trinidad and Tobago in February or March 2018, about three weeks after she started working for

PCOM, when her first sister passed away. (Mudie Dep. at 94:6–23, 104:11–20.) Mudie also

stated that Dr. Westerberg had given her permission to speak with her father when he was

diagnosed with cancer. (Id. at 95:25–96:7.)

(Id.)

13 Mudie testified that most of the family members she made calls to live in the United States; they just

had Trinidadian numbers. (Mudie Dep. at 96:9–17.)

14 Dr. Westerberg was another doctor in the practice, and she was no longer employed by PCOM at the

time Mudie was audited. (Doc. No. 40-1, Ex. 3 (“Mazzella Dep.”) at 21:17–24.)

Mudie believed that because she had gotten approval in 2018, she was allowed to use

PCOM’s phone in 2020. (Id. at 95:10–24 (“When I was terminated from PCOM and I met with

[Mazella], she indicated that she did a call log back from 2020 and that I stole from PCOM;

however, I indicated to her that it was not from 2020. You gave me permission prior to 2020.

So I didn’t only use the phone at PCOM in 2020, it was used prior, in the year before as well.

And I remember when my first sibling had passed away that you told me that I could have used

it, so I did.”), 104:12–105:25, 106:11–107:7 (“Q: If I’m understanding you correctly, you seem

to be saying that because you had a conversation with Christina Mazella in 2018 and that you

believe based on that conversation in 2018 that you had permission to make these phone calls in

2020. Is that correct? A: Yes.”).)

* * *

On May 11, 2021, Mudie initiated this lawsuit against PCOM and individual Defendants

Pascale and Mazzella. (Doc. No. 1; see also Doc. No. 41-1 at ¶ 71.) Two months later, on July

21, Mudie filed her First Amended Complaint. (Doc. No. 7; see also Doc. No. 41-1 at ¶ 72.) On

August 3, Mudie filed EEOC Charge No. 530-2021-00464 (the “2021 Charge”). (Doc. No. 41-1

at ¶ 73.) At Mudie’s request, two days later, on August 5, the EEOC issue a Notice of Right to

Sue in connection with the 2021 Charge. (Id. at ¶ 74.)

On August 10, Mudie filed a Second Amended Complaint.15 (Doc. No. 14; see also Doc.

No. 41-1 at ¶ 75.) Shortly thereafter, Defendants filed a motion to dismiss. (Doc. No. 20.) On

December 29, the Court granted the motion in part, dismissing Mudie’s 42 U.S.C. § 1981 claim

against all Defendants because she failed to allege facts supporting a claim of racial

15 On September 15, Mudie voluntarily dismissed the individual Defendants from the Title VII claim and

dismissed the claim she brought under the Pennsylvania Human Relations Act (“PHRA”) against all

Defendants. (Doc. No. 19; see also Doc. No. 41-1 at ¶ 76.) Because the Court later granted the motion to

dismiss the § 1981 claim against all Defendants, PCOM is the only remaining Defendant in this case.

discrimination. Mudie v. Phila. Coll. of Osteopathic Med., --- F. Supp. 3d ---, 2021 WL

6136937, *3–8 (E.D. Pa. Dec. 29, 2021). However, the Court denied PCOM’s motion to dismiss

the Title VII claim as time-barred, finding that, at the motion to dismiss stage, Mudie had pled

sufficient facts for the Court to apply the continuing violation doctrine. Id. at *8–*10.

Presently before the Court is PCOM’s motion for summary judgment. (Doc. No. 34.)

Mudie opposes the motion. (Doc. No. 41.) The Court held oral argument on the motion on May

12, 2022.

II. Legal Standard

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 dispute is genuine if the “evidence is such that a reasonable jury could return a verdict

for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under

the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Judgment will be entered against a party who fails to sufficiently establish any element

essential to that party’s case and who bears the ultimate burden of proof at trial. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all

reasonable inferences in the nonmovant’s favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d

144, 159–60 (3d Cir. 2003).

Disagreements over what inferences may be drawn from the facts, even undisputed ones,

preclude summary judgment. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d

Cir. 1996) (citation omitted). “Credibility determinations, the weighing of evidence, and the

drawing of legitimate inferences from those facts” are matters left to the jury. Anderson, 477

U.S. at 255.

The initial burden of demonstrating that there are no genuine issues of material fact falls

on the moving party. Celotex, 477 U.S. at 323. Once the moving party has met its burden, the

nonmoving party must counter with “specific facts showing that there is a genuine issue for

trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

omitted). The non-moving party must show more than the “mere existence of a scintilla of

evidence” in support of its position. Anderson, 477 U.S. at 252. “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

III. Discussion

PCOM argues that summary judgment is appropriate on Mudie’s hostile work

environment, retaliation, and discrimination claims.16 (Doc. Nos. 34, 42.)

The Court addresses each claim in turn below.

A. Hostile Work Environment

PCOM argues that Mudie’s hostile work environment claim must be dismissed because it

is largely based on Pascale’s discriminatory comments, and given that Pascale left PCOM in

February 2020, his conduct is time-barred. PCOM also contends that the continuing violation

doctrine does not apply to toll the statute of limitations and that Mudie fails to state a hostile

work environment claim as to the conduct that occurred within the limitations period because the

conduct was not severe or pervasive and was entirely unrelated to her national origin. We

16 PCOM also argues that to the extent that any of Mudie’s claims were based on race discrimination, and

not national origin discrimination, they should be dismissed for the reasons that the Court dismissed

Mudie’s § 1981 claim at the motion to dismiss stage. (Doc. No. 34.) Mudie asserts that she “is no longer

bringing a claim for race discrimination” and that her “claims are based on national origin

discrimination.” (Doc. No. 41.) Therefore, we address only Mudie’s national origin claims and grant

PCOM’s summary judgment motion to the extent Count II in Mudie’s Second Amended Complaint can

be construed as raising race discrimination claims.

address the limitations period argument first, followed by the merits argument.

1. The Continuing Violation Doctrine Does Not Apply

a. The Law

“To bring suit under Title VII, a claimant in a deferral state, such as Pennsylvania, must

first file a complaint with the EEOC within 300 days of the alleged unlawful employment

practice.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (citing 42

U.S.C. § 2000e-5(e)(1)). The continuing violation doctrine provides a limited exception to this

requirement. See Lamb v. Montgomery Twp., Civil Action No. 15-6759, 2016 WL 7426125, at

*9 (E.D. Pa. Dec. 23, 2013) (“Hostile work environment claims . . . may be premised on

occurrences that fall outside the limitations period if the plaintiff can show that a continuing

violation exists.”); see also Mandel, 706 F.3d at 165 (“Under the continuing violation doctrine,

discriminatory acts that are not individually actionable may be aggregated to make out a hostile

work environment claim; such acts ‘can occur at any time so long as they are linked in a pattern

of actions which continues into the applicable limitations period.’” (citation omitted)).

“To allege a continuing violation, the plaintiff must show that all acts which constitute

the claim are part of the same unlawful employment practice and that at least one act falls within

the applicable limitations period.” Mandel, 706 F.3d at 165–66. To proceed under a continuing

violation theory, a plaintiff must show that that the act that fell within the limitations period and

the acts that occurred prior to the applicable limitations period involved “similar conduct by the

same individuals.” See id. at 167 (“Mandel may proceed under a continuing violations theory.

Mandel has alleged at least one act that falls within the statute of limitations period (i.e. Bachert

calling her a ‘bitch’ during a meeting), and many of the acts that occurred prior to the applicable

limitations period involved similar conduct by the same individuals, suggesting a persistent,

ongoing pattern.”); see also Lake v. Stryker Sales, LLC, Civil Action No. 20-5554, 2022 WL

605293, at *3–4 (E.D. Pa. Mar. 1, 2022). And, as the Third Circuit has emphasized, “the reach

of this doctrine is understandably narrow.” Lamb, 2016 WL 7426125, at *9 (quoting Tearpock-

Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014)).

The continuing violation doctrine does not apply to discrete discriminatory acts; in other

words, discrete discriminatory acts are not actionable if they are time-barred, even if those

discrete acts are related to other discriminatory acts that are timely alleged in the charge. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (“A discrete retaliatory or

discriminatory act ‘occurred’ on the day that it ‘happened.’ A party, therefore, must file a charge

within either 180 or 300 days of the date of the act or lose the ability to recover it.”); id. at 113

(“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges. Each discrete act starts a new clock for filing charges

alleging that act.”); O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (“Morgan

established a bright-line distinction between discrete acts, which are individually actionable, and

acts which are not individually actionable but may be aggregated to make out a hostile work

environment claim. The former must be raised within the applicable limitations period or they

will not support a lawsuit. The latter can occur at any time so long as they are linked in a pattern

of actions which continues into the applicable limitations period.”); see also Kimes v. Univ. of

Scranton, 126 F. Supp. 3d 477, 492–93 (M.D. Pa. Aug. 25, 2015) (“[T]he Supreme Court has

differentiated between acts of discrimination that fall under the doctrine, which usually occur

over a series of days or perhaps years and discrete acts falling outside the doctrine, wherein a

single act of harassment is alone actionable.” (cleaned up)). Discrete discriminatory acts include

termination, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful

discipline, denial of training, and wrongful accusation. Mandel, 706 F.3d at 165; O’Connor, 440

F.3d at 127.

b. Analysis

Here, because Mudie filed her 2021 Charge17 on August 3, 2021, any discriminatory act

that occurred before October 7, 2020 would be time barred unless the continuing violation

doctrine applies.

PCOM argues that the Court cannot consider Pascale’s conduct in determining whether

Mudie states a hostile work environment claim because he left PCOM in February 2020 and

therefore his discriminatory comments and acts from 2018, 2019, and early 2020 are time barred,

as they occurred long before October 7, 2020. (Doc. No. 34 at 14–15.) Mudie appears to

concede that Pascale’s conduct occurred outside the limitations period, as she solely argues that

Pascale’s behavior was part of a continuing violation. (See Doc. No. 41 at 14–15.) But Mudie

argues that her termination, which undisputedly occurred during the 300-day period prior to her

filing her 2021 Charge, is “the last act of a continuing practice of . . . a hostile work

environment.” (Id. at 15.)

PCOM counters that the continuing violations doctrine does not apply because Mudie’s

termination was a discrete discriminatory act that cannot be “tacked on to save an otherwise

untimely work environment claim.” (Doc. No. 34 at 16–17.) The Court is unpersuaded by the

non-binding cases that PCOM cites in support of this assertion.18

17 The 2019 Charge does not form the basis of this lawsuit because Mudie failed to file her lawsuit within

90 days of receiving her Right to Sue letter from the EEOC on that Charge.

18 One of the cases PCOM cites is a non-precedential Third Circuit case, Zankel v. Temple University, 245

F. App’x 196, 197–98 (3d Cir. 2007) (“Zankel contends that her firing, which fell within the 300-day

window, constituted an unlawful adverse employment action and rendered the filing of the administrative

complaint timely with respect to all of the older instances of discrimination under a ‘continuing violation’

theory . . . [W]e find no merit in her argument that her termination constituted a continuing violation of

Other courts in this Circuit have held that timely discrete acts can render non-discrete acts

timely under the continuing violation doctrine, see Kimes, 126 F. Supp. 3d at 493 (“[A]

discriminatory act occurred within the relevant time period; Ms. Kimes was terminated from her

position with the University on October 21, 2013.”); see also Henderson, 2022 WL 838119, at

*7–9 (rejecting the defendant’s argument that the plaintiff’s discipline constituted a discrete

event that could not render timely otherwise untimely acts and holding that because the plaintiff

was disciplined within the relevant limitations period, it did “not appear from the face of the

amended complaint that [his] hostile work environment claim [was] untimely”), as have courts in

other Circuits, see, e.g., Guessous v. Fairview Prop. Inves., LLC, 828 F.3d 208, 223 (4th Cir.

2016) (“[T]he issue in this case is whether non-time-barred discrete acts can be considered part

of the series of separate acts that collectively create a hostile work environment, thus rendering a

hostile-environment claim timely under the continuing-violation doctrine . . . If a constructive

discharge can be part and parcel of a discriminatory pattern of conduct, we see no reason that a

discrete act cannot. So long as the act is part of the pattern of discriminatory treatment against

the employee, then that act should be sufficient for purposes of the continuing-violation doctrine,

even if the act would otherwise qualify as a discrete act that is independently actionable.”

the earlier denials of reasonable accommodation, and therefore conclude that her ADA and Rehabilitation

Act claims are indeed untimely.”). Another district court in this Circuit recently declined to follow

Zankel. See Henderson v. Pa. State Univ., No. 4:21-CV-00872, 2022 WL 838119, at *8–*9 (M.D. Pa.

Mar. 21, 2022) (“This Court finds Zankel unpersuasive and declines to follow it here. The opinion is

bereft of any genuine reasoning or analysis, and that court does not appear to have grappled with the

intent of Morgan or the specific language that limits its holding only to untimely discrete acts. Rather,

the court in Zankel seems to have simply assumed that the narrow language employed by the Supreme

Court in Morgan applies broadly to all discrete acts. To the contrary, as the Fourth Circuit, the Court of

Appeals for the Eleventh Circuit, and the Court Appeals for the District for Columbia have persuasively

set forth, the holding in Morgan does not prevent a discrete act from rendering non-discrete acts timely

under the continuing violation doctrine, so long as the discrete act is itself timely and constitutes a

continuation or culmination of the defendants’ discriminatory behavior.”). We are persuaded by the

analysis in Henderson.

(cleaned up)); Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350 (11th Cir. 2007)

(“Where the discrete act is sufficiently related to a hostile work environment claim so that it may

be fairly considered part of the same claim, it can form the basis for consideration of untimely,

non-discrete acts that are part of the same claim.”); Lee v. Mission Chevrolet, Ltd., EP-16-CV-

00034-DCG, 2017 WL 4784368, at *9 (W.D. Tex. Oct. 23, 2017) (holding “that a non-time-

barred discrete act may constitute an act contributing to a hostile work environment claim and

therefore, may properly be the basis for applying the continuation violation doctrine”). We

follow suit here.19

However, the fact that at least one act occurred within the limitations period does not

compel the conclusion that the continuing violation doctrine applies. The Court must now

consider whether the acts that occurred within the statutory period and any non-discrete20 acts

that occurred prior to the applicable limitations period, involved “similar conduct by the same

individuals.”21 Even viewing the facts in the light most favorable to Mudie and drawing every

inference in her favor, as we must at this stage, the Court cannot conclude that this is the case.

19 In addition, as PCOM acknowledges, the 2020 Halloween note that Mudie received from a patient

occurred within the limitations period. Mudie, however, does not argue that this is a basis for the

continuing violation doctrine to apply. (See generally Doc. No. 41.)

20 At the motion to dismiss stage, we found that any threats of termination, wrongful accusations of

stealing patient co-pays and office supplies, and the transfer to the Cambria office were untimely discrete

acts that could not be aggregated under the continuing violations doctrine. Mudie, 2021 WL 6136937, at

*9.

21 Mudie does not address this aspect of the continuing violation theory in her very cursory analysis of the

doctrine; rather, she suggests that it is enough that the termination occurred within the limitations period.

Further, she hinges her argument solely on the fact that the Court found that the continuing violation

doctrine applied at the motion to dismiss stage. (Doc. No. 41 at 15 (citing the Court’s prior Memorandum

and stating, “The record at summary judgment is consistent with Plaintiff’s allegations at the pleadings

stage, i.e., Plaintiff’s termination was the last act of a continuing practice of discrimination, retaliation,

and a hostile work environment.”).) But this ignores the fact that the legal standards at the motion to

dismiss and motion for summary judgment stage are different.

Lake v. Stryker Sales, LLC is instructive. In that case, the plaintiff alleged that her former

supervisor, Nathan Lynch, created a hostile work environment based on her sex, making

comments such as he “popped his cherry” when he hired his first female employee and told her,

while she was pregnant, that it was unacceptable for her to miss a national sales conference that

was a few weeks before her due date. Lake, 2022 WL 605293, at *2. After Lynch left the

company, the plaintiff was assigned a new supervisor, Casey Davidson, and the plaintiff alleges

that he also engaged in a hostile work environment by failing to ask her to present at a sales

conference and excluding or ignoring her at the conference. Id. at *2–*3. Lynch’s comments

occurred outside of the statutory period, and the Court found that the continuing violation

doctrine did not apply because the incidents related to Davidson were “markedly different.” See

id. at *3 (“The only comments or incidents plaintiff cites that occurred on or after July 24, 2018

are from Davidson, not Lynch, and are wholly different in nature. She points to the fact that her

sales territory was re-assigned in September 2018 and that her performance rating was

unsatisfactory. She also states that Davidson did not have her present at a sales conference in

2019 and asked her to sit farther from him at that conference. These are markedly different

events than the comments attributed to Lynch from 2017 and earlier in which he made

derogatory comments directed at plaintiff regarding her pregnancy and about women.”).

The court reasoned, “Plaintiff includes no allegations that Davidson, whether within the

statutory period or prior, made derogatory comments to her, much less ones of the nature that

Lynch made.” Id. at *4. Because “[i]t was not similar conduct” and “was not done by the same

individual,” the court concluded that “[n]o reasonable jury could find evidence of ‘an act

contributing to the claim’ that occurred within the 300-day period to permit a continuing

violation for a hostile work environment claim.” Id.; see also Lamb, 2016 WL 7426125, at *9

(“Plaintiff has not produced evidence to show that the Township’s response to thefts in the

Public Works Department, her treatment during her workers’ compensation leave, the derogatory

comments she heard, her termination for theft, or any of the other issues she identifies

represented frequent acts of the same subject matter.”).

So too here. Mudie advances a wide array of allegations in support of her hostile work

environment claim in an everything-but-the-kitchen-sink manner. But, critically, they involve

different conduct by different individuals.

Much of Mudie’s hostile work environment claim rests on Pascale’s conduct. She claims

that he called her a “liar” when she requested time off to attend the closing on her home, that he

was resistant when she asked for time off while applying for her U.S. citizenship and had to get

her fingerprints taken at the immigration office, that he refused to let her take lunch breaks, that

he told her she needed to learn English and “the American way,” that he told her not to speak in

meetings because she spoke aggressively due to her culture, that he said President Trump should

build at a wall to keep out all outsiders, and that he paid someone to deliver a note with her

username and password. While Pascale’s comments are upsetting and objectionable and, if true,

may support a hostile work environment claim, they occurred outside of the limitations period.

And the continuing violation doctrine does not apply because Pascale’s alleged discriminatory

comments are “markedly different” from the events that occurred during the limitations period

and ultimately led to Mudie’s termination by different individuals—the audit and investigation

into her calls to 868 numbers.

Significantly, Pascale left PCOM in February 2020, and Mudie was not terminated until

approximately eleven months later on January 2, 2021 (and was given notice of said termination

on December 23, 2020)—it defies logic that Pascale could have been involved in her

termination.22 As in Lake, there is nothing in the record to suggest that Mudie’s termination in

late 2020/early 2021 was part of a larger pattern to subject her to a hostile work environment.

Mudie includes no evidence that the individuals who terminated her, Mazella and Castellano,

also made discriminatory comments of the nature that Pascale made. Ultimately, it was not

similar conduct, and it was not done by the same individuals. Accordingly, the Court agrees

with PCOM that summary judgment is warranted to the extent that Mudie’s hostile work

environment claim is based on Pascale’s conduct. See Lake, 2022 WL 605293, at *3–*4.

Contra Kimes, 126 F. Supp. 3d at 493 (“In July 2012, Sergeant Savero stated that ‘he doesn’t

feel comfortable with female officers’ and did not want Ms. Kimes on his shift [and] in October

2013, Chief Bermann told Ms. Kimes that, because she is a ‘female’ he understood how Scranton

police officers ‘intimidated’ her. In the summer of 2012, Ms. Kimes was ordered to clean the

Departments’ break room despite the fact that no other officer had ever been ordered to clean the

break room. . . . The statements and actions taken by Ms. Kimes’ supervisors were all connected

by a single thread—an apparent belief that women were inherently incapable of performing the

duties associated with being a police officer, and assigning tasks that were, in their eyes, more

suitable for women. . . . [T]he court concludes that the continuing violation doctrine does apply

in this matter.”).

As to her other co-workers, Mudie testified that in late 2019 or early 2020, Solomon told

22 There is no evidence that Pascale was involved in the Halloween 2020 threatening note. Rather, the

testimony indicates that if anyone at PCOM was involved, it was Rios. At oral argument, Mudie argued

that “Castellano” is the “connector” between Pascale’s conduct and the ultimate termination. (See, e.g.,

Draft Hr’g Tr at 9:10–10:20, 13:22–14:25.) Mudie argued that Rios and Castellano worked together,

Rios knew that Mudie complained to HR about Pascale’s discriminatory comments in 2019, Rios sent the

Halloween 2020 note in retaliation for Mudie’s 2019 complaints about Pascale, and then Castellano failed

to fire Rios for sending the threatening note to Mudie. The Court is unpersuaded by this incredibly

attenuated argument. Notably, Castellano and Pascale did not work at PCOM at the same time; therefore,

it is impossible for Mudie to meet the “similar conduct by the same individuals” continuing violation

standard based on Castellano.

her that she did not want to work with “islanders” and that Rios, Turrentine, Atkins, Oquendo,

and Singleby also wanted her to leave because she was “the only outsider,” that Solomon,

Atkins, Rios, and Monger told her that she was going to be fired for repeatedly complaining to

HR, and that unidentified co-workers laughed at her at an unidentified time because she did not

know “the meaning of coochie cream.” As with Pascale, there is no evidence in the record

showing that any of these co-workers were involved with the decision to terminate her

employment with PCOM. And there is no record evidence that Castellano23 and Mazella24

23 In the summer of 2020, Castellano transferred Mudie to the Cambria office, which was located in a

more dangerous neighborhood. Mudie alleges the transfer was done in retaliation for her complaints

about Pascale—though the evidence shows that Castellano joined PCOM many months after Pascale left

the company in early 2020. The transfer is a discrete, discriminatory act, and the continuing violation

theory does not apply to it. See supra n.20; see also McCann v. Astrue, 293 F. App’x 848 (3d Cir. 2008)

(“The law makes clear that discrete discriminatory acts that are actionable on their own may not be

aggregated under a continuing violation theory.”); O’Connor, 440 F.3d at 127. However, as Mudie’s

counsel stated at oral argument, the transfer may be used “as background evidence in support of [a] timely

claim.” See Titus-Morris v. Banc of Am. Card Servicing Corp., 512 F. App’x 213, 217 (3d Cir. 2013)

(“[B]ecause each of the alleged discriminatory acts occurred outside of the limitations period, they cannot

in the aggregate form the basis for a hostile work environment claim. However, Titus-Morris may cite

those discrete occurrences as background evidence in support of her timely claim that her eventual

termination constituted unlawful discrimination under Title VII.”); see also Morgan, 536 U.S. at 113

(“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges. . . . The existence of past acts and the employee’s prior knowledge of their

occurrence, however, does not bar employees from filing charges about related discrete acts so long as the

acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor

does the statute bar an employee from using the prior acts as background evidence in support of a timely

claim.”). Regardless, even if we consider the transfer as “background evidence,” there is no evidence in

the record connecting the transfer to her termination.

24 The Court notes that Mudie alleges in her brief that Mazella failed to investigate her complaints. (See,

e.g., Doc. No. 41-1 at ¶ 86 (“In or around 2020, Plaintiff’s co-worker Angela Solomon told Plaintiff that

she did not want [sic] work with ‘islanders.’ Plaintiff reported this to Defendant Mazella. However, upon

information and belief, nothing was ever done about it.”); id. at ¶ 87 (“In or around March 2020,

Plaintiff’s managers, including Defendant Pascall [sic] wrongly accused Plaintiff of stealing patient co-

pays and office supplies . . . Plaintiff felt like she was being set up and reported this to Defendant

Mazella. Defendant Mazella said she would look into it. However, upon information and belief nothing

was ever done about it.”).) But at the summary judgment stage, assertions that are merely based “upon

information and belief” are insufficient. Cf. Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Cooperative,

Civil Action No. 15-6480, 2021 WL 1907501, at *3 (E.D. Pa. May 12, 2021) (“Statements in affidavits

made only on information and belief may not be considered in support of or in opposition to summary

judgment.” (cleaned up)); Disilverio v. Serv. Master Professional, Civil Action No. 05-1368, 2007 WL

1029759, at *7 (W.D. Pa. Mar. 31, 2007) (“Ultimate or conclusory facts and conclusions of law, as well

as statements made on belief or ‘on information and belief’, cannot be utilized on a summary judgment

engaged in similar conduct.

Because the pre-October 7, 2020 and post-October 7, 2020 acts did not involve “similar

conduct by the same individuals,” the Court holds that the continuing violation doctrine does not

apply, and we will not consider acts that happened before October 7, 2020 in deciding whether

Mudie has presented sufficient evidence to support a hostile work environment claim

2. Mudie Does Not Establish a Hostile Work Environment Claim

Turning to the events that occurred within the applicable period, the Court must

determine whether Mudie has established a hostile work environment claim. To establish a

hostile work environment claim, a plaintiff must show (1) that she suffered intentional

discrimination because of her national origin; (2) that the discrimination was severe or pervasive;

(3) that the discrimination detrimentally affected the plaintiff; (4) that the discrimination would

detrimentally affect a reasonable person in like circumstances; and (5) the existence of

respondeat superior liability. Mandel, 706 F.3d at 167; Hukman v. Am. Airlines, Inc., 796 F.

App’x 135, 142 n.7 (3d Cir. 2019). To determine whether an environment is hostile, a court

considers the totality of the circumstances, including 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.”

Mandel, 706 F.3d at 168.

The Court considers the events that transpired between October 7, 2020 and Mudie’s

motion.”). And, in any event, Mudie does not contend that failure to properly investigate her complaints

against Pascale and her co-workers constitutes “similar conduct” as that which occurred in the limitations

period. Likewise, the Court notes that Mudie claims that Mazella threatened to terminate her in 2019 (see

Doc. No. 41-1 at ¶ 36); however, threats of termination are discrete discriminatory acts and thus the

threats from 2019 cannot be aggregated under a continuing violations theory and may only be considered

as background evidence. Mudie does not argue that the 2019 threats of termination relating to the HIPAA

violation are connected to her ultimate termination for making calls to 868 numbers nor does she point to

any evidence in the record showing such a connection.

termination, which only include the following: the Halloween 2020 anonymous note that a

patient delivered to Mudie and Rios allegedly authored, which said, “Watch what you eat, drink

and be scary! Told you we would get you. This is only the beginning, your best bet is to resign

or lose your career. Your choice”; the investigation that PCOM conducted into the incident,

which Mudie claims was deficient because Rios was never fired or otherwise disciplined; and the

audit and investigation into Mudie’s calls to 868 numbers, which ultimately resulted in her

termination.

“Only harassment motivated by a discriminatory animus is prohibited. In other words,

the harassment must be instigated by unlawful discrimination.” Bishop v. City of Philadelphia

(Dep’t of Prisons), Civil Action No. 20-3977, 2021 WL 4477097, at *11 (E.D. Pa. Sept. 20,

2021) (granting summary judgment for the employer where the plaintiffs, who were a couple,

brought a hostile work environment claim based on anonymous letters that the husband received

at work that referred to the wife as his “Barbie doll” wife and girlfriend and holding that the

notes did not show discrimination based on the sex).

Where, as here, none of the putative acts are facially discriminatory, a plaintiff must point

to record evidence that can support a finding that the otherwise neutral actions had any relation

to a protected characteristic, such as national origin. See Anderson v. Boeing Co., Civil Action

No. 15-3073, 2016 WL 9446648, at *24 (E.D. Pa. Aug. 30, 2016), aff’d, 694 F. App’x 84 (3d

Cir. 2017) (“The record does not support a finding of impropriety with respect to the layoff—

indeed, the record is devoid of evidence that could give rise to a finding of race or national origin

discrimination in the RIF process. As for the non-layoff actions, the record cannot support an

inference that any of the actions were improperly motivated by [the plaintiff’s] race or national

origin. For instance, [the plaintiff] points to no evidence that other individuals outside of her

protected classes were treated differently than her . . . The dearth of evidence leads the Court to

conclude that no reasonable fact-finder could find that any of the putative actions had a race- or

national-origin-based component or that they were motivated by an improper discriminatory

purpose. Thus, [the plaintiff] cannot assert a prima facie case of a hostile work environment

based on race or national origin discrimination.”); Larochelle v. Wilmac, 210 F. Supp. 3d 658,

694–95 (E.D. Pa. 2016) (“[I]t is not clear that M.M.’s refusal to work with Shearer, Geib’s

statement that ‘if I was your husband, I would beat the crap out of you,’ and L.N.’s behavior was

rooted in any discriminatory animus towards Shearer based on her national origin. Certainly,

facially neutral mistreatment may often conceal a more sophisticated and subtle form of

discrimination; however, Shearer has presented no additional evidence to indicate that M.M.’s

refusal to work with her, this particular comment from Geib, or L.N.’s behavior concealed an

intent to discriminate against Shearer on the basis of national origin.”); see also Noel v. Boeing

Co., Civil Action No. 09-3613, 2011 WL 4389547, at *8 (E.D. Pa. Sept. 21, 2011) (“Noel has

presented no evidence that the other incidents were in any way related to his race or national

origin . . . The allegation that Maull would hit Noel on the head or back, if true, is certainly

troublesome, but there is no evidence to connect such behavior with a discriminatory purpose.”);

Subh v. Wal-Mart Stores Inc., 2009 WL 4015649, at *7–*9 (D. Del. Nov. 19, 2009), report and

recommendation adopted, 2010 WL 1286183 (D. Del. Mar. 30, 2010), aff’d, 386 F. App’x 31

(3d Cir. 2010) (granting summary judgment on the plaintiff’s hostile work environment and

discrimination claims because there was no record evidence from which a reasonable factfinder

could conclude that his employer exhibited animus based on his race or national origin).

Here, the Halloween 2020 note does not reference Mudie’s national origin. Critically,

Mudie has failed to point to any record evidence that shows that this note bore any relation to her

national origin. As noted supra, at oral argument, Mudie argued that Rios sent the Halloween

2020 note in retaliation for Mudie complaining to HR about Pascale. (See Draft Hr’g Tr. at

14:1–25.) But her only evidence is that in 2019, Rios was aware that Mudie had complained to

HR about Pascale’s comments related to her national origin and told her that she was going to

get fired for complaining so much. This is a very attenuated link: Rios told Mudie she would be

fired for complaining in 2019 but did not send the Halloween 2020 note until late 2020. The

Court finds that Mudie has not met her burden of showing a link between the Halloween 2020

note and her national origin. Similarly, there is no record evidence indicating that PCOM’s

investigation (or lack thereof) into the note or into her calls to 868 numbers were due to her

national origin. Mudie has not produced any evidence showing that Castellano or Mazella

harbored any discriminatory animus towards her or that their decision to terminate her was

motivated by her national origin. Nor does Mudie argue that any other nursing assistants

similarly situated to her were treated differently than her.25

Because no reasonable juror could find that the Halloween 2020 note, the investigation

into this note, or the investigation into the 868 calls bore any relation to Mudie’s national origin

or were motivated by discriminatory animus, the Court need not consider whether the conduct

was severe or perversive and grants PCOM’s motion for summary judgment on the hostile work

environment claim.

25 To the contrary, Mudie references the testimony of Nadira Duckett, a call center employee, who also

had a “horrible experience” at PCOM. (See Doc. No. 41 at 12.) Mudie does not point to any evidence

that Duckett was also from Trinidad and Tobago. Pickett testified that she filed a grievance with Mazella

after Dr. Westerberg invaded her personal space and “boxed [her] in” and that Mazella never did

“anything about it.” (Doc. No. 41-7, Ex. F (“Pickett Dep.”) at 31–38.) Duckett also filed a police report

about the incident. (Id.) According to Pickett, “PCOM was a horrible experience -- it didn’t make any of

us feel good.” (Id. at 53:21–23 (emphasis added).) This undermines Mudie’s claim that she was targeted

specifically. Rather, it suggests that PCOM was a toxic environment for all, regardless of protected

status.

B. Retaliation

PCOM asserts that to the extent the retaliation claim is based on Mudie’s transfer to the

Cambria office in August 2020, the claim was not administratively exhausted and is time-barred.

PCOM also argues that the retaliation claim should be dismissed to the extent is based on

Mudie’s termination because Mudie cannot establish a causal connection between any protected

activity and her termination. And, in its reply, PCOM contends that the retaliation claim should

be dismissed because Mudie has abandoned the claim by failing to respond to PCOM’s argument

that there was no causal connection between any protected activity and her termination.

* * *

The McDonnell Douglas burden shifting framework applies to Mudie’s retaliation claim.

First, Mudie must state a prima facie case of retaliation, after which the burden shifts to PCOM

to articulate a legitimate, non-retaliatory reason for its actions. Then, the burden shifts back to

Mudie to show that the stated reasons are pretextual. Moore v. City of Philadelphia, 461 F.3d

331, 342 (3d Cir. 2006).

To make out a prima facie case of retaliation, Mudie must show that (1) she engaged in a

protected activity; (2) she “was subject to adverse action by the employer either subsequent to or

contemporaneous with the protected activity”; and (3) “there is a causal connection between the

protected activity and the adverse action.” Id. at 340–41.

1. Retaliation Based on Transfer to the Cambria Office

PCOM argues that to the extent the retaliation claim is based on Mudie’s transfer to the

Cambria office, it is time barred. At oral argument, Mudie conceded that she is not bringing the

retaliation claim based on the transfer alone. (Draft Hr’g Tr. at 15:12–21.)

We agree that to the extent the retaliation claim is based on the transfer, it is time barred.

As noted supra, Title VII requires a claimant to file a charge with the EEOC within 300 days of

the alleged unlawful employment practice. Mandel, 706 F.3d at 164; see also Valentin v.

Manpower Grp. Sols., 792 F. App’x 208 (3d Cir. 2019). Here, the transfer occurred in August

2020. Assuming that the transfer occurred on the latest possible date in August (August 31,

2020), Mudie had until June 27, 2021 to file a Charge of Discrimination related to the alleged

retaliatory transfer. She did not do so.26 Thus, to the extent that Mudie bases her retaliation

claim on her transfer to the Cambria office, that claim is time barred. See Ponton v. U.S. Dep’t

of Justice, Civil Action No. 09-197, 2010 WL 11595302, at *6 (E.D. Pa. Mar. 9, 2010)

(“Plaintiff filed a charge with the EEOC against Defendant . . . on August 8, 2007 and he

therefore cannot pursue a retaliation claim based on retaliatory acts that occurred prior to

October 12, 2006. Several of the acts that Plaintiff believes were retaliatory occurred long

before that date, including the transfer to a less desirable position, the deprivation of overtime

opportunities, and the interference with an attempt to earn a promotion.”); see also Nitkin v.

Main Line Health, Civil Action No. 20-4825, 2021 WL 4860742, at *19 (E.D. Pa. Oct. 18, 2021)

(“Here, Nitkin moved from full-time to part-time on December 5, 2017 and from part-time to per

diem on August 8, 2018, but she did not file her Charge of Discrimination with the [EEOC] until

October 21, 2019—over 300 days after either of her reduction in hours requests. Thus, to the

extent Nitkin bases any of her claims on her reduction in hours, those claims are time-barred.”);

see also Trent v. Test Am., Inc., Civil Action No. 10-1290, 2011 WL 3606646 (E.D. Pa. Aug. 16,

2011) (“Counting backward 300 days from October 15, 2009, it follows that the only

discriminatory acts to survive the statute of limitations would be acts that took place on or after

26 A transfer is a discrete discriminatory act and individually actionable; therefore, the clock began

running the date the transfer occurred. See, e.g., O’Connor, 440 F.3d at 127.

December 19, 2008. Each of the allegations of discrimination and retaliation set forth in . . .

plaintiff’s amended complaint occurred prior to December 19, 2008. Plaintiff’s time-barred

allegations include denial of training and termination and are not continuing violations that can

extend the statute of limitations.”).

2. Retaliation Based on Termination

Next, PCOM argues that to the extent that Mudie’s retaliation claim is based on her

termination, summary judgment is warranted because Mudie has not shown that there is a causal

connection between any protected activity and her termination.

Mudie asserts, in a conclusory fashion, that “it is undisputed that [she] complained about

discrimination and retaliation” and therefore engaged in protected conduct. (Doc. No. 41 at 13

(citing Doc. No. 41-1 at ¶¶ 20, 48).) The only two instances Mudie specifically cites occurred in

October 2019, when she complained about Pascale, and the summer of 2020, when she told

Floyd, her new supervisor, that she believed her transfer was retaliatory.27 (See Doc. No. 41-1 at

¶¶ 20, 48.)28 For the purposes of this motion, the Court assumes that Mudie’s complaint to Floyd

in the summer of 2020, which is the last complaint she cites, constituted protected activity.

However, even when viewing the evidence in the light most favorable to Mudie and drawing all

inferences in her favor, the Court cannot find that Mudie has shown a causal connection between

that complaint and her termination in late December 2020/early January 2021.

“To establish the requisite causal connection a plaintiff usually must prove either (1) an

27 Mudie admits that she did not tell either Castellano or Mazella that she felt the move was retaliatory.

Accordingly, she does not argue that the complaints she made to them about her transfer for other reasons

(e.g., childcare concerns and the dangerousness of the neighborhood) constituted protected activity.

28 Interestingly, in arguing that she engaged in protected activity, Mudie failed to mention the November

2019 Charge of Discrimination she filed with the EEOC.

unusually suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”

Oden v. SEPTA, 137 F. Supp. 3d 778, 791 (E.D. Pa. 2015) (citation omitted). Other evidence

may also support a causal link. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280–81 (3d

Cir. 2000) (“Although timing and ongoing antagonism have often been the basis for the causal

link, our case law clearly has allowed a plaintiff to substantiate a causal connection for purposes

of the prima facie case through other types of circumstantial evidence that support the inference.

. . . Moreover, we have been willing to explore the record in search of evidence, and our caselaw

has set forth no limits on what we have been willing to consider.”).

First, the Court agrees with PCOM that the time between Mudie’s complaint to Floyd in

the summer of 2020 and her December 23, 2020 notice of termination is not unusually

suggestive and does not raise an inference of causation. See LeBoon v. Lancaster Jewish

Cmm’ty Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to

what constitutes unduly suggestive temporal proximity, a gap of three months between the

protected activity and the adverse action, without more, cannot create an inference of causation

and defeat summary judgment.”); Nitkin, 2021 WL 4860742, at *15 (finding that a temporal

proximity of several months—from March 2019 to July 16, 2019—was not unusually

suggestive); Collins v. Kimberly-Clark Pa., LLC, 247 F. Supp. 3d 571, 601 (E.D. Pa. 2017) (“[I]f

Plaintiff could establish her January 2, 2012 mass email complaint was a protected activity,

without more, three months’ separation is not particularly suggestive of a causal link in the

context of this case.”); cf. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d

Cir. 2012) (holding that temporal proximity was unduly suggestive where the plaintiff was

terminated seven days after she engaged in protected activity). And, at oral argument, Mudie

conceded that the temporal proximity is long to establish causation. (Draft Hr’g Tr. at 16:5–8.)

Nor does Mudie point to any record evidence suggesting a pattern of antagonism between

when she complained to Floyd and her termination. Rather, Mudie admits that she worked at the

Cambria office “without incident” until the incident with the anonymous note in October 2020,

which Rios allegedly authored. (See Doc. No. 41-1 at ¶ 49.) The fact that she worked at the

Cambria office “without incident” from August 2020 to October 2020 undermines any assertion

that there was a pattern of antagonism. Further, the anonymous note, and PCOM’s reaction to it,

do not evidence a pattern of antagonism; there is no evidence that Rios (or any other employee)

engaged in any other inappropriate or threatening conduct towards Mudie afterwards. Moreover,

Mudie does not proffer any evidence that the initial audit report that led to the subsequent

investigation into the 868 calls was antagonistic. Rather, the uncontroverted evidence shows that

the audit reports were generated as a matter of course and that Mudie was not specifically

targeted. (See Mazella Dep. at 18:12–19:7 (“Q: And who would request to make those types of

audits? A: So basically they’re automatic reports that are sent to department heads. Q: In your

capacity as chief human resources officer, do you ever request specific audits to be done? A:

No. Q: Were you aware of Andrea Mudie ever being audited, whether requested by – if not you,

maybe somebody else? A: No. Q: Could someone else ask for a specific audit to be done on

their employee at PCOM? A: So our compliance officer could ask for a phone log if they felt

like – if they got complaints about misuse of PCOM property. Q: Were you aware of any

complaints against Andrea for misuse of PCOM property? A: Not aware of any complaints.”).)

Based on this record, no reasonable juror could find a causal connection between Mudie’s

complaint to Floyd in the summer of 2020 and her termination in late December 2020/early

January 2021.

Finally, it is undisputed that Mazella and Castellano made the decision to terminate

Mudie and that Floyd played no role in that decision. Mudie proffers no evidence that Mazella

or Castellano knew that Mudie complained to Floyd that the transfer was retaliatory. This is a

death knell for her retaliation claim. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 197 (3d

Cir. 2015) (holding that the plaintiff could not establish a causal connection between her

protected activities and the adverse action because the decision makers “lacked knowledge of her

protected conduct”); id. at 196 (“The plaintiff . . . cannot establish that there was a causal

connection without some evidence that the individuals responsible for the adverse action knew of

the plaintiff’s protected conduct at the time they acted.”); see also Ambrose v. Twp. of Robinson,

Pa., 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for protected conduct to be a

substantial or motiv[at]ing factor in a decision, the decisionmakers must be aware of the

protected conduct.”); id. (holding that the plaintiff failed to sustain his “burden of proof” where

he did not point to any evidence showing that the decisionmakers knew about his affidavit, the

protected activity, when they voted to suspend him).

For these reasons, the Court concludes that Mudie cannot state a prima facie case of

retaliation.29 Because Mudie has not met her burden, we need not consider whether Mudie has

29 In the alternative, the Court finds that Mudie abandoned her retaliation claim by failing to address

PCOM’s arguments that she could not state a prima facie case of retaliation because there was no causal

connection. Therefore, Mudie has failed to show a genuine issue of material fact as to whether there was

a causal connection between her complaint to Floyd and her termination. See, e.g., Campbell v. Jefferson

Univ. Physicians, 22 F. Supp. 3d 478 (E.D. Pa. 2014) (“Other district courts in our Circuit have found that

waiver is a necessary corollary to the principle that summary judgment is appropriate where the

nonmoving party fails to make a showing sufficient to establish the existence of an element essential to

that party’s case. Thus, when a plaintiff responds to a defendant’s summary judgment motion but fails to

address the substance of any challenge to particular claims, that failure constitutes an abandonment of

those causes of action and essentially acts as a waiver of these issues. Because Campbell has failed to

address JLP’s retaliation argument in her response, she has failed to meet her burden of identifying

specific facts showing a genuine issue as to any retaliation claim.”); Skirpan v. Pinnacle Health Hosp.,

Civil Action No. 1:07-CV-1703, 2010 WL 3632536, at *6 (M.D. Pa. Apr. 21, 2010) (“Where a plaintiff

has brought a cause of action which is challenged through [sic] motion for summary judgment as legally

insufficient, it is incumbent upon the plaintiff to affirmatively respond to the merits of a summary

shown that PCOM’s stated non-retaliatory reason for firing her (i.e., using company resources to

place calls during work time) was pretextual.

C. Discrimination

Last, PCOM argues that summary judgment is warranted on Mudie’s discrimination

claim because Mudie has produced no evidence showing that PCOM’s decision to terminate her

had anything to do with her national origin. In its reply, PCOM also argues that Mudie has

abandoned her discrimination claim by failing to address the arguments it raised in its motion.

The McDonnell Douglas burden shifting framework governs Mudie’s discrimination

claim. Therefore, as with her retaliation claim, Mudie must first state a prima facie case of

discrimination, at which point the burden shifts to PCOM to state a legitimate, non-

discriminatory reason for firing her. If PCOM does so, the burden shifts back to Mudie to show

that PCOM’s stated reasons are pretextual.

“To state a prima facie case of national origin discrimination, a plaintiff must show that

(1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered

an adverse employment action; and (4) the adverse employment action occurred under

circumstances that give rise to an inference of unlawful discrimination.” Hukman, 796 F. App’x

at 141 n.5. The parties agree that Mudie is a member of a protected class, was qualified to be a

medical assistant, and that her termination constitutes an adverse employment action. As such,

the fourth prong is the only element arguably in dispute—although, inconceivably, Mudie does

not address this in her brief.30

judgment motion. Indeed, a plaintiff’s failure to respond to these arguments constitutes an abandonment

of these causes of action and essentially acts as a waiver of these issues.”).

30 Accordingly, in the alternative, the Court finds that Mudie waived her discrimination claim by failing to

address the fourth element. Mudie failed to show that there is any genuine issue of material fact that her

termination occurred under circumstances giving rise to an inference of unlawful discrimination. See

To establish that an adverse employment action occurred under circumstances giving rise

to an inference of discrimination, a plaintiff may either (1) introduce evidence of comparators

(i.e., similarly situated employees who (a) were not members of the same protected class and (b)

were treated more favorably under similar circumstances)” or (2) “rely on circumstantial

evidence that otherwise shows a causal nexus between [the plaintiff’s] membership in a

protected class and the adverse employment action.” Greene v. V.I. Water & Power Auth., 557

F. App’x 189, 195 (3d. Cir. 2014); Williams v. Fed. Express Corp., Civil Action No. 20-5527,

2022 WL 1265529, at *4 (E.D. Pa. Apr. 28, 2022). Mudie has not introduced any comparator

evidence; accordingly, we only consider whether she has pointed to circumstantial evidence that

her termination occurred under circumstances that give rise to an inference of discrimination.

Mudie’s “subjective belief that her termination was motivated by discriminatory intent is

insufficient to support an inference of discrimination.” Williams, 2022 WL 1265529, at *6; see

also Hukman, 796 F. App’x at 142 (“Hukman’s subjective belief that she was not promoted

because of her national origin is insufficient to make out a prima facie case of discrimination.”).

To show discriminatory intent, Mudie must present circumstantial evidence that she was

terminated because of her national origin. See Greene, 557 F. App’x at 196; Williams, 2022 WL

1265529, at *6. Mudie has not done so here. The evidence shows that Mudie was terminated

because a routine report that an IT analyst ran revealed that she placed many calls to 868

numbers from work phones during work hours, and Mudie confirmed that she made those calls.

Specifically, Mudie made 310 calls, which together accumulated to nearly 27 hours, and the cost

of these calls to PCOM was $0.33 a minute, for a total of $534.60.

Nothing in the record suggests that the decisionmakers, Castellano and Mazella, harbored

supra n.29.

any discriminatory intent towards Mudie31 or that Mudie’s national origin factored into that

decision or tainted the termination process in any way. See Greene, 567 F. App’x at 196

(“Greene otherwise failed to produce evidence that could give rise to an inference of

discrimination because the evidence that he produced could not establish a causal nexus between

the termination of his employment and his membership in a protected class. The evidence

actually produced amounts to a collection of stray remarks and unconnected, coincidental

circumstances, and related speculation and conjecture. Even in sum, and considered in the light

most favorable to him, such evidence does not a causal nexus make.” (cleaned up)); cf. Park v.

Sec. U.S. Dep’t of Veterans Affairs, 594 F. App’x 747, 749–50 (3d Cir. 2014) (concluding that

the plaintiff—who claimed that she was involuntarily committed because she was Korean—did

not show a nexus between her national origin and involuntary commitment and explaining that

“the record suggest[ed] that [her] commitment had everything to do with the fact that she

suffered paranoid delusions and had been mentioning the notion of suicide to her coworkers and

nothing to do with her status as a Korean immigrant” (cleaned up)).

Because Mudie has failed to show that she was terminated under circumstances giving

rise to an inference of discrimination, she cannot state a prima facie case of discrimination and

summary judgment is appropriate.32

31 At oral argument, Mudie argued that Castellano harbored discriminatory animus towards her because

he did not fire Rios after Rios allegedly sent the Halloween 2020 note, which Mudie contends Rios sent in

retaliation for the complaints Mudie made to HR about Pascale’s comments relating to her national origin.

(See Draft Hr’g Tr. at 13:16–14:25, 22:2–19.) But, again, Mudie has failed to show a nexus between the

note and her national origin.

32 Although the Court need not address whether PCOM’s stated reason for terminating her was pretextual,

since she failed to make out a prima facie case, in the alternative, the Court finds that Mudie has failed to

show that PCOM’s stated reason for terminating her was pretextual. Mudie claims to have received

permission from Westerberg and Mazella to make the calls in 2018 and therefore its stated reason for

firing her is pretextual. Viewing the facts in the light most favorable to Mudie, even if she did receive

prior permission to make calls in those extraordinary circumstances (a death in a family and her father’s

cancer diagnosis), it does not mean that PCOM’s decision to change its mind later on was motivated by

IV. Conclusion

For the foregoing reasons, the Court grants PCOM’s motion for summary judgment.

An appropriate Order follows.

discriminatory animus or that PCOM’s stated reason for firing her was inconsistent. See, e.g., Fuentes v.

Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (“To discredit the employer’s proffered reason, the plaintiff

cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue

is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd,

prudent, or competent.”); Bolton v. Bay Valley Foods, LLC, Case No. 3:17-cv-69, 2020 WL 1853505, at

*18 (W.D. Pa. Apr. 13, 2020) (“Bolton argues that Bay Valley improperly gave him points under the

Policy. Bay Valley approved his request to attend his aunt’s funeral on May 30, 2015, but Bay Valley

still gave him a point for missing work on that date . . . If Bay Valley granted Bolton’s request for a day

off to attend his aunt’s funeral on May 30, 2015, and then still gave him a point for that day, a fact that is

disputed, this point would be unfair, but Bolton has not shown that it was connected in any way to his

alleged disability status. The fairness of that particular point is in question but has no bearing on a claim

for disability discrimination as it does not show that Bay Valley acted with discriminatory animus.

Accordingly, it would not permit a jury to disbelieve Bay Valley’s reason for terminating Bolton’s

employment.”).