                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2009

Susan Scanlon v. Jeanes Hospital
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1402




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                                                            NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                               __________

                                   No. 08-1402
                                   __________

                               SUSAN SCANLON


                                        vs.

     JEANES HOSPITAL A/K/A TEMPLE UNIVERSITY HEALTH SYSTEM,
                                        Appellant
                             __________

                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 06-cv-02424)
                 District Court Judge: Honorable Norma L. Shapiro
                                    ___________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                                 March 9, 2009
                                 ___________

          Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges

                           (Opinion Filed: April 1, 2009)


                                   ___________

                                    OPINION
                                   ___________

FUENTES, Circuit Judge

     Jeanes Hospital appeals from an adverse jury verdict awarding damages for
terminating Susan Scanlon in violation of the Age Discrimination in Employment Act

(“ADEA”). For the following reasons, we will affirm.

                                               I.

       Because we write for the parties, we discuss only the facts relevant to our

conclusion. Scanlon began her employment at Jeanes Hospital in 1966, and she became a

full-time registered nurse in 1983, specializing in labor and delivery. Her record was

unblemished throughout her career at Jeanes Hospital. At the time of her termination,

Scanlon was sixty-one years old.

       On January 1, 2005, a patient had a miscarriage during Scanlon’s shift. The

placenta, cord, and fetus were expelled by the patient into the toilet, and these were then

retrieved and placed into a formalin bucket by Scanlon and Susan Wacker, an OB tech

with two years’ experience.

       Following this incident, Wacker became concerned that placing the fetus in

formalin was a mistake and that she would be blamed.1 Accordingly, she filed a

complaint with Kathleen Haviland, the interim supervisor of the unit, claiming that

Scanlon had failed to warn her that the fetus should not have been placed in formalin.

She also added that (1) Scanlon had been “bickering” with Chris Morrell, the other nurse

on duty, and (2) Scanlon had been uncompassionate toward the patient. No complaint


       1
         No such prohibitive policy was ever in effect. Jeanes Hospital subsequently
clarified its policies to state that it is appropriate to put a miscarried fetus in formalin
when it is under 24 weeks. The fetus here was 18 weeks.

                                                2
was filed by the patient or the patient’s family.

       Haviland received Wacker’s complaint on Monday, January 3, 2005. She and

Elizabeth Welsh, the clinical director, began investigating the two complaints regarding

bickering and inadequate patient care. That same day, Haviland and Welsh concluded

that Scanlon and Morrell indeed had been bickering (despite denials by each), and issued

them a warning stating that this “behavior is getting in the way of achieving service

excellence standards and our core principles.” J.A. at 211-12. Initially, Haviland and

Welsh asserted that this decision was supported by statements from Dr. Airoldi, the

physician on duty, and Dr. Bilyak, the patient’s attending physician. But on cross-

examination, they admitted that they had not spoken with Dr. Airoldi and Dr. Bilyak until

the following day. After recanting, both claimed they had relied instead on a unit clerk,

even though the clerk’s statement was never documented in writing or otherwise verified

in court.

       On January 4, 2005, Haviland and Welsh continued with their investigation of the

second complaint. They interviewed Wacker, Dr. Airoldi, and Dr. Bilyak; they did not

review the patient’s chart, or speak with the on-duty supervisor, the patient, or Scanlon

herself. Based on these limited conversations, Welsh prepared a Corrective Action

Report suggesting that Scanlon’s employment be terminated. She also prepared a

termination notice stating that Scanlon’s “actions did not adhere to the expected Standard

of Practice” and that her “behaviors were inconsistent with our Customer Service



                                              3
Expectations, our Service Excellence Standards as well as the [hospital’s] Core

Principles.” Welsh was scheduled for surgery the following day so she passed these

documents, as well as responsibility for the investigation, to Denise Frasca, the Chief

Nursing Officer.

       On January 5, 2005, when Scanlon arrived for her 7 A.M. shift, she was

immediately escorted by Haviland to Frasca’s office, where she was handed the prepared

notice of termination. Scanlon’s termination opened up three day shifts per week. At the

time, two younger nurses had voiced strong desire to move from the night shift to the day

shift, including Kim Coskery, a thirty-year-old nurse who had been hired just a few weeks

before.

       Scanlon filed suit in federal district court on June 8, 2006. The case proceeded to

a jury trial on federal and state claims of age discrimination and a state claim for unpaid

wages. On October 1, 2007, the jury awarded back pay of $176,800 and front pay of

$40,000, but declined to award liquidated damages. The District Court awarded an

additional $40,000 for pain and suffering and added pre-trial interest of $16,566.92 for a

total judgment of $273,366.92.

       Jeanes Hospital moved for judgment as a matter of law or for a new trial on the

grounds that (1) Scanlon failed to establish a prima facie case and (2) the jury’s verdict

was against the weight of the evidence, as well as various claims of procedural errors

including misleading jury instructions, improper closing argument, and erroneous



                                              4
exclusion of documents from evidence. The District Court denied the motion on January

23, 2008. Jeanes Hospital filed a timely notice of appeal.

                                             II.

       The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291.

       We exercise plenary review over the grant or denial of a motion for judgment as a

matter of law. Buskirk v. Apollo Metals, 307 F.3d 160, 165 (3d Cir. 2002). The motion

should be granted only where, “viewing the evidence in the light most favorable to the

non-movant, and giving it the advantage of every fair and reasonable inference, there is

insufficient evidence from which a jury could reasonably find liability.” Gagliardo v.

Connaught Labs., Inc., 311 F.3d 565. 568 (3d Cir. 2002) (citation omitted). All

reasonable inferences are drawn in favor of the non-moving party, and we must

“disregard all evidence favorable to the moving party that the jury is not required to

believe” and “give credence to the evidence favoring the nonmovant.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).

                                            III.

       Jeanes Hospital’s main contention is that Scanlon failed to produce sufficient

evidence that her termination was motivated by age animus. Jeanes Hospital insists that it

“had every right to accept the version of the events that was described to them [by

Wacker].” Appellant’s Reply Br. 6. Moreover, it argues that Scanlon failed to provide



                                             5
any direct evidence of age discrimination, such as inappropriate age remarks or other

nurses being treated differently based on age.

       A plaintiff may prevail on an ADEA claim either “(1) by presenting direct

evidence of discrimination, or (2) by presenting indirect evidence of discrimination that

satisfies the familiar three-step framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).” Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005) (citations omitted).

The burden-shifting framework set forth in McDonnell Douglas requires the plaintiff to

bear the initial burden of establishing a prima facie case of discrimination; the defendant

to articulate a legitimate, non-discriminatory reason for the employment action; and

finally the plaintiff to “show by a preponderance of the evidence that the employer’s

explanation is pretextual.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

       Significantly, a plaintiff who proceeds by presenting indirect evidence need not

also present direct evidence. Reeves, 530 U.S. at 148 (“[A] plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer unlawfully

discriminated.”). Although the Supreme Court left room for exception where “no rational

factfinder could conclude that the action was discriminatory,” id., this case does not

present that situation.

       Jeanes Hospital may have been entitled to accept Wacker’s version of the events,

but the evidence and testimony at trial strongly suggested that this was not what occurred.



                                             6
Indeed, if Scanlon’s termination was genuinely motivated by Wacker’s complaint, Jeanes

Hospital easily should have been able to pinpoint for the jury the specific conduct which

it considered determinative in justifying the termination. It could not. As the District

Court repeatedly observed in its opinion—and thus as the jury could have determined for

itself—the testimony of Appellant’s key supporting witnesses was “evasive” and

“incredible.” 2

       The termination notice itself contained no specifics as to the cause of termination.

App. 317. At a subsequent unemployment benefits hearing, however, Jeanes Hospital

elaborated a battery of reasons, including that Scanlon had failed to start an IV to treat

heavy bleeding, violated hospital policy by placing the fetus in formalin, refused to offer

comfort and support to the patient, failed to complete all procedures with the fetus by the

end of her shift, and failed to give a full report to the next shift. App. 292-95; 388-95.

Each of these purported reasons was convincingly refuted at trial.

       Proving the falsity of these proffered justifications, when combined with a prima

facie case, is sufficient to find intentional discrimination. Reeves, 530 U.S. at 147-48

(“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of




       2
         Specifically, the District Court stated that “Haviland’s apparent lack of command
of the facts and the contradictions in her testimony made her appear incredible”;
“Welsh’s testimony was evasive and persistent even when contradicted by other
evidence”; and “[Wacker] answered questions in a transparently evasive manner, was
combative with counsel, and appeared to have a shaky recollection of the facts.” Scanlon
v. Jeanes Hosp., No. 06-2424, 2008 WL 191169, at *4, 5, 10 (E.D. Pa. Jan. 23, 2008).

                                              7
the explanation that the employer is dissembling to cover up a discriminatory purpose.”).

Particularly where no reasons were initially given, and all the various reasons given ex

post facto have been proven implausible, a reasonable jury could conclude that the true

reason was a discriminatory one.

       Jeanes Hospital is correct that it is not enough to “simply show that the employer’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.” Fuentes, 32 F.3d at 765. The trouble here, however, is that

Jeanes Hospital’s investigation was so cursory, and its proffered explanations so flimsy,

that the misapprehension suggests more than mere mistake. Scanlon’s counsel

highlighted countless unexplained omissions in the investigation, any one of which would

have readily validated the adequacy of Scanlon’s job performance that day. Thus, there

was a sufficient basis for the jury to conclude that Jeanes Hospital’s proffered reasons

were not simply unfounded, but intentionally false.

       Alternatively, Jeanes Hospital argues that Scanlon presented an incomplete or

weak prima facie case. But as it acknowledges in its brief, “after a case has been tried to

a jury on the merits, ‘it is unnecessary for the appellate court to decide whether a prima

facie case had, in fact, been established.’” Bruno v. W.B. Saunders Co., 882 F.2d 760,

764 (3d Cir. 1989) (citation omitted). Nevertheless, we note in passing that (1) Scanlon

was sixty-one years old; (2) she was fired; (3) she was qualified for the job from which



                                             8
she was fired; and (4) she showed evidence that she “was replaced by a sufficiently

younger person to create an inference of age discrimination,” namely Kim Coskery.

Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.3 (3d Cir. 2002) (listing elements of a prima

facie case in an ADEA suit). The fact that Coskery was an existing employee is not

disqualifying, since the promotion of an existing employee can constitute “replacement.”

And even if she were already in the process of being transitioned to the day shift,

Scanlon’s termination undoubtedly accelerated that transition.

       We also find no merit in Appellant’s remaining arguments, which essentially assert

that the jury was misled to believe that age discrimination could be motivated solely by

financial reasons, rather than by age. First, Jeanes Hospital claims that opposing

counsel’s closing argument improperly influenced the jury verdict by repeatedly

suggesting that Scanlon’s termination was motivated by a desire for cost savings, apart

from any connection to age. Moreover, Appellant argues that the curative instruction

given by the District Court only exacerbated the problem because it implied that cost

savings could in fact serve as a proxy for age and be considered in certain instances. We

defer to and agree with the District Court’s judgment that its curative instructions were

sufficient to expunge any prejudicial impact. Fineman v. Armstrong World Indus., 980

F.2d 171, 207 (3d Cir. 1992).3


       3
       In any event, we also note that the curative instruction was proper under Hazen
Paper Corp. v. Biggins, 507 U.S. 604 (1993), as requested by Appellant’s trial counsel.
Hazen specifically left open the possibility that, in some circumstances, pension status

                                             9
       Finally, Jeanes Hospital complains that the District Court erred in its

“determinative factor” jury instruction because it specified that, although age must be a

determinative factor, it does not have to be the sole factor. This instruction was not in

error. See Miller v. CIGNA Corp., 47 F.3d 586, 595-96 (3d Cir. 1995) (concluding that

“because of” does not mean “solely because of” and, indeed, holding that a “sole

determinative factor” charge could be prejudicial error).

                                            IV.

       Accordingly, we will affirm the District Court’s judgment of January 23, 2008,

substantially for the reasons set forth in Judge Shapiro’s opinion.




could be used as a proxy for purposes of age discrimination. Id. at 612-13 (“We do not
preclude the possibility that an employer who targets employees with a particular pension
status . . . thereby engages in age discrimination. Pension status may be a proxy for
age . . . in the sense that the employer may suppose a correlation between the two factors
and act accordingly.”).

                                             10
