Studders, DMD v. Geisinger Medical Center

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DR. EILEEN STUDDERS, No. 4:20-CV-00914

Plaintiff, (Judge Brann)

v.

GEISINGER CLINIC, et al.,

Defendants.

MEMORANDUM OPINION

FEBRUARY 11, 2021

I. BACKGROUND

On September 21, 2020, Plaintiff Dr. Eileen Studders filed an eight-count

amended complaint against Defendants Geisinger Clinic, Geisinger Medical

Center, Geisinger Health, Robert Pellecchia, Mohsen Shabahang, Gayatri Malik,

Jaewon Ryu, and Lynn Miller (together, the “Defendants”). The amended

complaint brings claims for violations of the Pennsylvania Whistleblower Law, the

Pennsylvania Human Relations Act, Title VII of the Civil Rights Act of 1964, the

Age Discrimination in Employment Act, Pennsylvania contract law, Pennsylvania

defamation law, and the Pennsylvania Wage Payment and Collection Law.

Defendants filed a motion to dismiss the amended complaint on October 5,

2020, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. The motion is now ripe for disposition; for the reasons that follow, it is

granted in part and denied in part. However, Plaintiff will be provided leave to

amend the complaint.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon

which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a

pleading”1 and “streamlines litigation by dispensing with needless discovery and

factfinding.”2 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a

dispositive issue of law.”3 This is true of any claim, “without regard to whether it is

based on an outlandish legal theory or on a close but ultimately unavailing one.”4

Following the Roberts Court’s “civil procedure revival,”5 the landmark

decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7

tightened the standard that district courts must apply to 12(b)(6) motions.8 These

1 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).

2 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

3 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

4 Id. at 327.

5 Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.

Litig. 313, 316; 319-20 (2012).

6 550 U.S. 544 (2007).

7 556 U.S. 662, 678 (2009).

cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and

replaced it with a more exacting “plausibility” standard.9

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”10 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”11 “Although the

plausibility standard does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted

unlawfully.”12 Moreover, “[a]sking for plausible grounds . . . calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”13

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”14 No matter

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent

with’ a defendant’s liability, it ‘stops short of the line between possibility and

9 Id. (“[a]cknowledging that Twombly retired the Conley no-set-of-facts test”).

10 Id. at 678 (quoting Twombly, 550 U.S. at 570).

11 Id.

12 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations

and citations omitted).

13 Twombly, 550 U.S. at 556.

plausibility of entitlement to relief.’”15

When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts

alleged in the light most favorable to [the plaintiff].”16 However, “the tenet that a

court must accept as true all of the allegations contained in the complaint is

inapplicable to legal conclusions.”17 “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.”18

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must tak[e] note of the elements [the] plaintiff must plead to state a

claim. Second, it should identify allegations that, because they are no

more than conclusions, are not entitled to the assumption of truth.

Finally, [w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.19

A plaintiff in an employment discrimination case does not need to establish

a prima facie case in his or her complaint. The United States Court of Appeals for

15 Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

16 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

17 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-

bones’ allegations will no longer survive a motion to dismiss.”).

18 Id. at 678.

the Third Circuit clarified this point recently, stating: “a complaint need not

establish a prima facie case in order to survive a motion to dismiss.”20

“Generally, consideration of a motion to dismiss under Rule 12(b)(6) is

limited to consideration of the complaint itself.”21 Typically, to consider materials

outside the complaint, a motion to dismiss must be converted to a motion for

summary judgment.22 However, “[c]onsideration of materials outside the complaint

is not entirely foreclosed on a 12(b)(6) motion.”23 It is permissible to consider full

text of documents partially quoted in complaint.24 It is also permissible to consider

documents relied upon by plaintiff in drafting the complaint and integral to the

complaint.25 “However, before materials outside the record may become the basis

for a dismissal, several conditions must be met.”26 “For example, even if a

document is ‘integral’ to the complaint, it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document.”27 It must

also be clear that there exist no material disputed issues of fact regarding the

20 Id. at 788.

21 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

22 See id. and Fed. R. Civ. P. 12(d).

23 Faulkner, 463 F.3d at 134.

24 San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801,

808–09 (2d Cir. 1996).

25 Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47–48 (2d Cir. 1991).

26 Faulkner, 463 F.3d at 134.

27 Id. See also, e.g., Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy,

relevance of the document.28 In this matter, I find that these conditions have been

met, and will consequently consider the attachments.

B. Facts Alleged in the Amended Complaint

The relevant facts alleged in the amended complaint, which I must accept as

true for the purposes of this motion, are as follows.

Plaintiff, Dr. Eileen Studders, relocated from Wisconsin to Pennsylvania in

2013 and began working for Geisinger as a flex locum employee in 2014.29

Plaintiff taught resident students and treated patients.30 In early 2016, Plaintiff

became the Program Director and Interim Chief of Pediatric Dentistry at

Geisinger.31 According to Plaintiff, she maintained a good working relationship

with Dr. Robert Pellechia, the Chair of Oral Medicine at Geisinger, for the first six

months in her new position.32 In August 2016, however, Dr. Pellechia began a

campaign of harassment against Plaintiff in order to replace her with Dr. Gayatri

Malik, whose husband was a close friend of Dr. Pellechia.33 In the following

months and years, Plaintiff was involved in a number of workplace disagreements

with Dr. Pellechia, Dr. Malik, and Dr. Anil Kotru (Dr. Malik’s husband),

involving, inter alia, a paid time off request from Dr. Malik,34 name-calling,35 and

28 Faulkner, 463 F.3d at 134.

29 Doc. 18 at ¶¶ 19-20.

30 Id.

31 Id. at ¶ 23.

32 Id. at ¶¶ 24; 13.

33 Id. at ¶¶ 25.

34 Id. at ¶¶ 26-28.

violations of the residency “match process.”36 Dr. Malik would also try to

undermine Plaintiff with the resident students, often complaining that Plaintiff

made the residents work too hard.37

After a series of workplace disputes, including one where Plaintiff reported

Dr. Malik for improperly using copyrighted exam questions, in violation of the

American Association of Pediatric Dentistry Inservice Exam rules,38 Plaintiff

announced that she would resign from her position as Program Director in June

2018. After that last incident, Plaintiff’s relationship with Dr. Pellecchia and Dr.

Malik deteriorated further.39 Plaintiff stopped being included in department

monthly meetings,40 and her interactions with the individual defendants became

less frequent and more terse.41 Dr. Malik also held meetings where she spoke

poorly about Plaintiff to the resident students; when Plaintiff tried to address these

concerns, Dr. Malik refused to engage.42

Despite further disagreements with and mistreatment by Dr. Malik and Dr.

Pellecchia, Plaintiff rescinded her resignation via a letter to Geisinger senior

leadership. At the same time, she asked leadership to improve the work

36 Id. at ¶¶ 31-40.

37 Id. at ¶¶ 46-47.

38 Id. at ¶¶ 58-75.

39 Id. at ¶ 82.

40 Id. at ¶ 85.

41 Id. at ¶¶ 85-87.

environment and prevent any retaliation against her.43 She told leadership that she

believed she was being discriminated against because of her sex.44 A committee

conducted a special review of the department and recommended changes in

leadership.45 Geisinger did indeed change leadership, but instead of removing Dr.

Pellecchia from his position, Geisinger removed Dr. Studders as program director

and appointed Dr. Stinton.46 Dr. Stinton (a younger female doctor) had previously

told Dr. Studders that she had no interest in teaching or supervising the residents.47

Eventually, after attempts to repair the relationship with her employer, Plaintiff

retained legal counsel to handle communications between herself and Geisinger.48

After a series of communications, Plaintiff’s counsel attempted to have her

reinstated as program director in exchange for her returning to a full-time

position.49 Geisinger refused and Plaintiff resigned on March 7, 2018.50

C. Analysis

Dr. Studders has sued the Defendants for violations of the Pennsylvania

Whistleblower Law, the Pennsylvania Human Relations Act, Title VII of the Civil

Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the

43 Id. at ¶¶ 120-124.

44 Id. at ¶ 124.

45 Id. at ¶¶ 125-35.

46 Id. at ¶ 136.

47 Id.

48 Id. at ¶ 148.

49 Id. at ¶ 155.

Pennsylvania Wage Payment and Collection Law. She has also raised claims for

breach of contract and defamation. The Court considers each claim in turn.

1. Pennsylvania Whistleblower Law Claim – Count 1

Plaintiff first raises a claim under the Pennsylvania Whistleblower Law (the

“PWL”), arguing that she observed and reported waste and wrongdoing by the

Defendants, who then retaliated against her. The PWL prohibits covered

employers from discharging, threatening, or otherwise discriminating or retaliating

against an employee who has reported, or is about to report “an instance of

wrongdoing or waste by a public body or an instance of waste by any other

employer as defined in this act.”51 A “public body” is, in relevant part, defined as

any “body which is created by Commonwealth or political subdivision authority or

which is funded in any amount by or through Commonwealth.”52 An “employer”

is defined as a public body or other entity which “receives money from a public

body to perform work or provide services relative to the performance of work for

or the provision of services to a public body.”53

The amended complaint aims to plead that Geisinger is an “employer”

covered by the statute. Plaintiff’s attempt to recast her complaint as pleading that

Geisinger is a public body is unavailing. First, Plaintiff takes the time to explain

that in 2014, the Pennsylvania General Assembly “expanded the reach of the law

51 43 P.S. § 1423(a) (emphasis added).

52 43 P.S. § 1422.

beyond public bodies” to include other “employers.”54 Then, Plaintiff alleges that

“Geisinger is an employer for purposes of and subject to Pennsylvania’s

Whistleblower Law.”55 At no point does Plaintiff claim that Geisinger itself is a

public body.

Because Plaintiff’s complaint exclusively pleads an “employer” theory, she

can only state a claim under the PWL if she alleges facts showing that she reported

waste by Geisinger.56 The PWL defines waste as an “employer’s conduct or

omissions which result in substantial abuse, misuse, destruction or loss of funds or

resources belonging to or derived from Commonwealth or political subdivision

sources.”57 But as other courts have noted, there is a “dearth of case law in this

Commonwealth” interpreting what constitutes waste under the statute.58 Plaintiff

does not, however, plead facts from which this Court can ascertain – or even

approximate – the amount of alleged waste that resulted from “the acts and

omissions of Dr. Malik and the Oral Surgery Department under the direction and

control of Dr. Pellechia.”59 The question is not about the number of “instances”

54 Doc. 18 at ¶ 174.

55 Id. at ¶ 175.

56 43 P.S. § 1423(a). Defendants argue that Plaintiff has not even established that they are

“employers” covered by the statute. The Court does not address this argument, however,

because even if Plaintiff had pled facts supporting that Defendants are employers as defined

by the statute, she has not made the requisite showing of waste. Plaintiff should, however,

consider (among other questions) whether funding given to non-defendant Geisinger entities

implicates the Geisinger Defendants.

57 43 P.S. § 1422.

58 Allen v. City of Philadelphia, 2019 WL 1528538 at *5 (Pa. Cmwlth. 2019).

Plaintiff pleads,60 but rather whether those instances amount to waste, as defined

by the PWL.

Plaintiff also seeks a civil fine not greater than $10,000 per Defendant.61

But in a section entitled “Remedies,” the PWL provides that a person alleging a

violation of the law may bring a civil claim seeking “appropriate injunctive relief

or damages, or both.”62 These damages include “the payment of back wages, full

reinstatement of fringe benefits and seniority rights, actual damages or any

combination of these remedies,” as well as costs of litigation.63 It is clear that

“under Pennsylvania law[,] when a statute provides a particular remedy, that

remedy is exclusive.”64 Civil fines are not available for Plaintiff to recover; any

civil fines would be “paid to the State Treasurer for deposit into the General

Fund.”65 As such, I find that Plaintiff is not entitled to recover civil fines for

herself.

As pled, Plaintiff has not stated a claim under the PWL. Therefore, Count 1

is dismissed. Plaintiff has requested leave to amend in order to clarify her claim

and argument; the Court will grant this request.

60 Doc. 25 at 17.

61 Doc. 18 at 68.

62 43 P.S. § 1424.

63 43 P.S. § 1425.

64 Palazzolo v. Damsker, 2011 WL 2601536 at *10 (E.D. Pa. June 30, 2011) (denying claim for

punitive damages because

2. Sex Discrimination Claims – Counts 2, 3, and 4

Plaintiff raises three claims of sex discrimination: (1) a Title VII

discrimination claim; (2) a PHRA discrimination claim; and (3) a PHRA aiding

and abetting discrimination claim.66 Plaintiff also raises claims of hostile work

environment and retaliation under Title VII and the PHRA.

a. Discrimination

Title VII makes it illegal for an employer to “discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.”67 When an employee’s sex is a

but-for cause of discrimination by an employer, that employer has violated Title

VII.68 Plaintiff seeks to proceed under the familiar burden-shifting framework

established by McDonnell Douglas Corp. v. Green.69 In order to establish sex

discrimination, Plaintiff must show that: “(1) she is a member of a protected class;

(2) she was qualified for the position in question; (3) she suffered an adverse

employment action; and (4) that adverse employment action gives rise to an

inference of unlawful discrimination.”70

66 The Court considers the Title VII and PHRA claims together, as the analysis is the same. See,

e.g., Alcantara v. Aerotek, Inc., 2018 WL 3007528 at *14 (M.D. Pa. June 15, 2018) (citing

Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409-10 (3d Cir. 1999)).

67 42 U.S.C. § 2000e–2(a).

68 Bostock v. Clayton County, --- U.S. ---, 140 S. Ct. 1731, 1739–40, 207 L.Ed.2d 218 (2020).

69 411 U.S. 792 (1973).

Plaintiff’s theory is that she was treated differently from her male colleagues

because of her sex. The parties seem to agree that the first three elements of the

claim have been satisfied; their dispute stems from the question of causation.

Defendants assert that Plaintiff has failed to state a prima facie case of

discrimination based on sex because the facts she alleges point to another

explanation for any adverse employment action – namely, that she had poor

working relationships with her colleagues and that Dr. Pellecchia wanted to give

his friend’s wife a job.71 Defendants misapprehend Plaintiff’s burden at this stage.

To survive a motion under Rule 12(b)(6), she need only plead “enough facts to

raise a reasonable expectation that discovery will reveal evidence of the necessary

element[s].”72 But even under this less onerous standard, Plaintiff fails to

sufficiently state a claim.

Plaintiff accuses Defendants of ignoring “key, relevant allegations” that

would withstand dismissal. For example, Plaintiff points to her allegation that “Dr.

Pellecchia subjected numerous female employees of Geisinger to bullying,

harassment, intimidation, discrimination, and retaliation on the basis of their

sex.”73 She also alleges that Defendants ignore her claim that Dr. Pellecchia

engaged in a “years-long systemic practice of engaging in bullying, harassment,

71 Doc. 23 at 20-21.

72 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (quoting Phillips v. Cty. of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).

intimidation, discrimination, and retaliation on the basis of subordinates’ sex,” and

that others knew about this.74 But Plaintiff herself ignores the fact that that such

allegations, which amount to little more than threadbare recitals of the elements of

her claim, are “to be disentitled to any presumption of truth.”75 The Third Circuit

has previously found similar language insufficient. Allegations that supervisors

“subjected [Plaintiff] to disparate treatment based on her gender and retaliation for

making complaints about discrimination and sexual harassment” or that employers

violated Title VII and the PHRA “[b]y subjecting [Plaintiff] to discrimination

based on her gender and retaliation” simply “paraphrase . . . the pertinent statutory

language” and are not given the presumption of truth.76 And the underlying

allegations which Plaintiff relies on are insufficient to support the claim, as they

largely do not point to discrimination against Plaintiff herself. Because her sex

discrimination claim is not supported by well-pled facts, it cannot survive a motion

to dismiss.

Finally, to the extent that Plaintiff pleads a disparate impact theory – an

uncertain proposition – it also fails. Disparate impact claims seek redress for what

is sometimes referred to as “unintentional discrimination” involving “employment

practices that are facially neutral in their treatment of different groups but that in

74 Id. at ¶ 189.

75 Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016).

fact fall more harshly on one group than another.”77 Codified by statute in the

Civil Rights Act of 1991, a disparate impact claim must first “demonstrate[ ] that a

respondent uses a particular employment practice that causes a disparate impact on

the basis of race, color, religion, sex, or national origin.”78

Plaintiff’s purported theory is that despite “having a neutral standard in

hiring and employment, the Geisinger entities have permitted Dr. Pellecchia to

engage in a years-long pattern of sex and age discrimination.”79 This very

description, however, shows why her disparate impact theory is dead on arrival.

Plaintiff is not complaining that Defendants actually applied a purportedly neutral

hiring practices, which resulted in sex and age discrimination. She is claiming that

they misapplied, or more accurately, ignored their own policies and chose to

discriminate against her. This is, definitionally, intentional discrimination and

cannot be pled through a theory of disparate impact.

While both the disparate treatment and disparate impact theories are

dismissed for failure to state a claim, the Court will only allow Plaintiff to replead

the disparate treatment theory. It is clear from Plaintiff’s complaint that amending

the disparate impact theory would be futile because there is no facially neutral

policy that was applied and caused a disparate impact.

77 Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977).

78 42 U.S.C. § 2000e–2(k)(1)(A)(i) (emphasis added).

b. Hostile Work Environment

Plaintiff’s argument in support of her hostile work environment is nearly

nonexistent. Plaintiff simply rests on the “reasons discussed” in previous sections

of her brief, which deal with entirely different causes of action, requiring different

allegations to state a claim. Nevertheless, the Court examines those allegations.

Title VII makes illegal sexual harassment that is “sufficiently severe or

pervasive to alter the conditions of [the plaintiff's] employment and create an

abusive working environment.”80 To establish a hostile work environment, a

plaintiff must show that “1) the employee suffered intentional discrimination

because of his/her sex, 2) the discrimination was severe or pervasive, 3) the

discrimination detrimentally affected the plaintiff, 4) the discrimination would

detrimentally affect a reasonable person in like circumstances, and 5) the existence

of respondeat superior liability.”81 The Court must consider the “totality of the

circumstances” in determining whether such claims survive.82

It fails, in the first instance, because Plaintiff has not established that she

suffered discrimination on the basis of sex. Once again, Plaintiff’s threadbare

recitals of the statutory language do not, on their own, state a claim upon which

relief may be granted. Second, even if she had met her burden under the first

prong, Plaintiff fails to establish that the discrimination was severe or pervasive. I

80 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

81 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

weigh several factors, including: the “frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.”83 The alleged instances do not appear to have been particularly

severe or pervasive, or physically threatening or humiliating.

Third, largely because of her shortcomings in establishing the other elements

of this claim, there is no showing from Plaintiff that the alleged harassment would

have affected a reasonable person in similar circumstances. Likewise, Plaintiff

cannot establish vicarious liability for those reasons. Plaintiff has failed to state a

claim for a hostile work environment. The Court will, however, allow Plaintiff to

amend her complaint based on this theory.

c. Retaliation

A “prima facie case of illegal retaliation requires a showing of (1) protected

employee activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3) a causal

connection between the employee’s protected activity and the employer’s adverse

action.”84 “To establish the requisite causal connection a plaintiff usually must

prove either (1) an unusually suggestive temporal proximity between the protected

activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled

83 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

84 E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (Hardiman, J.) (internal

with timing to establish a causal link.”85 Importantly, in the retaliation context,

Plaintiff need not establish that there actually was discrimination, but rather only

that she believed there was.86

Defendants’ argument here hinges on the idea that Plaintiff did not actually

report any sort of sexual discrimination or harassment. Defendant points to the

letter that Plaintiff wrote to Geisinger leadership and characterizes it as simply

“complaining about a fractured/awkward working relationship.”87 This perspective

omits the allegations from the following paragraph, wherein Plaintiff states that she

also “informed Geisinger’s senior leadership that she believed that she, like other

women before her, was being discriminated against on the basis of her sex.”88 As

discussed previously, Plaintiff need not make out a prima facie case to survive this

motion. Considering the generous pleading standards afforded to plaintiffs in

employment discrimination cases, this Court cannot say that this claim should be

dismissed. Indeed, Plaintiff has established the requisite elements of this claim.

Defendants do not challenge the temporal connection supporting an inference of

causation, and therefore the motion to dismiss is denied as to the retaliation claim.

85 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

86 See Moore v. City of Philadelphia, 462 F.3d 331 (3d Cir. 2006).

87 Doc. 25 at 11 (quoting Doc. 18 at ¶ 123).

d. Aiding and Abetting

The PHRA gives plaintiffs additional recourse, allowing them to hold liable

anyone who may “aid, abet, incite, compel or coerce the doing of any act declared

by this section to be an unlawful discriminatory practice.”89 Stating a claim for

aiding and abetting, therefore, hinges on the success of the “primary violation;” in

other words, an individual cannot be found liable for aiding and abetting a

discriminatory practice if there is no discriminatory practice in the first instance.

Most of Plaintiff’s claims for aiding and abetting under the PHRA are

subject to dismissal. First, the claims for sex discrimination, a hostile work

environment, and age discrimination fail because “[i]ndividual defendants cannot,

however, be liable for violations of Section 955(e) if there is no primary violation

of the PHRA.”90 However, the aiding and abetting claim premised on retaliation

survives at this time. Defendants only specifically challenge the aiding and

abetting claim as to Defendant Jaewon Ryu. Plaintiff has sufficiently alleged that

Defendants Ryu, Pellecchia, Shabahang, and Miller could have prevented the

retaliation against Plaintiff but chose not to. Therefore, the motion to dismiss is

denied as to this limited theory.

89 43 Pa. C.S.A. § 955(e).

90 Caso v. Luzerne County, 2015 WL 1951610 at *19 (M.D. Pa. Apr. 28, 2015) (quoting Sampson

3. Age Discrimination Claims – Count 2, 3, and 5

Defendants move to dismiss Plaintiff’s claim of discrimination under the

Age Discrimination in Employment Act of 1967 (the “ADEA”) and the PHRA.91

The ADEA prohibits employers from discriminating against or firing their

employees on the basis of age.92 To establish an age discrimination claim under

the ADEA, a plaintiff must allege that (1) she was forty years of age or older; (2)

that Geisinger took an adverse employment action against her; (3) that she was

qualified for the position in question; and (4) that she was ultimately replaced by

another employee “who was sufficiently younger to support an inference of

discriminatory animus.”93 The parties do not contest the first three elements, but

dispute whether the circumstances surrounding Defendants’ choice to replace

Plaintiff with one Dr. Slack can establish discriminatory animus. To plausibly

allege the fourth element, Plaintiff may either plead that similarly situated

employees who were under 40 were treated more favorably than she, or she may

otherwise plead a causal nexus between Plaintiff’s age and the adverse action

91 As with sex discrimination cases, courts perform the same analysis under the ADEA and the

PHRA. Therefore, I consider these jointly, as they rise and fall together. See Willis v.

UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015).

92 29 U.S.C. § 623(a)(1); Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643

(3d Cir. 2015).

taken.94 Plaintiff appears to only argue discriminatory animus based on the causal

nexus theory.

Defendants argue that Plaintiff has failed to allege facts sufficient to infer

that Plaintiff’s age was the cause of the adverse employment action, as the fourth

prong of an ADEA claim requires.95 The lack of “any ageist allegations”

precludes, they contest, a determination in favor of Plaintiff on the issue of

causation.96 Plaintiff responds by pointing out that she has alleged that she was in

her forties and the person who replaced Plaintiff was in her early thirties.97 She

also attempts to claim that Defendants ignored a directive from the special

committee’s review, which recommended an external hire if Plaintiff were to be

replaced. Plaintiff claims that this external search “likely would have led” to

hiring an older and more qualified person than Dr. Slack.

Neither argument supports an inference of discrimination. Plaintiff attempts

to distinguish the facts of her case from this Court’s ruling in Martinez v. UPMC

Susquehanna.98 In the past week, the Third Circuit has clarified its view of the

pleading requirements in an ADEA case, issuing its opinion in the Martinez

94 Drummer v. Trustees of University of Pennsylvania, 286 F.Supp.3d 674, 681 (E.D. Pa. 2017)

(quoting Greene v. Virgin Islands Water & Power Authority, 557 Fed. Appx. 189, 195 (3d

Cir. 2014)).

95 Id. at 691.

96 Doc. 23 at 25.

97 Doc. 24 at 25-26.

appeal.99 The first lines in the Circuit’s opinion clearly state the holding. “At the

pleading stage, an age-discrimination plaintiff does not have to know his

replacement's exact age. That age can come out in discovery.”100 Writing for the

Third Circuit, Judge Stephanos Bibas held that the phrase “significantly younger”

is a factual allegation, which is entitled to the presumption of truth granted to well-

pled facts.101 Of course, Plaintiff here has alleged more than the plaintiff in

Martinez did. Therefore, this Court finds that Plaintiff’s “factual allegations of age

differences are enough.”102

But I do not read the Circuit’s opinion as ending the analysis there. The

opinion goes on to note that the complaint in Martinez also “add[ed] suspicious

details” and that “th[o]se facts raise[d] the reasonable expectation that discovery

will uncover evidence of discriminatory motive.”103 This is an invocation of

language commonly used by the Third Circuit to explain the pleading requirement

for a plaintiff in an employment discrimination case.104 It seems clear that the

Circuit requires more than just a cursory recital of the claim’s elements.

Additional facts which support an inference of discrimination are still necessary.

99 Martinez, M.D., v. UPMC Susquehanna, ---F.3d---, 2021 WL 298730 (3d Cir. 2021).

100 Id. at *1.

101 Id.

102 Id.

103 Id. (emphasis added).

This reading is supported by the multiple courts that have found that simply

asserting that a plaintiff was replaced by someone younger, without facts that

actually point to an inference of discrimination, cannot establish an ADEA

claim.105 As those courts have explained, if simply alleging an age disparity were

sufficient to state a claim, no employer could replace an employee over the age of

forty with a younger candidate “without exposing itself to potential liability for age

discrimination.”106 I do not read the Third Circuit’s opinion in Martinez as

diminishing the expectation that a plaintiff must do more than simply regurgitate

the cause of action to stave off dismissal. Finding otherwise would appear to

revert to a pre-Twombly and Iqbal world that the federal courts have advanced

past. Here, Plaintiff has not pled similarly suspicious details leading to an

inference of age discrimination.

Plaintiff’s second argument also fails because it simply does not move the

needle on the issue of causation. The assumption that an external search would

likely have resulted in an older candidate is conclusory and unsupported by well-

pled facts. While Plaintiff does not need to establish a prima facie case at this

stage, she does need to support her claim with facts that “raise a reasonable

105 See, e.g., Hause v. City of Sunbury, 2019 WL 6726406 at *6 (M.D. Pa. Dec. 11, 2019) (citing

Foster v. Humane Soc. of Rochester & Monroe Cty., Inc., 724 F. Supp. 2d 382 at 391

(W.D.N.Y. 2010)).

106 Foster v. Humane Soc. of Rochester & Monroe Cty., Inc., 724 F. Supp. 2d 382 at 391

expectation that discovery will reveal evidence of the necessary element[s] of the

prima facie case.”107

To be sure, Plaintiff’s allegation – that she was recognized as a strong

program director and was replaced by someone who was less experienced and

uninterested in teaching – does suggest that Plaintiff was replaced for some reason

other than her own performance in the position. But Plaintiff does not plead facts

to fill the gap between that suggestion and an inference of age discrimination.

Plaintiff’s complaint repeatedly suggests that interpersonal problems and

favoritism of another candidate led to the end of Plaintiff’s tenure at Geisinger.

This is the only theory Plaintiff offers in the complaint. Accordingly, Counts 2

(the PHRA claim) and 5 (the ADEA claim) are dismissed, as is Count 3 (the aiding

and abetting claim predicated on Count 2), but Plaintiff will be granted leave to

amend the complaint.

4. Breach of Contract – Count 6

Defendants also argue that Plaintiff’s claim for breach of contract should be

dismissed. To state a claim for breach of contract, a plaintiff must establish: (1)

the existence of a contract, including its essential terms; (2) a breach of a duty

imposed by that contract; and (3) resultant damages.108 I operate against the

background principle that employment in Pennsylvania is at-will, absent any

107 Phillips v. Cty. Of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal quotation marks

omitted).

contrary statutory or contractual provisions.109 Where such provisions are absent, a

plaintiff may attempt to plead an “implied-in-fact” contract, which requires that

additional consideration flow from the employer to the employee, allowing the

court to infer that the parties “intended to overcome the at-will presumption.”110

The parties agree that Plaintiff entered into a Practice Agreement in 2016,

governing the terms of her employment with Geisinger. This document, by its

terms, constituted the entire agreement between Plaintiff and Geisinger, and could

only be modified by a “writing signed by an appropriate representative of

Geisinger.”111 Furthermore, the Practice Agreement contains a clear at-will

employment clause, reiterating that Plaintiff’s position “may be terminated at any

time by either party for any or no reason.”112

Plaintiff’s argument is therefore based on the idea that she subsequently

entered into “an agreement for a definite duration pursuant to which Plaintiff was

entitled to remain in the Program Director role through at least June 30, 2018.”

But Plaintiff’s claim once again consists of little more than a recitation of the

elements of the claim. For this breach of contract claim to survive, the subsequent

agreement would have to be executed in writing, and signed by a Geisinger

representative. Plaintiff pleads no facts that would overcome the presumption of

109 Wallett v. Pennsylvania Turnpike Comm'n, 528 Fed. Appx. 175, 180 (3d Cir.2013).

110 Preobrazhenskaya v. Mercy Hall Infirmary, 71 Fed. Appx. 936, 940 (3d Cir. 2003) (quoting

Raines v. Haverford College, 849 F. Supp. 1009, 1012 (E.D. Pa. 1994)).

111 Doc. 12 Ex. A.

an at-will employment agreement. Simply alleging that a later “agreement”

existed is insufficient in this case, given the preexisting restrictions placed on

modifications of the terms of Plaintiff’s employment. Contrary to her assertion,

she has not alleged “the enforceability of”113 this subsequent agreement, and this

theory therefore fails.

Plaintiff’s second argument fares no better. She suggests that Geisinger’s

failure “to abide by and enforce various policies, guidelines, and codes and

fail[ure] to act in accordance with its supposed commitments throughout its

website to ‘diversity and inclusion,’ nondiscrimination in hiring and employment,

and effective Corporate Compliance Reporting” constitutes a breach of contract,

because by adopting such policies and sharing them on its website, Geisinger

intended to create a contractual relationship with Plaintiff.

First, Plaintiff once again clearly pleads her conclusion, but offers no facts in

support thereof. The Court is not required to credit unsupported conclusions.

They do not constitute well-pled facts. But of greater concern, this argument

would completely eviscerate at-will employment anytime an employer violated a

policy in its handbook or website. Plaintiff’s argument would also then apply to

every other Geisinger employee; suddenly, they would all be contracted

employees, rather than at-will. This is not the state of the law in Pennsylvania.

“An employer's policy statement that it will comply with its legal obligations,

without more, does not create a legally binding obligation.”114 Plaintiff has

provided no support to the contrary, and this Court declines to implement what

would appear to be a drastic shift in Pennsylvania employment relationships.

Plaintiff’s claim for breach of contract is dismissed; she may replead this

Count, but not based on the theory stemming from Geisinger’s policies or website.

Examining Plaintiff’s pleading and argument, it is clear she has explored this

option and explained the underlying facts, and I find it would be futile to allow her

to argue this theory again. Therefore, it would also be prejudicial to Defendants to

force them to draft a second round of briefs arguing against a futile theory. If

Plaintiff wishes to add facts to support her theory based on a subsequent

agreement, or explore a new avenue, she is welcome to. My current ruling only

forecloses the one theory.

5. Defamation – Count 7

Plaintiff alleges that Defendants Pellechia and Malik made defamatory

statements that injured her professional standing.115 In her complaint, Plaintiff

specifically noted the paragraphs which she believed constituted defamation.116

After Defendants filed their brief in support of their motion to dismiss, Plaintiff

114 McDonald v. SEIU Healthcare Pennsylvania, 2014 WL 4672493 at *19 (M.D. Pa. Sept. 18,

2014) (citing Monaco v. American General Assur. Co., 359 F.3d 296, 308 (3d Cir. 2004)).

115 Doc. 18 at ¶¶ 222-230.

seems to have narrowed her focus to just four paragraphs.117 Out of an abundance

of caution, the Court considers Plaintiff’s original, broader list from the complaint.

In order to state a claim for defamation under Pennsylvania law, a plaintiff must

generally establish: “(1) the defamatory character of the communication; (2) its

publication by the defendant; (3) its application to the plaintiff; (4) the

understanding by the recipient of its defamatory meaning; (5) the understanding by

the recipient of it as intended to be applied to the plaintiff; (6) special harm

resulting to the plaintiff from its publication; and (7) abuse of a conditionally

privileged occasion.”118 But when a plaintiff claims defamation per se, she does

not need to establish special harm, though she must plead general damages.119

Defamation per se “occurs where a publication imputes to another conduct,

characteristics, or a condition that would adversely affect her in her lawful business

or trade.”120

Defendants argue that none of the statements at issue are capable of

defamatory meaning. Several limiting principles are applicable here. For

example, a statement of opinion cannot, on its own, constitute defamation.121

117 Doc. 24 at 33.

118 Byars v. Sch. Dist. of Philadelphia, 942 F. Supp. 2d 552, 563 (E.D. Pa. 2013) (citing 42

Pa.C.S. § 8343(a)).

119 Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 343 (3d Cir.2005). “[P]roof

that one's reputation was actually affected by the slander, or that she suffered personal

humiliation, or both,” constitutes general damages. Id. (quoting Walker v. Grand Central

Sanitation, Inc., 430 Pa. Super. 236, 634 A.2d 237 (1993)).

120 Id. (internal quotation marks omitted).

Furthermore, statements “which are merely annoying or embarrassing or [are] no

more than rhetorical hyperbole or a vigorous epithet are not defamatory.”122 Upon

review, most of these paragraphs either do not allege any statement by either

Defendant at all, or they allege clear statements of opinion, but a small number of

alleged statements may constitute defamation, so this claim survives.

The Court considers each alleged defamatory statement in turn:

 Paragraphs 25 and 26 do not identify any statement by either Dr.

Pellecchia or Dr. Malik about Plaintiff.

 Paragraphs 27 and 28 contain statements by Defendants that may be

defamatory.

 Paragraph 29 does not identify any statement by either Dr. Pellecchia

or Dr. Malik about Plaintiff.

 Paragraph 30 contains a statement in which Dr. Pellecchia describes

Plaintiff as “arrogant.” Name-calling and insults like this are not

defamatory. Arguably far-worse descriptors have been found to be

incapable of defamatory meaning.123 For example, Courts have

rejected defamation claims based on describing individuals as

“crazy,”124 “paranoid,”125 and “schizophrenic.”126

 Paragraphs 46 and 47 contains a statement in which Dr. Malik

complained to resident students that Plaintiff “worked them too hard”

or that she “never allowed the residents to have fun.” These are

statements of opinion and not actionable. Indeed, much more serious

accusations have been deemed statements of opinion.127

122 Id.

123 See, e.g., Peschmann v. Quayle, 2019 WL 5075802 at *7 (collecting cases).

124 Kryeski v. Schott Glass Technicians. Inc., 426 Pa. Super. Ct. 105, 117-18 (1993).

125 Fram v. Yellow Cab Co. of Pittsburgh, 380 F. Supp. 1314 (W.D. Pa. 1974)

126 Id.

127 See, e.g., Purcell v. Ewing, 560 F.Supp.2d 337, 342 (M.D. Pa. 2008) (claim that plaintiff was

 Paragraphs 63, 66, and 68 do not identify any statement by either Dr.

Pellecchia or Dr. Malik about Plaintiff. The closest these paragraphs

come to mentioning any statements by either of the Defendants

involves Dr. Malik “attacking [Plaintiff] for ‘questioning her

integrity.’” Indeed, it seems Plaintiff did, in fact, question Dr. Malik’s

integrity (whether fairly or not), and therefore, the statement is not

actionable.

 Paragraph 83 alleges that Dr. Pellecchia would “repeatedly insult

[Plaintiff], calling her annoying, arrogant, and offensive.” As with

similar labels, discussed above, insults like these are statements of

opinion and not actionable.

 Paragraphs 84 and 85 do not identify any statements by either Dr.

Pellecchia or Dr. Malik about Plaintiff.

 Paragraph 86 contains a statement by Dr. Malik that may be

defamatory. Specifically, it alleges that Dr. Malik “lied to residents

and leadership claiming that Dr. Studders refused to mentor her to be

the Associate Program Director.” Importantly, Defendants provide no

argument as to why this particular statement is not defamatory. It is

not a statement of opinion and would appear to impact Plaintiff’s

professional standing.

 Paragraph 87 alleges that Dr. Malik “told the special review members

that she was not going to work on her relationship with Dr. Studders

because she was just waiting for Dr. Studders to be fired.” This is not

an actionable statement and Plaintiff does not provide any reason to

find otherwise.

 Paragraph 88 alleges that Dr. Malik spoke “poorly” about Plaintiff at

meetings. Without more information, the Court cannot conclude that

anything that was said was, in fact, false.

 Paragraph 103 contains a statement in which Dr. Pellecchia told

Plaintiff that her relationship with Dr. Malik was poor because

Plaintiff “questioned her integrity by reporting” the exam procedure

violation. Again, it seems Plaintiff did, in fact, question Dr. Malik’s

integrity.

 Paragraphs 119 and 133 do not identify any statement by either Dr.

Pellecchia or Dr. Malik about Plaintiff.

Therefore, Plaintiff’s claim for defamation survives because of a discrete

number of allegations (paragraphs 27, 28, and 86), but Plaintiff should note that

most of the statements in the complaint do not constitute defamation.

6. PWPCL Claim – Count 8

Plaintiff’s final claim is brought under the Pennsylvania Wage Payment and

Collection Law (the “WPCL”). She seeks compensation for lost wages and

retirement benefits.128 Plaintiff alleges: (1) Geisinger mischaracterized her leave of

absence as “vacation;” (2) Geisinger failed to pay her salary from the time of her

constructive discharge in March 2018 until June 2018; and (3) Geisinger forced her

to forfeit retirement benefits for that same time period.

The WPCL gives employees a statutory remedy that allows them to recover

wages and lost benefits which they are contractually entitled to.129 But the WPCL

“does not create an employee’s substantive right to compensation; rather, it only

establishes an employee’s right to enforce payment of wages and compensation to

which an employee is otherwise entitled by the terms of an agreement.”130

As this Court has determined that Plaintiff was an at-will employee, she has

failed to plead the existence of a contract that would entitle her to such benefits.

Pennsylvania courts have regularly held that a plaintiff must establish the existence

128 Doc. 18 at ¶ 232.

129 In re Cargill Meat Solutions Wage & Hour Litig., 632 F.Supp.2d 368, 397 (M.D. Pa. 2008).

of a contractual agreement.131 But even if Plaintiff had cleared this preliminary

hurdle, she would have failed to state a claim under the WPCL.

Her first claim, dealing with her leave of absence, is insufficiently pled. In

briefing, Plaintiff states that she “specifically alleges that she requested and was

granted administrative leave.”132 But this is pled nowhere in the complaint.

Instead, Plaintiff’s complaint simply alleges that she “asked if it would be okay to

take the following week off given what had just transpired and to decide if she was

going to return to Geisinger and in what role.”133 Plaintiff emphasizes that she

requested administrative leave, but the word “administrative” is never used in the

context of her absence, and there is no other suggestion that this leave was

administrative. Plaintiff may not attempt to amend her complaint through her brief

in opposition to the motion to dismiss. The complaint itself simply alleges that she

asked to “take the following week off.”

Finally, throughout her briefing, Plaintiff has repeatedly sought refuge in the

argument that a given point of contention is a “factual issue that cannot be resolved

at the pleading stage.”134 For example, in her WPCL claim, the supposed factual

issue is “whether the Geisinger entities properly characterized her time off as

131 Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 954 (Pa. Super. 2011) (“To present a wage-

payment claim, the employee must aver a contractual entitlement to compensation from wages

and a failure to pay that compensation.”) (internal quotation omitted).

132 Doc. 24 at 35 (emphasis in original).

133 Doc. 18 at ¶ 141. Paragraph 142 contains a similar allegation.

vacation.”135 This argument is less than compelling, because it is Plaintiff’s

burden at the motion to dismiss stage to support her claim with well-pled facts.

Saying that something is a “factual issue” only draws attention to the fact that

Plaintiff has not pled the necessary facts to state a claim. For this separate reason,

her administrative leave theory fails at the moment. The Court expects that curing

this deficiency, however, should not be particularly difficult.

Plaintiff’s claim seeking her salary from the time after her supposed

constructive discharge also fails. Plaintiff’s argument is that she has “adequately

pled a breach of contract claim upon which this claim is premised.”136 However,

this Court has already dismissed the contract claim. Because Plaintiff

acknowledges that this theory of her WPCL claim is premised on the theoretical

breach of contract, the WPCL claim fails as well.

Finally, Plaintiff seeks the recovery of lost retirement benefits totaling

approximately $55,000. But Plaintiff has not adequately pled that these retirement

benefits are of the sort that are covered by the WPCL. Plaintiff’s sole allegation

supporting this theory is that she was forced “to forfeit retirement benefits in the

amount of at least approximately $55,500.”137 In her brief, she argues that the

WPCL “has been broadly defined to include fringe benefits and equity

135 Id.

136 Id.

interests.”138 That is correct but excludes relevant statutory language. The

definition of wages “includes fringe benefits or wage supplements.”139 Fringe

benefits include, in relevant part, “all monetary employer payments to provide

benefits under any employee benefit plan, as defined in section 3(3) of the

Employee Retirement Income Security Act of 1974.”140

Plaintiff has not pled facts to support the idea that any of the fringe benefits

at issue fall under the definition of that term, and it is unclear to the Court that they

do. And Plaintiff’s brief devotes little attention to this question and does not offer

any authority for her proposition. Therefore, even if Plaintiff had established a

contractual right to any fringe benefits after the end of her employment (she has

not), this claim would fail because she has not alleged that her retirement benefits

would qualify as fringe benefits. The Court only has a conclusory statement before

it, which cannot be credited in evaluating the sufficiently of the pleading.

Therefore, the claim for retirement benefits is dismissed, but Plaintiff is granted

leave to amend to include relevant details.

138 Doc. 24 at 37.

139 43 P.S. § 260.2a.

140 Id. Other fringe benefits are also payable to employees, but Plaintiff does not invoke the

III. CONCLUSION

Defendants’ motion to dismiss is granted in part and denied in part. Plaintiff

is granted leave to amend. Plaintiff will be given fourteen days to file a second

amended complaint.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge