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Plaintiff, :


v. :





Defendant. :

MEMORANDUM Giles, C.J. January___, 2003 I. Introduction Before the court is the opposed motion for summary judgment of Catholic Health Initiative, Inc., (“CHI”). This action1 arises from Javier Acosta’s (“Mr. Acosta”) allegations of employment discrimination made pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000(e) et seq. (“Title VII”) and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §951, et seq.2 (“PHRA”). He alleges hostile work environment, gender discrimination, and constructive discharge and seeks as relief back pay and front pay, compensatory damages, punitive damages, and attorney’s fees and costs. For the reasons discussed below, CHI’s motion for summary judgment is granted.

Mr. Acosta asserts exhaustion of all administrative remedies prior to bringing this action.

He claims that a charge was timely filed with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”) and that a Right to Sue Letter from the EEOC was received on or about February 18, 2002.

The court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and 1343.

II. Factual Background

The facts in the light most favorable to the non-moving party follow:

CHI is a not-for-profit health care organization formed in May 1996 with national offices in Denver, northern Kentucky, and Minneapolis. (Def.’s Mem. Supp. Sum. J. at 2.) It was created in 1996 through the merger of the Catholic Health Corporation, Franciscan Health System, and Sisters of Charity Health Care Systems. (Hancock Decl. at 2.) Subsequently, another entity, the Sisters of Charity of Nazareth Health System became part of CHI. (Id.) Currently, CHI operates sixty-three (63) hospitals and serves sixty-four (64) rural and urban communities. (Id.) In May 1996, after working for approximately two and a half years for VHA insurance company and based on a job opening tip from Christine Burke (“Ms. Burke”), who then worked for CHI, Mr. Acosta applied for a Claims Coordinator position at CHI’s Aston, Pennsylvania Office. (Acosta Dep. at 7-13.) At the time, Ms. Burke was employed as a CHI Claims Coordinator. Ms. Burke and Mr. Acosta had worked together at Cigna Insurance in 1993. (Id.) Mr. Acosta sent his resume to Steven Besack (“Mr. Besack”), who then held the position of Regional Director of Loss Control.3 He was hired in September 1996, and initially reported to Mr. Besack. (Acosta Dep. at 14-17; Pl.’s Mem. Opp’n Sum. J. at 2.) Claims Coordinators were responsible for administering claims brought against CHI’s facilities. (Def.’s Mem. Supp. Sum.

J. at 2.) Mr. Besack testified that, while under his supervision, Mr. Acosta was assigned to “the As Regional Director of Loss Control, Mr. Besack was responsible for the supervision of Claims Coordinators and other clerical staff within his department. Mr. Besack reported directly to John West, Vice President of Claims who in turn reported to Mitch Melfi, Chief Risk Officer.

more complex cases... because he had the... experience and acumen to handle them.” (Besack Dep. at 19.) The types of cases included professional liability, environmental and employment claims. (Def.’s Mem. Supp. Sum. J. at 2.) Three years later in 1999, however, CHI underwent a wholesale reorganization of its Risk Management Operations to accomplish national uniformity in its claims administration and procedures. (Hancock Decl. at 5.) Bryan Hancock (“Mr. Hancock”), assumed the position of Assistant Vice President of Risk Management Operations and reported directly to Mitch Melfi (“Mr. Melfi”), Chief Risk Officer. (Id.) Because CHI was formed as a result of the merger of several health systems, certain aspects of its management had been handled differently in various parts of the country. (Id.) Mr. Hancock and Mr. Melfi restructured CHI’s operations so as to centralize management and handle claims uniformly across the country. (Id.) As a result of the reorganization, Randy Gates (“Mr. Gates”) became Director of Liability Claims. (Hancock Decl. at 7.) Mr. Gates had oversight responsibility for all liability claims nationwide and became responsible for setting policies and procedures for the uniform management of claims. (Id.) Mr. Gates reported to Mr. Hancock. (Id.) Mr. Besack was removed from Risk Management Operations and was reassigned to the position of Risk Services Consultant,4 a non-management position. The reorganization plan created the new position of Claims Manager for the Aston, Pennsylvania Office. (Def.’s Mem. Supp. Sum. J. at 4.) The Claims Manager position was designed to supervise and oversee the work of the Claims As a Risk Services Consultant, Mr. Besack supervised an administrative assistant that provided support. No other CHI employees reported directly to him. His duties were limited to administering the claims and relationship of a single outside account and handling some of CHI’s higher level claims upon delegation of that specific duty by upper management. (Hancock Dep.

at 13.) Coordinators and support staff in that office. (Id.) Several CHI employees applied for the Claims Manager position, including three Claims Coordinators, Mr. Acosta, Ms. Burke, and Marie Johnson (“Ms. Johnson”). (Hancock Dep. at 8.) CHI management chose Ms. Burke for the position because it believed that she, more than the other candidates, would be the most loyal to the significant changes that were being made in operations. (Id. at 9.) As Claims Manager, Ms. Burke reported directly to Mr. Hancock, the second in command of Claims Operations. Although Mr. Gates did not directly supervise Ms. Burke, by virtue of his position in claim handling management, he established procedures which Ms. Burke was required to follow. (Hancock Decl. at 7.) Mr. Acosta, a former applicant for the Claims Manager position, began reporting to Ms. Burke,5 his former colleague. (Def.’s Mem. Supp.

Sum. J. at 3-4.) Prior to the reorganization and Ms. Burke’s becoming his immediate supervisor, Mr.

Acosta enjoyed a collegial relationship with both Ms. Burke and Mr. Besack, his former boss, and was appreciated by outside hospital representatives. After the reorganization, he claims that he began experiencing difficulties in performing his job functions. (Pl.’s Mem. Opp’n Sum. J. at 3.) Indeed, both Mr. Gates and Ms. Burke reported to Mr. Hancock that they were having difficulties with Mr. Acosta’s job performance. (Hancock Decl. at 10.) Mr. Hancock spent a significant amount of time advising Ms. Burke on how to address Mr. Acosta’s performance Although Ms. Burke’s position was newly created, the duties she assumed included, but were not limited to, responsibilities that were previously within the scope of Mr. Besack’s management when he served as Regional Director of Loss Control. (Besack Dep. at 39.) She also assumed reorganization strictures which had not been in place when Mr. Besack supervised Claims Coordinators.

issues. (Id.) In August 1999, when Ms. Burke became his supervisor, Mr. Acosta was the only male working as a Claims Coordinator in the Aston Office. He asserts that she discriminated against him because of his gender by the way she supervised and evaluated his work. He contends that this mistreatment constituted a constructive discharge.

In support of his claims of hostile work environment, gender discrimination and constructive discharge Mr. Acosta claims the following: 1) that Ms. Burke on one occasion yelled at him in front of co-workers, thereby embarrassing him; 2) that Ms. Burke sent a “confidential” e-mail to a female CHI supervisor, outside of the Claims Operations hierarchy, seeking advice on how to grapple with Mr. Acosta’s conduct at a staff meeting, wherein she referred to him as a “typical man”; 3) that Ms. Burke generally treated him in a demeaning and condescending manner and unduly criticized his job performance; 4) that before Ms. Burke became his supervisor he overheard her engaged in “male bashing” sessions with female coworkers wherein she complained about her husband, other family members, and about Mr.

Besack’s treatment of her, which she regarded as discriminatory based upon her gender; 5) that Ms. Burke gave preferences to female Claims Coordinators that she supervised; and 6) that Ms.

Burke authored a job performance evaluation which he regarded as negative.

–  –  –

In his deposition, Mr. Acosta recounts an incident involving Ms. Burke, where he discussed with her concerns he had with an outside law firm that was representing CHI’s interests in a litigation matter, to which he was assigned. (Acosta Dep. at 90-91.) He requested that Ms. Burke investigate an unpaid legal bill totaling more than a hundred thousand dollars ($100,000) because the firm was pressuring payment. He and Ms. Burke had a private discussion regarding the billing problems associated with that law firm. Ms. Burke told Mr. Acosta that she intended to solicit the aid of John Newton (“Mr. Newton”), In-House Counsel for CHI and Marybeth Grubb-Oberg (“Ms. Oberg”), Director of Human Resources, in resolving the matter.

(Acosta Dep. at 93-94.) During their discussion, Mr. Acosta told Ms. Burke that in his opinion those CHI persons had conflicts because they were friends of the person billing for the law firm and they had had dinner together. (Id.) At Ms. Burke’s first staff meeting as Claims Manager, Mr. Acosta raised the legal bill as an issue both with the integrity of CHI’s In-House Counsel and the Director of Human Resources and as disagreement with Ms. Burke’s resolution strategy. He stated in the meeting that he had already telephoned Mr. Melfi, CHI’s Chief Risk Officer, about what he regarded as the “conflict” problem and that he disagreed with the proposed resolution strategy. He said he had expressed directly to Mr. Melfi his concerns because he did not think that much could get done if Mr. Newton and Ms. Oberg were involved in the process. (Acosta Dep. at 94.) Mr. Melfi was four levels above Mr. Acosta in CHI’s management hierarchy. Prior to the staff meeting, Mr. Acosta had not told Ms. Burke that he had spoken to Mr. Melfi. Mr.

Acosta stated that prior to the reorganization he had had open door access to Mr. Melfi and saw nothing wrong in what he did. Ms. Burke saw it differently.

Following the meeting, Ms. Burke confronted Mr. Acosta in her office, and yelled at him pointing her “finger in his face” for contacting Mr. Melfi and “for going behind her back” on this issue without first informing her. She told him that he was wrong to have done what he did. Mr.

Acosta diffused the situation by agreeing that he would handle the matter the way she had suggested. (Acosta Dep. at 97.) At his deposition, Mr. Acosta asserted that Ms. Burke’s motivation for yelling at him was solely that he was a man. He described the encounter as humiliating and demeaning. (Acosta Dep. at 113-118.)

–  –  –

Following this staff meeting incident, Ms. Burke sought advice from Laura Daniels (“Ms.

Daniels”), Director of Workers’ Compensation, on how to deal with the situation that had just happened between her and Mr. Acosta. Ms. Burke sent an e-mail to Ms. Daniels, updating her

on the status of the situation. The e-mail read:

–  –  –

(Pl’s. Mem. Opp’n Summ. J. Ex. G.) Mr. Acosta found a printed copy of the e-mail on the office printer that he shared with Ms. Burke. (Acosta Dep. at 207.) He testified that “it was scary to see something in writing like this” (Acosta Dep. at 211) but figured that he would just keep doing his job because he needed his job. (Id.) Mr. Acosta kept a copy but did not report any concerns to Human Resources nor did he discuss it with anyone in CHI’s Risk Management hierarchy. (Acosta Dep. at 207, 212.) He did discuss it with Mr. Besack, but by then Mr. Besack was no longer a manager responsible for the Risk Management Department. Mr. Acosta does not allege that the e-mail contents were made known to anyone within his department, co-workers, or managers.

C. Allegations of Demeaning and Condescending Treatment Mr. Acosta asserts that in claim review meetings6 held with CHI hospitals in the region, Ms. Burke did not exactly yell at him but would abruptly cut him off from answering when hospital Chief Executive Officers (“CEOs”) posed questions to him directly and would inject herself into those conversations. (Acosta Dep. at 120-21, 126-28.) Mr. Acosta considers this conduct as demeaning since he did not witness that she did this with other Claims Coordinators.

(Id.) Mr. Acosta alleges that Ms. Burke regularly adopted a condescending tone, an “attitudinal-type approach” of not wanting him involved in issues connected with the CEOs of the hospitals. (Acosta Dep. at 144.) He referenced two cases, “Ricci” and “Breedlove,” where hospital CEOs set up meetings with him and called him for his input directly. He claims that Ms.

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