JENKINS v. WESLEY ENHANCED LIVING

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YOLANDA JENKINS, CIVIL ACTION

Plaintiff,

NO. 23-1954-KSM

v.

WESLEY ENHANCED LIVING, et al.,

Defendants.

MEMORANDUM

Marston, J. June 27, 2024

Plaintiff Yolanda Jenkins brings employment discrimination claims1 for failure to

promote and hostile work environment under state and federal law against her former employer,

Wesley Enhanced Living (“WEL”), and the WEL living communities where she worked,

Stapeley Hall and Stapeley Hall, Inc. (herein referred to collectively as “Defendants”).

Defendants moved for summary judgment, arguing that Jenkins failed to put forth evidence

showing that the case should proceed to trial. (Doc. Nos. 25, 28.) Jenkins responds that fact

disputes preclude entry of summary judgment. (Doc. Nos. 26, 29.) The Court held oral

argument on Defendants’ motion on June 18, 2024. (Doc. No. 33.) For the reasons that follow,

the Court grants in part and denies in part the Motion.

1 At oral argument, Jenkins agreed that she was not pursuing a constructive discharge claim but asserted

that the circumstances of her resignation are part of the damages based on her hostile work environment

claim. (Draft Hr’g Tr. at 31:4–12.)

I. FACTUAL BACKGROUND

Viewing the evidence in the light most favorable to Jenkins, the relevant facts are as

follows.

WEL is a Continuing Care Retirement Community (“CCRC”) comprised of five senior

living communities—including locations in Stapeley, the Main Line, and Doylestown—which

provide various combinations of independent living, personal care, memory care, rehabilitation,

and skilled nursing services. See About, Wesley Enhanced Living (last accessed June 17, 2024),

https://www.wel.org/about-us/. WEL’s President and CEO is Jeffrey Petty, a white male. (Doc.

No. 28 at ¶ 17.) Each WEL community is run by an Executive Director with a Pennsylvania

Nursing Home Administrator license (“ED/NHA”)2, who directly reports to Petty. (Id. at ¶ 21;

Doc. No. 26-7 at 56:5–18.) Petty joined WEL as its President and CEO in 2003; since then, all

fifteen to twenty ED/NHAs employed at WEL have been white. (Doc. No. 28 at ¶ 21.)

A. Jenkins Begins Employment at WEL

Ms. Jenkins, a black woman, was hired on July 16, 2017 by WEL’s then-Vice President

of Human Potential, Patricia Lamoreux, a white woman, to be the Human Resources (“HR”)

Manager for WEL’s Stapeley community.3 (Doc. No. 28 at ¶ 13; Doc. No. 26-4 at 52:8–15.)

Jenkins has a bachelor’s degree in human resources management, a master’s degree in human

resources development, with a concentration in financial management, and obtained her New

Jersey NHA License in 1992. (Doc. No. 28 at ¶¶ 1, 4.) She also had prior experience working at

2 One WEL community does not have a nursing home, so the director of that community is referred to as

an Executive Director (“ED”), rather than ED/NHA. (Doc. No. 26-7 at 56:5–18.)

3 At the time Lamoreux hired Jenkins, there was little racial diversity in HR management. (Doc. No. 28

at ¶ 19.) Lamoreux testified that in her seven years as WEL’s Vice President of Human Potential, almost

every employee who reported to her was white. (Id.)

a CCRC and as a Nursing Home Administrator (“NHA”); however, starting in 2005, Jenkins

stopped working as an NHA and transitioned to HR-focused roles.4 (Id. at ¶ 3; Doc. No. 26-4 at

19:1–20:16, Doc. No. 26-5 at 2–4.) Jenkins discussed her NHA background during the interview

process for HR Manager. (Doc. No. 28 at ¶ 14; Doc. 26-12 at 179:19–181:5.)

As Stapeley’s HR Manager, Jenkins reported to Lamoreux and had a “dotted line”

relationship with Stapeley’s ED/NHA, Ken Beiler, a white male.5 (Doc. No. 28 at ¶¶ 17, 18.)

Jenkins’s HR duties included guiding management strategies toward continuous improvement of

HR-related initiatives, employee growth and development; ensuring that local leaders,

management, and employees had effective accessible HR advice, guidance and solutions;

providing guidance to supervisors and managers in resolving employee relations issues;

supervising and developing HR assistants; partnering with EDs and community managers to

execute employee development strategies; and developing or participating in the implementation

of department policies and procedures that guided and supported the quality care and services

provided by WEL. (Id. at ¶ 15.) Jenkins was responsible for supervising one individual in her

role as HR Manager. (Doc. No. 26-4 at 59:6–21.)

1. Jenkins’s 2018 Performance Development Review

On August 20, 2018, Jenkins met with Lamoreux for her first annual performance

development review. (Doc. No. 28 at ¶ 34.) Lamoreux, who had received input from Beiler,

(Doc. No. 26-7 at 120:16–121:1), gave Jenkins a positive review. (Doc. No. 28 at ¶ 34.) The

4 To the extent Defendants state they “cannot [] admit or deny . . . testimony” by Jenkins that she worked

at several CCRCs and trained in every area of their CCRCs (see Doc. No. 28), the Court finds that this

fact is undisputed for purposes of the summary judgment motion. See Fed. R. Civ. P 56(c), (e).

5 Lamoreux explained that the “dotted line” relationship indicated that Jenkins worked as a department

head in the Stapeley community headed by Beiler. (Doc. No. 26-12 at 161:9–16.)

written evaluation stated that Jenkins “[d]emonstrated very good employee relationship and team

building” and “[s]he continuously brings new ideas for improving the culture and developing the

skills of both leadership and employees.” (Doc. No. 26-15 at 2.)

During the evaluation, Lamoreux and Jenkins discussed Jenkins’s prior experience as a

licensed NHA in New Jersey and that Jenkins had previously overseen and controlled the

operations of various CCRCs. (Doc. No. 28 at ¶ 35.) Jenkins informed Lamoreux that despite

her recent HR-focused roles, her future goals included obtaining her Pennsylvania NHA license

and one day becoming an ED/NHA at WEL. (Id.) Although the ED/NHA role includes some

HR duties, it also encompasses many more duties and responsibilities. (See Doc. No. 26-16

(ED/NHA job description which includes, among others: recommending policies to Executive

Staff and administering approved policies and directives to enhance administration and

operations; collaborating with the CEO and Finance Department to prepare annual operating and

capital budgets; implementing guidelines established by the Property Committee to delegate

responsibility to the facilities manager ensuring that the physical property is kept in good

condition; assuming responsibility for the overall operation of the Health Care Center to ensure

full compliance with applicable licensing requirements; developing ongoing marketing

strategies; and meeting with residents individually and collectively to interpret policies, maintain

positive relationships, and address any concerns).) The ED/NHA is also responsible for

supervising multiple individuals. (See, e.g., Doc. No. 26-7 at 53:23–54:4, 75:18–76:7 (Beiler

testifying that he has nine employees who directly report to him); Doc. No. 26-12 at 82:10–19

(Lamoreux testifying that an ED/NHA at WEL oversees not only the nursing home, but also

“assisted living . . . the ancillary departments surrounding that community, independent living,

budgeting . . . dining, environmental services such as housekeeping, maintenance, activities,

[and] therapy”).)

Lamoreux was supportive of Jenkins’s stated goals and informed her that she believed

several ED/NHAs at WEL were preparing to retire over the next five years. (Doc. No. 26-4 at

81:6–19; see also Doc. No. 26-12 at 190:3–16 (Lamoreux testifying, “I encouraged her [] to do

what she needed to do to become an executive director at Wesley, yes. Q: Didn’t you discuss

during that meeting with her in August of 2018 that certain employees in the ED/NHA positions

at WEL were nearing retirement and there would be openings in those positions over the next

five years? A: I don’t recall saying it, but I probably shared that because that, there were a

couple of people that were going to retire, yes. Q: Okay. So you could have said that? A: Yeah,

sure.”).)

The day after learning of Jenkins’s goal of becoming an ED/NHA at WEL, Lamoreux

emailed Petty to inform him of Jenkins’s interest.6 (Doc. No. 28 at ¶ 64; Doc. No. 26-19 at 2.)

Lamoreux explained that Jenkins held NHA licenses for the states of New Jersey and Virginia

and was working towards obtaining her Pennsylvania license. (Doc. No. 26-19 at 2.) Lamoreux

further stated that she had told Jenkins to share her goal of becoming an ED/NHA with Beiler,

Stapeley’s current ED/NHA, and to ask him for opportunities to demonstrate her readiness for

the role. (Id.) She concluded her email to Petty, “[j]ust want you to be aware so you can discuss

with [Beiler].” (Id.)

In addition to emailing Petty, Lamoreux testified that she also connected Jenkins with

Beiler and another ED/NHA so she could learn more about the functions of an ED/NHA. (Doc.

6 Lamoreux testified that this email demonstrated her implicit support for Jenkins’s goal (Doc. No. 26-12

at 198:24–199:14), but Petty testified that he did not perceive Lamoreux’s support for Jenkins based on

the text of her email (Doc. No. 26-13 at 77:20–78:10).

No. 26-12 at 191:18–194:16; see also Doc. No. 26-4 at 162:18–165:16 (Jenkins testifying

regarding email from Beiler to the Stapeley Director of Nursing informing him of Jenkins’s

participation in interdisciplinary care planning meetings); Doc. No. 26-7 at 137:4–139:24 (Beiler

testifying that Jenkins accompanied him to some morning meetings where she learned more

about the daily functions of the nursing home); Draft Hr’g Tr. at 25:1–4 (Jenkins’s counsel

conceding, “[i]t is in the record that I think sporadically she attended some NHA meetings”).) In

addition, Lamoreux sought to help Jenkins develop and grow by working with her to understand

finances and develop a budget for her own department. (Doc. No. 26-12 at 258:22–259:1.)

2. Jenkins Experiences Different Treatment

Despite Lamoreux’s initial encouragement during her performance review, Jenkins

alleges that soon after expressing her interest in the ED/NHA position, Lamoreux began treating

Jenkins differently and worse during monthly HR meetings by interrupting and cutting Jenkins

off from speaking during group discussions. (Doc. No. 28 at ¶ 56.) Whether this treatment

occurred is disputed in the record. Althea Taylor (Crockett), a former black HR manager, stated

that she observed such mistreatment.7 (Doc. No. 30.) Taylor stated that she noticed Lamoreux

would interrupt Jenkins “in a very harsh manner” during HR meetings and seemed to take issue

with Jenkins’s input, while she found Lamoreux “to be very gentle and accepting of any all ideas

that were shared by the white Human Resources Managers, even if those ideas were not helpful

or showed a lack of experience.” (Id.) Lamoreux denied any recollection of such unfair

treatment; she noted that she did redirect people during HR meetings to facilitate conversation,

but that she would not cut people off. (Doc. No. 26-12 at 148:11–18; 153:1–8.) Lamoreux also

testified that Jenkins was “very repetitive when she talked and would state things and continue to

7 See infra n.30.

talk and then say it again and say it again.” (Id. at 153:1–8.) Cara Kuhn, then-Director of Talent

Acquisition, regularly attended the monthly HR meetings and testified that Lamoreux would cut

short all employees in facilitating HR group discussions but denied witnessing Lamoreux being

critical of Jenkins. (Doc. No. 26-11 at 49:20–50:7, 188:9–12.) Kuhn did not have any issues

with Jenkins’s manner of speaking and did not think that Jenkins talked too much. (Id. at 51:2–

9.) Rather, Kuhn testified that Jenkins was articulate and that she found Jenkins’s contributions

helpful during discussions. (Doc. No. 28 at ¶ 62; Doc. No. 26-11 at 50:13–20.)

3. Jenkins’s 2019 Performance Development Review

A year later, on July 18, 2019, Jenkins again received overall positive feedback during

her 2019 annual review, although her review did include a comment by Beiler about her

speaking style, noting, “[t]here are situations on occasion where [Jenkins’s] message might be

better heard if it was distilled down to the essence ie. The old []adage ‘less is more.’”8 (Doc. No.

26-22; Doc. No. 28 at ¶ 84.) Jenkins informed Lamoreux during her annual review that she now

had her Pennsylvania license as of March 2019.9 (Doc. No. 26-22 at 2; Doc. No. 26-13 at

111:18–112:14.) They again discussed Jenkins’s goal of becoming an ED/NHA at WEL, and

Lamoreux updated Jenkins’s written review to reflect she had obtained her Pennsylvania license

and had continued interest in becoming an ED/NHA at WEL. (Doc. No. 26-22 at 2.)

8 Beiler also noted that on rare occasion, Jenkins could be “so fully vested in an issue” that she could be

“resistant to an alternative solution,” but Lamoreux specifically rebutted this comment, stating that she

believed “this is tied to a single event where [Jenkins] was trying to [en]sure the process and procedures

were administer[ed] correctly, fairly and consistently without any favoritism.” (Doc. No. 26-22 at 3.)

9 Because Jenkins already had her NHA license in New Jersey, she was able to apply for a reciprocal

license in Pennsylvania. WEL paid the fees associated with Jenkins obtaining her Pennsylvania NHA

license. (Doc. No. 28 at ¶ 44; Doc. No. 26-13 at 111:18–112:14.)

Lamoreux also informed Jenkins that there were no available openings for ED/NHA

positions at WEL at the time. (Id.) Just one month prior to the review, in June 2019, Michael

DeStefon, a white male and WEL’s previous Corporate Director of Rehabilitation Services, had

obtained his Pennsylvania NHA license and taken over as ED/NHA for WEL’s Main Line

location. (See Doc. No. 25-9; Doc. No. 26-20 at 74:12–75:24.) DeStefon testified that Petty had

originally approached him about becoming the ED/NHA for Main Line sometime by early

201810 and that he had started to complete the requirements to obtain his NHA license by

September 2018.11 (Doc. No. 26-20 at 67:14–68:1, 75:5–11, 91:9–92:13; Doc. No. 28 at ¶ 67;

Doc. No. 25-9.)

4. Jenkins’s Continued Employment in 2020 and 2021

It is undisputed that Lamoreux did not meet with Jenkins to conduct an annual review in

2020 or 2021. (Doc. No. 28 at ¶ 85.) Regarding the 2020 review, Lamoreux testified that she

may have missed some performance reviews due to a combination of the pandemic and her

breast cancer treatment.12 (Doc. No. 26-12 at 136:11–21, 166:9–14, 262:6–10.) And as to the

2021 review, Lamoreux testified that she was “getting ready” to complete Jenkins’s 2021

performance review but did not complete it because when she reached out to Beiler for his input,

10 Although Jenkins was unaware of DeStefon becoming Main Line’s ED/NHA until 2021 (Doc. No. 26-4

at 226:5–9), Kuhn testified that she had been aware that Petty had a succession plan for this position as

early as 2016. (Doc. No. 28 at ¶ 81; Doc. No. 26-11 at 8:7–10, 12:15–17, 26:7–15.)

11 Although the record reflects some inconsistency regarding DeStefon’s start date as the ED at the Main

Line facility, (see Doc. No. 26-20 at 48:1–24, 52:20–53:4, 58:24–61:16, 64:3–65:14, 77:23–78:4, 109:14–

110:11; Doc. No. 27; Doc. No. 26-27 at 6), DeStefon testified that he began serving as the ED for the

Main Line facility either in March or June 2018, prior to obtaining his NHA license. (Doc. No. 26-20 at

60:24–61:16, 77:23–78:4, 91:9–92:13.) Then, in June 2019, after DeStefon received his Pennsylvania

NHA license, he was immediately transitioned to the ED/NHA position for the facility. (Doc. No. 28 at

¶¶ 73, 74.)

12 Lamoreux testified that she was receiving chemotherapy and radiation treatments from approximately

March through September 2020. (Doc. No. 26-12 at 136:15–19, 146:23–147:9.)

Beiler asked her to “put a pause” on the performance review because he “need[ed] to discuss

something with [Lamoreux].” (Id. at 262:6–263:9.)

Jenkins also testified that Lamoreux missed or canceled most of Jenkins’s monthly

remote teleconference one-on-one meetings with her, even though she claimed Lamoreux

regularly met with her white direct reports. (Doc. No. 26-4 at 106:7–109:7.) Jenkins testified

that she only had one one-on-one meeting with Lamoreux in 2021. (Id. at 107:9–15.) Lamoreux

conversely testified that she “didn’t always meet during COVID and . . . when [she] was having

[her] cancer treatments [she] wasn’t meeting with people regularly.” (Doc. No. 26-12 at 146:16–

148:6.)

Despite not having any formal performance reviews since the summer of 2019, on March

29, 2021, Beiler wrote a letter of reference for Jenkins to the New Jersey Department of Health

Nursing Home Administrators Licensing Board.13 (Doc. No. 28 at ¶ 126.) Beiler stated that he

had “known and worked with [Jenkins] for almost four years and can vouch for her character,

high standards both professionally and morally, and dedication to her profession.” (Id.) He also

wrote, “[a]s her supervisor, I find [Jenkins] to be extremely knowledgeable, thorough, and with a

great attention to detail. As her co-worker, I look to [Jenkins] on a number of subjects, including

employee relationship and job satisfaction, and legal issues.” (Id. at ¶ 127.)

B. WEL Doylestown ED/NHA Job Opening

On March 8, 2021, a job post for WEL’s Doylestown ED/NHA position was opened. (Id.

at ¶ 87.) The job application required (1) “Related Experience” which included, among other

similar items, “[s]uccessful implementation of redesign of program operations, strategic

13 At oral argument, Jenkins’s counsel clarified that this letter of recommendation was needed for

purposes of renewing Jenkins’s New Jersey NHA license. (Draft Hr’g Tr. at 10:17–23.)

planning, expansion of services, and/or development of service models within a Personal

Care/Assisted Living, SNF, or CCRC model” (2) a college degree and (3) a Pennsylvania NHA

license, with master’s degree in a related field preferred.14 (Doc. No. 26-16 at 4.) Petty was

responsible for choosing the ED/NHA candidate (Doc. No. 28 at ¶ 22), but Lamoreux and Kuhn

helped screen the applicants (Doc. No. 26-11 at 97:17–23).15 Despite knowing of Jenkins’s

interest in an ED/NHA position since July 2018, Lamoreux and Petty did not discuss Jenkins as a

potential internal candidate prior to posting the opening. (Doc. No. 28 at ¶¶ 88, 94.)

On May 16, 2021, more than two months after the post opened, Jenkins applied for the

ED/NHA position, and on May 17, 2021, informed Lamoreux of her application via email.16

(Doc. No. 26-23 at 2; Doc. No. 28 at ¶ 97; Doc. No. 26-24 at 2.) Lamoreux replied to Jenkins

the same day and explained that she believed Jenkins had applied too late. (Doc. No. 26-24 at 2.)

She stated that Petty was in the final stages of interviewing and was ready to make an offer. (Id.)

She also stated that Petty was looking for an experienced ED/NHA that had recent CCRC

environment experience as an ED/NHA, but that if Petty did not move forward with the current

candidate, it would be worth interviewing with Petty if he felt she had the “experience he is

looking for.”17 (Id.)

14 The Qualifications section of the ED/NHA job post also listed a number of interpersonal skills, such as

“[o]rganizational development and leadership skills.” (Doc. No. 26-16 at 4.)

15 Lamoreux, a member of WEL’s C-suite, was also involved at the final stages of choosing an applicant

when Petty sought input from the C-suite. (Doc. No. 26-12 at 85:1–16.)

16 Jenkins included a note in her email to Lamoreux that she “do[es] have some mix[ed] feelings about

[the position], but not related to [her] ability to perform the job.” (Doc. No. 26-24 at 2.) Jenkins testified

that she included this note because she was concerned about the levels of diversity at the Doylestown

community. (Id. at 228:18–229:15.)

17 Lamoreux testified that she was unaware that Jenkins had worked at several CCRCs before she applied

for the ED/NHA position in 2021. (Doc. No. 28 at ¶ 101.)

On May 24, 2021, after interviewing Petty’s potential candidate, a white female,

Lamoreux gave Petty her underwhelming impression of the candidate. (Doc. No. 26-25 at 3.) In

the same email string, Lamoreux informed Petty that Jenkins had also applied for the position but

stated that she had “[a]dvised [Jenkins] that she was late in applying and we have narrowed

down the candidates.” (Id. at 2.) Upon learning that Jenkins had applied, Petty immediately

responded, “[w]e need to discuss with her that she is not an ED candidate. Otherwise this will

fester and cause heartburn.” (Id.) Petty testified that even though he had learned of Jenkins’s

interest in becoming an ED/NHA at WEL in August 2018, he never considered her for that role

because based on his limited interactions with Jenkins, he did not think she could communicate

effectively or lead people, and she did not have a business sense.18 (Doc. No. 26-13 at 94:18–

95:17 (in response to a question asking what qualities of an executive director Petty felt Jenkins

lacked, Petty testifying, “I did not believe she could lead people. I did not believe she had a

business sense. . . . [S]he could not answer basic questions in a way I could understand them.”);

see also id. at 97:12–99:2 (Petty testifying that Jenkins “did not have the ability to communicate

clearly”).) Petty also stated that based on his limited interactions with Jenkins,19 he had found

18 At the same time Petty stated he would never have considered Jenkins for the role, Petty also blamed

Jenkins for not approaching him about her interest in the ED/NHA role. (See Doc. No. 26-13 at 87:15–20

(“[Jenkins] would need to work with me as well, which goes back to her approaching me with her

interest. If she can’t come to me and approach me that she has an interest, she is not going to be a very

effective executive director.”); id. at 89:1–10 (“Q: So is it up to the employee if they are interested in

executive director to come talk to you and you don’t help them– A: Of course– Q: –at all on your own;

right? A: Of course I help them. . . . The point is they need to have the initiative to start the process.”);

id. at 90:4–12 (“Q: But [working with Beiler to develop Jenkins’s skills] wasn’t enough, right, because

she needed to come to talk to you, that was in your mind, right that she didn’t come to talk to you?”

A: She would need to come to talk to me at some point. Q: Okay. And you never verbalized that to Miss

Lamoreux or to Miss Jenkins; right? A: No.”).) Ironically, DeStefon testified it was Petty who first

mentioned the idea of DeStefon becoming an ED/NHA. (Doc. No. 26-20 at 68:17–20.)

19 Jenkins similarly testified that she had limited interactions with Petty during her four years at WEL.

(Doc. No. 26-4 at 237:5–19 (Jenkins testifying that she never had a one-on-one conversation with Petty

and never had a direct conversation with Petty during group meetings); see also Doc. No. 26-11 at 64:2–

her responses to his questions to “be very difficult for [him] to understand” and not “explained [.

. . ] in a way that [he] could absorb the information.” (Doc. No. 28 at ¶ 46; see Doc. No. 26-13 at

70:24–71:17, 150:9–18 (Petty testifying that he did not get the chance to work with Jenkins “in

great depth” and that he did not “recall much individual one-on-one interaction,” but that he

interacted with her when he would “routinely meet with both the HR group in the HR meetings,

as well as . . . monthly worker’s compensation claim review meetings. . . . So [he] would

interact with her largely as part of those group settings” “anywhere from five minutes to . . . a

couple hours”).) He continued, “even if I had known about her previous employment, which I

might have, it wouldn’t have overridden my impression of her” regarding her ability to

communicate and lead people. (Doc. No. 26-13 at 146:6–17.)

In continuing the email conversation with Petty about Jenkins’s application, Lamoreux

told Petty that she would “talk with” Jenkins and Ken Beiler, who was “very supportive and

encouraging” of Jenkins. (Doc. No. 26-25 at 2.) Petty responded that he wasn’t aware that

Beiler had been “promoting” Jenkins, and questioned Lamoreux if she was sure of this fact. (Id.)

Lamoreux replied, “[Beiler] has been encouraging her to attend [and] participate in

workshops/webinars for NHA’s with him. [Jenkins] did not specifically say that [Beiler] told her

to apply. I can talk with [Beiler] to get a better read on that.” (Id.)

On June 18, 2021, Lamoreux met with Jenkins to discuss the position, which remained

open20 and told her that she was not a candidate for the Doylestown ED/NHA position because

she had never worked in a CCRC, was a newly licensed NHA, and did not have a strong

19 (Cara Kuhn, then-Director of Talent Acquisition, testifying that when Petty joined the meetings, “it

was usually pretty brief,” and that she did not “recall him ever being there for the entire meeting”).)

20 The candidate Petty originally identified in May later fell through. (Doc. No. 28 at ¶ 109.)

financial background. (Doc. No. 28 at ¶ 110.) Moreover, she informed Jenkins that she would

not be eligible for an ED/NHA position at WEL then or in the future. (Id.; see also Doc. No. 26-

13 at 181:4–11 (Petty testifying that it was “highly unlikely” that Jenkins was going to be an

ED/NHA at WEL at any point in time).)

The Doylestown ED/NHA position ultimately remained open for five months. During

that time, 63 individuals applied. (Doc. No. 28 at ¶ 113.) Jenkins, who submitted her

application in May 2021, was the 29th person to apply and the only internal candidate. (Id. at ¶¶

95, 96.) Lynne Dukert, the white female applicant who was ultimately hired, applied for the

position on August 13, 2021, and did not have her Pennsylvania NHA license at the time of her

application or by the time she began working at WEL. (Id. at ¶¶ 113, 114.) When Dukert started

as an ED, WEL hired a separate individual to work as an interim NHA until Dukert obtained her

NHA license in February 2022.21 (Id. at ¶¶ 117–19.)

C. Jenkins’s Performance Improvement Plan

Throughout the summer of 2021, while WEL was still in search of an ED/NHA candidate

for the Doylestown community, Beiler and Lamoreux began—for the first time—to give her

negative feedback for her performance.

First, on May 20, 2021, four days after Jenkins applied for the ED/NHA position, Beiler

testified that he began a “note to file” with the subject line, “Yolanda.”22 (Doc. No. 26-7 at

179:5–15.) He testified that he created this document because concerns regarding Jenkins’s

21 WEL paid Dukert her full-time salary while also paying the interim NHA $85/hour. (Doc. No. 28 at

¶ 123.)

22 Beiler testified that he was unaware Jenkins applied for the ED/NHA position. (Doc. No. 26-7 at

125:13–24.) Rather, Beiler stated he learned that Jenkins wanted to obtain an NHA job outside of WEL,

so he introduced her to an outside recruiter. (Id. at 228:6–10, 233:19–234:10; Doc. No. 34.)

leadership were “starting to bubble up,” so Beiler felt the need to keep a written list. (Id. at

202:6–11.) He continued adding to the document in June 2021, including comments about

Jenkins’s alleged lack of involvement with the team, her communication style, her overuse of her

assistant, and her allegedly condescending attitude.23 (Id. at 180:11–19, 185:1–7.) Beiler

claimed that he previously had discussed some of the concerns with Jenkins but at this time he

was trying to gather information and not make “an immediate knee jerk reaction.” (Id. at 186:7–

187:12, 215:12–21.)

Beiler could not recall when he raised these concerns about Jenkins with Lamoreux, but

testified that he spoke with Lamoreux in July 2021 after Jenkins complained to Lamoreux that

Kathy Baptiste, the Personal Care Administrator, was not following HR policies. (Id. at 239:22–

240:3, 244:11–246:20; Doc. No. 26-31 at 2; Doc. No. 26-4 at 172:4–9.) In turn, Baptiste

complained about Jenkins to both Lamoreux and Beiler, and Lamoreux began an investigation in

late July.24 (Doc. No. 26-4 at 172:4–10; Doc. No. 26-12 at 326:9–19; Doc. No. 26-31 at 2.)

Following Lamoreux’s investigation, which involved several interviews of other WEL

employees and was conducted while Jenkins was away on her honeymoon (Doc. No. 26-12 at

327:17–328:2), Lamoreux placed Jenkins on a Performance Improvement Plan (“PIP”) on

August 11, 2021. (Doc. No. 26-31; Doc. No. 26-12 at 328:20–329:8; Doc. No. 28 at ¶ 133.)

Jenkins was required to fix the issues addressed in the PIP within 60 days or face termination.

(Doc. No. 26-31.) Once placed on the PIP, Jenkins was no longer eligible for any promotion,

23 Despite Beiler’s concerns, on June 8, 2021, Beiler agreed to be a reference for Jenkins. (Doc. No. 34

(email to outside recruiter stating “[Jenkins] is the HR Manager I told you about who is interested in an

NHA job in a not-for-profit. I’ll be her first reference ����”).)

24 Around this time, Beiler sent Jenkins a letter congratulating her on four years at Stapeley and thanking

her for her contributions to the work environment. (Doc. No. 26-7 at 221:2–222:16.)

including the ED/NHA position for which she had already applied and for which WEL was still

actively searching for a candidate. (Id.; Doc. No. 28 at ¶ 113; Doc. No. 26-17.) Lamoreux

admitted she knew this was a consequence of Jenkins being placed on the PIP. (Doc. No. 28 at ¶

139; Doc. No. 26-31.)

Jenkins alleges that none of the allegations in the PIP were discussed with her

beforehand, and she had never received any previous warnings or disciplinary notices; she was

also Lamoreux’s only direct report who received a PIP. (Doc. No. 26-4 at 177:15–17; Doc. No.

28 at ¶¶ 132, 134.) The “common theme” concerns detailed in her PIP allege:

• She was not available to the leadership and employees, since she remains in her office, is

out of touch with employees, and her office door is closed more than open;

• She was not a resource to the leadership team and the leadership team no longer goes to

Jenkins for HR support unless absolutely necessary;

• She had poor communication style with her peers, with specific concerns listed such as

communication in a condescending manner, “believes she is always right” and

“continually talks (rambles) and is unclear”; and,

• She was unprofessional because her use of speaker phone allowed others to hear HR

conversations and she failed to follow the Appearance policy by wearing mule style open

back shoes and plunging necklines or large V-neck blouses/shirts.

(Doc. No. 26-31 at 2–3.)

Contrary to these concerns detailed in Jenkins’s PIP, Kuhn testified that she got along

with Jenkins while she was employed at WEL, thought Jenkins was pleasant when they spoke,

and did not find her to be condescending. (Doc. No. 28 at ¶ 144.) Additionally, she testified that

she found Jenkins to be truthful, professional, good at her job from what she observed, and found

the way she dressed to be presentable. (Id.)

Jenkins testified that upon receipt of the PIP, she felt humiliated and embarrassed. (Id. at

¶ 145.) On August 13, 2021, Jenkins sent Lamoreux and Beiler her letter of resignation and her

rebuttal to her PIP, arguing, among other things, that the PIP was subjective and baseless. (Doc.

No. 26-32; Doc. No. 28 at ¶ 147.)25 Jenkins’s last day of employment at WEL was September

10, 2021. (Doc. No. 28 at ¶ 151.)

D. Procedural History

Jenkins filed a complaint on or about November 10, 2021 with the Equal Employment

Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission; on

March 8, 2023, she was issued a right-to-sue letter from the EEOC. (Doc. No. 1 at ¶¶ 18, 19.)

On May 23, 2023, Jenkins filed this action, alleging unlawful race discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), the Civil Rights Act

of 1866, as amended, 42 U.S.C. § 1981 (“Section 1981” or “§ 1981”); the Pennsylvania Human

Relations Act, 43 P.S. § 951 (“PHRA”); and the Philadelphia Fair Practices Ordinance, Phila.

Code § 9-1100 (“PFPO”). (Doc. No. 1.) In particular, she brings race discrimination claims

based on three separate incidents: (1) the failure to promote to the Main Line ED/NHA position

in 201926; (2) the failure to promote to the Doylestown ED/NHA position in 2021; and (3) the

issuance of the PIP in 2021. (Id.) Additionally, Jenkins brings a hostile work environment claim

based in part on Lamoreux’s different and worse treatment of her following her 2018 annual

25 Jenkins also separately emailed a copy of her rebuttal and resignation to Petty. (See Doc. No. 26-13 at

243:14–244:9.)

26 Jenkins only brings this 2019 failure to promote claim under § 1981, and not under Title VII, the

PHRA, or PFPO. (Doc. No. 26 at 10 n.1.)

performance review, Lamoreux’s failure to provide 2020 and 2021 performance reviews,

Lamoreux’s failure to attend monthly one-on-one meetings with Jenkins, and Lamoreux’s

issuance of Jenkins’s PIP. (Id.)

On February 29, 2024, Defendants filed for summary judgment on all counts except

Jenkins’s racial discrimination based on the PIP.27 (Doc. No. 25.) Defendants’ motion also

argues that Jenkins is not entitled to proceed on a claim of constructive discharge. (Doc. No. 25-

1 at 24–25.) However, because Jenkins did not respond to this argument in her opposition to the

Motion, her claim of constructive discharge, if any, is abandoned. (See Draft Hr’g Tr. at 31:4–

12 (Jenkins’s counsel agreeing that Jenkins is not pursuing a constructive discharge claim));

cf. McCowan v. City of Philadelphia, 603 F. Supp. 3d 171, 193 (E.D. Pa. 2022) (collecting cases

supporting the proposition that a plaintiff’s failure to address the substance of particular claims in

opposition to a motion for summary judgment constitutes abandonment of those causes of

27 Although Defendants argue that they did in fact move for summary judgment on Jenkins’s claim that

the PIP was a discrete act of discrimination, the only reference to the PIP in Defendants’ motion is in the

portion addressing Jenkins’s hostile work environment claim. (See Doc. No. 25-1 at 23–24.) At no point

in their affirmative motion do Defendants separately analyze the PIP as a standalone discrimination claim.

Thus, Defendants failed to move on the PIP claim and the Court does not address it further. (See Doc.

No. 1 at ¶¶ 65–73 (complaint alleging facts regarding PIP and race discrimination)); Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 114 (2002) (“Discrete acts such as termination, failure to promote, denial

of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory

adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’”);

Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)) (“An issue

is waived unless a party raises it in its opening brief”); cf. Bond v. Wells Fargo Bank NA, No. CV-21-

00830-PHX-JJT, 2022 WL 1423583, at *2 (D. Ariz. May 5, 2022) (“Plaintiff also alleges that because of

her negative performance review, she was put on a Performance Improvement Plan (PIP). This is also a

discrete act that must be filed with the EEOC before filing a federal court action because it is an ‘incident

of discrimination’ or a ‘retaliatory adverse employment decision’ constituting a ‘separate actionable

unlawful employment practice.’”) (citation omitted) (cleaned up); Khan v. Holder, 37 F. Supp. 3d 213,

226–31 (D.D.C. 2014) (analyzing the defendant’s decision to place the plaintiff on a PIP as a standalone

Title VII claim); Maze v. Towers Watson Am., LLC, No. 11 C 8120, 2012 WL 568683, at *4 (N.D. Ill.

Feb. 21, 2012) (citing Morgan, 536 U.S. at 114) (“Because the charge was untimely as to her termination,

it was likewise untimely as to any discrete events of discrimination preceding it. . . . As such, Maze’s

complaints regarding the PIP, the reassignment of work, being denied training opportunities, etc., are

time-barred.”).

action). Thus, the claims at issue are Jenkins’s failure to promote claims for the ED/NHA

positions in 2019 and 2021, and the hostile work environment claim.

II. LEGAL STANDARD

Summary judgment is appropriate when the “materials in the record,” show that “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), (c). “[T]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986). A dispute is genuine if the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the

outcome of the suit under the governing law.” Id. at 248. “[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249. And at “summary judgment the

inferences to be drawn from the underlying facts must be viewed in the light most favorable to

the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (quotation marks and alterations omitted).

“[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted); see also id. at 325 (“[T]he

burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the

district court — that there is an absence of evidence to support the nonmoving party’s case.”).

After the moving party has met its burden, the nonmoving party is required to “designate specific

facts showing that there is a genuine issue for trial.” Id. at 323 (quotation marks omitted); see

also Matsushita Elec. Indus. Co., 475 U.S. at 586 (“When the moving party has carried its

burden under Rule 56(c), its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” (footnote omitted)).

“[T]his standard makes clear that, even though the right to a jury trial is implicated, a

nonmoving party must adduce more than a mere scintilla of evidence in its favor, and cannot

simply reassert factually unsupported allegations contained in its pleadings.” Williams v.

Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (internal citations omitted).

“[U]nsupported assertions, conclusory allegations or mere suspicions” are insufficient to

overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.

Supp. 2d 490, 493 (E.D. Pa. 2010).

III. ANALYSIS

As discussed, the remaining issues before the Court on summary judgment are:

(1) Jenkins’s § 1981 racial discrimination claim for Defendants’ failure to promote her to the

ED/NHA position in 2019; (2) Jenkins’s racial discrimination claim for Defendants’ failure to

promote her to the ED/NHA position in 2021; and (3) Jenkins’s hostile work environment

claim.28 The Court addresses each in turn.

A. 2019 Failure to Promote

First, Jenkins argues that Defendants’ failure to promote her to the ED/NHA position at

WEL’s Main Line facility in 2019, instead elevating Michael DeStefon, a white employee,

28 To reiterate, Defendants did not move for summary judgment on Jenkins’s claim for race

discrimination based on the PIP alone; thus, this claim is not considered by the Court on summary

judgment. See supra n.27.

constitutes racial discrimination under § 1981. (See Doc. No. 1.) Defendants argue that Jenkins

failed to establish her case on the merits and that her 2019 claim is barred by the statute of

limitations. (Doc. No. 25-1 at 15–16, 19–22; Doc. No. 28-1 at 11–14.) In particular, Defendants

argue that Jenkins’s 2019 failure to promote claim is subject to a 2-year statute of limitations

under Pennsylvania state law, and that this claim is therefore time-barred since Jenkins brought

suit in 2023. (Doc. Nos. 1, 25-1 at 15–16.) Conversely, Jenkins argues that her § 1981 claim is

subject to a 4-year statute of limitations, citing 28 U.S.C. § 1658, which established a 4-year

statute of limitations for all causes of action arising under federal statutes. (Doc. No. 26 at 15–

17.)

Because 42 U.S.C. § 1981 does not have its own independent statute of limitations,

federal courts have generally used an analogous state equivalent, which in Pennsylvania is two

years for personal injury actions. 42 Pa. Code § 5524; Goodman v. Lukens Steel Co., 482 U.S.

656, 664 (1987); Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 462 (1975) (“Since there is

no specifically stated or otherwise relevant federal statute of limitations for a cause of action

under § 1981, the controlling period would ordinarily be the most appropriate one provided by

state law.”). However, in 1990, Congress enacted a 4-year catch-all statute of limitations for all

causes of action arising under federal statutes. See 28 U.S.C. § 1658. “[A] cause of action arises

under an Act of Congress enacted after December 1, 1990—and therefore is governed by

§ 1658’s 4–year statute of limitations—if the plaintiff’s claim against the defendant was made

possible by a post–1990 enactment.” Jones v R.R. Donnelley & Sons Co., 541 U.S. 369, 382

(2004). Therefore, if Jenkins’s discrimination claim was made possible by a federal statute

enacted after December 1, 1990, the 4-year statute of limitations applies; otherwise, the 2-year

statute of limitations applies.

42 U.S.C. § 1981(a) provides that all persons shall have the same right to make and

enforce contracts. In 1989, the Supreme Court held that causes of action could be brought under

§ 1981 only for discrimination that occurred during contract formation and not for post-

formation conduct, such as promotions, unless “the nature of the change in position was such

that it involved the opportunity to enter into a new contract with the employee.” Patterson v.

McLean Credit Union, 491 U.S. 164, 179–80, 185 (1989). The Court specified that “[o]nly

where the promotion rises to the level of an opportunity for a new and distinct relation between

the employee and the employer is such a claim actionable under § 1981.” Id. at 185 (emphasis

added). The Supreme Court’s holding in Patterson prompted Congress to amend the statute in

1991—after § 1658 had established the 4-year statute of limitations—to define “make and

enforce contracts” as including the “making, performance, modification, and termination of

contracts,” which would cover promotions that do not create a new and distinct relation. 42

U.S.C. § 1981(b); Jones, 541 U.S. at 373. Thus, under this framework, Jenkins’s 2019 failure to

promote claim is subject to a 2-year statute of limitations (and subsequently time-barred) if the

denied promotion would have created an “opportunity for a new and distinct relation between the

employee and the employer,” Patterson, 491 U.S. at 185, but is covered by § 1658’s 4-year

statute of limitations if her claim is “made possible by” § 1981(b)—in other words, involved

modification of the same contract and did not create a new and distinct relation with the

employer. 42. U.S.C. § 1981(b); Jones, 541 U.S. at 382 (internal citations omitted).

Whether a promotion rises to the level of a “new and distinct” relationship between the

employee and employer is a fact-specific inquiry that “embodies no single criterion.” Brown v.

Am. Food Serv. Corp., Civ. A. No. 89-4442, 1990 U.S. Dist. LEXIS 1214, at *1 (E.D. Pa. Feb. 6,

1990). “It comprehends all relevant factors, including pay, duties, responsibilities, status as

hourly or salaried employee, method of calculating salary, required qualifications, daily duties,

potential liability, and pension and other benefits. Higher pay, by itself, will not transform a

promotion into a new and distinct relation.” Id.

Courts typically hold that a promotion involving a “qualitative” change, such as increased

supervisory status or greater responsibilities, constitutes a “new and distinct” relationship;

conversely, a promotion that would have been routinely awarded upon satisfactory job

performance, or is merely a new “rung” on the same “career ladder,” does not constitute a “new

and distinct” relationship. Cross v. Home Depot, 390 F.3d 1283, 1289–90 (10th Cir. 2004) (“[A]

court should look to whether there exists a meaningful, qualitative change in the contractual

relationship. We do not confine our inquiry to titles, but should examine actual changes in

responsibility and status. Such changes in the contractual relationship could include promotions

from nonsupervisory to supervisory positions and advancements from being paid by the hour to

being a salaried employee.”); Butts v. N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1411 (2d

Cir. 1993) (“[T]he inquiry is whether a promotion effectively creates a new contract between

employer and employee or is simply the fulfillment of a stated promise or an implicit expectation

in the original contract.”); Fonteneux v. Shell Oil Co., 289 F. App’x 695, 699 (5th Cir. 2008)

(“[A] non-routine promotion that involves the attainment of supervisory status may be

categorized as creating a new and distinct relationship.”); Barclay v. First Nat’l Bank of

Talladega, 558 F. Supp. 3d 1156, 1164 (N.D. Ala. 2016) (collecting cases that addition of

supervisory duties can create a new and distinct relation). Compare Fitzgerald v. AMTRAK, No.

13-6979, 2016 U.S. Dist. LEXIS 91114, at *25 (E.D. Pa. July 13, 2016) (holding that the

promotion from mechanic, inspector and foreman to Assistant Supervisor constituted a new and

distinct relation because the change would have resulted in “new and greater responsibilities,” a

“change in the chain of authority,” and would have been governed by a new collective

bargaining agreement) and Mallory v. Booth Refrig. Supply Co., 882 F.2d 908, 910 (4th Cir.

1989) (holding that a promotion from clerk to supervisor constituted a new and distinct

relationship) and Barclay, 558 F. Supp. at 1158 (holding that promotion from Assistant Manager

of Data Processing to Bookkeeping Supervisor was a new and distinct relationship because it

involved new supervisory duties, elevated the plaintiff from a non-management to a management

position, and was “a sizable step up the management ladder”), with Bennun v. Rutgers State

Univ., 941 F.2d 154, 170 (3d Cir. 1991) (holding that promotion from tenured associate

professor to full professor does not create a new and distinct relationship because the differences

in duties between the two academic ranks, such as participation in the review of candidates for

promotion to full professor, are too small for the creation of a new contract) and Bryant v. Jones,

696 F. Supp. 2d 1313, 1322 (N.D. Ga. 2010) (holding that a promotion did not create a “new and

distinct” relationship between the employer and employee because although the promotion

involved a change from the merit system to the non-merit system, the comparison of the jobs

revealed nearly identical responsibilities). Cf. Cross, 390 F.3d at 1289–90 (holding that

promotion from Assistant Store Manager to Store Manager did not constitute new contract

because although Store Managers supervise 150-250 employees, as opposed to the assistant

manager’s supervision of 2 employees, the qualifications and duties for each job are essentially

identical).

Turning to the positions at issue, the Court holds that the promotion from HR Manager to

ED/NHA would constitute a new and distinct relationship between the Defendants and Jenkins

because the elevation to the ED/NHA role was a non-routine promotion that required a new

professional license and would have resulted in the attainment of increased supervisory status

and qualitative changes in the employee’s responsibilities.

First, in her role as HR Manager, Jenkins reported to Lamoreux, the Vice President of

Human Potential, and had a “dotted line” relationship to Beiler, the ED/NHA of the Stapeley

community at WEL. (Doc. No. 28 at ¶¶ 17, 18.) Although the Court can theoretically imagine a

scenario where Jenkins could be promoted in routine course to Lamoreux’s position, Beiler’s

ED/NHA position, let alone an ED/NHA position at a different WEL community, would not be

just another “rung” on the usual “career ladder” that Jenkins would have been awarded

“routinely upon satisfactory job performance.” Butts, 990 F.2d at 1412. This difference in the

HR Manager position and ED/NHA position is exemplified by the fact that Jenkins would have

to obtain a new professional license, the Pennsylvania NHA license, which was not required for

her current role or any other HR role. (See Doc. No. 26-10 at 5; Doc. No. 26-7 at 129:18–21.)

More importantly, the Court finds that the ED/NHA position involved new and greater

responsibilities, including, among many others, collaborating with the CEO and Finance

Department to prepare annual operating and capital budgets; assuming responsibility for the

overall operation of the Health Care Center to ensure full compliance with applicable licensing

requirements; developing ongoing marketing strategies; and meeting with residents individually

and collectively to interpret policies, maintain positive relationships, and address any concerns.

(Doc. No. 26-16; see also Doc. No. 26-7 at 47:10–23, 55:16–57:16, 123:5–20 (Beiler testifying

that as an ED/NHA he is responsible for oversight of multiple levels of care and overseeing

nursing home administration).) Conversely, the HR Manager is responsible for duties such as

providing guidance to supervisors and managers in resolving employee relations issues;

recommending appropriate corrective action for behavior and performance improvements;

coordinating recruitment activities and reviewing employment applications; representing the

community at Unemployment Hearing and Workers Compensation; and ensuring compliance

with applicable labor and employment laws. (Doc. No. 26-10 at 2.) And, whereas Jenkins in her

role as HR Manager supervised one person (Doc. No. 26-4 at 59:6–21), the ED/NHA is

responsible for many other employees (see, e.g., Doc. No. 26-7 at 53:23–54:4, 75:18–76:7

(Beiler testifying that he has nine employees who directly report to him); Doc. No. 26-12 at

82:10–19 (Lamoreux testifying that an ED/NHA at WEL oversees not only the nursing home,

but also “assisted living . . . the ancillary departments surrounding that community, independent

living, budgeting . . . dining, environmental services such as housekeeping, maintenance,

activities, [and] therapy”)); Draft Hr’g Tr. at 9:1–13 (Defendants’ counsel explaining that the

ED/NHA is responsible for all nine department heads within each community)). Although

Jenkins emphasizes that Defendants admitted that the ED/NHA and HR Manager roles have

some overlapping responsibilities, such as administering approved HR policies and directives,

participating in selection and employment of department heads, and being accountable for

growth of performance management of community employees (Doc. No. 29 at 5–6), the Court

finds that these minor similarities cannot overcome the chasm which exists between the two

roles.

Thus, the Court finds that the promotion to the ED/NHA role at the Main Line facility

would have constituted a “new and distinct” relationship between Defendants and Jenkins, and

therefore Jenkins’s claim based on the Defendants’ failure to promote her to that position would

have been a valid claim under the pre-1991 enactment of § 1981. In turn, the 2-year statute of

limitations applies, and the Court holds that Jenkins’s 2019 failure to promote claim is time-

barred.

B. 2021 Failure to Promote

Jenkins also alleges race discrimination for Defendants’ failure to promote her to the

ED/NHA position at WEL’s Doylestown facility in 2021. (See Doc. No. 1.) Because the Court

finds that disputes of fact exist, the Court denies Defendants’ motion for summary judgment as

to this claim.

Jenkins’s race discrimination claim is governed by the burden-shifting framework

articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Analysis under this framework proceeds in three steps. Opsatnik v. Norfolk S. Co., 335

F. App’x 220, 222 (3d Cir. 2009). “First, the plaintiff must establish a prima facie case of

discrimination.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). If the plaintiff

carries her burden, “the burden shifts to the defendant ‘to articulate some legitimate,

nondiscriminatory reason’” for the adverse employment action. Id. at 410–11 (quoting

McDonnell Douglas Corp., 411 U.S. at 802). “Finally, should the defendant carry this burden,

the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true reasons, but were a pretext for

discrimination.” Id. (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)).

Defendants argue that Jenkins’s claim fails on multiple fronts, attacking both Jenkins’s

prima facie case and arguing that Jenkins is unable to prove that Defendants’ failure to promote

was pretextual. (Doc. No. 25-1 at 19–22.) Defendants argue that WEL had a legitimate,

nondiscriminatory reason for not hiring Jenkins—namely, that Petty prioritized someone with

more and recent executive director experience, rather than someone who merely had an NHA

license. (Id. at 20, 22.) Jenkins disagrees, arguing that she clearly established a prima facie case

and that Defendants’ legitimate, nondiscriminatory reason was pretextual. (Doc. No. 26 at 18–

31.)

The Court agrees with Jenkins, finding first that Jenkins has satisfied her prima facie case

of racial discrimination, before turning to her showing of pretext.

1. Prima Facie Case

The Court finds that Jenkins has satisfied her prima facie case of racial discrimination for

her 2021 failure to promote claim. To establish a prima facie case of racial discrimination based

on disparate treatment, a plaintiff must show that: (1) she is a member of a protected class, (2)

she was qualified for her position, and (3) she suffered an adverse employment action, (4) under

circumstances giving rise to an inference of intentional discrimination. Jones, 198 F.3d at 410–

11; see also Wallace v. Federated Dep’t Stores, Inc., 214 F. App’x 142, 144–45 (3d Cir. 2007)

(framing the fourth element as requiring evidence that “either similarly-situated non-members of

the protected class were treated more favorably or the adverse job action occurred under

circumstances that give rise to an inference of discrimination”). There is a low bar to establish a

prima facie case of employment discrimination. Scheidemantle v. Slippery Rock Univ. State Sys.

of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). Here, it is undisputed that Jenkins is a

member of a protected class and that she suffered an adverse employment action when she was

not promoted. Thus, only the second and fourth prongs of the prima facie case remain.

As to the second prong, although Defendants argue that Jenkins was not qualified for the

ED/NHA position because she did not have recent experience or enough experience as an

Executive Director at a CCRC (Doc. No. 25-1 at 20), the ED/NHA role description which was

posted publicly did not include such a requirement. (See Doc. No. 26-16.) Instead, the ED/NHA

job posting included the following “[q]ualifications”: (1) “Related Experience” which included,

among other similar items, “[s]uccessful implementation of redesign of program operations,

strategic planning, expansion of services, and/or development of service models within a

Personal Care/Assisted Living, SNF, or CCRC model,” (2) a college degree, and (3) a

Pennsylvania NHA license, with master’s degree in a related field preferred.29 (Id.) Here, the

evidence demonstrates that Jenkins had her Pennsylvania NHA license, a college degree in

human resources management, a master’s degree in human resources development, and several

years of experience overseeing and managing CCRCs before joining WEL, satisfying the basic

qualifications listed in the job posting. (Doc. No. 28 at ¶¶ 1, 3,7, 8, 11; Doc. No. 26-13 at

111:18–112:14). Thus, because the Court considers only whether a plaintiff possessed the

objective job qualifications at the prima facie stage, rather than any “subjective” qualities such as

degree of experience, the Court holds that Jenkins was qualified for this position. See Weldon v.

Kraft, Inc., 898 F.2d 793, 798 (3d Cir. 1990) (“[W]hile objective job qualifications should be

considered in evaluating the plaintiff’s prima facie case, the question of whether an employee

possesses a subjective quality, such as leadership or management skill, is better left to the later

stage of the McDonnell Douglas analysis. We noted that subjective evaluations ‘are more

susceptible of abuse and more likely to mask pretext.’” (quoting Fowle v. C & C Cola, 868 F.2d

59, 64-65 (3d Cir. 1989)); Cellucci v. RBS Citizens, N.A., 987 F. Supp. 2d 578, 589 (E.D. Pa.

2013) (“When evaluating the plaintiff’s prima facie case, courts should consider a plaintiff’s

objective job qualifications, but should leave the question of whether an employee possesses a

subjective quality, such as leadership or management skill, to the later stage of the McDonnell

Douglas analysis.” (quotation marks omitted) (cleaned up)).

29 The Qualifications section of the ED/NHA job post also listed a number of interpersonal skills, such as

“Organizational development and leadership skills.” (Doc. No. 26-16.)

That leaves the fourth prong. The Court holds that Jenkins has demonstrated

circumstances giving rise to an inference of intentional discrimination. Defendants’ argument

that the case at bar “obviously” does not give rise to an inference of discrimination because

Jenkins did not complain at the time that she was not promoted to the ED/NHA position is not

persuasive. (Doc. No. 25-1 at 20.) The Court finds that the following facts support an inference

of intentional race discrimination: Petty and Lamoreux were both on notice for multiple years

that Jenkins was interested in an ED/NHA position (Doc. No. 28 at ¶¶ 25, 64); upon notice that

Jenkins had applied for the open position in 2021, Lamoreux informed Jenkins that she had

applied too late, and did not recall taking any steps to discuss interviewing Plaintiff for the

position with Petty (Doc. No. 26-24 at 2, Doc. No. 28 at ¶ 109); the white applicant who was

eventually chosen for the position applied three months after Jenkins applied (Doc. No. 28 at ¶

113); and the white applicant did not possess an NHA license at the time she was hired, although

the job position listed “NHA license” as an objective qualification (Doc. No. 28 at ¶ 114, Doc.

No. 26-16). The Court finds that these facts, taken together, easily establish a prima facie

inference of race discrimination, which as noted above, is a low bar. Scheidemantle, 470 F.3d at

539. Furthermore, the Court also takes note that there has been minimal diversity in managerial

or executive-level positions at WEL, and there have only been white ED/NHAs employed at

WEL since Petty joined as CEO of WEL in 2003. See Castillo v. Am. Bd. of Surgery, 221 F.

Supp. 2d 563, 570 (“[P]laintiffs in a disparate treatment case may [] introduce statistical evidence

to support an inference of discrimination.”) (citations omitted); cf. Ezold v. Wolf, Block, Schorr

& Solis-Cohen, 983 F.2d 509, 542 (3d Cir. 1992) (“Statistical evidence of an employer’s pattern

and practice with respect to minority employment may be relevant to a showing of pretext.”).

2. Defendants’ Legitimate, Nondiscriminatory Justification and Pretext

Defendants next argue that we should dismiss Jenkins’s 2021 race discrimination claim

because she failed to demonstrate that Defendants’ legitimate, nondiscriminatory reason for not

promoting her was pretextual. To reiterate, if the defendant carries its burden of demonstrating a

legitimate non-discriminatory reason, the plaintiff then must have an opportunity to prove by a

preponderance of the evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.” Jones, 198 F.3d at 410–11. To demonstrate

pretext, a plaintiff must point “to some evidence, direct or circumstantial, from which a

factfinder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons;

or (2) believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Id. at 412–13. (quoting Fuentes v. Perski, 32

F.3d 759, 764 (3d Cir. 1994)); see also Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir.

2000) (“The plaintiff cannot simply show that the employee’s decision was wrong or mistaken,

since the factual dispute at issue is whether discriminatory animus motivated the employer, not

whether the employer is wise, shrewd, prudent, or competent.”).

Defendants assert that Jenkins was not selected for the Doylestown ED/NHA position

because she did not have enough, recent ED experience. (Doc. No. 25-1 at 21–22; Doc. No. 28-

1 at 8.) They argue that Jenkins cannot demonstrate that this legitimate reason was pretextual

because “[t]hroughout the process, WEL was very clear that they were pursuing a candidate with

recent executive director experience, not someone who had not done that job since 2005.” (Doc.

No. 25-1 at 22.) Yet, as Jenkins argues, the Court discerns a number of apparent factual

disputes, questions of credibility, and evidence from which a factfinder could disbelieve

Defendants’ articulated legitimate reason, prohibiting entry of summary judgment.

First, Petty, who was the ultimate decisionmaker for the ED/NHA role (Doc. No. 28 at

¶ 22), testified that he did not seriously consider Jenkins as an applicant because he believed

Jenkins could not lead people, did not have a business sense, and could not communicate

effectively. (Doc. No. 26-13 at 94:18–95:4, 98:3–8.) Yet, the record suggests that Jenkins and

Petty had only very limited interactions. (See Doc. No. 26-13 at 70:24–71:17 (Petty testifying

that he did not get the chance to work with Jenkins “in great depth” and that he did not “recall

much individual one-on-one interaction,” but that he interacted with her when he would

“routinely meet with both the HR group in the HR meetings, as well as . . . monthly worker’s

compensation claim review meetings. . . . So [he] would interact with her largely as part of those

group settings.”); Doc. No. 26-4 at 237:5–19 (Jenkins testifying that she never had a one-on-one

conversation with Petty and never had a direct conversation with Petty during group meetings);

see also supra n.19).) In addition, both Althea Taylor (Crockett)30 and Cara Kuhn stated, by

contrast, that they did not believe Jenkins talked too much. (Doc. No. 28 at ¶ 62; Doc. No. 26-11

at 8:7–10; Doc. No. 30). Still, despite these limited interactions with Jenkins, Petty testified that

he formed his opinion that Jenkins was an inappropriate candidate for the ED/NHA role as early

as 2018, just one year after she began working at WEL. (Doc. No. 28 at ¶¶ 45, 46.) A

30 Although Defendants argue for the first time in their reply brief that Taylor’s statement cannot be

introduced to defeat the summary judgment motion because it was not dated or declared under penalty of

perjury (Doc. No. 28-1 at 9–10), the Court holds that this objection is untimely. Laborers’ Int’l Union, 26

F.3d at 398 (“An issue is waived unless a party raises it in its opening brief”). Even if the objection was

raised timely, the Court holds that Jenkins appropriately cured any deficiency with an amended filing (see

Doc. No. 30). See Wiley v. Lawrence County, No. 17-1214, 2019 U.S. Dist. LEXIS 39242, at *36 (W.D.

Pa. Mar. 12, 2019) (“[T]he Court need not decide if [the] original declaration was insufficient on the basis

that it was un[s]worn, because Plaintiff has resubmitted the identical declaration, on which Petyak has

stated ‘I declare under penalty of perjury that the foregoing is true and correct.’ This fulfills the

requirements of 28 U.S.C. § 1746.”) (citation omitted); Robinson v. UPMC Presbyterian Shadyside, 2023

U.S. Dist. LEXIS 160981, at *6 (W.D. Pa. Sept. 12, 2023) (“The Court also recognizes that . . . Robinson

could cure such procedural defects [to the form of the affidavit] by resubmitting an unsworn declaration

with the appropriate language set forth in 28 U.S.C. § 1746.”).

reasonable jury could believe that Petty’s formation of this opinion of Jenkins so early on, after

so few interactions, and in light of Kuhn’s and Taylor’s contrary statements, could be more

likely than not motivated by racial discrimination. See Hanna v. Lincoln Fin. Grp., 498 F. Supp.

3d 669, 678 (E.D. Pa. 2020) (“[R]eliance on subjective criteria can be, under certain

circumstances, a mask for discrimination.”); see also Goosby v. Johnson & Johnson Med., Inc.,

228 F.3d 313, 320 (3d Cir. 2000) (“Subjective evaluations are more susceptible of abuse and

more likely to mask pretext.” (quotation marks omitted)).

Second, WEL leadership provided multiple, inconsistent reasons for why they chose not

to hire Jenkins. Lamoreux testified that Jenkins was not hired because Petty was seeking

someone with more and recent Executive Director experience. (Doc. No. 26-12 at 256:16–

257:22; see also Doc. No. 28 at ¶ 110.) Yet, Petty promoted DeStefon to ED/NHA in 2019

knowing that he had neither prior ED experience nor an NHA license.31 (Doc. No. 28 at ¶ 68.)

Moreover, as discussed above, Petty, who was the ultimate decisionmaker (Doc. No. 28 at ¶ 22),

inconsistently testified that he chose not to promote Jenkins due to her speaking style and ability

to communicate. (Doc. No. 26-13 at 94:18–95:4, 98:3–8.) He also testified that, “even if I had

known about her previous employment, which I might have, it wouldn’t have overridden my

impression of her” regarding her ability to communicate and lead people. (Id. at 146:6–17.)

Last, Petty testified that Jenkins could not become an ED/NHA without first approaching him to

discuss the position (see supra n.18); yet, DeStefon testified that it was Petty who approached

him regarding a potential promotion to ED/NHA, and not the other way around (Doc. No. 28 at

¶¶ 67, 73, 74; Doc. No. 26-20 at 67:14–68:1, 75:5–11). These inconsistent explanations for

31 Although “we have concluded that [Jenkins’s] claims against [Defendants based on the 2019 failure to

promote claim is] time-barred, we may nevertheless consider them as background evidence.” Oliver v.

Clinical Pracs. Of the Univ. of Pa., 912 F. Supp. 2d 434, 452 n.19 (E.D. Pa. 2013) (citing Morgan, 536

U.S. at 113).

Jenkins’s non-promotion raise a dispute of fact, and this evidence could permit a factfinder to

reasonably disbelieve Defendants’ articulated reasons for failing to promote Jenkins. See Cullen

v. Select Med. Corp., 779 F. App’x 929, 932 (3d Cir. 2019) (quoting Fuentes, 32 F.3d at 765)

(holding that evidence of the employer’s inconsistent explanations for the plaintiff’s firing

“show[] the sort of ‘weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence”).

Third, as noted above, Lamoreux initially informed Jenkins that she applied for the job

position too late (Doc. No. 26-24); yet, the white candidate who was ultimately chosen applied

months after Jenkins applied (Doc. No. 28 at ¶ 113). And, the white applicant who was finally

chosen did not possess an NHA license at the time she was hired (id. at ¶ 114), even though the

NHA license was listed as a qualification on the job posting (Doc. No. 26-16).

Fourth, Beiler testified that although he wrote a recommendation letter in March 2021 for

Jenkins to the New Jersey Department of Nursing Home Administrators Licensing Board

praising Jenkins’s professionalism (Doc. No. 28 at ¶ 126; Doc. No. 26-29 (“I . . . can vouch for

[Jenkins’s] character, high standards both professionally and morally, and dedication to her

profession. . . . I look to [Jenkins] for advice on a number of subjects, including employee

relationship and job satisfaction.”)), and agreed to vouch for Jenkins as a reference to an outside

recruiter for an NHA position in June 2021 (see Doc. No. 34 (“[Jenkins] is the HR Manager I

told you about who is interested in an NHA job in a not-for-profit. I’ll be her first reference

����”)), he also began compiling a list of complaints regarding Jenkins’s job performance and

communication with her peers on May 20, 2021 (Doc. No. 26-23 at 2; Doc. No. 26-7 at 179:5–

15, 180:11–19, 185:1–7, 202:6–11). This was just four days after Jenkins applied to the open

ED/NHA position, suggesting a possibility that Petty, Beiler, and Lamoreux could have had

conversations regarding Jenkins’s application or performance. Although the Court does not

make such a finding, this circumstantial evidence could permit a factfinder to reasonably

disbelieve Defendants’ articulated reasons for failing to promote Jenkins.

Finally, in August, Lamoreux placed Jenkins on a PIP without any warning. (Doc. No.

26-31; Doc. No. 26-7 at 184:1–185:7, 187:21–188:5.) Once issued the PIP, Jenkins was no

longer eligible to be considered for the open ED/NHA position. (Doc. No. 27-17 at 2.)

Viewing the above inconsistencies in the light most favorable to Jenkins and considering

the backdrop of demographic statistics for WEL’s ED/NHA leaders, which demonstrate a glaring

lack of diversity, the Court finds that there is sufficient circumstantial evidence to conclude that

Defendants’ stated legitimate reason for not promoting Jenkins could have been pretextual. See

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 542 (3d Cir. 1992) (“Statistical

evidence of an employer’s pattern and practice with respect to minority employment may be

relevant to a showing of pretext.”). Compare Brown v. Ametek, Inc., No. 22-1497, 2022 WL

17484330, at *5–9 (3d Cir. Dec. 7, 2022) (reversing district court’s grant of summary judgment

in employment discrimination suit because the record evidence undermined the defendant’s

reasons for denying the promotion) with Steele v. Pelmor Labs., Inc., 725 F. App’x 176, 179–81

(3d Cir. 2018) (affirming district court’s grant of summary judgment of retaliation claim because

the “numerous inconsistencies” set forth by the plaintiff as evidence for pretext were “minor

discrepancies on immaterial issues, and they all are consistent with [the defendant’s] proffered

reason for [the plaintiff’s] termination”). The Court finds that a jury could believe that an

invidious discriminatory reason was more likely than not a motivating cause of Defendants’

failure to promote. See Paladino v. Newsome, 885 F.3d 203, 209–10 (3d Cir. 2018) (“[I]n

considering a motion for summary judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence.”) (quotation omitted).

* * *

Since the Court finds that Jenkins has satisfied her prima facie case and that there are

issues of fact as to whether Defendants’ legitimate, non-discriminatory reason for not promoting

Jenkins is pretext for race discrimination, the Court denies Defendants’ motion for summary

judgment as to Jenkins’s 2021 failure to promote claim.

C. Hostile Work Environment

Last, Defendants move for summary judgment on Jenkins’s hostile work environment

claim. Jenkins argues that the record shows that after she first expressed interest in an ED/NHA

position in 2018, Lamoreux began engaging in harassing behavior, including interrupting and

cutting off Jenkins during monthly group discussions, unjustly criticizing her manner of

speaking, missing or cancelling most of her monthly one-on-one meetings, and discontinuing her

performance reviews after the year 2019. (Doc. No. 26 at 32.) Jenkins argues that her white HR

peers were treated much better than her and did not have their monthly one-on-one meetings

cancelled, citing a statement from Althea Taylor (Crockett) corroborating this treatment as

support. (Id. at 32–33.) Jenkins further argues that the PIP, which she alleges contains false

statements and misrepresentations, constitutes evidence of a hostile work environment. (Id. at

33–34.) For the reasons discussed below, the Court finds that the facts do not demonstrate a

hostile work environment as a matter of law, and summary judgment on this claim is granted.

To state a claim for hostile work environment, a plaintiff must show: (1) she “suffered

intentional discrimination” because of her race; (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, meaning the employer is responsible.” Castleberry v. STI Grp., 863

F.3d 259, 263 (3d Cir. 2017); see also Hargrave v. County of Atlantic, 262 F. Supp. 2d 393, 411

(D.N.J. 2003) (“Reduced to its most basic components, an actionable hostile work environment

requires proof that Plaintiff was subjected to a level of gender- or race-based harassment which

was ‘severe or pervasive’ enough to create a working environment which is both subjectively

and objectively abusive or hostile to female or African American employees.”).

In determining whether harassment rises to the level of an actionable hostile work

environment, we must consider the “totality of the circumstances . . . including the frequency of

the discriminatory conduct, its severity, whether it [was] physically threatening or humiliating or

a mere offensive utterance, and whether it reasonably interfere[d] with an employee’s work

performance.” Harris v. SmithKline Beecham, 27 F. Supp. 2d 569, 577 (E.D. Pa. 1998) (citing

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); Davis v. City of Newark, 285 F.

App’x 899, 902 (3d Cir. 2008) (same). In addition, “the advent of more sophisticated and subtle

forms of discrimination requires that [a court] analyze the aggregate effect of all evidence and

reasonable inferences therefrom, including those concerning incidents of facially neutral

mistreatment, in evaluating a hostile work environment claim.” Cardenas v. Massey, 269 F.3d

251, 260-61 (3d Cir. 2001).

Following a thorough review of the record and drawing inferences in the light most

favorable to Jenkins, the Court holds that the totality of the circumstances does not demonstrate

that Jenkins was subjected to severe or pervasive harassment sufficient to sustain a hostile work

environment. To create a hostile work environment, “[t]he discriminatory conduct must be

extreme enough to amount to a change in the terms and conditions of employment.” Chinery v.

Am. Airlines, 778 F. App’x 142, 145 (3d Cir. 2019) (quotation marks omitted) (cleaned up). As

a result, “[o]rdinary tribulations of the workplace, such as the sporadic use of abusive language,

jokes, and occasional teasing are not enough to sustain a hostile work environment claim.”

Wright v. Providence Care Ctr., LLC, No. 2:17-CV-00747-NR, 2019 U.S. Dist. LEXIS 162909,

2019 WL 4643592, at *11 (W.D. Pa. Sept. 24, 2019), aff’d, 822 F. App’x 85 (3d Cir. 2020).

“Unless extremely serious, offhand comments and isolated incidents are insufficient to sustain a

hostile work environment claim.” Chinery, 778 F. App’x at 145. Also, “[w]ith respect to the

issue of pervasive conduct, courts in this Circuit have been steadfast in finding that ‘general,

unsubstantiated allegations that the alleged conduct occurred “regularly” or “all the time”’ are

insufficient to survive summary judgment.” Joseph v. West Penn Allegheny Health Sys., 2022

U.S. Dist. LEXIS 54737, *25-26 (W.D. Pa. Mar. 25, 2022) (quoting Nitkin v. Main Line Health,

No. CV 20-4825-KSM, 2021 U.S. Dist. LEXIS 201348, at *11 (E.D. Pa. Oct. 18, 2021)).

In Wright v. Providence Care Center, for instance, the Third Circuit affirmed the district

court’s grant of summary judgment as to the plaintiff’s hostile work environment claim because

her evidence of a hostile work environment was not “objectively speaking, either sufficiently

pervasive or severe to have altered the conditions of her employment and to have created an

abusive working environment.” 822 F. App’x 85, 96 (3d Cir. 2020). The Third Circuit

emphasized that as to pervasiveness, “the record does not support [the plaintiff’s] assertion that

she was subjected to harassment on a daily and weekly basis. As the District Court aptly

observed, [the plaintiff] cites a handful of incidents that appear to have been spread out over the

course of many months.” Id. at 96–97. As to severity, the Third Circuit held that nothing the

plaintiff experienced, taken individually or in the aggregate, could be objectively severe enough

to alter the conditions of her employment or to create an abusive working environment” because

“[o]ccurrences such as being ignored, told once to ‘shut up,’ hearing an offhand comment about

collecting disability, being temporarily pulled to work on another floor at the facility, receiving a

marginally negative performance review without cause, and scheduling annoyances, while no

doubt unpleasant, are not objectively ‘extreme.’” Id. at 97.

Here, Jenkins has not demonstrated that the totality of the behavior was severe or

pervasive. First, Jenkins testified that Lamoreux interrupted her in meetings “periodically,” i.e.,

on more than five occasions over three years. (Doc. No. 26-4 at 102:6–104:19 (Jenkins

testifying, “It may not have been at every meeting but it occurred at several of the monthly

meetings. . . . [Question asking how many occurrences there were in approximately 36 monthly

meetings from 2018 to 2021] A: I cannot give you an exact number of meetings where it

occurred but I can tell you it did occur periodically. Q: Did it occur more than five times? A:

Yes, I would say more than five times. . . . I don’t have a specific recollection of which meetings

they occurred in. Q: Do you have a recollection of about approximately how many times this

happened? A: Well, I can tell you it is more than five.”).) Importantly, Jenkins does not allege

that these interruptions occurred constantly or that they amounted to a change in the terms and

conditions of her employment. (See id.) Although she presents a statement from Taylor

affirming that Lamoreux treated Jenkins harshly, Taylor only worked at WEL for a few months

in 2018. (See Doc. No. 26-4 at 65:14–66:4; Doc. No. 30.)

By the same token, Jenkins does not allege that missing multiple one-on-one meetings

with Lamoreux amounted to a change in the terms of and conditions of her employment. (See

Doc. No. 26-12 at 158:13-159:7 (Lamoreux testifying that she was always available “24/7” to

her managers for any issues, “[s]o even if we didn’t meet [for monthly one-on-one meetings],

they were able to communicate with me if there was a pending issue that maybe we needed to

talk about”).) And, although Jenkins undisputedly did not receive a performance review in 2020,

Lamoreux testified that she may have missed 2020 performance reviews during the pandemic,

while she was being treated for breast cancer. (Doc. No. 26-12 at 146:16–22 (Lamoreux

testifying that she wasn’t meeting with people regularly during the pandemic and during her

cancer treatments), 166:1–14; 262:6–10 (“Q: Do you recall providing employees with

performance reviews in 2020 and 2021? A: Not 2020. As I said, that was the year that I was

sick and COVID and I’m not sure that I did any reviews in 2020.”).) Finally, the record shows

that Lamoreux was preparing a performance review in 2021 for Jenkins but put the review “on

pause” because Beiler shared with Lamoreux that he had some concerns that he would like to

discuss. (Doc. No. 26-12 at 262:6–263:2.) The record also shows the year 2021 had not

concluded before Plaintiff resigned in August 2021. (See Doc. No. 26-32.) These few one-off

instances are neither “severe” nor “pervasive.” See Alers v. City of Philadelphia, 919 F. Supp.

2d 528, 546 (E.D. Pa. 2013) (holding that a few instances of workplace bullying and overtime

denial was not severe and pervasive enough to sustain a hostile work environment claim);

Fitzgerald v. Glenn Ins., Inc., No. 1:20-CV-14891 (KMW-EAP), 2023 U.S. Dist. LEXIS 57018,

at *42 (D.N.J. Mar. 31, 2023) (holding that a handful of incidents, such as lack of invitations to

lunch, being interrupted when he attempted to explain his illness, being ignored, removal from a

committee, and his supervisor’s “explosive” reaction to the news of the plaintiff’s cancer, which

occurred over many months, was not objectively extreme to establish a hostile work

environment); Hambrick v. Kijakazi, 79 F.4th 835, 843 (7th Cir. 2023) (“Hambrick complains of

personality issues with coworkers and supervisors. Yet insults, personal animosity, and juvenile

behavior are insufficient evidence of a hostile work environment unless they are so pervasive or

severe as to interfere with an employee’s work performance. And having supervisors who are

short tempered, hostile, unfairly critical, and disrespectful, does not amount to objectively

offensive, severe, or pervasive conduct.” (citations omitted) (cleaned up)); cf. Thornton v.

Analog Devices, Inc., No. 22-cv-2392-MRP, 2023 WL 3627830, at *1–2 (E.D. Pa. May 24,

2023) (holding, where the plaintiff alleged that her supervisor consistently “belittled her

contributions, spoke to her in a patronizing way, or simply ignored her presence,” and ultimately

barred the plaintiff from speaking from meetings and removed her from business discussions,”

that the jury could find that this constituted severe and pervasive hostile work environment) .

Finally, although she challenges its accuracy and alleges that she did not receive any

prior warning, the August 2021 PIP does not does not constitute sufficiently severe or pervasive

conduct, individually or when considered in the aggregate with the above behavior.32 See Ciecka

v. Cooper Health Sys., No. 15-4075 (JBS/KMW), 2017 U.S. Dist. LEXIS 20539, at *33–34

(D.N.J. Feb. 14, 2017) (rejecting the plaintiff’s argument that being placed on a PIP “despite

prior positive work performance evaluations and having his work closely monitored under the

PIP” was sufficiently severe or pervasive so as to constitute a hostile work environment); see

also Dortch v. Cellco Partnership, 770 F. App’x 643, 645–46 (4th Cir. 2019) (affirming district

court’s conclusion that the plaintiff’s supervisor’s investigation into the team’s dissatisfaction

with the plaintiff and the subsequent decision to place the plaintiff on a PIP did not create an

abusive working environment); Darbha v. Capgemini Am. Inc., 492 F. App’x 644, 647 (7th Cir.

32 Additionally, the PIP is a facially neutral action. Although Jenkins argues that the PIP raises an

inference of intentional discrimination because a PIP was only issued to her, a black woman, Jenkins fails

to show that a PIP should also have been issued to a white individual but was not. See Nardella v. Phila.

Gas Works, 997 F. Supp. 2d 286, 297 (E.D. Pa. 2014) (“Plaintiff has not established a nexus between

these encounters and any discriminatory animus on the part of anyone at PGW. Plaintiff argues that her

being denied raises in 2007 and 2008 while on PIPs could be the result of being Caucasian and

discriminated against. It could also be the result of Jordon’s dissatisfaction with Plaintiff’s attitude and

her performance.” (internal citation and alterations omitted)).

2012) (“[T]o survive summary judgment, Darbha needs evidence of harassment so severe or

pervasive that it created an abusive working environment. An evaluation stating that Darbha’s

performance needed improvement does not meet this standard.” (citations omitted)); Walden v.

Patient-Centered Outcomes Res. Inst., 177 F. Supp. 3d 336, 345 (D.D.C. 2016) (“Plaintiff’s

reliance on the PIP and negative performance evaluation are similarly misplaced. Criticisms of

work and expressions of disapproval (even loud expressions of disapproval) are not sufficiently

severe to constitute a hostile work environment.” (citations omitted) (cleaned up)); Na’Im v.

Rice, 577 F. Supp. 2d 361, 377 (D.D.C. 2008) (“[The] alleged issuance of untimely and low

performance, the plaintiff’s non-selection in 2002, or her placement on the PIP in 2005 do not by

themselves sustain a hostile work environment claim because these incidents are not severe as a

matter of law.”).

Overall, in support of her hostile work environment claim, Jenkins points only to

sporadic instances of her being interrupted at meetings, that Lamoreux missed one-on-one

meetings and a performance review with her during the pandemic and while she was receiving

cancer treatment, that she didn’t receive a performance review in 2021 before she resigned in

August 2021, and a facially neutral PIP. When viewed together, the Court cannot find that

Jenkins faced sufficiently severe or pervasive discrimination such that the terms and conditions

of her employment were altered. Thus, considered under the totality of the circumstances, the

Court finds that Jenkins fails to demonstrate hostile work environment as a matter of law, and

grants Defendants’ motion as to this claim. See Foroozesh v. Lockheed Martin Operations

Support, Inc., 2:03cv1703, 2006 U.S. Dist. LEXIS 12789, at *41–42 (W.D. Pa. Mar. 24, 2006)

(“Three e-mails over the course of a month which relate specifically to Plaintiff’s work

performance and which have no apparent connection to Plaintiff’s sex or national origin,

combined with a sex-neutral and national origin-neutral performance improvement plan, do not

amount to severe or pervasive discrimination based on sex or national origin.”); Lassair v.

Wilkie, No. 2:17-01638-RAJ, 2019 U.S. Dist. LEXIS 179345, at *19–20 (W.D. Wash. Oct. 16,

2019) (“Ms. Lassair’s allegations that she was denied training, her production goals were

changed, she received written counseling and was placed on a PIP, and her promotion was

delayed by three months, do not establish a pattern of related discriminatory conduct sufficiently

severe to support a hostile work environment claim. . . . Ms. Lassair’s hostile work environment

claim is not saved by her general assertion that her coworkers joked about her age or Ms.

Crawford’s statements that in 2009, Mr. Dick made comments about her age. Although

offensive, such comments are not sufficiently severe or pervasive to alter the conditions of the

plaintiff’s employment and create an abusive work environment.” (internal citations omitted)).

IV. CONCLUSION

For the reasons set forth above, the Court grants Defendants’ motion for summary

judgment as to Jenkins’s 2019 failure to promote racial discrimination claim and as to her hostile

work environment claim, but denies the motion as to Jenkins’s 2021 failure to promote racial

discrimination claim. An appropriate Order follows.