# KANNIKAL v. HOLDER

> District Court, W.D. Pennsylvania · October 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10415154

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** October 21, 2019
- **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/10415154

## How later opinions describe it (automated extraction)

- noting that a party opposing summary judgment “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOE A. KANNIKAL, ) Case No. 3:12-cv-220
)
Plaintiff, ) JUDGE KIM R. GIBSON
)
v. )
)
WILLIAM P. BARR, )
Attorney General, )
)
Defendant. )
MEMORANDUM OPINION
I. Introduction
This case arises from the Bureau of Prisons’ (“BOP”) alleged discrimination against
Plaintiff in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) while he worked as a
physician's assistant (“PA”) at the Federal Correctional Institution in Loretto, Pennsylvania (“FCI
Loretto”). Pending before the Court is Defendant William P. Barr’s Motion for Summary
Judgment. (ECF No. 120.) The Motion is fully briefed (ECF Nos. 121, 131) and ripe for disposition.
For the reasons that follow, the Court GRANTS Defendant's Motion.
II. Jurisdiction and Venue
This Court has subject-matter jurisdiction because Plaintiff's Title VII claims arise under
federal law. 28 U.S.C. § 1331. Venue is proper because the case was transferred to the Western
District of Pennsylvania, where a substantial part of the events giving rise to Plaintiff's claims
occurred. 28 U.S.C. § 1391(b)(2), § 1404(a).

Ii. Factual Background
The following facts are undisputed unless otherwise noted.!
A. Plaintiff's Initial Employment with BOP and the EEOC Proceeding
Plaintiff first began working as a PA at FCI Loretto in May of 1988. (ECF No. 127 { 1.)
About six months later, BOP granted Plaintiff a hardship transfer to its Correctional Center in
Miami, Florida so that he could be near his family and study for his medical boards. (Id. [ 2.) In
June of 1990, Plaintiff requested a three-month leave of absence to study for the medical
examination for foreign medical graduates; when BOP denied his request for a leave of absence,
he resigned from the BOP. (Id. 1 3.) In 1992, Plaintiff applied for a vacant PA position at FCI
Loretto. (Id. 1 4.) According to Plaintiff, Jeff Trimbath, the Assistant Health Administrator at FCI
Loretto, prevented him from being hired because of discriminatory animus. (Id. 7 5.) Mr.
Trimbath denied any and all allegations of discriminatory animus. (Id. J 6.) Plaintiff filed a
discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) and,
in a bench decision issued on May 11, 1995, the EEOC found in favor of Plaintiff and ordered that
Plaintiff be reinstated as a PA, with back pay and benefits. (Id. [I 7-8.)
On January 20, 1998, Plaintiff was reinstated as a PA at FCI Loretto. (Id. 1 9.) Plaintiff
practiced under the supervision of Clinical Director Dr. Daniel Leonard, Health Services
Administrator William Schnake, and Mr. Trimbath. (Id. J 10.) Mr. Trimbath supervised
Plaintiff's time and attendance, but did not supervise Plaintiff's clinical work or performance; Dr.

1 The Court derives these facts from a combination of Defendant’s Statement of Material Facts (ECF No.
122), Plaintiff's Response to Movant's Concise Statement of Undisputed Facts and Statement of Additional
Facts that Are at Issue (“New Matter”) (ECF No. 127), and Defendant’s Response to Plaintiff's “New
Matter” (ECF No. 134).
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Leonard had that responsibility. (Id. [] 54-55.) Mr. Trimbath had no interaction with Plaintiff
involving discipline with respect to Plaintiff's clinical skills, evaluations, or revocation of medical
privileges. (Id. J 56.)
Plaintiff began at FCI Loretto on February 3, 1998. (Id. J 11.) Before Plaintiff received his
medical privileges, FCI Loretto had to verify his medical credentials. (Id. | 19.) Medical
privileges allow a PA to diagnose and treat patients and are granted by the Clinical Director of
the Institution, Dr. Leonard. (Id. { 20.) Plaintiff submitted the paperwork necessary to review
his application for privileges on February 4, 1998 and, in compliance with BOP policy, Dr.
Leonard granted Plaintiff temporary privileges for a 90-day probationary period on February 20,
1998. (Id. I] 23-24.) The warden of FCI Loretto, James Franco, approved Plaintiff's temporary
medical privileges on March 5, 1998. (Id. J 17.)
B. Plaintiff's Time Off and Leave
On April 6, 1998, approximately two months after he started working, Plaintiff took
extended sick leave until June 1, 1998.? (Id. J 28.) On April 6, 1998, Plaintiff called in sick and told
Mr. Schnake that he would be at his home in Miami, Florida until Memorial Day.’ (Id. J 29.) On
Monday June 8, 1998, Plaintiff called in sick, stating that he had food poisoning, and did not
return to work until June 9, 1998. (Id. J 31.) In addition, on June 10, 1998, Plaintiff requested
extended annual leave from July 12, 1998, through August 1, 1998, to visit his ill mother in India.

2 Defendant asserts that Plaintiff took additional time off during his employment, which Plaintiff disputes.
(See ECF No. 127 {{ 27, 30, 33-34.) Defendant asserts that over Plaintiff's period of employment from
January 20, 1998 to September 3, 1999, Plaintiff was absent from work for a total of approximately nine
months. (ECF No. 121 at 18 n.3.)
3 Plaintiff asserts that he provided Defendant with numerous notes from doctors stating that he needed
leave to deal with his depression. (ECF No. 127 (New Matter) 27-32.)
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(Id. J 32.) Between February 3, 1998, and June 29, 1998, Plaintiff had used 80 hours of annual
leave and 291 hours of sick leave. (Id. J 66.)
Plaintiff left for India to visit his ill mother on July 10, 1998, and returned to work on
August 24, 1998. (Id. I] 75, 93.) Then on September 28, 1998, Plaintiff again took extended sick
leave to his home in Miami and did not return to work until December 15, 1998. (Id. 95-96.)
The following year, Plaintiff took extended sick leave from March 22, 1999, through May 14, 1999,
and leave again from May 17, 1999, through May 21, 1999, to attend a psychiatric conference. (Id.
{I 115-16.)
C. Plaintiff's Work Performance and Discipline
During the 90-day probationary period, Dr. Leonard expressed his concern about
Plaintiff's performance to Mr. Schnake and Mr. Trimbath, which involved the way he was
prescribing medications, his examinations, and the way he was writing up his entries. (Id. [J 45-
46.) Dr. Leonard told Mr. Schnake that he had concerns about the treatment Plaintiff was
rendering and that he wanted to fire Plaintiff because he felt Plaintiff's care was inappropriate
and not up to FCI Loretto’s standards. (Id. { 48.)
On June 10, 1998, Dr. Leonard issued Plaintiff a three-page memorandum informing
Plaintiff that his performance of medical duties was unacceptable, and Dr. Leonard provided
specific examples of poor patient care. (Id. J 49.) On the same date, Dr. Leonard placed Plaintiff

on a Performance Improvement Plan (“PIP”). (Id. { 50.) During the 30-day PIP period, Dr.
Leonard prepared several memoranda about his concerns with Plaintiff's unacceptable medical
performance. (Id. { 57.) Dr. Leonard wrote that he did not believe that Plaintiff was using his
“opportunity to improve period” to his full advantage. (Id. { 69.)
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On June 29, 1998, Mr. Schnake informed Plaintiff that his excessive use of sick leave was
affecting his performance, in that his absence was not allowing him to train with other staff and
to gain the necessary experience to function as a PA. (Id. J 65.) On July 6, 1998, Mr. Trimbath
issued Plaintiff a letter stating that his pattern of using sick leave “was unacceptable.” (Id. 73.)
Mr. Trimbath noted in the letter that Plaintiff had used sick leave “in conjunction with [his]
weekends” three times in the past month to visit his family in Miami and the letter ordered
Plaintiff to provide medical documentation before using sick leave for the next three months. (Id.
q 74.)
On July 9, 1998, Dr. Leonard and Mr. Trimbath met with Plaintiff to discuss his progress
under the PIP. (Id. { 78.) At the conclusion of the PIP period, which ended on July 10, 1998, Dr.
Leonard refused to reinstate Plaintiff's medical privileges. (Id. 82.)
On July 11, 1998, Plaintiff wrote to Warden Franco complaining about his unacceptable
rating and claimed that his supervisors were retaliating against him and subjecting him to a
hostile work environment. (Id. { 83.) Warden Franco responded to Plaintiff's letter, stating that
he had reviewed the record and felt that Dr. Leonard’s actions did not constitute harassment or
reprisal, and that he had been given an opportunity to improve his performance. (Id. J 88.)
When Plaintiff returned to work on August 24, 1998 after his sick leave, he was given non-
medical duties because Dr. Leonard had withdrawn his medical privileges. (Id. { 94.) Upon his
return to work after taking extended sick leave from September 28, 1998, to December 15, 1998,
Plaintiff performed non-medical duties until March of 1999, because Dr. Leonard had not
reinstated his medical privileges. (Id. 1] 95-97.)

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On September 18, 1998, Warden Franco requested that a Focus Review Team assess Dr.
Leonard’s determination to deny clinical privileges to Plaintiff. (Id. 98.) The Focus Review
Team concluded that Plaintiff had made serious errors in five of the ten cases they had reviewed.
(Id. [| 105.) Dr. Jae Shim, the Clinical Director of BOP’s facility in Allenwood, Pennsylvania and
member of the Focus Review Team, opined that, based upon the review of the medical records
and his conversation with Plaintiff, he “agree[d] with Dr. Leonard’s decision to revoke [Plaintiff's]
privileges due to medical incompetence.” (Id. { 106.)
On December 21, 1998, Mr. Trimbath issued Plaintiff another leave abuse letter noting that
he had “used over 150 hours of sick leave during the past three months” and had not always
provided medical excuses for his absences. (Id. { 108.) On December 28, 1998, Plaintiff was
interviewed by the Special Investigative Agent at FCI Loretto for misconduct for failing to follow
procedure with regard to his sick leave. (Id. I 109.)
D. Plaintiff’s Reassignment and Termination
On February 2, 1999, Mr. Schnake issued Plaintiff a letter proposing to terminate his
employment. (Id. { 111.) The reasons given for Plaintiff's proposed termination were: (1) the
removal of his medical privileges, (2) failure to improve while on the PIP, (3) failure to follow
instructions concerning his use of sick leave by not providing medical excuses, and (4) his time

spent AWOL because he failed to provide documentation for some of his absences. (Id. □□□□□
On March 3, 1999, Warden Bobby Shearin, who had replaced Warden Franco, issued a

memo to Plaintiff assigning him full time to the Inmate Systems Management (“ISM”) branch.
(Id. [ 113.) During his reassignment, Plaintiff's title, pay, and grade all remained the same. (Id.

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{ 114.) Upon his return to work on May 24, 1999 after extended sick leave, he performed non-
medical duties until June 2, 1999. (Id. J 117.)
On June 2, 1999, Warden Shearin issued Plaintiff a Notice of Removal, informing Plaintiff
that he was being removed for: (1) his loss of medical privileges, (2) his failure to follow
instructions, and (3) his absences without leave. (/d. J 118.) On that same date, Plaintiff and BOP
officials entered into a Last Chance Settlement Agreement whereby BOP agreed not to remove
Plaintiff for a period of 60 days if Plaintiff improved his performance. (Id. J 120.) The agreement
provided that Plaintiff would be required to participate in specific classes and review specific
materials. (Id. 121.) Pursuant to the agreement, Mr. Trimbath was officially removed as
Plaintiff's immediate supervisor and Mr. Schnake became his supervisor. (Id. J 122.) The
agreement also created a plan wherein Dr. Leonard and Mr. Schnake would provide Plaintiff with
close supervision, including observing and training Plaintiff while he conducted mock medical
examinations of inmates. (Id. J 123.) Finally, the agreement provided that if Plaintiff’s
performance did not improve within sixty days he would be terminated. (Id. J 124.)
Between June 16, 1999, and August 12, 1999, Dr. Leonard and Mr. Schnake met regularly
with Plaintiff to observe mock examinations and review medical assessments and assignments.
(Id. 129.) On June 16, 1999, Plaintiff complained that, during one of his mock interviews, Mr.
Schnake got angry and stated “BS discrimination.” (Id. 125.) Mr. Schnake admits that he made
the statement, but denies that the statement was made to harass or discriminate. (Id. J] 126.) On
July 12, 1999, Plaintiff wrote to Warden Shearin, complaining about a “hostile, abusive, retaliatory

4 Plaintiff asserts that, at some point, Mr. Schnake also made racially charged comments about Plaintiff
behind closed doors. (ECF No. 134 { 39.)
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working environment and the harassment and intimidation at the Health Service Department.”
(Id. J 133.) On July 19, 1999, Warden Shearin responded to Plaintiff's letter and explained, among
other things, that he had failed to provide specific instances of “hostile, abusive, retaliatory
working environment and the harassment and intimidation at the Health Service Department.”
(Id. J 136.)
On August 12, 1999, Dr. Leonard concluded that he would “not give [Plaintiff] privileges
under [his] medical license to care for patients at FCI Loretto,” based upon his observations of
Plaintiff during the Last Chance period. (Id. J 142.) Dr. Leonard found that Plaintiff's medical
misjudgments included, but were not limited to: failure to ask about symptoms, failure to
perform systematic examinations, failure to accurately describe disease etiology, failure to
properly document his examinations, failure to properly perform the auscultation of a patient's
aortic valve, failure to properly obtain a patient's blood pressure, inability to identify risk factors
for certain medical conditions, inability to identify various causes of certain medical conditions,
lack of knowledge in reading EKGs, and incomplete understanding of what parameters are
contained in laboratory studies that he ordered. (Id. J 138.)
On August 26, 1999, Warden Shearin informed Plaintiff that his employment would be
terminated on September 3, 1999, due to his failure to demonstrate that he could safely care for
the patients he was treating at FCI Loretto. (Id. 143.) In the termination letter, Warden Shearin
highlighted the various medical errors that Plaintiff had made, and noted that Dr. Leonard had
determined that Plaintiff did not possess the requisite medical knowledge and was not competent
enough to be granted medical privileges under Dr. Leonard’s license. (Id. { 144.) Plaintiff's
employment was terminated on September 3, 1999. (Id. | 145.) Warden Shearin testified that
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Plaintiff's termination was not based upon his race, color, national origin, or his prior EEO
activity.> (Id. J 147.)
IV. ‘Procedural Background
On March 28, 2012, Plaintiff filed suit in the United States District Court for the District of
Columbia against Defendant, the United States Department of Justice (“DOJ”), and the BOP.
(ECF No. 1). Defendant, the DOJ, and the BOP subsequently moved to dismiss or, in the
alternative, to transfer the case. (ECF No. 3). Plaintiff filed an Amended Complaint on June 25,
2012, naming Defendant as the sole defendant. (ECF No. 6.) In the Amended Complaint, Plaintiff
alleges discrimination on the basis of race (Count I), national origin (Count II), and retaliation
(Count III), each in violation of Title VII.
On July 9, 2012, Defendant moved to dismiss the Amended Complaint, or in the
alternative, to transfer the case to the Western District of Pennsylvania. (ECF No. 9). Judge
Gladys Kessler granted the motion to transfer the case to this Court. (ECF No. 16). On January
30, 2013, Defendant filed a motion to dismiss the Amended Complaint, (ECF No. 26), which the
Court granted on March 10, 2014. (ECF No. 56.) Plaintiff appealed the dismissal. (ECF No. 57.)
After appeal, the case was remanded to this Court by the Third Circuit. (ECF Nos. 59, 60.)
On November 6, 2015, Defendant answered (ECF No. 78), and moved for summary judgment on

5 Other staff at FCI Loretto also testified that they did not believe Plaintiff was discriminated against
regarding any issues leading up to Plaintiff's termination based upon race, his color, his national origin,
age or in reprisal for prior EEO activity. (Id. J 158.) This staff includes Mark Sewak, a Senior Officer
Specialist and Union President (id. JJ 152-56), Daniel Gallagher, a Recreation Specialist at FCI Loretto (id.
159-60), PA Michael Condor (id. {I 169-70), PA Scott Middlekauff (id. {J 171-74), PA Maria Angeles
(ECF No. 134 J 39), Mr. Schnake (ECF No. 127 {J 177-80), and Human Resources Manager Don Carabardi
(id. 187).
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February 12, 2019. (ECF No. 120.) Plaintiff responded in opposition on May 1, 2019. (ECF No.
127.)
V. Legal Standard
This Court will grant summary judgment “if the movant shows there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom,
Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
There is a genuine issue of fact “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986); see
also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that affect the
outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court’s role is “not to
weigh the evidence or to determine the truth of the matter, but only to determine if the evidence
of record is such that a reasonable jury could return a verdict for the nonmoving party.” Am.
Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). In deciding a summary
judgment motion, this Court ’“must view the facts in the light most favorable to the nonmoving
party and draw all inferences in that party’s favor.’” Farrell v. Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing
summary judgment “may not rest upon the mere allegations or denials” of the pleading, but
“must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart
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Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 n.11 (1986)). “For an issue to be genuine, the nonmovant needs to supply more than

a scintilla of evidence in support of its position—there must be sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant.” Coolspring Stone Supply v. Am. States
Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (noting that a party opposing summary judgment “must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”).
VI. Discussion
A. The Parties’ Arguments
Defendant asserts that Plaintiff cannot convince a reasonable jury that discrimination was

a motivating or determinative cause of the adverse employment actions BOP took against him.
(ECF No. 121 at 20.) Defendant argues that BOP terminated Plaintiff because: (1) he had lost his
medical privileges by failing to demonstrate medical competence and endangering the safety of
the patients he was responsible for, (2) he had failed to follow instructions concerning his use of
sick leave, and (3) he had multiple absences without leave. (Id.)
Defendant contends that there is ample evidence in the record supporting Dr. Leonard’s
opinion that Plaintiff's medical performance was substandard and substantiating Dr. Leonard’s

concerns about the quality of health care that Plaintiff was providing to FCI Loretto inmates. (Id.
at 4.) In addition to his clinical deficiencies, Plaintiff's excessive absences contributed to his
performance problems because he was unable to train with other staff to gain the necessary
experience to be a successful PA. (Id. at 5.) Because Plaintiff's performance did not improve
during the 30-day PIP period, Dr. Leonard decided not to reinstate Plaintiff's medical privileges
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and felt that Plaintiff should be terminated. (Id. at 4-6.) Without medical privileges, Plaintiff

was unable to perform the medical duties of a PA. (Id. at 6.) During the Last Chance period,
Plaintiff continued to make medical misjudgments and his performance did not improve. (Id.)
Defendant argues that Plaintiff cannot credibly rebut the criticisms of his performance,
and that there is no persuasive evidence that Plaintiffs medical skills improved during either the
PIP period or the Last Chance period. (Id. at 7.) Dr. Leonard and his staff gave more attention to
Plaintiff not with the purpose of discrimination or retaliation, but to work with him in an attempt
to improve his performance. (Id.) BOP personnel who observed Dr. Leonard and Plaintiff's
interactions, union representatives, and other co-workers all testified that they did not observe
Dr. Leonard harass Plaintiff or discriminate against him. (Id. at 9-11.)
Defendant further asserts that the reasons given for Plaintiff's termination were not
pretextual because the record supports the proffered rationales for terminating Plaintiff. (Id. at
18-19.) Any supervisor would be legitimately concerned about an employee who took sick leave
in conjunction with weekends, missed months of work, and who failed to properly provide
medical documentation, notwithstanding multiple direct instructions to do so. (Id. at 19.)
Defendant asserts that Mr. Trimbath has denied allegations that he used racially
derogatory language towards Plaintiff. (Id. at 15.) Even if Mr. Trimbath did use such language,
none of the language relates to the present case, as the alleged statements were made years prior
to Plaintiff's reinstatement in 1998. (Id.) Plaintiff has pointed to no credible or objective evidence
in the record that establishes that Mr. Trimbath used the alleged derogatory language subsequent
to Plaintiff's reinstatement in 1998. (Id. at 17.) Moreover, Mr. Trimbath played no role in the
decision to remove Plaintiff's medical privileges and was not involved with the decision to place
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Plaintiff into a Last Chance Settlement Agreement or the decision to terminate Plaintiff's
employment. (Id. at 16.) Mr. Trimbath’s letters to Plaintiff regarding his absences did not
wrongfully single him out for harassment, as no other health unit employee used as much leave
or had as many problems timely documenting leave as did Plaintiff. (Id. at 18.)
Defendant asserts that Mr. Schnake’s comment about “BS Discrimination” was not made
to harass or discriminate. (Id. at 19.) The statement is nothing more than an isolated offensive
remark that was made on only one day. (Id.) Plaintiff's filing of a complaint about this remark
with Warden Shearin that same day demonstrates that it did not chill Plaintiff's EEO rights. (Id.
at 19-20.) Defendant asserts that there is no evidence that Mr. Schnake took any adverse action
against Plaintiff and no co-worker witnessed any discrimination or retaliation by him. (ld. at 20.)
Plaintiff opposes the Motion by asserting that there are numerous genuine issues of
material fact that must be tried. (ECF No. 131 at 1.) Plaintiff asserts that Defendant's contention
that Plaintiff was incompetent is not credible because Plaintiff had excellent performance ratings
as a PA before 1992. (Id. at 6.) Plaintiff also took time off to combat depression exacerbated by
the treatment he experienced at FCI Loretto, which is protected under the Family and Medical
Leave Act (“FMLA”). (Id.)
Plaintiff argues that Defendant terminated him due to his prior EEO activity and retaliated
against him after he was reinstated in 1998. (Id.) Mr. Trimbath—the same person who made
derogatory comments about Plaintiff's race—twice wrote up Plaintiff for absenteeism, but
Plaintiff had already submitted doctor's letters explaining that he needed to take the leave. (Id.
at 8.) Plaintiff submitted sufficient records to place Defendant on notice that he was taking FMLA
leave, and the FMLA establishes that employers may not use the taking of FMLA leave as a
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negative factor in disciplinary actions. (Id. at 10-11.) Plaintiff's absences in September and
December of 1998 were noted as part of the reason Mr. Schnake proposed Plaintiff's termination.
(Id. at 12.) However, the FMLA prohibits Defendant from using Plaintiff's absenteeism as a
legitimate reason for Plaintiff's termination.® (Id. at 14.)
Plaintiff asserts that he was subjected to disparate treatment’ because he was the only PA,
over a number of years, to have been subject to a PIP, shadowed, required to watch instructional
videos, and terminated. (Id. at 14-15.) Plaintiff states that it is “reasonable to presume” that,
given the nature of the work, Plaintiff is not the only PA who was considered to have had
performance deficiencies. (Id. at 16.) Plaintiff argues that two other PAs, Mr. Burk and Mr.
Catiller,’ had problems with patient care but were not put on PIPs. (Id.)
Plaintiff next asserts that Mr. Schnake’s comments and conduct are evidence of frustration
with Plaintiff's filing of EEO claims and his conduct “evinces a retaliatory motive more than
anything else.” (Id. at 23.) His comments also show that he had discriminatory racial animus
towards Plaintiff. (Id. at 24.)
Plaintiff argues that the memos written by Dr. Leonard and Mr. Schnake are evidence of

pretext. (Id. at 18-21.) In Dr. Leonard’s disciplinary action memos, Defendant failed to reference

6 Plaintiff asserts that all of the reasons for which Plaintiff was terminated are therefore discredited because
“{a]s per Third Circuit caselaw, discrediting one reason answered by an employer for an adverse action
serves to discredit the other asserted reasons.” (Id. at 9.) Plaintiff provides no authority for this assertion
and the Court accordingly provides it no weight. Because Plaintiff does not raise claims under the FMLA,
whether he was entitled to FMLA leave is not material to this case.
7 It is unclear from Plaintiffs brief which claim this argument is supporting. Plaintiff asserts that “evidence
of disparate treatment . . . is not needed for a claim of retaliation,” but makes no mention of race, color, or
national origin discrimination. (Id. at 14.)
8 Plaintiff points out that Mr. Burk was white, but does not specify Mr. Catiller’s race. (Id. at 16.) The Court
will assume that he is also white because Plaintiff concludes that this was “circumstantial evidence which
shows Defendant subjected Plaintiff to disparate treatment due to his national origin and/or color.” (Id.)
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any objective guidelines, rules, or regulations that were allegedly violated by Plaintiff. (Id. at 17.)
Dr. Leonard’s disciplinary actions against Plaintiff were based only his subjective opinion of
Plaintiff's performance and Dr. Leonard wrote the memos “in order to create a paper trail.” (Id.)
Plaintiff rebutted all six complaints from Dr. Leonard’s June 10, 1998, writeup. (Id. at 18-19.) Dr.
Leonard never considered Plaintiff's rebuttal and his opinions of Plaintiff's care were entirely
subjective. (Id. at 18.) Similarly, none of Mr. Schnake’s memos contained any citation to any
alleged violation of any of Defendant's policies, practices or procedures, and Plaintiff never
received the memos. (Id. at 20.) These memos contained “contrived” criticism of Plaintiff's
performance. (Id. at 22-23.) Moreover, the Last Chance agreement did not provide Plaintiff with

an opportunity to show improvement because Defendant violated the terms set out in the
agreement by assessing Plaintiff's performance only on the basis of Plaintiff's interaction with 14
patients instead of the promised 60 patients during his 60-day assessment period. (Id. at 17.)
B. Defendant Is Entitled to Judgment as a Matter of Law on Plaintiff's Disparate
Treatment Claim
Plaintiff asserts that he was subject to discrimination because of his race, color, and
national origin.? Title VII makes it unlawful for an employer to discriminate against an individual
with respect to his employment on the basis of the individual’s race, color, religion, sex, or
national origin. 42 U.S.C. § 2000e-2(a). It is undisputed that during the period of time relevant

to this case, the BOP was an “employer” subject to Title VII’s provisions, and Plaintiff was an
“employee” entitled to statutory protection from race-based discrimination. § 2000e(b), (f).

9 Because the alleged discriminatory acts put forth by Plaintiff touch on all three of these bases, the Court
will analyze all three together, rather than separately.
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Since this is an employment discrimination case in which Plaintiff has presented no
“direct evidence” of discrimination, the Supreme Court’s framework in McDonnell Douglas Corp.
v. Green, 411 U.S, 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981), provide the formulation for allocating the requisite burdens of proof and production for

purposes of the instant motion for summary judgment.!° In an employment discrimination case
of this kind, the plaintiff must first establish a prima facie case of illegal discrimination. McDonnell
Douglas, 411 U.S. at 802. If the plaintiff establishes a prima facie case of discrimination, the
defendant must articulate legitimate, nondiscriminatory reasons for treating the plaintiff in an
adverse manner. Id. at 802-03. If the defendant articulates legitimate, nondiscriminatory reasons
for the plaintiff's adverse treatment, the plaintiff must demonstrate that the reasons given by the
defendant for such treatment are merely a pretext for unlawful employment discrimination. Id.
at 804-05.
1. Plaintiff Has Failed to Establish a Prima Facie Case of Disparate
Treatment
The plaintiff's burden of establishing a prima facie case of disparate treatment is not

onerous. Burdine, 450 U.S. at 253. To establish a prima facie case of discrimination, the plaintiff
must show that: (1) he is a member of a protected class; (2) he was subject to an adverse
employment action; and (3) that the adverse employment action occurred under circumstances

10 The McDonnell Douglas-Burdine burden-shifting framework does not apply in an employment
discrimination case in which a plaintiff presents “direct evidence” of discrimination. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511 (2002). “Direct evidence” of discrimination is evidence that is “so revealing of
discriminatory animus that it is not necessary to rely on any presumption” from the plaintiffs prima facie
case to shift the applicable burden of production to the defendant. Starceski v. Westinghouse Electric Corp.,
54 F.3d 1089, 1096 n.4 (3d Cir. 1995). The evidence presented in this case does not constitute “direct
evidence” of discrimination.
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that give rise to an inference of unlawful discrimination. Jones v. Sch. Dist. of Philadelphia, 198 F.3d
403, 410-11 (3d Cir. 1999).
Here, it is undisputed that Plaintiff is a member of a protected class because he is Indian
and from India. It is also undisputed that the adverse employment actions at issue include denial
of medical privileges, demotion from PA to correctional officer, and termination. Therefore, the
Court must only determine whether Plaintiff has shown that these actions give rise to an inference
of unlawful discrimination.
At the prima facie stage, the “central focus” is on whether an employer has treated an
employee less favorably than others on the basis of an illicit discriminatory criterion. Howard v.
Blalock Electric Service, Inc., 742 F. Supp. 2d 681, 701-02 (W.D. Pa. 2010). However, an inference of
race-based discrimination cannot arise simply from an employee’s subjective belief that his race
somehow influenced the challenged employment action. Id. at 702. Instead, a plaintiff can
establish a prima facie case of illegal discrimination by showing that he has received less favorable
treatment than similarly situated employees who did not share his or her statutorily-protected
trait, Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352-57 (3d Cir. 1999), or by showing that
his race, color, or national origin was a “motivating factor” in the challenged employment action.
Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 (2009) (citing 42 U.S.C. § 2000e-2(m)).

1 The Court has determined that these three elements are the ones relevant to the present case. See id. at
411 (noting that the specific elements of a prima facie discrimination case generally “depend on the facts of
the particular case” before the court and “cannot be established on a one-size-fits-all basis.”); see also Int'l
Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (“The importance of McDonnell Douglas lies, not
in its specification of the discrete elements of proof there required, but in its recognition of the general
principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an
inference that an employment decision was based on a discriminatory criterion illegal under the Act.”)
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Here, Plaintiff has not produced any evidence that his race or national origin was a
motivating factor in his demotion or termination. Although the record may contain evidence that
Mr. Trimbath and Mr. Schnake at one point each made disparaging remarks about Plaintiff's race,
the record is devoid of evidence permitting an inference that Defendant terminated Plaintiff
because of his race. Even assuming animus on Mr. Trimbath’s or Mr. Schnake’s part, they played
no role in the challenged adverse employment actions taken against Plaintiff. It is undisputed
that Dr. Leonard made the decision to deny Plaintiff's medical privileges, effectively “demoting”
Plaintiff to a correctional officer, not Mr. Trimbath or Mr. Schnake. Additionally, the Focus
Review Team, composed of medical staff who did not work at FCI Loretto, agreed with Dr.
Leonard’s decision to revoke Plaintiff's medical privileges. It is also undisputed that Warden
Shearin, not Mr. Trimbath or Mr. Schnake, was the one who decided to terminate Plaintiff.
Warden Shearin relied on Dr. Leonard’s memos in making his decision, and Plaintiff has failed
to show that Mr. Trimbath or Mr. Schnake had any role in his decision to terminate Plaintiff.
Plaintiff has made no allegation that either Warden Shearin or Dr. Leonard had any racial animus
towards him.
Plaintiff attempts to show that because he was treated less favorably than two white
employees, Mr. Burk and Mr. Catiller, he was subject to unlawful discrimination. However,
Plaintiff's allegation goes no further than this. Plaintiff has failed to show that these men made
the same medical errors that he did. Plaintiff asks this Court to “presume” that they made errors.
Although Plaintiff can rely on inferences to establish a prima facie case, Plaintiff “cannot
repeatedly pile one inference upon another in order to establish a prima facie case of
discrimination.” Howard, 742 F. Supp. 2d at 703. The Court cannot simply presume that all PAs
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at FCI Loretto were similarly situated to Plaintiff and made similar medical mistakes; the Court
requires some evidence that this was the case. To prove discrimination, Plaintiff must
demonstrate that these men were similarly situated and received more favorable treatment than
Plaintiff. Plaintiff has shown neither.
Plaintiff has failed to show that his race, color, or national origin played any role in his
termination. His subjective belief is not enough. Multiple witnesses testified that they did not
believe Plaintiff's race had any role in the disciplinary actions taken against him. See supra note
5. Plaintiff has been unable to name anyone who can support his contention that the staff at FCI
Loretto treated him differently because of his race, color, or national origin. Ms. Angles, the PA
who heard Mr. Schnake’s allegedly offensive comments, testified that she did not believe that Dr.
Leonard, Mr. Schnake, or Mr. Trimbath discriminated against Plaintiff on the basis of race, color,
or national origin. (ECF No. 134 { 39.) Plaintiff has not shown that his race, color, or national
origin was a “motivating factor” in the denial of his medical privileges, assignment to non-
medical tasks, or termination.
Accordingly, Plaintiff has failed to establish a prima facie case for his disparate treatment
claims under Title VII.
2. Defendant Has Put Forth Evidence that Permits a Jury to Find that
Plaintiff Was Terminated for Legitimate, Non-discriminatory Reasons
Even assuming that Plaintiff has put forth enough evidence to make out a prima facie case,
Defendant has put forth evidence that indicates the adverse employment actions were taken for
non-discriminatory reasons. If the plaintiff establishes a prima facie case of discrimination, the
burden of production shifts to the defendant to rebut the presumption of discrimination through

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the introduction of admissible evidence indicating that the challenged employment action was
taken for legitimate, nondiscriminatory reasons. Burdine, 450 U.S. at 254-55. To sustain this
burden, “[t]he defendant need not persuade the court that it was actually motivated by the
proffered reasons.” Id. at 254. The inquiry concerning whether the defendant has met its burden
of production “can involve no credibility assessment,” since “the burden-of-production
determination necessarily precedes the credibility-assessment stage.” St. Mary’s Honor Ctr. v.
-Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). The defendant satisfies its burden of
production, and rebuts the plaintiff's prima facie showing of discrimination, simply by introducing
admissible evidence that, if taken as true, would permit a finding that the challenged employment
action was taken for legitimate, nondiscriminatory reasons. Id. (emphasis in original).
First, Defendant has put forth evidence that shows that Plaintiff's medical privileges were
revoked because of his medical misjudgments. Dr. Leonard’s memo states that Plaintiff's medical
misjudgments included, but were not limited to: failure to ask about symptoms, failure to
perform systematic examinations, failure to accurately describe disease etiology, failure to
properly document his examinations, failure to properly perform the auscultation of a patient's
aortic valve, repeated failure to properly obtain a patient’s blood pressure, inability to identify
various causes of certain medical conditions, inability to identify risk factors for certain medical
conditions, lack of knowledge in the reading of EKGs, and incomplete understanding of what
parameters are contained in laboratory studies that he ordered.
Second, Defendant has put forth evidence that shows that Plaintiff was assigned non-
medical tasks because Dr. Leonard revoked his medical privileges and never reinstated them.
Without medical privileges, he was unable to perform medical tasks.
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Third, Defendant has put forth evidence that shows that Plaintiff was terminated due to
his failure to demonstrate that he could safely care for the patients he was treating at FCI Loretto.
The termination letter highlights the various medical errors that Plaintiff had made and noted
that the Clinical Director, Dr. Leonard, had determined that Plaintiff did not possess the requisite
medical knowledge and was not competent enough to be granted medical privileges under Dr.
Leonard’s license.
Therefore, Defendant has satisfied its burden of production to show that Plaintiffs
revocation of medical privileges, demotion, and termination were each taken for non-
discriminatory reasons.
3. Plaintiff Cannot Show that Defendant’s Reasons for Termination Are
Pretextual
After the defendant meets its burden of production, the burden returns to the plaintiff to
produce evidence from which a reasonable jury could find that the proffered reasons were
pretextual. Burdine, 450 U.S. at 255-56. In order to establish that the defendant is liable for illegal
employment discrimination, the plaintiff must ultimately convince the trier of fact that a
discriminatory animus was the real reason for the adverse employment action at issue. Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Liability cannot be established upon a jury’s mere disbelief
of the defendant's proffered reasons for an adverse employment action, but rather upon the jury’s
affirmative belief of the plaintiffs contention that the action was taken on the basis of an
impermissible discriminatory criterion. St. Mary’s Honor Ctr., 509 U.S. at 519.
Here, for the reasons discussed above regarding Plaintiff's failure to establish a prima facie
case, the Court holds that no reasonable jury could conclude that Defendant discriminated

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against Plaintiff on the basis of his race, color, or national origin. Defendant is therefore entitled
to summary judgment on Plaintiff's disparate treatment claims.
C. Defendant Is Entitled to Judgment as a Matter of Law on Plaintiff's Retaliation
Claim
Plaintiff also asserts that he was subject to discrimination because of prior EEO activity.
Title VII makes it unlawful for employers to discriminate against an employee because he has
filed a charge with the EEOC. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas framework also

governs Title VII retaliation claims. Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006).
If the plaintiff first articulates a prima facie case of retaliation, the employer must then come
forward with a legitimate, non-retaliatory reason for the discharge. Id. (citing Krouse v. Am.
Sterilizer Co. 126 F.3d 494, 500-01 (3d Cir. 1997)). If the employer produces a legitimate, non-
retaliatory reason, the Plaintiff then shoulders the burden of proving that legitimate reason is
pretextual, and that retaliation was the true ground for termination. Krouse, 126 F.3d at 500-01.
1. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation
To establish a prima facie case of retaliation, plaintiff must demonstrate: (1) he was engaged
in protected activity; (2) the defendant took adverse employment actions against him; and (3)
there was a causal connection between the adverse action and his protected activity. Moore, 461
F.3d at 340-41.
Here, it is undisputed that Plaintiff's protected activity was his earlier EEO action in 1993,
which resulted in him being reinstated to FCI Loretto in January of 1998. The adverse
employment actions include revocation of medical privileges, demotion, and termination. The

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remaining issue is whether Plaintiff has shown a causal connection between his protected activity
and the adverse actions he suffered, as well as his termination.
At the prima facie stage, the plaintiff must produce evidence “sufficient to raise the
inference that [his] protected activity was the likely reason for the adverse [employment] action.”
Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 259 (3d Cir. 2017). To establish a causal
connection, a plaintiff must show either temporal proximity between the protected activity and
the adverse employment action, or ongoing evidence of antagonism. Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001). The timing of an alleged retaliatory action “must be
unusually suggestive of retaliatory motive before a causal link will be inferred.” Williams v.
Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004). If the temporal proximity is
not “unusually suggestive,” this Court must determine if the Plaintiff's evidence, “looked at as a
whole, is sufficient to raise the inference.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d
Cir. 2000).
Here, Plaintiff cannot establish “unusually suggestive” temporal proximity between the
adverse actions taken against him and his protected activity. Plaintiff returned to FCI Loretto
approximately five years after filing his complaint with the EEOC. Although he did not return
immediately to FCI Loretto after the EEOC claim, Plaintiff has put forth no evidence that shows
he was being retaliated against upon his return to FCI Loretto. The Court finds that the five-year
gap between the EEOC claim and the adverse employment actions is not “unusually suggestive”
of a causal link. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007)
(“Although there is no bright line rule as to what constitutes unduly suggestive temporal

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proximity, a gap of three months between the protected activity and the adverse action, without

more, cannot create an inference of causation and defeat summary judgment.”).
Looking at the evidence in this case as a whole, the evidence is not sufficient to raise an
inference of causation. Plaintiff has not shown that any of the people responsible for the adverse
employment actions against him were doing so to retaliate against Plaintiff because he filed a
claim with the EEOC. It is undisputed that Dr. Leonard was the one who revoked Plaintiff's
medical privileges and Warden Shearin was the one who reassigned Plaintiff to non-medical
tasks and ultimately terminated Plaintiff's employment. Plaintiff has not pointed to any evidence
that shows that either Dr. Leonard or Warden Shearin acted to retaliate against Plaintiff. Plaintiff
had no conversations with either Dr. Leonard or Warden Shearin in which his EEOC claim was

even discussed. Plaintiff's EEOC claim was never mentioned in any of the memoranda that
discussed Plaintiff's performance issues at FCI Loretto. Additionally, Plaintiff has not introduced

any evidence that Mr. Trimbath—the FCI Loretto employee who was the subject of the allegations
in the EEOC claim— displayed any animosity or harassed Plaintiff because Plaintiff filed the prior
EEOC claim. Plaintiff asks this Court to infer that because Plaintiff filed a claim with the EEOC
and was then later subjected to adverse employment action the two events must be causally
related. The Court will not make that inference—it is Plaintiff's burden to identify sources of
proof to support his claim. The claim cannot survive summary judgment on bare inferences
alone.
The only evidence that Plaintiff has put forth that is related to the prior EEOC claim was
Mr. Schanke’s comment about “BS Discrimination.” This single comment is not enough to raise

an inference of retaliation. The comment was made during the Last Chance period after Plaintiff's
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medical privileges had been revoked and his termination had already been proposed. There is
no evidence that Mr. Schnake took any adverse action against Plaintiff after the comment was
made. Moreover, Mr. Schnake’s comment did not chill Plaintiff’s EEO rights because Plaintiff
filed a complaint about this remark with Warden Shearin that same day. Plaintiff will not be able
to convince a reasonable jury that this single remark shows that the revocation of his medical
privileges, his assignment to non-medical tasks, and his termination were all causally linked to
his filing of the EEOC claim.
Accordingly, Plaintiff has failed to establish a prima facie case for his retaliation claim
under Title VII.
2. Defendant Has Put Forth Evidence that Permits a Jury to Find that
Plaintiff Was Terminated for Legitimate, Non-discriminatory Reasons
Even assuming that Plaintiff has put forth enough evidence to make out a prima facie case,
Defendant has put forth evidence that can show the adverse employment actions were taken for
non-discriminatory reasons. The standard in assessing whether a defendant has met its burden
of production to rebut the prima facie case is the same for retaliation claims as it is for disparate
treatment claims. See Moore, 461 F.3d at 342. The Court finds that the non-discriminatory reasons
asserted by Defendant for why Plaintiff had his medical privileges revoked, why he was assigned
non-medical tasks, and why he was terminated also apply to this claim.
3. Plaintiff Cannot Show that Defendant’s Reasons for Termination Are
Pretextual
A plaintiff proceeding under a pretext theory must convince the factfinder that the
employer's proffered non-retaliatory explanation was false, and that retaliatory animus was the
“real reason for the adverse employment action.” Carvalho-Grevious, 851 F.3d at 258 (quoting
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Moore, F.3d at 342). Put another way, the plaintiff must establish that his “protected activity was
a but-for cause of the alleged adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 362 (2013). The plaintiff must therefore produce evidence that all of the
offered reasons are pretextual, not merely one. Berezansky v. CNB Bank, No. 3:17-cv-105, 2019 WL
4750326, at *8 (W.D. Pa. Sept. 30, 2019).
Here, for the reasons discussed above regarding Plaintiff's failure to establish a prima facie
case, the Court holds that no reasonable jury could conclude that Plaintiff's filing of a claim with
the EEOC was a but-for cause of the revocation of his medical privileges, reassignment to non-
medical tasks, or termination. Nor could a jury conclude that all of the proffered reasons for the
adverse employment actions were pretextual. Defendant is therefore entitled to summary
judgment on Plaintiff's retaliation claim.
VII. Conclusion
For the forgoing reasons, the Court grants Defendant’s Motion for Summary Judgment.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOE A. KANNIKAL, ) Case No. 3:12-cv-220
)
Plaintiff, ) JUDGE KIM R. GIBSON
)
v. )
)
WILLIAM P. BARR, )
Attorney General, )
)
Defendant. )
ORDER
a\st
NOW, this day of October, 2019, upon consideration of Defendant's for Summary
Judgment (ECF No. 120), and for the reasons set forth in the accompanying Memorandum
Opinion, it is HEREBY ORDERED that said Motion is GRANTED. Plaintiff's Amended
Complaint is dismissed with prejudice.

BY THE COURT:

JUAN '
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415154. Public record. Not legal advice.