# FINIZIE v. MCDONOUGH

> District Court, E.D. Pennsylvania · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10404123

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10404123

## How later opinions describe it (automated extraction)

- holding generally satisfactory evaluation did not constitute a materially adverse action
- 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
- affirming Judge Dalzell’s grant of summary judgment for the Department on Ms. Finizie’s retaliation claim

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404123. Public record. Not legal advice.