The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SHONDA BROWN-STEWART,
Plaintiff, Civil Action No. 21-10570 (SDW) (JSA)
v. OPINION
HACKENSACK MEDICAL UNIVERSITY
January 24, 2024
AND HACKENSACK MERIDIAN HELTH,
INC.,
Defendant.
WIGENTON, District Judge.
Before this Court is Hackensack Medical University Center, and Hackensack Meridian Health,
Inc. (collectively “HUMC”) Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56 (“Rule”). (D.E. 93.) Subject matter jurisdiction is proper pursuant to 28 U.S.C.
§ 1331. Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral
argument pursuant to Rule 78. For the reasons stated herein, HUMC’s motion is GRANTED.
I. BACKGROUND and PROCEDURAL HISTORY
HUMC hired Plaintiff on December 7, 2020 as a Nurse in the Labor and Delivery unit (“L&D
unit”). (Id. at 31.) She was 49 years old at the time with 31 years of prior work experience in the
healthcare industry. (D.E. 96 at 1; D.E. 93-1 at 2.) She had been a practicing nurse for six years
at other hospitals including in the delivery unit of The Valley Hospital. (Id. at 1-2.) At all relevant
times, HUMC employed 98 nurses, 46 of whom were over the age of 40 and 25 of which were
over the age of 49, the oldest being 83 years old. (D.E. at 4-5.) At the time Plaintiff was hired,
HUMC communicated that the position was probationary for 90-days, to allow it time to evaluate
her and determine if she had the requisite skillset for the position. (Id. at 5-6.) HUMC’s policy
stated that “[e]mployees who do not successfully complete their introductory period will be
terminated.” (D.E. 93-14: Feher Cert. Ex. 4 at 1.)
During the probationary period, Plaintiff’s work was evaluated by three different employees
called “preceptors.” Preceptors are not managers but rather peers who assist new hires through
orientation and to ensure that patient care standards are met. (D.E. 93-1 at 6.) Shenelle Gooden
was Plaintiff’s first preceptor for the first six weeks of the probationary period. (Id. at 7.) Ms.
Gooden’s preceptor notes outlined several performance issues she observed with Plaintiff which
included poor time management, inefficient multitasking, and inaccurate patient charting. (Id.) In
response to this feedback, Plaintiff emailed her supervisor to express her concern about the lack of
training she received from Ms. Gooden and to request a new preceptor. She stated that the lack of
training left her feeling confused and unable to critically think which affected her overall
confidence. (D.E. 93–19.) At her deposition she testified that she “found [herself] not being able
to do [her] job effectively” and that she “didn’t have the right policies and procedures to work at
Hackensack,” (D.E. 93–22; Pltf. Dep. 40:1–25), despite there being documentation of her signed
acknowledgment of having received the polices via HUMC’s intranet. (D.E. 93-12.) Plaintiff also
testified that she could not recall whether she had been discriminated against by Ms. Gooden.
(D.E. 93–22; Pltf. Dep. 36:20–25.)
HUMC honored Plaintiff’s request and replaced Ms. Gooden with Yumiko Hussey. (D.E. 93-
1 at 8.) At the end of her evaluation period, Ms. Hussey reported: inaccuracies in patient chartings;
ineffective time management; inability to effectively multitask; insufficient patient prioritization
skills; inability to employ critical thinking skills; inability to explain patient status to clinical care
staff; inaccurate nursing notes and inability to execute patient care. (Id. at 8-9.) Ms. Hussey did
not recommend Plaintiff’s termination and instead suggested that Plaintiff’s orientation be
extended. (D.E. 93-1 at 9.)
Plaintiff was also evaluated by Indranie Cortez, an operating room nurse. (Id. at 10.) Ms.
Cortez reported that Plaintiff had difficulties with her assessment process and prioritizing tasks.
(Id.) Ms. Cortez further stated that she had to frequently remind Plaintiff to do certain tasks or to
group tasks together to complete them in a timely manner. (Id.)
HUMC management met with Plaintiff on February 23, 2021 to discuss her performance
issues. (Id.) At this meeting, Plaintiff reported that she felt bullied and discriminated against and
that she had reported this to HUMC manager, Maria Thurber. (Id.) However, in her deposition
she testified that she could not recall any conversations with Ms. Thurber prior to the February
23rd meeting or if she ever reported any issues with staff. (D.E. 93-23; Pltf. Dep. 60:2– 61:25.)
Following this meeting, on February 24, 2021, Plaintiff sent an email to the HUMC manager
describing her concerns.
With respect to Ms. Hussey, after Plaintiff asked her for an opportunity to prove that she can
be trusted to do her job and would not do anything she did not know without first speaking to Ms.
Hussey, Plaintiff alleged that, in front of other staff members, Ms. Hussey told her she did not
know anything, “not enough to call [herself] an experienced Labor and delivery nurse . . .” (D.E.
93-1 at 11.) In the Complaint, Plaintiff alleged that Ms. Hussey called her “old.” (D.E. 1 at 3-4.)
She further alleged that Ms. Hussey bullied her, made discriminatory comments referencing her
age, demeaned her, disrespected her, and humiliated her in front of staff and patients. (Id.) At her
deposition Plaintiff testified that Ms. Hussey said that Plaintiff was “unteachable” and asked
Plaintiff if the reason Plaintiff refused to learn from her was because she was younger. (D.E. 93–
23; Pltf. Dep. 62:1–25.)
On February 27, 2021, Plaintiff emailed her former manager Jennifer Kopelman to complain
of her experience working with Ms. Hussey but did not include any allegations of ageist comments.
In both the February 24th and 27th email, Plaintiff acknowledged her performance issues and stated
that she is working on her time management skills and that “with time [she] will be faster and able
to manage [her] work in a timely and safe manner.” (D.E. 93–25.)
On February 26, 2021, HUMC determined that Plaintiff failed to successfully complete the
required probationary period and terminated her. 1 (D.E. 93–1 at 13.) Plaintiff initiated the instant
lawsuit on April 27, 2021 against HUMC claiming age discrimination and retaliation. After the
discovery period closed, Defendants filed this motion for summary judgment. The parties timely
completed briefing. (D.E. 93,96, and 97.)
II. LEGAL STANDARD
“Summary judgment is proper if there is no genuine issue of material fact and if, viewing the
facts in the light most favorable to the non-moving party, the moving party is entitled to judgment
as a matter of law.” Tse v. Ventana Med. Sys., Inc., 297 F.3d 210, 218 (3d Cir. 2002); see
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). “The judge's function at the summary judgment stage is not to weigh the evidence
and determine the truth of the matter, but to determine whether there is a genuine issue for trial.”
Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
1 “Between 2020 and 2021, HUMC terminated Plaintiff and six other registered nurses for [not successfully
completing the probationary period] all prior to the expiration of their respective 90-day probationary periods . . . five
of the seven terminated employees were under 40 years old, and therefore outside of the protected age group.” (D.E.
93-1 at 6.)
III. DISCUSSION
a. Age Discrimination
Plaintiff’s principal claim is that she was terminated because of her age. “The elements of a
prima facie case of age discrimination are that: (1) the plaintiff is at least forty years old; (2) the
plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position
in question; and (4) the plaintiff was ultimately replaced by another employee who was sufficiently
younger so as to support an inference of a discriminatory motive.” Willis v. UPMC Children's
Hosp. of Pittsburgh, 808 F.3d 638, 641 (3d Cir. 2015) (citing Burton v. Teleflex Inc., 707 F.3d 417,
426 (3d Cir.2013)).
“Once the plaintiff has successfully established a prima facie case creating an inference of
discrimination, the burden shifts to the employer who must ‘articulate a legitimate
nondiscriminatory reason for the adverse employment action.’” Id. (quoting Jones v. Sch. Dist. of
Phila., 198 F.3d 403, 412 (3d Cir.1999)). This second step “does not require that the employer
prove that the articulated legitimate, nondiscriminatory reason was the actual reason for the
adverse employment action. Instead, the employer must provide evidence that will allow the
factfinder to determine that the decision was made for nondiscriminatory reasons.” Id. (citing
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994)).
“If the employer satisfies this second step, the burden shifts back once more to the plaintiff to
show, by a preponderance of the evidence, that the employer's proffered legitimate,
nondiscriminatory reason was pretextual.” Id. (citing Burton, 707 F.3d at 426–27).
b. Prima Facie Case
Plaintiff easily satisfies the first two elements of the prima facie case because she was 49 years-
old at the time HUMC terminated her employment. See Willis, 808 F.3d at 641. As for the third
element, there is no dispute as to whether Plaintiff had relevant prior work experience and—as
evidenced by the record and Plaintiff’s own statements. However, there is a dispute as to whether
Plaintiff was qualified to perform her role with HUMC. The record reveals that Plaintiff did not
have the “requisite skills, experience, education, and other job-related requirements for the
position” and at various times she admitted as much. See Fowler v. AT&T, Inc., 19 F.4th 292, 303
(3d Cir. 2021). During the probationary period—which was designed to evaluate a new hires
skillset and ability to perform the job for which they were hired—Plaintiff was told of her poor
performance repeatedly. Indeed, all three of the assigned preceptors reported the same
performance issues: poor time management; inability to think critically; inability to multitask and
inaccuracies in patient charts and nurse notes. Plaintiff acknowledged these performance concerns
and stated that “with time” she would develop the requisite skillset. (See D.E. 93-25.) However,
under the probationary period policy, HUMC was not obligated to provide Plaintiff with time to
develop this skillset it instead allowed for up to 90-days for her to demonstrate and be evaluated
on her skills and competence. She did not do so in the 90-days she was given under HUMC’s
probationary period policy. (See D.E. 93-14: Feher Cert. Ex. 4 at 1.) Thus, Plaintiff fails element
three of the prima facie case.
Even if Plaintiff was able to satisfy element three, she has not satisfied the final element
because she has not demonstrated that she was ultimately replaced by another employee who was
sufficiently younger so as to support an inference of a discriminatory motive. See Willis, 808 F.3d
at 641. Plaintiff has not alleged or proffered any evidence to show that she was replaced by
someone younger than her or that age was a motive in her termination. Instead, the evidence
reveals that HUMC employs registered nurses whose ages vary greatly. Plaintiff was one of seven
nurses whose employment was terminated for similar reasons and five of the seven were younger
than 40 years old. (D.E. 93-1 at 6; see D.E. 93-15.)
Importantly, Plaintiff never reported age discrimination or harassment prior to her termination.
None of the preceptors were aware of her age at the time of their evaluation of her work. In neither
the meeting with management regarding her poor performance nor any of the subsequent emails
to management did Plaintiff report any discrimination. In her emails and her deposition, Plaintiff’s
only complaint was that she felt Ms. Gooden did not provide her with proper policy and procedure
training to be successful in her role and that Ms. Hussey embarrassed her by criticizing her
performance in front of other staff members. (See D.E. 93–19; D.E. 93–25; D.E. 93–26.) It was
not until she filed this lawsuit that Plaintiff complained of ageist remarks and the only remark she
alleged was that Ms. Hussey called her “old.” (D.E. 1 at 2.) However, at her deposition she
testified that Ms. Hussey asked Plaintiff if the reason Plaintiff refused to learn from her was
because she was younger. She did not testify to being called “old.” (D.E. 93–23; Pltf. Dep. 62:1–
25.) This is an important distinction and one that undermines Plaintiff’s claims.
Finally, considering all of the facts, this Court finds that no reasonable jury would conclude
that Plaintiff was terminated because of her age when she was hired and terminated at the exact
same age. Age did not appear to be a concern to HUMC at the time it hired Plaintiff so it is curious
that it would be the reason to terminate her. This is especially true when considering the fact that,
at the time, HUMC’s nursing staff had 98 nurses including 46 nurses over the age of 40 and 25
nurses older than Plaintiff. (D.E. 93–15.) The record reveals that Plaintiff was not terminated
because of her age but because she lacked the requisite skillset. Plaintiff has not established a
prima facie case for age discrimination and thus, the burden will not shift to HUMC to articulate
a legitimate nondiscriminatory reason for the adverse employment action. Even if this Court were
to find Plaintiff satisfied her burden of proving a prima face case, HUMC has clearly established
a legitimate non-discriminatory reason for terminating Plaintiff as she performed poorly during
her probationary period. Accordingly, there are no issues of material fact for a jury to resolve on
this claim.
c. Retaliation
Plaintiff’s sets forth a claim for retaliation. To succeed on this claim, Plaintiff must show that:
(1) she was engaged in protected activities; (2) the employer took an adverse employment action
after or contemporaneous with the employee's protected activity; and (3) a causal link exists
between the employee's protected activity and the employer's adverse action. See Glanzman v.
Metro. Mgmt. Corp., 391 F.3d 506, 508-09 (3d Cir. 2004). As for the first element, protected
activity “includes not only an employee's filing of formal charges of discrimination against an
employer but also ‘informal protests of discriminatory employment practices, including making
complaints to management.’” Daniels v. School Dist. of Philadelphia, 776 F.3d 181, 193 (C.A.3
(Pa.), 2015) (quoting Curay–Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130,
135 (3d Cir.2006).2 Plaintiff fails this element because she did not report age discrimination to
anyone at HUMC including management prior to her termination or initiating this action. As for
the second element, an adverse employment action is “an action by an employer that is serious and
tangible enough to alter an employee’s compensation, terms, conditions, or privileges.” Jones v.
Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int'l Sec. Servs.,
390 F.3d 760, 764 (3d Cir.2004). Although termination or notice of termination constitutes an
2 see Crawford v. Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271, 276, 129 S.Ct. 846, 851, 172 L.Ed.2d
650 (2009) (“When an employee communicates to her employer a belief that the employer has engaged in . . . a form
of employment discrimination, that communication’ virtually always ‘constitutes the employee's opposition to the
activity.”.
adverse employment action3, Plaintiff fails this element because she has not established that she
was engaged in a protected activity—such as reporting instances of age discrimination to HUMC’s
management—to establish that her termination was after or contemporaneous with it.
Consequently, Plaintiff also fails the third element because Plaintiff has not established a causal
link between her termination and the protected activity because she has not established that she
was engaged in a protected activity. Thus, there are no issues of material fact for a jury to resolve
on this claim.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED. An
appropriate order follows.
s/ Susan D. Wigenton______________________
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc: Parties
Jessica S. Allen, U.S.M.J.
3 See Fowler v. AT&T, Inc., 19 F.4th 292, 301 (3d Cir. 2021).