FINIZIE v. MCDONOUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHARON A. FINIZIE : CIVIL ACTION

:

v. : NO. 21-5586

:

DENIS MCDONOUGH :

MEMORANDUM

KEARNEY, J. September 30, 2022

Registered nurse Sharon A. Finizie retired in October 2018 after working forty-one years

for the Department of Veterans Affairs. She repeatedly applied for positions as an infection control

nurse since 1993 and the Department repeatedly denied her requests. She repeatedly complained

to the Equal Employment Opportunity Commission because the Department denied her an

infection control nurse position. She then repeatedly and unsuccessfully sued the Department for

retaliation We are now facing the last time the Department declined her April and June 2018

applications for the infection control nurse position. She now sues the Department for retaliation

and gender and age discrimination. She continues to believe she is qualified for the infection

control nurse position, but her employer continues to disagree for sound reasons based on her

recent lack of experience. Her self-evaluation is not enough to show the Department retaliated

against her or discriminated against her based on her age and gender when it selected other female

nurses with more recent infection control nurse experience. Ms. Finizie does not adduce genuine

issues of material fact for our jury to resolve. And she cannot meet her burdens of proof for

discrimination and retaliation as a matter of law. We grant the Department’s Motion for summary

judgment and dismiss Ms. Finizie’s retaliation and discrimination claims.

I. Undisputed material facts1

Sharon Finizie worked for the Department of Veterans Affairs at the Corporal Michael J.

Crescenz Medical Center in Philadelphia as a registered nurse from June 1977 until her retirement

in October 2018.2 She began her career at the Department as a staff nurse.3 She then transitioned

to a position as an infection control nurse in February 1981 for twelve and a half years.4 The

Department reassigned Ms. Finizie to a quality management specialist position in 1993.5 Ms.

Finizie remained in a quality management specialist position until she retired in October 2018.6

Ms. Finizie unsuccessfully applied for positions as an infection control nurse many times

from 1993 until she retired in October 2018. She filed over twenty complaints with the Equal

Employment Opportunity Commission against the Department during her career in response to

not obtaining infection control nurse positions, along with other complaints related to her

workspace, work assignments, and other issues.7 Ms. Finizie last filed with the Commission in

2015 before her present challenge to the Department denying her a position as an infection control

nurse in April 2018 and June 2018.8

The Department did not select Ms. Finizie for the April 2018 infection control nurse vacancy.

The Department posted an opening for an infection control nurse in April 2018. Then sixty-

four-year-old Ms. Finizie again applied for a position as an infection control nurse.9 She then held

a Master of Science in Nursing degree, had twelve and a half years of past experience as an

infection control nurse (from February 1981 to May 1993), and maintained a current national

Certification in Infection Control along with a Certified Professional in Healthcare Quality

certification at the time she applied for the position.10

The April 11, 2018 “Registered Nurse – Infection Control” posting’s minimum

requirements included United States citizenship, graduation from an accredited school of

professional nursing, and current, full, active, and unrestricted registration as a graduate

professional nurse in a state, territory, or commonwealth of the United States.11 Ms. Finizie met

these minimum requirements.12 The job posting also included “[c]urrent infection control

experience in a tertiary care facility” in the “Preferred Experience” section.13 Dr. Tracey Schoen

served as the “deciding official” for the position and organized the recruiting and interview process

for the vacancies.14 Bruce Boxer selected Dr. Schoen for this position.15 Dr. Schoen considered

current infection control experience extremely important for filling this vacancy and determined

hands-on infection control experience within five years fit this requirement.16 Dr. Schoen testified

recent hands-on experience is critical for infection control nurses because “infection control is

constantly changing[.]”17

Thirty-four people applied for the job in April 2018.18 Ms. Finizie made the applicant list,

but the Department never interviewed her.19 Only two candidates possessed recent infection

control experience and one candidate declined the interview.20 Dr. Schoen organized a three-

person panel to interview the remaining candidate, Cynthia Hinkle.21 The panel selected Ms.

Hinkle for the position.22 Ms. Hinkle held a bachelor’s degree in nursing and current infection

control experience spanning from 1989 to 2018.23 Dr. Schoen testified “[i]t wasn’t that [Ms.

Finizie] didn’t have something” but “the other applicants had more” when explaining why the

Department did not select Ms. Finizie for the position.24 Dr. Schoen admitted to hearing “rumors”

of Ms. Finizie’s complaints with the Commission although she claims she did not become aware

of Ms. Finizie’s previous activity with the Commission until after the Department already choose

Ms. Hinkle for the position.25

The Department issues Ms. Finizie’s June 2016–June 2017 performance evaluation a

year late in June 2018.

The Department issues performance evaluations including a proficiency report and

employee competence assessment to evaluate the performance of its quality management nurses.26

The Department conducted Ms. Finizie’s performance evaluation in April 2018 for the June 5,

2016 through June 5, 2017 time period.27 The Department gave the evaluation to Ms. Finizie in

June 2018, a year later than she claims the Department should have.28 Raymond Daiutolo, the

assistant human resources manager at the Department, testified it is very common for supervisors

to administer performance evaluations after their due date.29 The Department delayed issuing

many employee performance evaluations in the quality management department in 2018.30

Supervisor Boxer rated Ms. Finizie as high satisfactory in the categories of nursing practice

and overall evaluation, but rated her as satisfactory in the interpersonal relationship category of

her proficiency report.31 Supervisor Boxer explained Ms. Finizie needed to work on interpersonal

interactions including collaboration and “establish[ing] productive working relationships.”32 Ms.

Finizie also received satisfactory ratings in every category on her employee competence

assessment.33 Ms. Finizie refused to sign both the proficiency report and the competence

assessment.34 Ms. Finizie unsuccessfully appealed her evaluation through the union grievance

process.35

Assistant Human Resources Manager Daiutolo testified the proficiency reports are not part

of the regular interview process and the interview panel for the infection control nurse vacancy

should not have had it unless Ms. Finizie submitted it with her application.36 Dr. Schoen testified

no one provided her with this competency assessment.37 She further testified the report or

assessment would not have made an impact because she does not put “a lot of faith in what gets

written in these plans.”38

The Department did not select Ms. Finizie for the June 2018 infection control nurse vacancy.

The Department listed another opening for a “Registered Nurse – Infection Control”

position on June 21, 2018 which closed on July 5, 2018.39 The position contained the same

minimum requirements as the April 2018 posting.40 The job posting also included “current

infection control experience in a tertiary care facility” in the “Preferred Experience” section.41 Dr.

Schoen remained in charge of the recruitment and interview process for this position.42 Supervisor

Boxer left the Department sometime in July 2018 and the Department selected Brian Gainsley as

his interim replacement.43

Ms. Finizie applied for the position and again made the applicant list, but the Department

never interviewed her.44 A three-person panel interviewed three female candidates.45 The panel

ultimately selected Jeanine Edwards for the position who had current infection control experience

working as an infection prevention practitioner since 2015.46 Dr. Schoen testified she did not

become aware of Ms. Finizie’s previous complaints with the Commission until after the

Department already chose Ms. Edwards for the position.47

Ms. Finizie files an EEOC complaint and exhausts her administrative remedies.

Ms. Finizie filed a formal complaint relating to the April 2018 and June 2018 vacancies

with the Equal Employment Opportunity Commission on August 23, 2018.48 She alleged the

Department discriminated against her for her past Equal Employment Opportunity activity and

discriminated against her based on her age and gender.49 Ms. Finizie exercised her administrative

appeal rights.50

The Department issues Ms. Finizie’s June 2017 – June 2018 performances evaluation

in September 2018.

The Department issued Ms. Finizie’s performance evaluations for June 5, 2017 through

June 5, 2018 in September 2018, three months later than Ms. Finizie claims it should have been

issued.51 The Department contends it delayed issuing the evaluation because when Mr. Boxer left

the Department his replacement Mr. Gainsley had not yet observed Ms. Finizie’s work.52 The

Human Resource department asked Ms. Finizie to provide a self-evaluation and rate herself. 53 She

rated herself as outstanding in nursing practice, interpersonal relationships, and her overall

rating.54 Mr. Gainsley signed off on the evaluation.55

Ms. Finizie sues the Department.

The Commission granted summary judgment in favor of the Department dismissing Ms.

Finizie’s retaliation and discrimination claims on September 24, 2021.56 Ms. Finizie sued the

Secretary of the United States Department of Veteran Affairs on December 22, 2021 alleging the

Department (1) retaliated against her in violation of the Equal Employment Opportunity Act; (2)

discriminated against her based on her gender in violation of Title VII of the Civil Rights Act of

1964; and (3) discriminated against her based on her age in violation of the Age Discrimination in

Employment Act.57 Ms. Finizie claims as a member of the American Federation of Government

Employees Union the Department should have considered her as an internal candidate for selection

but instead the Department passed over her despite being a qualified candidate.58 Ms. Finizie, in

support of her retaliation, age, and gender claims, argues Mr. Boxer rated her lower than he should

have in the June 2016 through June 2017 evaluation because he used factors not applicable to the

current rating period and gave her “unreasonable work demands” and failed to inform her of

specific work assignments and then “criticized her” for failing to carry out those assignments.59

Ms. Finizie claims the June 2017 through June 2018 evaluation also contained “false, inaccurate,

and misleading statements” and “again measured her performance against an inapplicable

standard.”60

Ms. Finizie seeks compensatory, punitive, and liquidated damages; damages for pain and

suffering; reasonable attorney’s fees and costs; pre and post-judgment interest; placement into an

infection preventionist (RN) position; a revised Proficient Report and Employee Competency

Assessment to accurately reflect her performance for the period June 5, 2016 through June 5, 2017

and for the period of June 5, 2017 through June 5, 2018; and an order rescinding the Performance

Improvement Plan issued on September 26, 2018.61

II. Analysis

The Department moves for summary judgment.62 The Department argues: (1) the

Department had valid, non-retaliatory reasons for choosing other nurses for the 2018 infection

control nurse vacancies, and (2) Ms. Finizie offers no evidence of either gender or age

discrimination.63 Ms. Finizie responds Dr. Schoen knew of her past activity with the Commission

but set arbitrary hiring criteria and excluded Ms. Finizie from the position despite being qualified

for the position.64 Ms. Finizie claims “[u]nlawful discrimination against [her] is the only

explanation for how [she] has been treated by [the Department].”65

Ms. Finizie presents no genuine issues of material fact and the Department is entitled to

judgment as a matter of law on Ms. Finizie’s claims under Title VII and the Age Discrimination

in Employment Act. Ms. Finizie fails to adduce evidence the Department retaliated against her

based on her earlier activity with the Commission or discriminated against her based on her gender

or age when it selected two female nurses for the infection control nurse vacancies with much

more recent and current experience.

A. We grant summary judgment dismissing Ms. Finizie’s retaliation claim.

Ms. Finizie claims the Department intentionally discriminated against her based on her

earlier complaints with the Commission by including the language “current infection control

experience in a tertiary care facility” in the preferred experience section of the April 2018 and June

2018 vacancy announcements.66 She argues Dr. Schoen knew of her earlier complaints with the

Commission and established this criteria in an “arbitrary and capricious manner for the purpose of

excluding her from consideration.”67

Congress in Title VII prohibits employers from discriminating “against any individual . . .

because [s]he has opposed any . . . unlawful employment practice . . . or because [s]he has made a

charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing”

under Title VII.68 We analyze retaliation claims under Title VII using the McDonnell Douglas

burden shifting framework.69 Ms. Finizie must first establish a prima facie case of discrimination.

To proceed to trial on a prima facie case of Title VII retaliation Ms. Finizie must show: “(1) she

engaged in activity protected by Title VII; (2) [the Department] took an adverse employment action

against her; and (3) there was a causal connection between her participation in the protected

activity and the adverse employment action.”70

If Ms. Finizie meets this burden, the burden shifts back to the Department to provide a

legitimate, non-retaliatory reason for the adverse employment actions.71 If the Department does

so, the burden shifts back to Ms. Finizie to convince us “the [the Department’s] proffered

explanation was false [a pretext], and that retaliation was the real reason for the adverse

employment action.”72 To discredit the Department’s proffered reason Ms. Finizie cannot simply

show the Department made a wrong or mistaken decision “since the factual dispute at issue is

whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd,

prudent, or competent.”73 Ms. Finizie must instead demonstrate “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the [Department’s] proffered legitimate

reasons for its action,” so “a reasonable factfinder could rationally find them ‘unworthy of

credence.’”74 Ms. Finizie’s personal view the Department acted unfairly does not suffice to show

pretext.75

a. Ms. Finizie fails to show a prima facie case of retaliation.

Ms. Finizie engaged in protected activity under Title VII by filing over twenty Equal

Employment Opportunity complaints based on the Department not selecting her for the infection

control nurse positions and other issues.76 The Department concedes Ms. Finizie satisfies prong

one of her prima facie retaliation claim.77 The Department also concedes under the United States

Supreme Court’s holding in Burlington Northern and Santa Fe Ry. Co. v. White, the Department’s

decisions not to select Ms. Finizie for the two vacancies could be considered “materially adverse”

under prong two of her prima facie case.78 The parties’ dispute thus centers on whether Ms. Finizie

can establish a causal connection between her participation in the protected activity and the adverse

employment action under prong three of her prima facie case.

Ms. Finizie must provide “some evidence [] the individuals responsible for the adverse

action knew of [her] protected conduct at the time they acted” under prong three of her prima facie

case.79 Ms. Finizie must then demonstrate a link between her protected activity and her rejection

for the 2018 vacancies by either (1) “pointing to an ‘unusually suggestive’ temporal proximity

between the protected activity and adverse action,” or (2) establishing “the circumstances as a

whole, including any intervening antagonism by the employer, inconsistencies in the reasons the

employer gives for its adverse action, and any other evidence suggesting that the employer had a

retaliatory animus when taking the adverse action.”80 Ms. Finizie must “proffer evidence sufficient

to raise the inference [] her engagement in a protected activity was the likely reason for the adverse

employment action” to establish a causal connection under the third prong of her prima facie

case.81 Ms. Finizie needs to present evidence showing “but for” her filing of her complaint her

employer would have hired her for the positions she sought.82

Our Court of Appeals in D’Ambrosio v. Crest Haven Nursing & Rehabilitation Center held

an employee could not establish a causal connection between her denial of two positions and her

filing a complaint with the Commission when ample evidence in the record showed her employer

selected another more qualified candidate for a position.83 In D’Ambrosio, the employee sought

two separate positions as a scheduling coordinator and a finance director.84 Her employer selected

someone with more relevant experience for the scheduling coordinator role and, since the

employee had no background in finance, it selected someone with finance experience for the

finance director position.85 The court held even if the employee did not file her claim with the

Commission she could not show her employer would have selected her for either position.86

Close temporal proximity may be suggestive of causation.87 But even seemingly short

periods of time between the protected activity and the adverse action alone is not enough to

demonstrate this causal connection.88 For example, in Petti v. Ocean County Board of Health the

employee failed to establish a prima facie case of Title VII retaliation because she failed to show

her employer likely terminated her because she filed a complaint with the Public Employees

Occupational Safety and Health Program.89 Our Court of Appeals held six months passed between

employee’s filing of the complaint and the employer’s initiation of her termination proceedings

and this timeframe alone could not establish her employer likely fired her because she filed the

complaint.90 In Motto v. Wal-Mart Stores E., LP, our Court of Appeals held an even shorter

timeframe of eleven days not “unusually suggestive of retaliatory motive[.]”91 The employee in

Motto claimed the eleven-day period between his sexual harassment complaint and termination

proved causation.92 Our Court of Appeals disagreed and held the timing by itself insufficient to

establish a causal link and the employee failed to present any evidence of antagonism or retaliatory

animus in the intervening time.93

Ms. Finizie has shown she (1) engaged in protected activity by filing many complaints with

the Commission, with the most recent before this action filed in 2015; and (2) suffered an adverse

action when the Department twice rejected her for the infection control nurse position in 2018.

Ms. Finizie has also shown people within the Department, including Dr. Schoen, knew of her

earlier complaints with the Commission. Dr. Schoen admitted to hearing “rumors” of Ms. Finizie’s

complaints with the Commission.94 The Department concedes people within the Department knew

about Ms. Finizie’s previous activity with the Commission given Ms. Finizie’s extensive history

of filing complaints with the Commission.95 It is also possible the other individuals on the

interview panels knew of her past activity although Dr. Schoen testified she heard the rumors after

the Department filled the two vacancies.96

But Ms. Finizie cannot show a causal connection with this fact alone. Ms. Finizie fails to

show “unusually suggestive” temporal proximity between her protected activity and not being

selected for the two 2018 vacancies. Ms. Finizie filed her last complaint with the Commission in

2015 nearly three years before applying for the 2018 vacancies.97 Even more time passed since

Ms. Finizie filed her latest complaint with the Commission than in Petti and Motto.

Ms. Finizie points to her two late performance evaluations to perhaps show some evidence

of antagonism or retaliatory animus, but she points to no evidence to rebut Dr. Schoen’s testimony

she did not rely on the June 2016 through June 2017 evaluations during the selection process.98

And Dr. Schoen could not rely on the June 2017 through June 2018 evaluations during the selection

process since the Department issued it in September 2018 after Dr. Schoen had already filled both

vacancies.99 Dr. Schoen testified even if she saw the evaluations it would not have made an impact

on her decisions because she does not put “a lot of faith in what gets written in [those] plans.”100

Like D’Ambrosio, there is ample evidence the Department did not select Ms. Finizie for

the two vacancies because the Department viewed other applicants as more qualified for the

infection control nurse positions given their more current experience. Both candidates selected had

current infection control experience which Ms. Finizie lacked. Ms. Finizie, like the employee in

D’Ambrosio, fails to present evidence showing but for her previous activity with the Commission

the Department would have selected her for the positions.

Ms. Finizie points to no evidence other than her own subjective belief Dr. Schoen did not

hire Ms. Finizie for the two 2018 vacancies because of her earlier complaints to the Commission.

Ms. Finizie fails to show inconsistencies in the reasons the Department gave for not hiring her or

other evidence suggesting the Department had a retaliatory animus. Nothing in the record supports

Ms. Finizie’s belief the Department set arbitrary hiring criteria and did not hire her for the positions

because of her earlier complaints with the Commission.

b. The Department offered a legitimate, non-retaliatory reason for not

hiring Ms. Finizie for the April 2018 and June 2018 vacancies.

Ms. Finizie still fails to adduce credible evidence of retaliation even if we looked beyond

her prima facie case. The Department provided a legitimate, non-retaliatory reason for not hiring

Ms. Finizie for the April 2018 and June 2018 vacancies: the Department viewed the two candidates

who secured the positions as better qualified for the role because they had more recent infection

control nurse experience.101

Ms. Finizie must now point to some evidence, direct or circumstantial, from which we

could reasonably either “(1) disbelieve the [the Department’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.”102 Our Court of Appeals has repeatedly held an

employer successfully demonstrated a legitimate, non-retaliatory reason when ample evidence in

the record showed the employer selected another more qualified candidate for a position.103 Since

the Department “is permitted to decide which job criteria are important and to determine what skill

set is most appropriate for a given position[,]” Ms. Finizie “cannot establish pretext simply from

the fact [the Department] valued [other nurses’] skills and experiences over the skills and

experiences [she] brought to the table.”104 Ms. Finizie’s unsupported subjective belief the

Department did not hire her for retaliatory reasons falls short of establishing pretext.105

Our Court of Appeals in Steele v. Pelmor Laboratories Inc. held an employee seeking a

vice president position could not credibly claim she held more qualifications than her competitor

to prove pretext under Title VII because her competitor had more significant managerial

experience.106 The employee did not have the experience in high-level managerial positions

needed for the job despite having longer experience working in the company.107 The court

reasoned although an employee may believe she is better qualified for a job, she needs more to

establish pretext.108 To demonstrate pretext the employee must show the qualifications of the

person actually promoted were so much lower than those of her competitors for a reasonable

factfinder to disbelieve the claim the employer honestly sought the best qualified candidate.109

Ms. Finizie offers no evidence from which we could reasonably disbelieve the

Department’s articulated legitimate, non-retaliatory reason. Both candidates hired for the

vacancies had more recent infection control nurse experience than Ms. Finizie.110 Ms. Finizie

responds Dr. Schoen’s “subjectively” and “arbitrarily” set the qualification standards for the two

vacancies to exclude Ms. Finizie.111 But Dr. Schoen explained how recent hands-on experience is

critical for infection control nurses because “infection control is constantly changing[.]”112 Dr.

Schoen explained she required five years recent experience in the infection control space because

she wanted the person hired to be the “most qualified” and the “best person” for the position.113

And although Ms. Finizie met the minimum qualifications for the position she did not have recent

experience in the infection control space and “the other applicants had more.”114

Like the employee in Steele, Ms. Finizie cannot establish pretext based on her view she

held more qualifications than the two women the Department selected for the positions. Although

Ms. Finizie had twelve-and-a-half years’ experience as an infective control nurse, she last worked

in this position nearly twenty-five years ago. The two candidates selected for the positions both

had current experience in the infection control space. Ms. Hinkle, selected to fill the April 2018

vacancy, had twenty years of current infection control experience from 1989 to 2018.115 Ms.

Edwards, hired for the June 2018 vacancy, had current infection control experience since February

2015.116

Ms. Finizie offers no evidence to support her claim the Department emphasized current

infection control experience to purposefully exclude Ms. Finizie from the position based on her

previous activity with the Commission. Ms. Finizie offers no evidence from which we could

reasonably disbelieve the Department’s articulated legitimate, non-retaliatory reason. Ms. Finizie

cannot establish pretext based on her subjective view she held more qualifications than the two

women the Department selected for the positions.117

We grant the Department’s motion for summary judgment on Ms. Finizie’s retaliation

claim because Ms. Finizie cannot establish either a prima facie case, or alternatively, demonstrate

pretext for the Department’s legitimate, non-retaliatory reason for selecting other nurses to fill the

two vacancies.

B. We grant summary judgment dismissing Ms. Finizie’s gender discrimination

claim.

Ms. Finizie claims the Department intentionally discriminated against her based on her

gender.118 Ms. Finizie does not clearly articulate how the Department discriminated against her

based on her gender when the Department hired two other women for the infection control nurse

vacancies. Ms. Finizie instead points to her untimely performance evaluations which she alleges

contained “false, inaccurate, and misleading statements” and can have a “detrimental effect” on an

employee’s record and advancement.119 She claims gender discrimination because she suffered

“adverse actions” due to the Department treating her differently from similarly situated employees

because “they were not subject to the same demands” as Ms. Finizie.120 She argues “[t]here is no

legitimate reason” for the Department’s actions which “can only be explained as [the

Department’s] discrimination against [Ms. Finizie] due to her status as a member of a protected

class.”121

Congress through Title VII makes it unlawful for an employer to discharge or “otherwise

discriminate against any individual with respect to his compensation, terms, conditions or

privileges of employment because of such individual’s race, color, religion, sex, or national

origin.”122 Gender discrimination claims, like retaliation claims, are analyzed under the McDonnell

Douglas burden shifting framework.123 To establish a prima facie case of gender-based

employment discrimination, Ms. Finizie must show: (1) she is a member of a protected class; (2)

she held the qualifications for the position; (3) she suffered an adverse employment action; and (4)

the action occurred under circumstances which could give rise to an inference of intentional

discrimination.124 Ms. Finizie must establish “some causal nexus” between membership in the

protected class and the decision not to be hired for the two vacancies.125 If Ms. Finizie establishes

her prima facie case, the burden shifts to the Department to show a legitimate, non-discriminatory

reason for the adverse employment action.126 Ms. Finizie then must the show the given reason is

pretext for discrimination.127

To support an inference of discrimination, employees generally present comparator

evidence, or evidence the employer treated “similarly situated individuals not within [the

employee’s] protected class more favorably than it treated [the employee].”128 In the absence of

comparator evidence, Ms. Finizie may present, “evidence of similar [gender] discrimination of

other employees, or direct evidence of discrimination from statements or actions by her supervisors

suggesting [gender] animus.”129

We can readily draw a distinction from Judge Beetlestone’s analysis in Mammen v. Thomas

Jefferson University. Judge Beetlestone found a female employee alleging gender-based

termination offered enough evidence to support an inference of discrimination.130 In Mammen, the

employee testified when she complained about gender discrimination her department chair stated

“he’s sick of hearing how women have it worse” and “sick of having the women discussion” and

she should be “grateful” and say “thank you” more.131 Although Judge Beetlestone acknowledged

an employer’s gender-based remarks do not “inevitably prove” gender played a role in a particular

employment decision she also considered how the department chair made the remarks directed

specifically at the employee during a meeting where she raised concerns about gender

discrimination just months before her termination.132 The employee also testified to witnessing

other women experience gender discrimination, presented evidence on how males predominately

dominated leadership positions, and testified about how her employer treated male employee

complaints differently than female employee complaints.133

Ms. Finizie establishes the first three prongs of her prima facie case: (1) she is in the

protected class as a female; (2) met the minimum qualifications for the infection control nurse

position; and (3) the Department did not select her for the two infection control nurse vacancies.134

Ms. Finizie points to her performance reviews from which she claims an inference of unlawful

discrimination because they had a detrimental effect on her record and advancement within the

Department.135

But Assistant Human Resources Manager Daiutolo testified the performance evaluations

are not part of the regular interview process and Dr. Schoen confirmed no one provided her with

Ms. Finizie’s competency assessment.136 Ms. Finizie offers no evidence demonstrating Dr. Schoen

or anyone on the interview panel relied on her evaluations or discriminated against Ms. Finizie

because of her gender. She also fails to acknowledge the Department selected two other women

who had more recent infection control experience to fill the positions.

Ms. Finizie also fails to point to anything in the record to demonstrate the Department

treated her differently in her performance reviews and subsequently did not hire her for the open

positions because she is a female. She only offers the affidavit of a co-worker, Ms. Kocher, who

swears Mr. Boxer “behaved in a very agitated and abusive manner.”137 She observed (although

unclear when) Mr. Boxer “put both of his hands and his knee across his desk and crawled across

it toward Ms. Finizie appearing as if he was going to assault her.”138 Ms. Kocher also observed

Mr. Boxer screaming at another colleague, Karen Clinkscales, an older woman and generally

swears “Mr. Boxer consistently discriminated against older females, yet he treated all males very

favorably in the [D]epartment.”139

Unlike in Mammen where the employee presented evidence to give rise to an inference of

discrimination, Ms. Finizie’s evidence shows Mr. Boxer may have been unpleasant. But Ms.

Finizie does not present enough evidence to support an inference of discrimination when the

Department chose not to hire her for the infection control nurse vacancies or issued her late

performance evaluations. Congress through Title VII “prohibits discrimination, it does not regulate

interpersonal relations at the workplace nor command general good manners.”140 Although Ms.

Kocher swore Mr. Boxer “treated all males very favorably” she offers no comparator evidence

about how he treated them differently than women. Ms. Kocher’s affidavit instead is largely

conclusory and lacks specific facts which is insufficient to defeat summary judgment.141 Ms.

Finizie has failed to put forth sufficient evidence from which a reasonable factfinder could draw

an inference of unlawful discrimination based on her gender.

Ms. Finizie’s gender discrimination claim fails even if we looked beyond her prima facie

case. Ms. Finizie again offers no evidence from which we could reasonably disbelieve the

Department’s articulated legitimate, non-discriminatory reason for not hiring her as we discussed

at length when reviewing her retaliation claim. The Department choose the other candidates

because they had current infection control nurse experience.142 Ms. Finizie cannot establish pretext

based on her subjective view she held more qualifications than the two women the Department

selected for the positions.143 We grant the Department’s motion for summary judgment on Ms.

Finizie’s gender discrimination claim because Ms. Finizie cannot establish either a prima facie

case, or demonstrate pretext for the Department’s legitimate, non-discriminatory reason for

selecting other nurses to fill the two vacancies.

C. We grant summary judgment dismissing Ms. Finizie’s age discrimination

claim.

Ms. Finizie also alleges the Department discriminated against her because of her age.144

Ms. Finizie does not clearly articulate how the Department discriminated against her based on her

age when the Department hired two other women above the age of fifty for the infection control

nurse vacancies. She again points to her late issued performance evaluations and argues

“discrimination against older women is rampant at [the Department]” and “unlawful

discrimination against [her] is the only explanation for how [she] has been treated by [the

Department].”145

Congress through the Age Discrimination in Employment Act makes it unlawful for an

employer “to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.”146 Since Ms. Finizie

does not have any direct evidence of age discrimination, she must prove her claim through

circumstantial evidence.147 We again apply the three-part McDonnell Douglas framework to Ms.

Finizie’s age discrimination claim.148 Ms. Finizie must first establish a prima facie case of age

discrimination which requires Ms. Finizie show she (1) is over forty; (2) qualified for the infection

control nurse position; (3) suffered from an adverse employment decision; and (4) the Department

replaced her with someone sufficiently younger to permit a reasonable inference of age

discrimination.149 Ms. Finizie’s own belief, without supporting evidence, is insufficient to

establish an inference of discrimination.150 If Ms. Finizie establishes her prima facie case the

burden shifts to the Department to show a legitimate, nondiscriminatory reason for its adverse

employment decision.151 If the Department does so, the burden shifts back to Ms. Finizie to show

the Department’s proffered reason is pretext.152

We are also persuaded by Judge McHugh’s reasoning in Gardner v. Ulta Salon, Cosmetics.

& Fragrance, Inc. confirming an employee’s “own belief, without supporting evidence, is

insufficient to establish an inference of discrimination.”153 In Gardner, an employee sued her

employer for age-based discrimination but offered no evidence to establish her employer replaced

her with someone younger.154 Judge McHugh recognized the employee could still support the

fourth prong of her prima facie case by providing evidence which raises the inference of age-based

discrimination.155 The employee felt her employer treated her differently as one of the oldest

employees but could not point to “specific examples to substantiate this feeling.”156 Judge McHugh

held since the employee failed to provide “evidence of age-related remarks or favorable treatment

of younger comparators for reasons of age” she failed to raise an inference of discrimination.157

Ms. Finizie establishes the first three prongs of her prima facie case because she (1) she is

over forty and applied for the two positions at age sixty-four and again at age sixty-five; (2) met

the minimum qualifications for the infection control nurse position; and (3) the Department

selected two other applicants for the vacancies. But Ms. Finizie fails to demonstrate the

Department replaced her with someone sufficiently younger to permit a reasonable inference of

age discrimination. Ms. Finizie does not dispute the Department chose two women over the age of

fifty to fill both vacancies.158 She offers no evidence the Department chose someone sufficiently

younger than her to fill the positions. We do not even know the exact ages of the individuals chosen

for the positions since it appears Mr. Finizie never took discovery of these two women to support

her age discrimination claim.

Like the employee in Gardner, Ms. Finizie offers no evidence of age-related remarks or

specific examples of favorable treatment of younger employees at the Department. Ms. Finizie’s

feeling alone the Department did not hire her for the two vacancies is not enough and she needs

“specific examples to substantiate this feeling.”159 Ms. Finizie instead largely relies on Ms.

Kocher’s affidavit as she did for her gender discrimination claim. Ms. Kocher swears “Mr. Boxer

consistently discriminated against older females, yet he treated all males very favorably in the

department.”160 But this conclusory statement and the affidavit more generally do not offer specific

examples as to how anyone at the Department including Mr. Boxer or Dr. Schoen favored younger

employees over older employees. Ms. Finizie has failed to raise an inference of discrimination

without offering any evidence of age-related remarks or specific examples of favorable treatment

of younger employees at the Department.

Ms. Finizie cannot overcome the legitimate, non-discriminatory reason offered by the

Department even assuming she could establish a prima facie case for age discrimination. The

Department choose the other candidates because they had current infection control nurse

experience and Ms. Finizie fails to present any credible evidence to rebut this decision. Ms. Finizie

offers no evidence other than her subjective belief the Department passed over her because of her

age. This is not enough. Since Ms. Finizie cannot establish either a prima facie case of age

discrimination or, alternatively, pretext for the Department’s legitimate, non-discriminatory reason

we grant the Department’s motion for summary judgment on Ms. Finizie’s age discrimination

claim.

III. Conclusion

Sharon Finizie at age sixty-four and again at sixty-five applied for two open positions as

an infection control nurse with the Department in April and June 2018. Ms. Finizie had last worked

as an infection control nurse nearly twenty-five years ago in 1993. The Department denied her

applications and hired two other nurses with current infection control nurse experience to fill the

vacancies. The Department adduces undisputed evidence recent infection control experience is

critical in filling these positions because infection control is constantly changing. The Department

defined “recent” as within the last five years.

Ms. Finizie claims the Department rejected her for these positions in retaliation for her past

Equal Employment Opportunity activity with her most recent filing in 2015. Ms. Finizie also

claims the Department discriminated against her based on her age and gender when it issued two

late performance reviews which had a detrimental effect on her advancement within the

Department. Ms. Finizie appears frustrated with the ratings she received on these reviews and their

untimeliness but fails to offer any evidence of age or gender discrimination.

We find no genuine issues of facts material to Ms. Finizie’s claims. She fails to establish

retaliation, age, or gender discrimination under federal law. We enter summary judgment in favor

of her former employer Department and dismiss Ms. Finizie’s claims under Title VII and the Age

Discrimination in Employment Act.

1 Our Policies require a Statement of Undisputed Facts (“SUMF”) and appendix in support of

summary judgment. The Department filed its SUMF at ECF Doc. No. 25 (“Department SUMF”)

and submitted its appendix in support of its motion for summary judgment at ECF Doc. No. 26.

Ms. Finizie responded to the Department’s SUMF at ECF Doc. No. 30 (“Finizie Response to

SUMF”).

2 Department SUMF ¶¶ 1, 4; ECF Doc. No. 26 at 20–21.

3 ECF Doc. No. 26 at 20–21.

4 Id.

5 Finizie Response to SUMF ¶ 3; ECF Doc. No. 26 at 20–21.

6 Department SUMF ¶ 4; Finizie Response to SUMF ¶ 4.

7 Department SUMF ¶ 5; Finizie Response to SUMF ¶ 5.

8 ECF Doc. No. 24 at 15.

9 Department SUMF ¶ 26.

10 ECF Doc. No. 26 at 20–21.

11 Department SUMF ¶ 22.

12 ECF Doc. No. 26 at 20–21.

13 Id. at 24.

14 ECF Doc. No. 26 at 80. The parties disagree over whether the Department appointed Dr. Schoen

as the “selecting official” for the vacancies. See Department SUMF ¶ 17; Finizie Response to

SUMF ¶ 17. The Department claims Dr. Schoen held the position of selecting official for both the

April 2018 and June 2018 vacancies. Department SUMF ¶ 17. But Ms. Finizie claims the Director

of Quality Management is always the selecting official and the Director of the Medical Center is

always the approving official which would make Bruce Boxer the selecting official and Daniel

Hendee the approving official for the April 2018 position and Brian Gainsley the selecting official

and Karen Oxler the approving official for the June 2018 position. Finizie Response to SUMF ¶

17. Dr. Schoen testified Mr. Boxer selected her as the “deciding official” for the vacancy. See ECF

Doc. No. 26 at 80.

15 ECF Doc. No. 26 at 80. Bruce Boxer supervised Ms. Finizie as the director of quality

management at the Department from January 2017 until July 2018. See ECF Doc. No. 24 at 9;

ECF Doc. No. 29-3 at 51–52. Ms. Finizie’s co-worker, Florence Kocher, swears Mr. Boxer

“behaved in a very agitated and abusive manner” and purposefully interrupted employees with

“prolonged loud screaming.” ECF Doc. No. 29-3 at 51–52. She swears he “consistently

discriminated against older females, yet he treated all males very favorably in the [D]epartment.”

Id. Co-worker Kocher observed at some unidentified time Mr. Boxer “put both of his hands and

his knee across his desk and crawled across it toward Ms. Finizie appearing as if he was going to

assault her.” Id. Co-worker Kocher also observed at some undefined time Mr. Boxer screaming at

another colleague, Karen Clinkscales, an older woman who the Department hired in 2018. Id. Co-

worker Kocher swears Mr. Boxer told co-worker Clinkscales “[i]f you are sick, you are to come

to work and throw up in a trash can.” Id. Co-worker Kocher also swears Mr. Boxer accused Ms.

Finizie and her of collusion following an unknown incident on October 5, 2016 involving another

co-worker Patricia Simon. Id.

16 ECF Doc. No. 26 at 81–82.

17 Id. at 82.

18 Department SUMF ¶ 25.

19 Id. ¶¶ 30–32.

20 Id. ¶¶ 30–31.

21 Id. ¶ 32.

22 Id.

23 Id.; ECF Doc. No. 26 at 40–41.

24 ECF Doc. No. 26 at 83.

25 Id. at 82–83; ECF Doc. No. 29-3 at 5–6.

26 Department SUMF ¶ 41; Finizie Response to SUMF ¶ 41.

27 ECF Doc. No. 26 at 8–15.

28 Id.; ECF Doc. No. 29-1 at 12–13.

29 ECF Doc. No 26 at 76.

30 Department SUMF ¶ 46. Ms. Finizie disagrees the Department commonly issued late

evaluations, but she admits the Department delayed issuing many employee evaluations in the

quality management department in 2018. See Finizie Response to SUMF ¶¶ 45–46.

31 Department SUMF ¶¶ 43, 47; ECF Doc. No. 26 at 8–15.

32 ECF Doc. No. 26 at 14.

33 Department SUMF ¶ 44; ECF Doc. No. 26 at 16–19.

34 Department SUMF ¶¶ 43, 44; ECF Doc. No. 26 at 8–19.

35 Department SUMF ¶ 48.

36 ECF Doc. No. 26 at 77–78.

37 ECF Doc. No. 29-3 at 11.

38 Id.

39 Department SUMF ¶ 33.

40 ECF Doc. No. 26 at 46–47.

41 Id. at 47.

42 Department SUMF ¶ 17; Finizie Response to SUMF ¶ 17.

43 Finizie Response to SUMF ¶ 17; ECF Doc. No. 24 at 10.

44 ECF Doc. No. 17 ¶ 7; ECF Doc. No. 26 at 56–59.

45 Department SUMF ¶ 39; ECF Doc. No. 26 at 56–59.

46 Department SUMF ¶ 3.

47 ECF Doc. No. 26 at 82–83; ECF Doc. No. 29-3 at 5–6.

48 ECF Doc. No. 1 ¶ 9.

49 Id. ¶ 9.

50 Id. ¶¶ 10–11.

51 Id. ¶ 35.

52 Department SUMF ¶ 50.

53 ECF Doc. No. 26 at 71.

54 Id.

55 Id.

56 ECF Doc. No. 1 ¶¶ 10–11.

57 ECF Doc. No. 1; see also 42 U.S.C. §§ 2000e-2–3(a); 29 U.S.C. § 623(a)(1). We note Ms.

Finizie unsuccessfully litigated similar retaliation claims against the Department related to her

non-selection for the infection control nurse position. See, e.g., Finizie v. Sec’y, United States

Dep’t of Veterans Affs., 751 F. App’x 300, 303 (3d Cir. 2018) (affirming Judge Robreno’s grant

of summary judgment for the Department on Ms. Finizie’s retaliation claim); Finizie v. Shineski,

351 F. App’x 668, 673 (3d Cir. 2009) (affirming Judge Dalzell’s grant of summary judgment for

the Department on Ms. Finizie’s retaliation claim); Finizie v. Principi, 69 F. App’x 571, 575 (3d

Cir. 2003) (affirming denial of motion for a new trial following bench trial where Judge Dalzell

entered judgment for the Department on Mr. Finizie’s retaliation claim); Finizie v. McDonough,

No. 20-6513 (E.D. Pa. June 17, 2022) (Judge Younge granting summary judgment to the

Department on Mr. Finizie’s retaliation claim).

58 ECF Doc. No. 1 ¶¶ 22–26.

59 Id. ¶¶ 32–34.

60 Id. ¶¶ 35–36.

61 ECF Doc. No. 1. Ms. Finizie alleges in her complaint she received a Performance Improvement

Plan on September 26, 2018. See ECF Doc. No. 1 ¶ 37. The Department believes this is an error

derived from another Department employee represented by the same counsel as Ms. Finizie. See

ECF Doc. No. 24 at 10, n.2. We also find Ms. Finizie failed to provide any evidence of this

Performance Improvement Plan.

62 ECF Doc. No. 24. Summary judgment is proper when “the movant shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Material facts are those ‘that could affect the outcome’ of the proceeding,

and ‘a dispute about a material fact is ‘genuine’ if the evidence is sufficient to permit a reasonable

jury to return a verdict for the non-moving party.’” Pearson v. Prison Health Serv., 850 F.3d 526,

534 (3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). “Summary

judgment is appropriate only if, after drawing all reasonable inferences in favor of the non-moving

party, there exists ‘no genuine dispute as to any material fact’ and the movant ‘is entitled to

judgment as a matter of law.’” Moyer v. Patenaude & Felix, A.P.C., 991 F.3d 466, 469 (3d Cir.

2021) (quoting Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 770 (3d Cir. 2018)). We do not

weigh evidence or make credibility determinations. Peroza-Benitez v. Smith, 994 F.3d 157, 164

(3d Cir. 2021) (quoting Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019)).

“The party seeking summary judgment ‘has the burden of demonstrating that the evidentiary

record presents no genuine issue of material fact.’” Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir.

If the movant carries its burden, “the nonmoving party must identify facts in the record that would

enable them to make a sufficient showing on essential elements of their case for which they have

the burden of proof.” Willis, 808 F.3d at 643 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). “If, after adequate time for discovery, the nonmoving party has not met its burden,

pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment against

the nonmoving party.” Id. (citing Celotex, 477 U.S. at 322–23).

63 ECF Doc. No. 24 at 13–20.

64 ECF Doc. No. 29-1 at 10–11.

65 Id. at 12.

66 ECF Doc. No. 1 ¶¶ 13–15.

67 ECF Doc. No. 29-1 at 9–11.

68 42 U.S.C. § 2000e-3(a).

69 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Egelkamp v. Archdiocese of Phila.,

No. 19-3734, 2021 WL 1979422, at *9 (E.D. Pa. May 18, 2021) (citing Carvalho-Grevious v.

Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017)).

70 Petti v. Ocean Cnty. Bd. of Health, 831 F. App’x 59, 64 (3d Cir. 2020) (citing Moore v. City of

Phila., 461 F.3d 331, 340–41 (3d Cir. 2006) (citation omitted)).

71 Carvalho-Grevious, 851 F.3d at 257 (citing Moore, 461 F.3d at 342).

72 Id. (citing Moore, 461 F.3d at 342).

73 Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

74 Id.

75 Mulcahy v. Skipper, No. 21-2788, 2022 WL 3081873, at *2 (3d Cir. Aug. 3, 2022) (internal

citations omitted).

76 Department SUMF ¶ 5; ECF Doc. No. 26 at 69–70.

77 ECF Doc. No. 24 at 14.

78 Id.; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The Supreme

Court in Burlington Northern held the anti-retaliation provision of Title VII covers employer

actions considered “materially adverse to a reasonable employee or job applicant.” Id. This means

the employer’s actions are harmful to the point where it could “dissuade a reasonable worker from

making or supporting a charge of discrimination.” Id.

79 Chambers v. Pennsylvania, No. 19-2867, 2020 WL 4699045, at *6 (E.D. Pa. Aug. 13, 2020)

80 Id. (citing Daniels, 776 F.3d at 196).

81 Petti, 831 F. App’x at 64 (quoting Carvalho-Grevious, 851 F.3d at 253) (emphasis in original)).

82 Mazur v. Sw. Veterans Ctr., 803 F. App’x 657, 662 (3d Cir. 2020) (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)); D’Ambrosio v. Crest Haven

Nursing & Rehab. Ctr., 755 F. App’x 147, 152–53 (3d Cir. 2018).

83 D’Ambrosio, 755 F. App’x at 152–53.

84 Id.

85 Id.

86 Id. at 153.

87 Emmell v. Phoenixville Hosp. Co., LLC, 303 F. Supp. 3d 314, 332 (E.D. Pa. 2018) (“Close

‘temporal proximity,’ between the protected status or action by the employee and the adverse

action by the employer, is suggestive but not determinative of causation.” (quoting Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000))).

88 See e.g., Petti, 831 F. App’x at 64 (six months); Motto v. Wal-Mart Stores E., LP, 563 F. App’x

160, 163 (3d Cir. 2014) (eleven days).

89 Petti, 831 F. App’x at 64.

90 Id.

91 Motto, 563 F. App’x at 163.

92 Id.

93 Id. at 163–64.

94 ECF Doc. No. 26 at 82–83; ECF Doc. No. 29-3 at 5–6.

95 ECF Doc. No. 24 at 15.

96 ECF Doc. No. 26 at 82–83; ECF Doc. No. 29-3 at 5–6.

97 ECF Doc. No. 24 at 15.

98 ECF Doc. No. 29-3 at 11.

99 ECF Doc. No. 26 at 71.

100 ECF Doc. No. 29-3 at 11.

101 ECF Doc. No. 24 at 16–17.

102 Taylor v. Cherry Hill Bd. of Educ., 85 F. App’x 836, 840 (3d Cir. 2004) (quoting Fuentes, 32

F.3d at 764)

103 Id.; see also D’Ambrosio, 755 F. App’x at 152–53.

104 Nunn v. NHS Hum. Servs., Inc., 110 F. Supp. 3d 554, 568 (E.D. Pa. 2015).

105 James v. Sutliff Saturn, Inc., 468 F. App’x 118, 121 (3d Cir. 2012) (internal citations omitted).

106 Steele v. Pelmor Lab’ys Inc., 642 F. App’x 129, 135 (3d Cir. 2016).

107 Id.

108 Id.

109 Id. (citing Bray v. Marriott Hotels, 110 F.3d 986, 999 (3d Cir.1997) (Alito, J., dissenting)).

110 ECF Doc. No. 26 at 40–41, 60–61.

111 ECF Doc. No. 29-1 at 10.

112 ECF Doc. No. 26 at 82–83.

113 Id.

114 Id. at 83.

115 Id. at 40–41.

116 Id. at 60–61.

117 James, 468 F. App’x at 121 (internal citations omitted).

118 ECF Doc. No. 1 ¶¶ 29–46.

119 Id. ¶¶ 32–43; ECF Doc. No. 29-1 at 13.

120 ECF Doc. No. 1 ¶ 42.

121 ECF Doc. No. 1 ¶ 44.

122 42 U.S.C. § 2000e–2(a).

123 Hatch v. Franklin Cnty., 755 F. App’x 194, 200 (3d Cir. 2018).

124 Morgan v. Fiorentino, 811 F. App’x 798, 803 (3d Cir. 2020) (citing Makky v. Chertoff, 541

F.3d 205, 214 (3d Cir. 2008)).

125 Id. (citing Makky, 541 F.3d at 214).

126 Hatch, 755 F. App’x at 200 (citing McDonnell Douglas, 411 U.S. at 802).

127 Id. (citing McDonnell Douglas, 411 U.S. at 802–03).

128 Mammen v. Thomas Jefferson Univ., 523 F. Supp. 3d 702, 721 (E.D. Pa. 2021) (internal

quotations omitted).

129 Id. (internal citations omitted).

130 Id. at 721–22.

131 Id.

132 Id. at 722.

133 Id.

134 It is unclear whether Ms. Finizie is asserting a separate claim of gender and age discrimination

based solely on the Department issuing her two late performance evaluations. We find she fails to

state a prima facie case assuming she is asserting a separate claim because she cannot demonstrate

she suffered an adverse employment action when the Department issued the late evaluations. An

adverse employment action includes an action “serious and tangible enough to alter an employee’s

compensation, terms, conditions, or privileges of employment.” Jones v. Se. Pa. Transp. Auth.,

796 F.3d 323, 326 (3d Cir. 2015) (internal citation omitted). Ms. Finizie has not shown the late

evaluations had any material alterations on her compensation, terms, conditions, or privileges of

her employment. See Ponton v. AFSCME, 395 F. App’x 867, 874 (3d Cir. 2010) (holding generally

satisfactory evaluation did not constitute a materially adverse action). Ms. Finizie only presents

evidence how generally “late, or untimely, evaluations can have a detrimental effect on an

employee’s record and advancement within [the Department].” See ECF Doc. No. 29-1 at 13

(emphasis added). Even if we consider the late evaluations an adverse action, Ms. Finizie offers

no evidence the Department issued the late performance evaluations or rated her differently than

other similarly situated individuals because of her age or gender. To the extent Ms. Finizie argues

the late performance evaluations and her not being selected for the vacancies are linked, we address

this above and find the evidence fails to support such a causal connection given Dr. Schoen’s

unrebutted testimony.

135 ECF Doc. No. 29-1 at 13.

136 ECF Doc. No. 29-3 at 11; ECF Doc. No 26 at 77–78.

137 ECF Doc. No. 29-3 at 51–52.

138 Id.

139 Id.

140 Fusco v. Bucks Cnty. of Pennsylvania, No. 08-2082, 2009 WL 4911938, at *13 (E.D. Pa. Dec.

18, 2009).

141 Larochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 676 (E.D. Pa. 2016), clarified on denial of

reconsideration, No. 12-5567, 2016 WL 6135577 (E.D. Pa. Oct. 21, 2016), aff’d, 769 F. App’x 57

(3d Cir. 2019) (“In the context of employment discrimination claims, conclusory allegations of

discrimination, in the absence of particulars, are insufficient to defeat summary judgment.”

(internal quotations omitted)). In Larochelle, Judge Stengel recognized “[a]n affidavit that is

essentially conclusory and lacking in specific facts is inadequate to satisfy the movant’s burden”

of establishing a prima facie case in retaliation claim under the American with Disabilities Act. Id.

at 706–07 (internal quotations omitted).

142 ECF Doc. No. 24 at 16–17.

143 James, 468 F. App’x at 121 (internal citations omitted).

144 ECF Doc. No. 1 ¶¶ 47–53.

145 ECF Doc. No 29-1 at 12–13.

146 29 U.S.C. § 623(a)(1).

147 Gress v. Temple Univ. Health Sys., 784 F. App’x 100, 104 (3d Cir. 2019).

148 Borzak v. City of Bethlehem, No. 19-5716, 2021 WL 6073095, at *12 (E.D. Pa. Dec. 23, 2021)

(internal citations omitted); see also McDonnell Douglas, 411 U.S. at 802.

149 Id. (citing Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004)).

150 Gardner v. Ulta Salon, Cosms. & Fragrance, Inc., No. 21-3422, 2022 WL 3647824, at *8 (E.D.

Pa. Aug. 24, 2022).

151 Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009).

152 Id.

153 Gardner, 2022 WL 3647824, at *8.

154 Id.

155 Id.

156 Id.

157 Id.

158 ECF Doc. No. 24 at 3.

159 Gardner, 2022 WL 3647824, at *8.

160 ECF Doc. No. 29-3 at 51–52.