April Nitkin v. Main Line Health ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-3107
_______________
APRIL NITKIN,
Appellant
v.
MAIN LINE HEALTH,
doing business as Bryn Mawr Hospital
_______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-20-cv-04825)
District Judge: Honorable Karen S. Marston
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 27, 2023
Before: JORDAN, KRAUSE and BIBAS, Circuit Judges
(Filed: May 11, 2023)
_______________
David M. Koller
Koller Law
2043 Locust Street – Suite 1B
Philadelphia, PA 19103
Counsel for Appellant
Kristine G. Derewicz
Paul C. Lantis
Tanner McCarron
Littler Mendelson
1601 Cherry Street – Suite 1400
Philadelphia, PA 19102
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Appellant April Nitkin filed a lawsuit against Main Line
Health, Inc. (“MLH”), alleging claims of a hostile work
environment, retaliation, and wrongful termination in violation
of federal and state laws. MLH successfully moved for
summary judgment on the hostile work environment and
wrongful termination claims. Nitkin succeeded on her
surviving retaliation claim, but she has now appealed the
District Court’s order entering summary judgment against her
on the hostile work environment claim. Because the District
Court correctly determined that Nitkin did not demonstrate that
the harassment she experienced was severe or pervasive, we
will affirm.
2
I. BACKGROUND
Nitkin, a Certified Registered Nurse Practitioner,
worked in one of MLH’s four hospitals from 2016 to 2019.
She was a member of the palliative care team, a unit that
focuses on managing the physical pain and emotional suffering
of extremely ill patients. As part of that team, Nitkin “worked
with the patient’s collaborating physician … [and] [o]ne such
physician was … [a director of MLH’s] palliative care team.”
(Opening Br. at 3.)
During the course of Nitkin’s employment at MLH, that
particular doctor (the “Lead Doctor”) would lead weekly team
meetings where “all the nurse practitioners, nurses, and
physicians who were assigned to work that day would …
discuss the patient list and pressing issues.” (Opening Br. at
3.) But, “about once a month[,]” those meetings “would stray
from work-related topics[,]” when the Lead Doctor would
discuss unrelated issues “such as ‘his substance misuse,
history, his beliefs on treating patients with substance misuse,’
his wife, his family, and his upbringing.” (Opening Br. at 3
(quoting App. at 5).) He would also ask members of his team
about their personal lives, including their dating lives and past
traumatic experiences. Nitkin testified that those discussions
“looked a lot like group therapy[,]” as its attendees, including
the Lead Doctor, would “[o]ften … cry during these meetings.”
(App. at 121.)
Nitkin explained that about half of the meetings that
would stray from work-related topics would also digress into
sexually inappropriate territory. She could not describe every
sexual comment that the Lead Doctor made during those group
meetings, she said, “because there were so many[,]” (App. at
3
130), but she did recount five specific examples that occurred.
First, Nitkin testified that, during a meeting after the holidays,
the Lead Doctor mentioned that his wife, who also worked for
MLH, had gifted him a candle, which he said was his “favorite,
because it really sets the scene for sex.” (App. at 131.) He
went on to say, “I believe she gave it to me to insinuate that we
were going to have sex. And that’s the best gift.” (App. at
131.) Second, she stated that the Lead Doctor claimed women
can get “anything [they] want from [their] husbands or any
man, because [they] can just withhold sex[,]” and he further
said that his wife did so. (App. at 131.) Third, Nitkin stated
that the Lead Doctor would complain about his prostatitis,
which he claimed “was due to having sex with loose women[,]”
(App. at 122) and that “his wife … [was] a loose woman, and
that he had sex with loose women[,]” (App. at 131). Fourth,
she testified that, during a meeting where a coworker disclosed
trauma that she experienced as a young girl, the Lead Doctor
told a story about how he “had a date with a woman, and she
took all her clothes off and wanted to act like a tiger” but then
later stated that the incident occurred “while he was baby-
sitting” a young girl. (App. at 132.) The fifth event Nitkin
recounted occurred when the Lead Doctor said that a hospital
visitor had “big fake tits[,]” and that “women who have big tits
either show them off or hide them.” (App. at 134.)
Nitkin also testified about two incidents in which the
Lead Doctor made her feel uncomfortable in private. Around
July 2018, in the early morning, he had entered her office
“look[ing] terrible.” (App. at 135.) When Nitkin asked him if
he was okay, he responded “that he was up all night the night
before struggling with his sex addiction … and masturbation
addiction, [and that he was] watching pornography all night.”
(App. at 136.) Nitkin then, out of fear for her personal safety,
4
locked herself in her office bathroom for several minutes until
other coworkers arrived. On a separate occasion, the Lead
Doctor told her that a male patient “would like to be alone with
[her]. [The patient] would probably really like that.” (App. at
139.) Nitkin interpreted this comment as the Lead Doctor
“talking about a patient who basically wants me alone because
[the Lead Doctor’s] thinking about having sex with me.” (App.
at 139.) Nitkin admits, however, that the Lead Doctor never
propositioned her for a date or stated that he wanted to have
sexual relations with her.
Nitkin took several steps to distance herself from this
physician. She reduced her work hours twice – first from forty
hours per week to twenty-four hours per week and then to per
diem work – to avoid interacting with him. She also reported
his conduct to Eric Mendez, MLH’s Director of Human
Resources. After MLH conducted an investigation, it removed
the Lead Doctor from his director role and assigned Dr. Adam
Tyson as the Interim Medical Director. Despite the change in
leadership, Nitkin was still assigned to work from time to time
with the Lead Doctor. She explained to Dr. Tyson that she
“wasn’t comfortable with being scheduled at [the] Bryn Mawr
[Hospital] when [the Lead Doctor] was there” and also told him
that she had previously filed a complaint against that doctor.
(App. at 169.) Dr. Tyson responded, “Well, then I think for
everyone, we shouldn’t do you being at Bryn Mawr [sic] …
but let me think about that.” (App. at 170.)
Shortly after that encounter with Dr. Tyson, Nitkin
received a new job offer and decided to resign from MLH,
effective in September 2019. Dr. Tyson, however, informed
Mendez that Nitkin had divulged confidential information
when Nitkin told him that she filed a complaint against the
5
Lead Doctor, which was a terminable offense per MLH’s
policies. According to Nitkin, Mendez told her that, if she was
terminated for violating policies, he would have to inform her
new employer, which could interfere with her credentialing
and Nitkin’s offer letter could be rescinded as a result. Mendez
told Nitkin that she could avoid such an outcome if she made
her resignation effective immediately, as she would not be
terminated for cause. Nitkin then immediately emailed Dr.
Tyson, stating that she was “writing this email to move up [her]
resignation to be effective immediately.” (App. at 102.)
Nitkin later filed a complaint against MLH, asserting
two claims of hostile work environment on the basis of sex and
retaliation for reporting the Lead Doctor’s behavior to Mendez,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. She also brought parallel claims under
the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat.
§§ 951 et seq., which applies the same legal standard as Title
VII.1 Her fifth and final claim was for wrongful termination in
violation of Pennsylvania state law.
MLH moved for summary judgment on all five claims,
which the District Court granted as to Nitkin’s hostile work
environment and wrongful termination claims but denied with
respect to her retaliation claims. In analyzing her hostile work
environment claim, the Court declined to consider Nitkin’s
“general, unsubstantiated allegations” that the Lead Doctor’s
1
“Claims under the [Pennsylvania Human Relations
Act] are interpreted coextensively with Title VII claims.”
Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir.
2006).
6
inappropriate “conduct occurred ‘regularly’ or ‘all the time’”
(App. at 25), focusing instead “on the seven specific incidents
that Nitkin identified in her deposition testimony” (App. at 26).
It found that those “seven instances, which occurred over the
course of the approximately three-and-a-half years that Nitkin
worked at MLH, lack the frequency necessary to establish
pervasiveness.” (App. at 27.) It also concluded that those
seven instances were not “severe enough to support a hostile
work environment claim” (App. at 27), in part because the
Lead Doctor “never propositioned Nitkin for a date or sex,
never touched her, and never directed sexually inappropriate
comments specifically at her” (App. at 29).
Nitkin’s remaining retaliation claims proceeded to trial,
and a jury returned a verdict in her favor. She then timely
appealed the District Court’s order insofar as it granted
summary judgment in favor of MLH on her hostile work
environment claim.
II. DISCUSSION2
To establish a hostile work environment claim under
2
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367(a). We exercise appellate jurisdiction
pursuant to 28 U.S.C. § 1291. Our review of a grant of
summary judgment is plenary. Giles v. Kearney, 571 F.3d 318,
322 (3d Cir. 2009). Summary judgment is appropriate when,
construing the evidence in the light most favorable to the
nonmoving party, “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
7
Title VII, a plaintiff must demonstrate that:
1) [T]he employee suffered intentional
discrimination because of his/her sex, 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) [there was] respondeat
superior liability.
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.
2013). “To determine whether an environment is hostile, a
court must consider the totality of the circumstances, including
‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.’” Id. at 168 (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). For
discrimination to constitute severe or pervasive behavior, it
must “alter the conditions of [the victim’s] employment and
create an abusive working environment.” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation
marks omitted). The Supreme Court has emphasized that
“conduct must be extreme” to satisfy this standard, so “simple
teasing, offhand comments, and isolated incidents (unless
extremely serious)” are inadequate. Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
of law.” Sec’y U.S. Dep’t of Labor v. Kwasny, 853 F.3d 87, 90
(3d Cir. 2017) (quoting Fed. R. Civ. P. 56(a)).
8
Nitkin contends that she has “presented sufficient
evidence to establish a dispute of material fact as to whether
[the Lead Doctor’s] conduct was severe or pervasive enough
to constitute a hostile work environment.” (Opening Br. at 15.)
She argues that the District Court erred when it failed to
consider nonspecific instances of misconduct beyond the seven
specific comments the Court discussed, and that it improperly
relied on its own judgment as to the severity and pervasiveness
of the misconduct instead of submitting the issue to the jury.
We address those arguments in turn.
A.
The District Court properly disregarded Nitkin’s
generalized assertions of harassing conduct. Nitkin contends
that the Lead Doctor made “at least twenty-one” harassing
comments because she alleged that he made sexual comments
during weekly team meetings “approximately once every other
month during [her] three and a half [sic] year employment at
[MLH].” (Opening Br. at 21 (emphasis removed).) Yet she
identified only five comments about which she could give any
specifics at all.
To withstand a motion for summary judgment under
Federal Rule of Civil Procedure 56, “a plaintiff … must point
to concrete evidence in the record that supports each and every
essential element of his case.” Orsatti v. N.J. State Police, 71
F.3d 480, 484 (3d Cir. 1995) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). Although we view all facts in the
light most favorable to a plaintiff opposing summary judgment
and draw all reasonable inference in that party’s favor, a
plaintiff who reaches the summary judgment stage may no
longer “rest upon the mere allegations or denials of his
9
pleadings.” D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260,
268 (3d Cir. 2014) (quoting Gans v. Mundy, 762 F.2d 338, 341
(3d Cir. 1985)). Nor will “[b]are assertions, conclusory
allegations, or suspicions” suffice. Jutrowski v. Twp. of
Riverdale, 904 F.3d 280, 288–89 (3d Cir. 2018) (quoting D.E.,
765 F.3d at 269). Instead, the plaintiff “must set forth specific
facts” establishing a triable issue. Id. at 288 (quotation
omitted).
Here, Nitkin points to no concrete evidence to support
her statement that the Lead Doctor made harassing comments
on twenty-one occasions.3 Indeed, she admitted during her
deposition that she could not describe other instances from the
group meetings where anything untoward was said. Nitkin
may not rely merely on “vague statements” to defeat summary
judgment. Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co.,
311 F.3d 226, 233 (3d Cir. 2002) (quotation omitted). Thus,
the District Court properly excluded Nitkin’s “general,
unsubstantiated allegations that the alleged conduct occurred
‘regularly’ or ‘all the time.’” (App. at 25.)
B.
Nitkin also argues that the District Court “substituted its
3
We recognize Nitkin testified that the Lead Doctor
made comments about “loose women” on “several occasions”
and twice referred to a young woman “t[aking] all her clothes
off and want[ing] to act like a tiger.” App. at 294–95. Courts
must consider evidence that particular comments were made
repeatedly. By contrast, conclusory allegations of
inappropriate remarks are inadequate at the summary judgment
stage.
10
judgment for the judgment of the jury” in concluding what
constitutes a hostile work environment. (Opening Br. at 27.)
She states that the Lead Doctor’s conduct altered the conditions
of her employment because “[s]he was required to take part in”
sexually related conversations, “was on the spot with her
supervisor in her own office[,] … was brought to tears by
him[,] … [and] feared him when she was alone.” (Opening Br.
at 28.) Her claims must rest on the seven comments that she
was able to recount – the five from the group meetings and the
additional two that occurred in private conversation. The
District Court correctly analyzed those remarks, and there is no
genuine issue of fact as to any of them.
First, we do not look to the number of incidents in a
vacuum. Rather, we consider “the frequency of the [allegedly]
discriminatory conduct” in the context of a given case. Harris,
510 U.S. at 23. As the District Court recognized, the seven
comments Nitkin identified were spread out over a span of over
three-and-a-half years. The relative infrequency of the Lead
Doctor’s remarks – reflecting one or two statements in a given
six-month period – indicates that his actions were not severe or
pervasive harassment. See Ali v. Woodbridge Twp. Sch. Dist.,
957 F.3d 174, 182 (3d Cir. 2020).
We also consider the nature and severity of the
misconduct, including whether it involved “physically
threatening or humiliating [acts], or … mere offensive
utterance[s].” Harris, 510 U.S. at 23. Here, although the Lead
Doctor’s remarks were obnoxious, unprofessional, and
inappropriate, he never threatened Nitkin, touched her, or
propositioned her for a date or sex.
11
The misconduct in this case is therefore a far cry from
that we have previously deemed “severe” or “pervasive.” See,
e.g., Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud.
Dist., 971 F.3d 416, 428 (3d Cir. 2020) (supervisor “coerced
[plaintiff] into engaging in sexual relations, shared
pornography with her, asked her to film herself performing
sexual acts, engaged in a pattern of flirtatious behavior, scolded
her for speaking with male colleagues, [and] assigned her
duties forcing her to be close to him”); Moody v. Atl. City Bd.
of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (in addition to
repeatedly propositioning plaintiff, her supervisor “grabbed
her,” exposed himself to her, and “attempted to take her shirt
off”); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 146–47
(3d Cir. 1999) (supervisor told plaintiff she “made too much
money” for a woman, belittled her, and “grabbed [her] buttocks
from behind while she was bending over her files and told her
that she smelled good”).4
4
We do not suggest that touching, threats, propositions
of sex, or requests for dates, are necessary to demonstrate a
hostile work environment; other verbal comments can suffice
where they are sufficiently severe or pervasive. See Harris,
510 U.S. at 23 (holding that “no single factor is required” to
show a hostile work environment, including “whether [the acts
are] physically threatening”); Mandel, 706 F.3d at 168 (noting
that courts should consider whether conduct is “physically
threatening or humiliating”). Moreover, courts may look to
conduct directed at individuals other than the plaintiff in
determining whether a hostile work environment exists. See
Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 110 (3d Cir.
1999) (observing that a female employee’s work environment
may be “altered as a result of witnessing a defendant’s hostility
towards other women at the workplace”); Schwapp v. Town of
12
Our sister circuits have likewise held that infrequent
offensive utterances are not severe or pervasive, yet permitted
hostile work environment claims based on more persistent and
serious harassment to proceed to trial. Compare Jackman v.
Fifth Jud. Dist. Dep’t of Corr. Servs., 728 F.3d 800, 806 (8th
Cir. 2013) (affirming summary judgment when the evidence
showed seven insensitive comments that “took place during a
span of over three years and were relatively infrequent”), and
Patt v. Fam. Health Sys., Inc., 280 F.3d 749, 751, 754 (7th Cir.
2002) (affirming summary judgment when plaintiff’s
supervisor made eight lewd remarks “over the course of several
years,” because “these comments were too isolated and
sporadic to constitute severe or pervasive harassment”), with
Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)
(reversing summary judgment when plaintiff experienced
more than twelve incidents involving “fondling, kissing,
propositioning,” and sexual comments in “just four months”),
and Johnson v. Booker T. Wash. Broad. Serv., Inc., 234 F.3d
501, 509 (11th Cir. 2000) (reversing summary judgment when
plaintiff was subject to “roughly fifteen separate instances of
harassment over the course of four months,” including crude
remarks, obscene gestures, unwanted massages, and touching
from behind). Thus, though offensive, the Lead Doctor’s
comments were not sufficiently “extreme” to create a hostile
work environment. Faragher, 524 U.S. at 788.
Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“The mere fact that
[the plaintiff] was not present when a racially derogatory
comment was made will not render that comment irrelevant to
his hostile work environment claim.”).
13
In light of the “totality of the circumstances,”
Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017), we
agree with the District Court’s conclusion that – even
considered together – the identified incidents do not rise to a
level that could fairly be called severe or pervasive and thus
did not “alter the conditions of [Nitkin’s] employment and
create an abusive working environment,”5 Meritor, 477 U.S. at
67. No rational jury, following the law, could conclude
otherwise.
III. CONCLUSION
For the foregoing reasons, we will affirm.
5
As Nitkin has not shown that the allegedly harassing
behavior was severe or pervasive, we need not address MLH’s
argument that it established the Faragher-Ellerth defense,
which vitiates respondeat superior liability. See Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (holding that
an employer is not liable for a hostile work environment
created by one of its employees when “the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and … the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise”).
14