AVERYTT v. MAGEE-WOMENS HOSPITAL OF UPMC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

JAMIA AVERYTT, )

)

) 2:24-CV-00742-MJH

Plaintiff,

)

)

vs.

)

)

MAGEE-WOMENS HOSPITAL OF UPMC,

)

)

Defendant,

OPINION

Plaintiff, Jamia Averytt, pro se, brings the within action against Defendant, Magee-

Women’s Hospital of UPMC, for sex discrimination and retaliation pursuant to Title VII of the

Civil Rights Act of 1964. (ECF No. 5). Magee now moves for summary judgment pursuant to

Fed. R. Civ. P. 56. (ECF No. 30). The matter is now ripe for decision

Upon consideration of the relevant pleadings, Magee’s Motion for Summary Judgment

(ECF No. 30), the respective briefs (ECF Nos. 34, 36, and 38), Concise Statements of Material

Fact and Appendix (ECF No. 32, 37, and 39), and for the following reasons, Magee’s Motion for

Summary Judgment will be granted.

I. Background

Ms. Averytt began working at UPMC Magee in 2019 as a housekeeper, in the

Environmental Services (“EVS”) Department. (ECF No. 32at ¶1). A few years before her

termination, she was promoted to a “Team Lead” position which required her to oversee a group

of housekeepers on the night shift. Id. at ¶4.

Euguene Brundage and Justin Mills were Ms. Averytt’s supervisors. Id. at ¶5. Ms.

Averytt testified as follows, about her relationship with Mr. Brundage:

Q. Okay. How did you get along with Eugene?

A. We were fine. We worked together those five years. He pretty much trained me and

taught me a lot of the job.

Q. He was involved in promoting you? A. Yes. He recommended it.

(ECF No. 32-2 at pp. 37-38). Ms. Averytt testified that she was evaluated fairly. Id. She also

testified that she got along with Mr. Brundage’s boss, Justin Mills, for the most part, although

she seldom interacted with him. Id. at p. 36.

On December 30, 2022, Ms. Averytt was allegedly involved in a verbal altercation with

Operations Manager, Justin Mills, resulting in a final written warning for “unprofessional,

profane, and disrespectful” interactions toward Justin Mills. (ECF No. 32 at ¶12). Six months

later, on June 20, 2023, while working the night shift, Ms. Averytt allegedly engaged in

misconduct, which resulted in her discharge. That misconduct is described in her termination

letter as follows:

On your scheduled shift, Tuesday night, 6/20/2023, into Wednesday morning,

6/21/2023, it was reported that you were missing from the department. Upon

review of your badge swipes and camera footage, it showed that you entered your

car at 11:23 pm and did not leave your car to return to the building until 3:41 am,

all while remaining clocked in. Being outside the hospital, away from your

department not working during your shift is considered theft of UPMC time. On

6/28/2023, you provided a statement denying this occurred which is dishonesty.

Id. at ¶ 22. Ms. Averytt was discharged on June 29, 2023 because of this incident, in addition to

her final written warning issued for the December 30, 2022 incident mentioned above, as well as

for lying about the incident when confronted with it. Id. at ¶23.

Ms. Averytt’s absence from her shift was captured on video, and was confirmed by her

badge swipes, as leaving the building at 11:21 p.m. on June 20 and swiping back in at 3:31 a.m.

on June 21. The tele-tracking report shows Ms. Averytt’s last activity on the shift was at 11:12.

Id. at ¶¶ 14-17. When Ms. Averytt was given the opportunity to explain her absence, she told

Mr. Brundage that “this is simply not true.” Id. at ¶ 18. Ms. Averytt offered inconsistent

statements about the incident resulting in her discharge, and at one point she admitted she was

sleeping, because of medication; and at another point, she denied that it occurred, while at

another point she stated that she did not remember. Id. at ¶¶ 18-21.

Ms. Averytt testified that she was not aware of any similarly situated male employee

who, to the knowledge of her managers, left work without clocking out, was paid for the time

and not disciplined. Id at ¶¶ 32-33. 32. The only person about whom Ms. Averytt was aware of

who left the building without clocking out, who was paid for that time, and who was reported to

management, was a temporary employee, named Gil. The employee was leased from a staffing

company, and was not a UPMC Magee employee reporting to Justin Mills. Id. at ¶ 32. Ms.

Averytt did not know whether Gil was disciplined. Id. at ¶ 33.

After her termination, on June 30, 2023, Ms. Averytt sent an email to the human

resources service account, alleging that she was treated “unfairly because I am a female,” and

otherwise raising claims of sex discrimination. Id. Ms. Averytt acknowledges that her post-

termination email is the only written communication that mentions discrimination based on sex.

Id. at ¶ 27.

Following her termination, Ms. Averytt filed a grievance, wherein she stated:

[T]he only explanation I have for this inappropriate conduct was that the

medication that I take for my severe depression had caused me to have an adverse

effect and I don’t recall what time I went on break or if I possibly fell asleep

during my break.

Id. at ¶ 28.

II. Relevant Standard

Summary judgment may only be granted where the moving party shows that there is no

genuine dispute about any material fact, and that judgment as a matter of law is warranted. Fed.

R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary

judgment against a party who fails to make a showing sufficient to establish an element essential

to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts

in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or

her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).

In ruling on a motion for summary judgment, the court’s function is not to weigh the

evidence, make credibility determinations, or determine the truth of the matter; rather, its

function is to determine whether the evidence of record is such that a reasonable jury could

return a verdict for the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150–51 (2000) (citing decisions); Anderson v. Liberty Lobby, 477 U.S. 242, 248–49 (1986);

Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998). The mere

existence of a factual dispute, however, will not necessarily defeat a motion for summary

judgment. Only a dispute over a material fact—that is, a fact that would affect the outcome of

the suit under the governing substantive law—will preclude the entry of summary judgment.

Liberty Lobby, 477 U.S. at 248.

III. Discussion

A. Sex Discrimination

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against any employee based on the employee’s sex. 42 U.S.C. §§ 2000e-2(a)(1). A claim of

intentional employment discrimination, disparate treatment, may be proven by either “direct”

evidence of discriminatory intent or “indirect” evidence from which one can infer an intent to

discriminate. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008).

To establish a prima facie case of sex discrimination, a plaintiff must show that “1) [she]

is a member of a protected class, (2) [she] was qualified for the position [she] sought to attain or

retain, (3) [she] suffered an adverse employment action, and (4) the action occurred under

circumstances that could give rise to an inference of intentional discrimination.” Sarullo v. U.S.

Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); Veverka v. Human Services Center, 2023 WL

2500370 at *10 (W.D. Pa. March 14, 2010).

If a plaintiff satisfies the elements of a prima facie case for sex discrimination, the burden

then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for why the

plaintiff was discharged. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The

burden upon the defendant at the second step of the McDonnell Douglas framework is “relatively

light,” and the employer need only introduce “evidence which, taken as true, would permit the

conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.”

Fuentes v. Perskie, 32 F.3d 759, 706 (3d Cir. 1994).

To avoid summary judgment, therefore, a plaintiff must offer evidence which, if true, is

sufficient to show that an employer’s explanation for her discharge was a pretext to mask an

unlawful motive. Pretext may be shown by offering facts that would allow the court to (1)

disbelieve the employer’s articulated legitimate reason for taking the adverse employment

action; or (2) believe that an invidious discriminatory reason was more likely than not the real

reason for the action. Willis v. Children’s Hospital of Pittsburgh, 808 F.3d 638, 646-49 (3d Cir.

2015); Brandon v. UPMC Presbyterian Shadyside, 2023 WL 309341 at *4 (W.D. Pa. April 26,

2023), To establish pretext under the first prong of the foregoing standard, a plaintiff must show

that the defendant’s reason for her discharge is “so weak as to render it “unworthy of credence.”

Willis, supra, at 648, quoting Fuentes v. Perskie, 32 F. 3d 757, 765 (3d Cir. 1994). Put a different

way, “the plaintiff must point to “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a

reasonable factfinder could rationally find them ‘unworthy of credence’” and hence infer that the

proffered nondiscriminatory reason “did not actually motivate” the employer's action. Fuentes,

supra, at 765; Schreiver v. Moon Area School District, 2019 WL 3307249 (W.D. Pa. 2019).

1. Prima Facie Case

Magee argues that, while Ms. Averytt alleges that her supervisors “never took

disciplinary actions against male employees for policy violations. Yet they would constantly

write up and terminate female employees,” she has not substantiated this allegation with

admissible evidence. Magee further asserts that disciplinary records do not support a pattern of

favoring one gender over another. Ms. Averytt contends that a male employee named Gil was

treated differently than her.

Ms. Averytt plausibly satisfies the first three elements of a prima facie sex discrimination

claim, but the fourth, and final, element is at issue. “The means by which a claimant most often

satisfies the [final] element is by showing that she was treated less favorably than similarly

situated employees who are not in the same protected class.” Neidigh v. Select Specialty

Hospital–McKeesport, 150 F.Supp.3d 573, 577 (W.D. Pa. 2015), aff'd, 664 Fed.Appx. 217 (3d

Cir. 2016); Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 357 (3d Cir. 1999).

Here, as to the final element, Ms. Averytt cannot support a prima facie claim for sex

discrimination. The only specific complaints of favoritism, that are disclosed in the record,

involve favoritism towards a female employee. Although Plaintiff alleges that male employees

were never disciplined, Defendant has produced a business record which refutes that allegation.

Ms. Averytt suggests a person named Gil as a comparator. Gild had allegedly engaged in similar

behavior, but he was not discharged. However, the evidence of record, unrefuted by Ms.

Averytt, demonstrates that Gil was not similarly situated. The record demonstrates that Gil was

a temporary employee of a staffing company, and he did not report to Ms. Averytt’s supervisors.

(ECF No. 31-2 at pp. 83-87). Further, Ms. Averytt produced no evidence of record to

demonstrate whether Gil was disciplined or not. Without such evidence for a factfinder to find

an inference of discrimination on that basis, Ms. Averytt cannot satisfy the final element of her

prima facie case.

Accordingly, on this basis alone, Magee would be entitled to summary judgment on Ms.

Averytt’s sex discrimination claim. Further, even if Ms. Averytt could have satisfied a prima

facie case, her claim cannot satisfy the remainder of the McDonnell Douglas framework.

2. Legitimate Non-Discriminatory Reason

Assuming Ms. Averytt could could have met her burden of proof on her prima facie sex

discrimination claim, Magee must offer a legitimate, non-discriminatory reason for her

termination. As referenced above, the defendant’s burden on the second step of the McDonnell

Douglas framework is light.

Here, Magee produced a declaration from Ms. Averytt’s supervisor, Eugene Brundage,

plus a written discharge letter, which details why Ms. Averytt was discharged. Specifically, her

discharge was based upon evidence of time theft, for when she left her shift for four hours

without signing out or reporting the absence and then lying about the incident. Through such

evidence, Magee sufficiently meets its burden that Ms. Averytt’s discharge was for a reason

other than sex

3. Pretext Analysis

As Magee has met its burden under the second stage of

the McDonnell Douglas framework, the burden shifts to Ms. Averytt to offer evidence that the

Magee’s non-discriminatory reasons were offered as mere pretext. Under the first prong of the

pretext analysis, there is no evidence to disbelieve Magee’s articulated legitimate reason to

discharge Ms. Averytt. Evidence of Ms. Averytt’s culpability, which led to her discharge, is

indisputable. Such evidence includes a video of Ms. Averytt exiting the building, approaching

her car, and returning to work four hours later. Ms. Averytt also does not dispute that

production of her card swipes showing her going out of and into the building, plus the evidence

showing no work activity during this time period, all support Magee’s reason for her termination.

Moreover, when confronted with such evidence, Ms. Averytt denied she was out of the building.

And later, when submitting a grievance, Ms. Averytt admitted her absence and blamed the

adverse effects of medications caused her to fall asleep. Ms. Averytt has otherwise produced no

evidence to justify any finding that Magee’s explanation for her discharge was implausible or

unworthy of belief.

Under the second prong of the pretext test, Ms. Averytt does not identify evidence in the

record that “would allow a factfinder to believe unlawful discrimination was more likely than not

a motivating or determinative cause of her termination.” Willis, supra, at 649. As in the prima

facie analysis, Ms. Averytt adduces no evidence connecting her discharge with any

discriminatory motive or cause. Therefore, Ms. Averytt has not met her burden of establishing

any fact issue as to second pretext prong.

Accordingly, Magee’s Motion for Summary Judgment, as regards to Ms. Averytt’s Title

VII sex discrimination claims, asserting that her termination was on account of her gender, will

be granted. Judgment will be entered in favor of Magee on said claim.

B. Retaliation

Magee maintains that Ms. Averytt cannot support her retaliation claim, because she did

not engage in any protected activity. Ms. Averytt contends that she made written complaints of

sex discrimination and disparate treatment. Title VII prohibits retaliation, by making it unlawful

for employers to discriminate against “any individual ... because he has opposed any ... unlawful

employment practice” or because that individual has “made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e–3(a).

To establish “a prima facie case of retaliation, a plaintiff must show that: (1) the

employee engaged in a protected employee activity; (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.”

Brown-Baumbach v. B&B Automotive, Inc., 437 F. App’x 129, 134–35 (3d Cir. 2011) (citing

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir.2000) (emphasis added). As with

her disparate treatment claim, without direct evidence, Ms. Averytt must establish her claim

through indirect or circumstantial evidence under the McDonnell Douglas framework. Daniels v.

Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015).

A causal connection cannot be established if the employment decision is made before the

alleged protected activity. Clark County School District, supra, at 272 (protected activity took

place on the day after supervisor expressed intent to transfer); Yan Yan v. Penn State Univ., 529

F. App'x 167, 172 (3d Cir. 2013) (decision to reschedule exam made two days prior to receiving

a letter that complained of discrimination).

Here, Ms. Averytt made complaints during her employment, but there is no evidence that

she opposed sex discrimination or any other practice made unlawful by Title VII. The complaint

documentation from Ms. Averytt contains no evidence referencing sex discrimination. Further, in

discovery, Ms. Averytt admitted that a post-termination email “is the only written

communication [to UPMC] that mentions discrimination based on sex.” (ECF No. 32-4 at p. 3).

She has also not identified any pre-termination written complaints of sex discrimination. While

one email complained about favoritism shown to a co-worker, Ms. Averytt testified that the co-

worker referred to in the e-mail was female. As regards any verbal complaints about sex

discrimination, Ms. Averytt testified that any verbal complaints made to her supervisors,

Brundage and Mills, were not about sex discrimination. (ECF 32-2 at pp. 38 to 53). Without

such evidence of any pre-termination protected activity, Ms. Averytt cannot support a prima

facie case of retaliation.

Accordingly, Magee’s Motion for Summary Judgment, as regards to Ms. Averytt’s Title

VII retaliation claims, will be granted. Judgment will be entered in favor of Magee on said claim.

TV. Conclusion

Based upon the foregoing, Magee’s Motion for Summary Judgment will be granted.

Judgment will be entered in favor of Magee and against Ms. Averytt. As separate order will

follow.

Dated: September 22, 2025

United States District Judge

10