                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2004

Wimbush v. UPMC Health Sys
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2389




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"Wimbush v. UPMC Health Sys" (2004). 2004 Decisions. Paper 696.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/696


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2389


                             MARGARET L. WIMBUSH,
                                              Appellant
                                     v.

                              UPMC HEALTH SYSTEM

                                     ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 02-CV-00080 )
                   District Judge: Honorable Gary L. Lancaster
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                  May 11, 2004
               Before: NYGAARD, McKEE and WEIS, Circuit Judges.

                                   Filed May 18, 2004
                                    ____________

                                       OPINION


WEIS, Circuit Judge.

             This is an action for employment discrimination in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq., Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C.

                                            1
§ 1981 and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Plaintiff

contends that she was terminated from her employment because of age, gender and race

based discrimination. She abandoned the age and gender counts and has limited her

claims to racial discrimination.

              Plaintiff is a 53 year-old African-American woman who was employed as a

nurse at the UPMC Presbyterian Hospital in Pittsburgh from 1991 until March 1, 2000.

Hospital records document sixteen unacceptable incidents of conduct during this period.

Most of these occurrences were acts of rudeness toward patients and fellow employees.

After investigating patients’ complaints that were the subject of the fifteenth and

sixteenth events, the hospital discharged plaintiff on March 1, 2000.

              After exhausting administrative remedies, plaintiff brought suit in the

United States District Court for the Western District of Pennsylvania. The court applied

the familiar burden shifting procedure of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). If a plaintiff presents a prima facie case, the defendant must articulate a

legitimate basis for its action. The burden then shifts back to the plaintiff to demonstrate

that the defendant’s explanation was pretextual or unworthy of belief.

              In this case, plaintiff tried to meet her burden by showing that similarly

situated individuals had been treated more favorably than she. She asserts that another

nurse, Francoise Barrioneuvo, who also had a number of disciplinary complaints, was not

discharged because she was Caucasian and was married to a professor at the University of



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Pittsburgh School of Medicine. Moreover, the couple allegedly did much entertaining

and were quite active in fund-raising for the University.

              The plaintiff’s own testimony demonstrates that her situation and that of

nurse Barrioneuvo were not essentially similar. Based on this, plaintiff failed to establish

disparate treatment. Moreover, the records disclose that nurse Barrioneuvo was

disciplined for her infractions, which were not as numerous as those attributed to the

plaintiff.

              We agree with the District Court’s conclusion that plaintiff failed to

establish disparate treatment as a basis for pretext.

              Moreover, we are in accord with the conclusion that plaintiff failed to

establish the existence of a hostile environment. The remarks of fellow employees that

plaintiff found offensive are far different from the more aggravated and pervasive

circumstances that courts have found to constitute a hostile environment. See generally

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57 (1986).

              We have carefully reviewed the District Court’s thorough and

comprehensive opinion explaining the reasons for its entry of summary judgment. We

see no reason for further elaboration. The Court properly reviewed the applicable law in

detail. Essentially for the reasons stated in the District Court’s opinion, we will affirm the

judgment.



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