Dececco v. UPMC (3 F. Supp. 3d 337, 2014)

MEMORANDUM OPINION

CONTI, Chief Judge.

I. Introduction

Pending before the court is a motion for partial summary judgment (ECF No. 94) filed by plaintiff Diane DeCecco (“plaintiff’ or “DeCecco”) and a motion for summary judgment (ECF No. 97) filed by DeCecco’s former employer, defendants UPMC and UPMC Presbyterian Shady side (collectively “defendants” or “UPMC”).

Plaintiff initiated this action on March 2, 2012 by filing a complaint alleging UPMC discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”). (ECF No. 1.) In the complaint, plaintiff requests

individual legal and equitable remedies under 29 U.S.C. §§ 626(b) and (c)(1) for Defendants’ age-based termination of her employment in violation of 29 U.S.C. § 623(a), and for Defendants’ retaliation against Plaintiff in violation of 29 U.S.C. § 626(d) for having filed an EEOC Charge, obtained a Cause Finding and/or for communicating to UPMC in writing her opposition to age discrimination at UPMC[; and]

individual and systemwide declaratory and injunctive remedies under 29 U.S.C. §§ 626(b) and (c)(1) for UPMC’s systemic violations of 29 U.S.C. § 626(f) and § 623(d), and systemic violations of pub-lie policy, as manifest on the face [sic] UPMC’s standardized Release Agreements, and set forth in ¶ 4 of this Complaint.

(Id. ¶¶ 12, 13.) On April 12, 2012, defendants filed their answer asserting, among other defenses, that

Plaintiffs claim which is founded upon the Age Discrimination in Employment Act (“ADEA”) is barred by reason of plaintiffs having entered into an Agreement whereby, for good and valuable consideration, she waived all claims against the defendants, including claims under the ADEA.

(ECF No. 10 at 4.)

On April 24, 2012, plaintiff filed a motion for partial judgment on the pleadings and a brief in support of the motion arguing “[n]umerous ADEA and public policy violations appear on the face of UPMC’s standardized Release Agreement” and it, therefore, violates public policy and § 623(d) and § 626(f)(1), (f)(3) and (f)(4) of the ADEA. (ECF No. 12 ¶2.) Plaintiff in her motion for judgment on the pleadings requested the court

a. Deelar[e] the challenged provisions of the UPMC Release Agreement unlawful under the ADEA and contrary to public policy,

b. Afford[] prospective injunctive relief by enjoining Defendants from further use of the Release Agreement, ordering Defendants to draft and henceforth use a legally compliant Release Agreement, ordering Defendants to expunge the unlawful Release Agreement from their computer systems, and ordering Defendants to create policies, procedures and safeguards to ensure continuing compliance with the law, and,

c. Order[] that restorative injunctive relief will be afforded for older workers who received an unlawful Release Agreement from UPMC in the past, subject to further proceedings and further order of court.

(Id. ¶¶ a-c.) On May 29, 2012, defendants filed a response in opposition to plaintiffs motion for judgment on the pleadings. (ECF No. 19.) On June 11, 2012, after receiving leave of court, plaintiff filed a reply to defendants’ brief in opposition. (ECF No. 21.) At a hearing held on August 9, 2012, the court granted in part and denied in part plaintiffs motion for judgment on the pleadings. The court on the record at the hearing stated:

With respect to the part of the judgment on the pleadings that’s seeking a declaration, in essence, that the release is invalid under the applicable — under the standards set forth in Rupert and Bo-gatz, that it violates the Older Workers Benefit Protection Act and the ADEA, the Court will find that it does so violate the — it is an invalid waiver, and we’ll so order, thereby granting in part the motion for judgment on the pleadings.

The Court denies that aspect of the motion for judgment on the pleading seeking the specific prophylactic relief with respect to enjoining the Defendant from continuing to utilize these types of waivers and any other form of injunctive relief. And that will be for another day. Okay? Now — so it’s granted in part and denied in part. Thank you.

(H.T. 8/9/12 (ECF No. 40) at 31.) The court determined it would consider plaintiffs claims for systemwide relief separate from her claims for individual relief. Fact discovery proceeded with respect to the claims for individual relief, but not with respect to claims for systemwide relief.

On January 26, 2013, defendants filed a motion to dismiss with respect to plaintiffs claims for systemwide equitable intervention and a brief in support of the motion. (ECF Nos. 63, 64.) On February 28, 2013, plaintiff filed a response in opposition to defendants’ motion. (ECF No. 73.) On May 20, 2013, the court held a hearing on defendants’ motion to dismiss. The court analyzed the motion to dismiss as a motion for judgment on the pleadings because defendants filed an answer to the complaint prior to filing the motion to dismiss. The court denied the motion to dismiss on the record holding plaintiff may be entitled to systemwide relief under the ADEA.

On July 1, 2013, plaintiff filed a partial motion for summary judgment with respect to her claim for facial retaliation under the ADEA, a brief in response to that motion, and a concise statement of material facts. (ECF Nos. 94, 95, 96.) On August 22, 2013, defendants filed a motion for summary judgment with respect to both claims asserted by plaintiff in the complaint, i.e., plaintiffs claims for age discrimination and facial retaliation under the ADEA, a brief in support of the motion, and a concise statement of material facts. (ECF No. 97, 98, 102.) On the same day, defendants filed their response in opposition to plaintiffs partial motion for summary judgment and a response to plaintiffs concise statement of material facts. (ECF Nos. 102, 103.) On October 3, 2013, plaintiff filed a response to defendants’ concise statement of material facts and a reply to defendants’ brief in opposition to her partial motion for summary judgment. (ECF Nos. 109, 113.) On October 4, 2013, plaintiff filed a brief in opposition to defendants’ motion for summary judgment. (ECF No. 114.)

On October 17, 2013, the parties filed their joint concise statement of material facts with respect to plaintiffs partial motion for summary judgment. (ECF No. 116.) On November 4, 2013, defendants filed a reply to plaintiffs counter statement of facts and a reply brief with respect to their motion for summary judgment. (ECF Nos. 119,121.) On November 6, 2013, plaintiff with leave of court filed a surreply brief in further opposition to defendants’ motion for summary judgment. (ECF No. 124.) On November 8, 2013, the parties filed their joint concise statement of material facts with respect to defendants’ motion for summary judgment. (ECF No. 125.)

The parties’ motions for summary judgment having been fully briefed are now ripe for disposition by the court.

II. Factual Background

The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”).

A. Plaintiffs claim that her employment was terminated based upon her age

1. Background

a. WPIC

UPMC Presbyterian Shadyside consists of UPMC Shadyside, UPMC Presbyterian, Western Psychiatric Institute and Clinic (“WPIC”), and approximately thirty to forty hospital-based clinics. (Dep. of Brian Bachowski (“Bachowski”) at 53, 56 (ECF No. 111-4 at 14, 17).) Hospital-based clinics are outpatient facilities typically separate from the main UPMC Presbyterian, UPMC Shadyside, and WPIC buildings that do not have patient beds, but share UPMC Presbyterian Shadyside’s Medicare certificate number, and are considered part of UPMC Presbyterian Shadyside for Medicare certification purposes. (Dep. of Bachowski at 53-56 (ECF No. 111^4 at 14-17).)

Within WPIC, there are inpatient units and ambulatory programs. (Id. ¶ 13.) Inpatient units admit patients, and ambulatory programs are akin to outpatient services. (Id.) The Diagnostic Evaluation Center (the “DEC”) is one of WPIC’s ambulatory programs; it is licensed as an outpatient facility and functions as WPIC’s emergency room. (D.J.C.S.F. (ECF No. 125) ¶¶ 14, 15); PL’s Dep. at 21, 64 (ECF No. 101-1 at 6; Dep. of Eleanor Medved (“Medved”) at 15, 16 (ECF No. 111-5 at 1).) The clinical administrator is the responsible manager for the DEC. (Dep. of Medved at 68 (ECF No. 111-5 at 5.) In other words, the clinical administrator is the senior leadership person who reports directly to the vice president of inpatient and emergency services. (Id.)

Dr. Cynthia Roth (“Roth”) has been the president of WPIC since August 2004. (Defendants’ Joint Concise Statement of Facts (“D.J.C.S.F.”) (ECF No. 125) ¶ 12).

In 2004, Eleanor Medved (“Medved”) was the risk manager and director of quality for WPIC. (Dep. of Medved at 100 (ECF No. 100-2 at 7.) Between 2004 and 2005, Medved became the staff associate and vice president of ambulatory services for WPIC. (Id.) In 2008, the title “vice president of ambulatory and crisis operations” was added to Medved’s job description. (Id.)

Kim Owens (“Owens”) was the vice president of inpatient and emergency services for WPIC at all times relevant to this lawsuit. (D.J.C.S.F. (ECF No. 125) ¶ 18.) Owens was responsible for running the DEC. (D.J.C.S.F. (ECF No. 125) ¶19.)

Since 2005, Katie Devine (“Devine”) has been a corporate-level vice president of human resources for UPMC. (D.J.C.S.F. (ECF No. 125) ¶ 148.) Devine is responsible for the human resources function at WPIC and across UPMC’s International Commercial Services Division, its community provider services network, its home care and senior communities, and its cancer centers. (Id. ¶ 149.) Devine is a member of WPIC’s executive management team. (Id. ¶ 150.) Devine was responsible for enforcing UPMC’s equal employment opportunity rules and policies and for being a “check and balance” against managerial decisions that might violate those rules and policies. (Id. ¶ 151.)

b. Plaintiffs employment with WPIC

In or around August 1969, plaintiff began working for WPIC at the age of nineteen. (D.J.C.S.F. (ECF No. 125) ¶¶1, 124.) In 1971, plaintiff began working in the medical records department at WPIC. (D.J.C.S.F. (ECF No. 125) ¶2.) Plaintiff held various positions in the medical records department, including supervisor of the file area, hearing coordination manager, and associate director. (Id.) In 1993, plaintiff became the director of medical records at WPIC. (Id. ¶ 3.) In the late 1990s or early 2000s, the medical records department was renamed the health information management (“HIM”) department. (Id. ¶ 4.) Plaintiff was responsible for the HIM department. (Pl.’s Dep. at 19 (ECF No. 111-3 at 2).) According to plaintiffs job description, as director of the HIM department, she was expected to “organize and lead a creative multifunctional, customer-focused health information management service and central transportation service.” (Pl.’s Dep. at 75 (ECF No. 101-1 at 19); D.J.C.S.F. (ECF No. 125) ¶8.) Plaintiffs performance evaluations identified additional responsibilities associated with her position as director of the HIM department, including, among others, “[m]onitor[ing] WPIC performance against established Corporate benchmarks and regulatory standards with regard to record completion and coding,” “ensuring compliance with licensing and accrediting agency-regulations,” and “[m]onitoring overall performance of the WPIC HIM Department.” ((ECF No. 101-2 at 6; D.J.C.S.F. (ECF No. 125) ¶ 10; Pl.’s Dep. at 97 (ECF No. 101-1 at 25).) In or around 2004 and 2005, Medved became plaintiffs direct supervisor. (Dep. of Medved at 129 (ECF No. 100-2 at 8.) The HIM department was under the direction of Medved as vice president of ambulatory and crisis operations for WPIC. (Dep. of Roth at 69 (ECF No. 111-7 at 11).) Owens was not plaintiffs supervisor. (D.J.C.S.F. (ECF No. 125) ¶ 18.)

In the forty-one years plaintiff worked for WPIC, she was never disciplined for poor performance or placed on a performance improvement plan. (D.J.C.S.F. (ECF No. 125) ¶ 125.) Plaintiff had a distinguished career with and greatly contributed to WPIC. (Id. ¶ 126.) Roth supervised plaintiff for several years and gave plaintiff good performance evaluations. (Id. ¶ 127.) Plaintiff “knew her job responsibilities very well, knew the organization very well, was extremely dedicated, com-petente, and] a pleasure to work with.” (Id. (Dep. of Roth at 174-75 (ECF No. 111-7 at 37).) Each year of plaintiff’s forty-one years of employment with UPMC, plaintiff was rated between “consistently meets expectations” and “consistently exceeds expectations.” (ECF No. 111-11 at 2.) In 2008, plaintiff — at the age of 58 — received UPMC’s Award for Commitment to Excellence and Service (“ACES”), which is given to one percent of UPMC’s workforce in recognition of highly distinguished performance. (D.J.C.S.F. (ECF No. 125) ¶ 133.)

c. The HIM department

The HIM department manages all aspects of patient records, which includes overseeing, maintaining, storing, and retrieving the records, managing the various repositories and sources of documentation, and processing requests for information from those records for health care providers, insurance companies, and other persons who request information from the records. (Pl.’s Dep. at 18 (ECF No. 101-1 at 5); Dep. of Cynthia Roth (“Roth”) at 69 (ECF No. 100-1 at 6).) The HIM department’s responsibility to review inpatient records was different than its responsibility to review ambulatory records. (Dep. of Medved at 222 (ECF No. 111-5 at 19).) Medved testified with respect to the difference in responsibility as follows:

The analysis for ambulatory comes in different ways, as we talked about earlier. When we have surveys for programs, that’s a spot check on how we’re doing with things and we discover and deal with those kinds of situations.

There’s a lot of reports that are generated that tell us whether we have problems with signatures, missing documents, and ill-timed documents, thing of that nature, and inpatient is an individual record going through all of the papers or whatever. I don’t know if it’s all of the papers or key papers for each record.

(Dep. of Medved at 222-23 (ECF No. Ill— 5 at 19-20.) Plaintiff described the difference in procedure followed with respect to review of medical records for inpatient and outpatient or ambulatory patients as follows:

We had two record analysts who reviewed each inpatient discharge record, and that process included flagging any missing documents, missing signatures, which were entered into a record management system, computerized system, that would then generate a notice to the person responsible for the missing information.

For our patient [sic] or ambulatory records, you know, there were probably 40,000 to 45,000 of those services provided every month, so given budget restrictions there were not enough staff in the department to be able to look at every single document in an ambulatory record; however, probably since around the mid to late '90s a lot of the ambulatory information was entered into an electronic medical record, so we were able to monitor missing progress notes, signatures, physicians’ cosignatures, missing treatment plans from that electronic system.

The other parts of the record, paper documents, it was required that they be sent to the department on a timely basis, and then we would file it into the record.

The monitoring of the record was also managed through a process that had been in place for a number of years at Western Psych where each program reviewed a sample of their records and submitted the results of those review to, you know—

I don’t know if they went to their supervisors, but ultimately they were sent to the director of ambulatory services.

That person was to report any deficiencies to me so that my department would be able to follow up and monitor the completeness of those records.

(Pl.’s Dep. at 24-26 (ECF No. 101-1 at 6-7.)

Traci Cain (“Cain”) was the director of ambulatory services. (Pl.’s Dep. at 26 (ECF No. 101-1 at 7.) Plaintiff’s involvement in the review of the ambulatory records depended upon Cain forwarding information to plaintiff about the ambulatory records. (PL’s Dep. at 26-27 (ECF No. 101-1 at 7.) Cain was supposed to inform plaintiff about deficiencies in a program’s medical records or if there were no deficiencies in a program’s medical records. (PL’s Dep. at 33 (ECF No. 101-1 at 7.) Plaintiff did not recall receiving a lot of feedback from Cain about the ambulatory programs’ medical records. (Id.) At one point in time, Cain prepared reports about the sampling she received from the ambulatory programs, and plaintiff reviewed the reports. (PL’s Dep. at 33-34 (ECF No. 101-1 at 7.) Plaintiff was not concerned about the lack of feedback she received from Cain with respect to the ambulatory programs’ medical records. (PL’s Dep. at 34 (ECF No. 101-1 at 7.) Plaintiff explained:

I knew [Cain] to be a reliable person, so I interpreted that as there weren’t any problems, and the results that I saw that she was reporting to the Joint Commission reflected that as well.

(Id.)

2. The 2010 investigations of WPIC and UPMC Presbyterian Shady-side

The Joint Commission is an accrediting organization that provides guidelines and standards on human resources policies and practices and voluntary accreditation for hospitals. (Dep. of Devine at 61 (ECF No. 111-8 at 12; D.J.C.S.F. (ECF No. 125) ¶ 25.) The Joint Commission performs accreditation surveys of its accredited hospitals every three years. (Id.) UPMC Presbyterian Shadyside, which includes WPIC, is a “deemed” provider because it is accredited by the Joint Commission. (D.J.C.S.F. (ECF No. 125) ¶ 22.) If a hospital is a “deemed” provider, it is “deemed” to be in compliance with the federal government’s Medicare Conditions of Participation, which are standards that must be complied with in order to participate in Medicare. (Id.; PL’s Dep. at 177 (ECF No. 111-3 at 5).)

WPIC was subject to annual reviews by-two agencies of the Commonwealth of Pennsylvania; inpatient programs were reviewed by the Pennsylvania Department of Health (the “DOH”), and ambulatory programs were reviewed by the Pennsylvania Department of Public Welfare (the “DPW”). (D.J.C.S.F. (ECF No. 125) ¶ 26.) Annual surveys by the DOH and the DPW were announced in advance to WPIC. (Id. ¶ 27.)

In addition to the annual reviews by the DOH and the DPW, the DOH performed surveys when complaints were received by telephone call or letter to the DOH. (Id. ¶¶ 28-29.) The complaint surveys were not prescheduled, and the DOH did not provide advance notice with respect to when it would conduct a complaint survey. (Id. ¶ 28.) The DOH was required to notify the Center for Medicare and Medicaid Services (“CMS”) if the complaint involved a potential violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. (Id. ¶ 30.) CMS would tell the DOH whether it was authorized to conduct a survey of the provider for violations of federal standards and regulations. (Id. ¶ 31.) Once the DOH completes a survey of a hospital, it makes a recommendation to the CMS with respect to whether the provider is in compliance with the regulations. (Id. ¶ 32.) The CMS makes the ultimate decision with respect to whether the provider was in compliance. (Id.)

On February 17, 18, and 23, 2010, the DOH conducted a complaint investigation at WPIC relating to two separate complaints it received about long lengths of stay in the DEC. (ECF No. 111-6 at 113; D.J.C.S.F. (ECF No. 125) ¶46.) The first complaint was investigated and determined to be unfounded. (Id.) The investigation of the second complaint involved detailed review of DEC medical records and assessment and documentation processes. (Id.)

Brian Bachowski (“Bachowski”), a surveyor with the DOH, performed the investigation of the second complaint for the DOH. (Bachowski Dep. at 10, 64-65 (ECF No. 111-4 at 2, 25-26.) Bachowski began working for the DOH as a surveyor in August 2006. (Bachowski Dep. at 10 (ECF No. 111-4 at 2.) Bachowski’s responsibilities as a surveyor for the DOH included inspecting hospitals, e.g., making sure the hospitals were in compliance with federal and state laws and regulations, conducting complaint investigations, and conducting EMTALA investigations for the CMS. (Bachowski Dep. at 11 (ECF No. 111-4 at 3.) In 2009, UPMC Presbyterian-Shadyside was assigned to Bachowski, meaning Bachowski served as team leader during investigations of complaints made with respect to UPMC Presbyterian-Shadyside. (Bachowski Dep. at 29-30, 32 (ECF No. 100-3 at 10, 11; ECF No. 111-4 at 4).)

When Bachowski scheduled the survey of WPIC in February 2010, he was required to and did notify CMS about the survey because WPIC was a “deemed” provider. (D.J.C.S.F. (ECF No. 125) ¶ 39.) CMS authorized Bachowski and his team to conduct the investigation of WPIC and to evaluate WPIC’s compliance with federal regulations and standards. (Id. ¶ 40.)

The first two days of the investigation took place on February 17 and 18, 2010. (Id. ¶ 41.) While at the DEC, Bachowski, along with two other surveyors from the DOH, Judith Rich (“Rich”) and Sandra Edkins (“Edkins”), questioned staff, including, among others, Owens, Jenn Schneeman (“Schneeman”), the clinical director of the DEC, and Jeremy Musher, medical director of the DEC, and looked at the flow of patients, medical records of the patient in issue in the second complaint, and medical records of current patients in the DEC. (Bachowski Dep. at 65-68 (ECF No. 111^1 at 26-29); Owens Dep. at 118 (ECF No. 111-6 at 38).) Bachowski learned the patient in issue in the second complaint “was assessed for her psychiatric issues, psychological issues, but there was a lack of evidence and documentation of her medical issues.” (Bachowski Dep. at 65-66 (ECF No. 111-4 at 26-27.) Ba-chowski testified as follows:

We didn’t see any documentation of vital signs, we didn’t see documentation that the patient state or — whatever the complaint was, that the patient obviously had not been eating for a period of time, we didn’t see any evidence of lab work, we didn’t see any evidence of a physical exam of the patient from a medical standpoint.

The medical screening exam was suspect. ... We weren’t sure if there was a true medical screening exam done for the patient.

(Bachowski Dep. at 66 (ECF No. 111-4 at 27.)

Bachowski had two main concerns as he conducted the survey on WPIC. (Bachow-ski Dep. at 73 (ECF No. 111-4 at 34.) Bachowski was concerned about the medical screening exam for the patient in issue in the second complaint. (Id.) Time was not recorded on the documentation Ba-chowski examined with respect to the patient’s medical records so he could not tell when the medical exam of the patient was performed. (Id.) Bachowski’s second concern was that “some flow sheets were being filled out for patients that would come through the DEC that weren’t becoming a part of the medical record that had information on it that would be part of the medical screening exam.” (Id.)

February 23, 2010, was the third day of Bachowski’s investigation at WPIC. (D.J.C.S.F. (ECF No. 125) ¶46.) On February 23, 2010, Bachowski interviewed “Employee 2,” later identified as Owens. (Id. ¶ 47.) When Bachowski asked Owens who bore overall responsibility at WPIC for the completion of inpatient and outpatient medical records, Owens responded: “[DeCecco] is the Western Psych employee that is responsible for the health information.” (D.J.C.S.F. (ECF No. 125) ¶ 49.)

On February 23, 2010, at 2:40 p.m., Ba-chowski interviewed plaintiff in connection with his investigation of WPIC. (Id. ¶ 51.) Two other employees from the DOH were present — but did not participate — during plaintiffs interview. (Id. ¶ 52.) Bachow-ski asked plaintiff how she knew whether a DEC medical record was complete. (Id. ¶ 54.) In a Form 2567 report prepared by Bachowski with respect to his investigation of WPIC, he wrote that employee 3, later identified as plaintiff, responded to his question as follows:

“We don’t do any record analysis for ambulatory programs ... The DEC is an ambulatory program ... We only do it [record analysis] for inpatient records ... We just accept what they [DEC staff] send to us ... The record review of the DEC would be the responsibility of the DEC ... We are the custodian of the documents, we store everything. We aren’t responsible for the DEC.”

(Bachowski’s Report dated 2/23/2010 at 6 (ECF No. 101-2 at 48).) Plaintiff admits she made the statements Bachowski included in his report, but argues Bachowski did not include the entirety of her statements, and “the gaps in what [she] said distorts the meaning.” (PL’s Dep. at 204 (ECF No. 111-3 at 15).)

Plaintiff described her interview with Bachowski as follows:

I remember when I walked in he asked me to take a seat. I didn’t know why. He seemed agitated, and I didn’t know what had occurred prior to me arriving. Jenn Schneeman from the DEC was there.

[Schneeman] seemed to be leafing through some type of a binder, I guess, looking for something.

Brian asked me about a document and if I knew about it, and I believe he told me it wasn’t in the record and he asked me if I knew where it was.

I don’t remember if I even understood what document he was talking about at the time.

I [was] asked some type of a question about who was responsible for DEC records and I really didn’t understand what he meant by that. He wanted to know if—

He was asking how I knew if a DEC record was complete. I told him that my department performed a detailed analysis of inpatient discharge records but that the ambulatory records which included the DEC were reviewed by the individual programs. He—

I don’t remember what he said after that. He seemed more agitated and asked if I was—

I don’t remember how he phrased it. He asked something about — more about who was responsible for DEC records and how—

So I just continued to explain the procedure. I told him that the ambulatory programs regularly reviewed records and turned the results of those records in, and that’s how we monitored the completion of ambulatory records through those reviews.

Jenn Schneeman was there and confirmed that was the process. He wanted to know—

I think he must have asked me something about why this document that he was looking for wasn’t in the record, and I told him that if the DEC had sent it to us then it would have been filed so it could only mean that it had never been received.

(PL’s Dep. at 186-88 (ECF No. 111-3 at 6-8).) According to plaintiff, Bachowski appeared angry and as if he was not listening to plaintiff diming the interview. (PL’s Dep. at 192 (ECF No. 111-3 at 12).) Plaintiff explained:

[Bachowski] didn’t ask me any questions about the process; he had his head pretty much buried in a chart. He was looking at a chart the entire time almost. He didn’t make much eye contact with me.

He didn’t ask me any questions. He didn’t tell me it wasn’t satisfactory. He just kept repeating the same question about who is responsible for the completion of DEC records, and he didn’t ask me any questions about the procedure I had explained to him.

His facial expressions looked angry. I believe at one point he even, you know, pounded his hand on the table, you know.

(PL’s Dep. at 192-94 (ECF No. 111-3 at 12-14).)

Plaintiff testified that Owens arrived at the interview at some point after plaintiff explained the record review process to Ba-chowski. (PL’s Dep. at 188 (ECF No. Ill— 3 at 8).) Once Owen arrived, Bachowski repeated his questions about the record review process to plaintiff. (PL’s Dep. at 188-89 (ECF No. 111-3 at 8-9).) Plaintiff again tried to explain to Bachowski the record review process that was put into place by Medved, but “[Bachowski] didn’t appear to want to hear about that.” (Id.) Plaintiff does not remember telling Ba-chowski that she was not responsible for the DEC. (Id.) Plaintiff testified that the statement Bachowski included on the Form 2756 with respect to her not being responsible for the DEC was incomplete. (Pl.’s Dep. at 189-90 (ECF No. 111-3 at 9-10).) According to plaintiff, Owens asked Bachowski what plaintiff and he were talking about. (Pl.’s Dep. at 190 (ECF No. 111-3 at 10).) Bachowski “repeated a few things” to Owens, and then asked her who was administratively responsible for medical records. (Id.) Owens told Bachowski that plaintiff was administratively responsible for medical records. (Id.) Plaintiff agreed with Owen’s statement subject to the process she described to Bachowski that was set in place by Medved. (PL’s Dep. at 190-91, 205 (ECF No. 111-3 at 10-11,16).)

Following Bachowski’s survey of WPIC, including his interview with plaintiff, his team members and he prepared a “Form 2567” report containing information which formed the basis of Bachowski’s recommendation that WPIC had condition-level deficiencies violating the requirements of 42 C.F.R. § 489.24 and related requirements of 42 C.F.R. § 489.20. (Dep. of Ba-chowski at 75-78 (ECF No. 111-4 at 36-39); (ECF No. 101-2).) A Form 2567 is a survey report outlining the findings of an investigation. (D.J.C.S.F. (ECF No. 125) ¶ 62.) The Form 2567 with respect to Bachowski’s survey of WPIC in February 2010 contained information with respect to:

• The condition-level deficiencies Ba-chowski and his team found as a result of the investigation;

• Policies Bachowski and his “team reviewed and deemed to be germane to the investigation^]”

• “Observations of the content of medical records that were pulled for purposes of [Bachowski’s] survey[;]” and

• “Statements made by various witnesses in the course of witness interviews[.]”

(Dep. of Bachowski at 77-78 (ECF No. 111-4 at 38-39).)

If a deficiency is identified during a survey of a facility, the surveyor includes statements made that support the deficient practice in the CMS Form 2567. (Bachow-ski Dep. at 97 (ECF No. 111-4 at 58).) Bachowski testified that mitigating statements are put into the Form 2567 report, “but per CMS and Department of Health for the purpose of the deficiency we were instructed not to put that extraneous information or mitigating — So if they disagreed with something, typically that would not go in here.” (Id.) Bachowski testified that he used ellipses on the CMS Form 2567 to signify extraneous comments made by plaintiff during the interview on February 23, 2010. (Bachowski Dep. at 92 (ECF No. 111-4 at 53).) Bachowski explained that he did not record the extraneous comments because “[t]hey weren’t pertinent for the purpose of what we were trying to validate or convey in relation to the deficiency.” (Id.) Bachowski testified:

• Plaintiffs comments were problematic because “she was the director of the HIM department, and as the director of the HIM department, she told us that she did not have responsibility for those forms that were being housed in the filing cabinets, they were not being made part of the medical record;”

• Plaintiffs comments were a significant part of why a condition-level deficiency was found;

• He would have recommended a deficiency even if plaintiff did not make those comments; and

• There is nothing plaintiff could have told Bachowski on February 23, 2010, “to stop the recommendation for condition-level violation.”

(Bachowski Dep. at 133-34, 177, 209-10 (ECF No. 100-3 at 44-45; ECF No. 111-4 at 66-67,105.)

WPIC was advised about the condition-level deficiencies in a letter dated March 2, 2010, from CMS Principal State Representative Dale Van Wieren to John Innocenti (“Innocenti”) from UPMC. (D.J.C.S.F. (ECF No. 125) ¶ 69.) The letter provided:

• “If, in the course of [a Joint Commission survey of a hospital], a hospital is found not to meet one or more of the Medicare Conditions of Participation, the hospital will no longer be deemed to meet any Medicare Conditions of Participation ... [and the DOH is] required to keep the hospital under Medicare State agency jurisdiction until it is in compliance with all Medicare Conditions of Participation.” (ECF No. 101-2 at 68);

• “Based on the Pennsylvania Department of Health report of deficiencies found during the complaint investigation survey of [WPIC] on February 23, 2010, it has been found that UPMC Presbyterian Shadyside is not in compliance with.. .42 C.F.R. § 482.24 — Medical Record Services.” (Id.);

• The DOH “determined that UPMC Presbyterian Shadyside will no longer be deemed to meet the Medicare Conditions of Participation and will be subject to the federal requirements applied to unaccredited hospitals.” (Id.);

• UPMC Presbyterian Shadyside could file a plan of correction for the cited deficiencies. (Id.);

• UPMC Presbyterian Shadyside would be subject to a “complete Medicare survey of the hospital to evaluate its compliance with all Medicare Conditions of Participation.” “After the completion of that survey [UPMC Presbyterian Shadyside] will be required to submit an acceptable plan for correction of all of the deficiencies identified during the complete Medicare survey and the complaint investigation.” (Id. at 69); and

• “The finding that the UPMC Presbyterian Shadyside is not in compliance with the Conditions of Participation does not affect your hospital’s accreditation, its Medicare payments, or its current status as a participating provider of hospital services in the Medicare program.” (Id.)

On a day following February 23, 2010, after Innocenti received the citations from the DOH, plaintiff met with Medved. (Pl.’s Dep. at 215 (ECF No. 111-3 at 20).) During the meeting, Medved and plaintiff reviewed the citations. (Id.) Medved wanted to know if the quotations with respect to what plaintiff told Bachowski were accurate. (Id.) Medved did not think the quotations sounded like a response that plaintiff would have given. (Id.) Plaintiff told Medved the quotations were incomplete and distorted the meaning of what she told Bachowski. (Id.) Plaintiff and Medved discussed the plan of correction process and that plaintiff would be involved in the plan of correction process. (Id.)

3. EMTALA Investigation

Following the investigation on February 17 and 18, 2010, the DOH survey team, i.e., Bachowski, Rich, and Edkins, contacted the CMS and informed the CMS that an EMTALA investigation was necessary at the DEC. (Bachowski Dep. at 171-72 (ECF No. 111-4 at 99-100.) The CMS gave the DOH permission to conduct an EMTALA investigation at the DEC. (Ba-chowski Dep. at 172 (ECF No. 111^4 at 100.) The EMTALA investigation began on February 23, 2010, and ended on February 24, 2010. (D.J.C.S.F. (ECF No. 125) ¶ 71; ECF No. 111-4 at 168.) Based upon the result of the EMTALA investigation, the CMS determined UPMC Presbyterian Shadyside violated the requirements set forth in 42 C.F.R. §§ 489.20 and 489.24. (ECF No. 111-4 at 166.).) A Statement of Deficiencies prepared by the DOH as a result of the EMTALA investigation provided that UPMC Presbyterian Shadyside failed to meet the requirements set forth in §§ 489.20 and 489.24 because UPMC Presbyterian Shadyside:

[1] failed to provide an appropriate medical screening examination [ ] within the capability of the hospital’s emergency department.. .for one of 27 medical records reviewed.. .and [2] failed to monitor patients prior to the determination whether or not the patient had an emergency medical condition for nine of 27 medical records reviewed.

(ECF No. 111-4 at 169.) The CMS determined UPMC Presbyterian Shadyside’s deficiencies were “so serious that they constitute[d] an immediate threat to the health and safety of any individual who [may come] to the emergency department and request examination or treatment for an emergency medical condition.” (ECF No. 111-4 at 166.) The CMS planned to terminate UPMC Presbyterian Shady-side’s participation in the Medicare program on March 27, 2010, unless UPMC Presbyterian Shadyside submitted an approved plan of correction or “successfully prov[ed] that the deficiencies did not exist prior to the projected public notification date.” (Id.) The DOH did not interview plaintiff in connection with its EMTALA investigation. (Pl.’s Dep. at 208-09 (ECF No. 111-3 at 19-20.) WPIC was advised of its violations of EMTALA by a letter dated March 4, 2010, from CMS Certification and Enforcement Branch Manager, Timothy Hock, to Innocenti. (D.J.C.S.F. (ECF No. 125) ¶ 74.)

1. The follow-up complaint investigation of UPMC Presbyterian Shady-side, not including WPIC

The condition-level deficiency noted in the March 2, 2010 letter from CMS to Innocenti was corrected for federal Medicare purposes on March 16, 2010, when the DOH and CMS accepted UPMC Presbyterian Shadyside’s plan of correction for that condition-level deficiency. (Bachowski Dep. at 201-04 (ECF No. 111-4 at 108-111); ECF No. 111-4 at 217.) The Medicare recertification survey of UPMC Presbyterian Shadyside, not including WPIC, which was already cleared as compliant by the DOH, occurred in April 2010. (ECF No. 111-9 at 22.) Bachowski conducted the recertification investigation. (D.J.C.S.F. (ECF No. 125) ¶78.) Deficiencies were found in the following areas of UPMC Presbyterian Shadyside as a result of the recertification survey: (1) restraint use; (2) RN supervision of nursing care; (3) unified medical record service; (4) form and retention of records; (5) orders dated and signed; (6) security of medications; (7) unusable drugs not used; (8) periodic equipment maintenance; (9) director of dietary services; (10) discharge planning needs assessment; and (11) operating room policies. (ECF No. 111-9 at 22.)

2. Plaintiffs performance evaluation dated March 1, 2010

Part of Medved’s job responsibilities as vice president of ambulatory operations was to evaluate employees under her supervision. (Dep. of Medved at 129-30 (ECF No. 111-5 at 12).) Medved was serious about her job. (Dep. of Medved at 129 (ECF No. 111-5 at 12).) Medved was plaintiffs direct supervisor and conducted plaintiffs annual performance reviews. (Id.) Medved followed UPMC’s Performance Management Policy (the “policy”) with respect to plaintiffs evaluations. (D.J.C.S.F. (ECF No. 125) ¶ 96.) Pursuant to the policy, UPMC “measure[d] and reward[ed] employee performance in support of the provision of outstanding patient care, education and research.” (ECF No. 111-5 at 61.)

Under the policy, managers must identify and correct all performance deficiencies in a timely and consistent manner. (ECF No. 111-5 at 61.) Any staff member found to have serious performance deficiencies must be placed on a performance improvement plan. (Id. at 64.) If there are performance deficiencies, the reviewing manager must document them in the employee’s performance review, notify the employee about the need to improve, and establish expectations for performance improvement. (Id. at 61.) The manager is required to “note on the performance review any corrective action for the review period and indicate that it may impact the staff member’s performance rating.” (Id. at 64.) Reviewing managers assign individual performance ratings for the employee on each metric in the performance evaluation. (D.J.C.S.F. (ECF No. 125) ¶ 99.) Reviewing managers must determine the appropriate merit raise — if any — and then meet with the employee to discuss performance results, acknowledge performance that exceeds, meets, or does not meet expectations, and work on a development plan for the future. (Id.) Merit raises had to be reviewed and approved by the reviewing supervisor and the reviewing supervisor’s supervisor. (D.J.C.S.F. (ECF No. 125) ¶ 100.) Employee performance reviews at UPMC are a serious matter because “[pjeople need to know where they stand.” (D.J.C.S.F. (ECF No. 125) ¶ 101.) Roth expected to see concerns about her own performance documented in her performance review. (Id. ¶ 102.) Plaintiffs performance reviews were the best sources of information — “at a high level” — with respect to how Roth viewed plaintiffs performance. (Dep. of Roth at 177 (ECF No. 111-7 at 39).)

On March 15, 2010, Medved wrote Roth an email with respect to plaintiffs performance evaluation. (ECF No. 111-5 at 110.) Medved wrote:

Claudia, when I do [plaintiffs] eval, I usually contact corporate HIM as there are things such as (transcription, etc) that occur more on the corporate level— requesting performance feedback.

2 questions:

All things considered are you okay with me doing so again this year — I need to get Diane’s [employee performance review] done

If yes, do you know who the appropriate corporate contact would be at this time? (ECF No. 111-5 at 110.) On the same day, Roth responded to Medved’s email, writing:

Let’s discuss when we meet.. .1 think it is Wednesday. Is that ok to wait? I would like to hear about your discussion with [plaintiff] last week, as it may influence my decision.

(Id.) Less than one minute after sending the first response, Roth sent the following response to Medved’s email:

PS, Denise’s eval is currently due. When Katie and I discussed the need to impose a disciplinary plan, she was able to remove Denise from the “due” list, pending my actions. I could ask her to do the same with Diane. Let me know.

(ECF No. 111-5 at 111.) Medved responded to Roth’s second response email, writing: “In fairness to her would prefer. It was due 3-1. Would be great.” (Id.) Roth instructed Medved via email to “Call Katie and ask her to do what she did with Denise.” (Id.)

On March 16, 2010, Medved sent Devine a blank email with the following in the subject line of the email: “when you have a minute can we discuss Diane dececco [sic][?]” (ECF No. 111-5.) At some point in time, Medved asked Devine “for more time to do [plaintiffs] evaluation because [Medved] wanted to put more thought into it to address some issues.” (Dep. of De-vine at 261 (ECF No. 111-8 at 97.)

On April 27, 2010, Medved sent Devine a draft of the performance evaluation she prepared for plaintiff. (D.J.C.S.F. (ECF No. 125) ¶ 108.) On April 28, 2010, at 8:05 a.m., Medved sent an email to Devine that did not contain any text in the body of the email but provided the following in the subject line of the email: “Hi — do you have time to discuss Diane today?” (ECF No. 111-5 at 115.) Medved and Devine decided to meet at 11:00 a.m. on April 28, 2010. (Id.) Devine emailed Medved to

confirm the 11:00 a.m. meeting and wrote: “I did get a chance to read the review in union negotiations yesterday. You did a nice job on the goal section.” (Id.) Devine approved Medved’s performance evaluation of plaintiff. (D.J.C.S.F. (ECF No. 125) ¶ 112.)

On April 30, 2010, Medved delivered to plaintiff her performance evaluation, which included a list of six goals for plaintiff to achieve in 2011, which was the upcoming work year. (D.J.C.S.F. (ECF No. 125) ¶ 113.) Medved “was extremely supportive” and genuine when she delivered the performance evaluation to plaintiff. (Pl.’s Dep. at 308-309 (ECF No. 101-1 at 77-78.) The performance evaluation addressed plaintiffs performance from September 1, 2008, through April 30, 2010. (Id.) Med-ved and plaintiff each signed the performance evaluation on April 30, 2010. (Id.)

The performance rating key for the performance evaluation was as follows:

• A rating of “3” was the highest rating available; it meant the employee “Consistently exceeded] expectations;”

• A rating of “2” was the second highest rating available; it meant the employee “Consistently meets expectations;” and

• A rating of “1” was the lowest rating available; it meant the employee “[Did] not consistently meet expectations and improvement is needed.”

(ECF No. 111-5 at 117.) Plaintiff received ratings for her 2010 goals, job responsibilities, competencies and behaviors, and overall performance. (ECF No. 111-5 at 116-32.) Plaintiff received the following ratings for her performance with respect to her 2010 goals:

• “Work with VP on establishing challenges that will strengthen your visibility and impact on WPIC operations and enhance satisfaction by providing variability and empowerment in your role.” — 1.75;

• “Focus on WPIC customer satisfaction through strategic planning.”— 1.75;

• “Continue to gather information as to planning for system change relative to HIM and create proactive strategy” — 2;

• “Participate in the implementation of HPF in the registration process and insure the application provides the level of security needed to behavioral health information.” — 2;

• “Participate as a consultant in the expansion of dbMotion to include behavioral health information to insure appropriate security measures are in place.” — 2;

• “Assist with roll-out of new IMS Privacy Audit Tool to WPIC managers.” — 2;

(ECF No. 111-5 at 119.)

Plaintiff received the following ratings for her job responsibilities:

• “Monitor overall performance of the HIM Department; insure high quality service and customer satisfaction” — 1.75;

• “Monitor WPIC performance against established Corporate benchmarks and regulatory standards with regard to record completion and coding” — 1.75;

• “Monitor the completion of chart reviews as required by WPIC policy and JCAHO” — 2;

• “Monitor changes in work flow and work volumes to insure an efficient operation and quality support services” — 2;

• “Monitor Department operating budgets” — 2.5;

• “Participate as a member Corporate Information Privacy and Security Committee (ISPC)” — 2;

• “Monitor overall performance of the UPMC Transcription Service” — 2.5;

• “Coach and support the management staff of the Transcription Service”— 3;

• “Develop and Implement changes that will maintain skilled transcrip-tionists and enhance recruitment activity” — 2.5; and

• “Perform duties of the WPIC Privacy Officer” — 2.5.

(Id. at 120-22.) With respect to plaintiffs responsibility to “[mjonitor WPIC performance against established Corporate benchmarks and regulatory standards with regard to record completion and coding,” Medved commented:

Record analysis and completion function have been on target as stated relative to inpatient. System evolution requires that we reevaluate current operations relative to ambulatory records management to assure consistency across services and UPMC with this regard, thus needing to expand and continue this goal with recent developments in raising the bar which Diane has committed to and demonstrated commitment to.

(ECF No. 111-5 at 120.)

With respect to plaintiffs competencies and behaviors, she received the following ratings: accountability — 2; communications — 2; customer service — 1.75; flexibility — 2; and judgment/deeision-making — 2. (Id. at 123-25.)

The performance evaluation defined “accountability” as, among other things, “[tjakes responsibility for own actions” and “[rjecognizes own strengths and weaknesses and seeks/accepts constructive feedback, incorporating it into work.” (Id. at 124.) Medved provided the following comments with respect to plaintiffs accountability: “Agree with Diane’s comments though need to attend to all elements of effective program management in upcoming period beyond scope of previously acceptable standards.” (Id.) Plaintiff commented with respect to accountability: “Excellent attendance. Consistently meets time commitments. Effectively manages HIM and Transcription operations. The size of the transcript operation has expanded significantly over the past year which added an additional 41 staff.” (Id.)

The performance review defined “Judgment/Deeision-Making” as, among other things, “[e]xhibits sound and accurate judgment.” (ECF No. 111-5 at 125.) Medved commented as follows with respect to plaintiffs judgment and decision-making: “Need also to establish mechanism to ask for help when needed in order to proactively address any concerns.” (Id.) Plaintiff commented as follows with respect to her judgment and decision-making: “Consistently demonstrates sound judgment. Includes appropriate staff in decision-making. Directs managers to find the root cause of problems.” (Id.)

The performance review defined “communications” as, among things, “[ejffec-tively expresses ideas verbally and in writing” and “[s]elects/uses appropriate communication methods.” (ECF No. Ill— 5 at 124.) Medved commented as follows with respect to plaintiffs communication skills: “Need to work together to assure that various stakeholders recognize implications of process change with respect to practice and regulation via various communication strategies.” (Id.) Plaintiff commented as follows with respect to her communication skills: “Demonstrates ability to successfully communicate with staff and customers. Experienced at resolving customer complaints. Prepared and delivered a presentation to transcription staff regarding a significant compensation change which was positively accepted.” (Id.)

In the “Development Plan” portion of the performance evaluation, Medved wrote:

Diane has a strong knowledge base of HIM operations, applicable regulations and consistently promotes the interests of protecting confidentiality of patient health information. This past year has possibly been the most challenging for Diane, relative to difficult performance during a DOH interview I survey relative to scope of oversight of HIM. There are many system initiatives and requirements (new and existing) that are in play that directly and indirectly affect HIM. Additional requirements have emerged relative to the need for better system integration and consistency of application of standards set forth in regulatory requirements. In the past several weeks Diane has overextended herself appropriately so to improve document management in speciñed areas, such as the DEC. She has served as consultant to CIM and Benedum Geriatrics as well as has personal oversight of DEC records management as it pertains to her department with very good results. Diane has also been able to mobilize her staff to also rise to the occasion in this effort that was most impressive. Diane has recruited an associate director in this past year and continues to work on her development. Diane is very organized and meets commitments, albeit redefined for this upcoming period. Diane is respectful and demonstrates the value of the organizations’ mission and vision. Diane can easily identify problems (and in detail) associated with proposed changes and is working on assertive articulation of these goals that she must be persistent with. Diane has served as the conduit between WPIC and UPMC functions such as Transcription (with solid results) and participation in WPIC and Corporate workgroups and projects, Corporate Compliance and various application groups within ISD, WPIC ISD Steering Committee, RAC Audits, formed the Taskforce to review copy/ paste use in the HER and develop guidelines. Directed the integration of four transcription departments from other UPMC facilities which included an additional 41 staff under the UPMC Transcription Services Department. We are confident that Diane possesses the skill and talents to take the HIM Department to the next level.

(ECF No. 111-5 at 127) (emphasis added.)

The overall performance rating is a mathematical calculation based upon the ratings given for each of the employee’s job responsibilities. (Dep. of Medved at 345 (ECF No. 100-2 at 33).) Plaintiffs overall rating on the performance evaluation dated March 1, 2010, was 2.12. (Id. at 117.) An overall rating of 2.12 qualified plaintiff for a 1.50-2.50 percent merit raise and indicated plaintiff was a “Solid/Strong/Good Performer.” (ECF No. 111-5 at 133.)

Medved testified that she did not expect to see a year-to-year drop in overall performance rating of managers that reported to her. (Dep. of Medved at 346 (ECF No. 100-2 at 34).) Plaintiffs overall performance ratings for the years leading up to 2010 were as follows:

• September 1, 2005: 2.66-2.67 (ECF No. 111-5 at 67);

• September 1, 2006: 2.62 (Id. at 74);

• September 1, 2007: 2.48 (Id. at 86); and

• September 1, 2008: 2.434 (Id. at 96.)

Medved testified that she believed the overall performance rating of the managers that reported to her should be “[b]e-tween 2.5 and 2.7 somewhere to a three.” (Id.) Medved testified that she was supposed to and did record plaintiffs “performance problems” in her performance evaluation. (Dep. of Medved at 292 (ECF No. 111-5 at 36.)

Medved included an “HIM work plan” with plaintiffs performance evaluation. (Dep. of Medved at 347 (ECF No. 125 at 53).) The HIM work plan was “a document that outlined everything that needed to be done to conduct a program review of the health information management department.” (Dep. of Medved at 347-48 (ECF No. 125 at 36).) The program review included “looking from top to bottom, policies and procedures, staffing, space, budget, to review the entire program” in the HIM department. (Id.) Medved would not include an HIM work plan with an employee’s performance review if the employee was adequately performing. (Id.) Requiring a program review may be the result of “multiple bad events, it could be seriously poor performance in a regulatory review, it could be chaos, it could be lots of turnover. Basically it’s something that symbolizes the program as unstable and needs attention.” (Dep. of Medved at 352-53 (ECF No. 111-5 at 49).)

On April 30, 2010, at 9:29 p.m., Medved sent an email to Roth and Devine, which read:

Thank you both for all of your assistance. I met with Diane to review the letter yesterday and did her EPR today. She reacted as any of us would have but remained quite professional. I asked Diane If [sic] she felt her evaluation was fair and she acknowledged that it was. Gave her commitment that she had our support and that we have the confidence that she can and will take HIM to the next level. She appreciated this and affirmed she will do so.

(ECF No. 111-5 at 134.)

Roth, as a “golden rule,” reads her emails from the day before she goes to sleep, and pays special attention to emails from Medved and Owens because they are her vice presidents. (D.J.C.S.F. (ECF No. 125) ¶ 122.) If Medved or Owens “said something that Roth disagreed with, Roth would express her disagreement.” (Id.) Roth believed Medved was a competent evaluator of employees. (Id. ¶ 123.)

3. Decision to Terminate Plaintiffs Employment

a. Plaintiff is informed about her termination

On June 1, 2010, plaintiff was notified about her termination by Medved and De-vine in Medved’s office. (Pl.’s Dep. at 220 (ECF No. 101-1 at 55).) Medved’s role during the meeting was to address the reason for plaintiffs termination; Devine’s role during the meeting was to review with plaintiff a Separation Agreement and General Release defendants provided to their employees and to address plaintiffs questions with respect to benefits. (Dep. of Devine at 205 (ECF No. 111-8 at 92).) Medved informed plaintiff that the executive staff of WPIC and other people outside of WPIC lost faith in plaintiffs ability to lead and that her employment was being terminated. (D.J.C.S.F. (ECF No. 125) ¶ 88); (Dep. of Devine at 206 (ECF No. 111-8 at 93-94.) Plaintiff learned that June 18, 2010, was her last day of work. (D.J.C.S.F. (ECF No. 125) ¶88.) Plaintiff was fifty-nine years old at the time she was fired. (D.J.C.S.F. (ECF No. 125) ¶ 94.)

b. Final decision maker

i. UPMC documents

In UPMC’s position statement to the EEOC dated September 30, 2011, UPMC wrote that Roth and Medved consulted with Devine with respect to whether plaintiffs employment should be terminated, and that “all three women agreed that [plaintiffs] employment should be terminated.” (ECF No. 111-11 at 12.) In an additional letter provided to the EEOC from UPMC, UPMC wrote: “The decision to terminate [plaintiffs] employment was made by Claudia Roth, President, age 44, Ellie Medved, Vice President, age 45, and Katie Devine, Vice President of Human Resources, age 52.” (ECF No. 111-11 at 5.) In UPMC’s response to plaintiffs interrogatories, it identified Roth, Medved, and Devine as the final decision-makers with respect to the decision to fire plaintiff. (ECF No. 111-11 at 15.)

ii. Roth

Roth testified that she was the final decision maker with respect to UPMC’s decision to fire plaintiff, and described Medved’s and Devine’s roles in the process as follows:

They informed me of the circumstances and Ellie as Diane’s direct supervisor, obviously was involved in that capacity and anything of that magnitude related to an HR matter would involve Katie.

(Roth Dep. 189-190 (ECF No. 111-7 at 51.) Roth testified that she also spoke with her boss, Liz Concordia (“Concor-dia”), about her decision to fire plaintiff, and that Concordia concurred with her decision to fire plaintiff. (Roth Dep. 230-34 (ECF No. 111-7 at 70-74.) Plaintiffs counsel questioned Roth about her discussions with Concordia, and the following exchange took place:

Q. ... Was the decision to terminate [plaintiff] made for you by Liz Con-cordia?

A. I do not recall it that way.

Q. Well, she’s your boss; right?

A. Correct.

Q. Am I correct that she’s the number two behind Jeffrey Romoff kind of?

A. She’s in a very high level position. Q. Now, if she’s telling you that she’s not got confidence in Diane Dececco [sic] going forward in time, what are you going to do in response to that?

A. She was supporting me.

Q. ... And if you had said [to Concor-dia], let’s say you had been of the view it’s fixable, it’s no problem, miscommuni-cation, Kim Owens told me that she didn’t really think Diane understood the question, the surveyor was not quoting and there are things dot dot dot that were left out, important things contextually, I think that Diane can continue in her role as the HIM director and Liz Concordia had responded to you by saying no, I have lost confidence, is Diane Dececco’s [sic] fate essentially sealed in that situation?

A. I don’t know.

Q. Well, if you heard your boss say that, what would you do?

A. We have a relationship that we — we have a very open communication style between us and we put everything on the table and actually it’s a culture where subordinates are respected by pushing back if they feel strongly about something and that is the relationship I have with Liz.

(Roth Dep. 235-37 (ECF No. 111-7 at 75-77.)

Roth learned about plaintiffs performance in the interview with Bachowski from Owens and Bachowski’s written report. (Dep. of Roth at 192-93 (ECF No. 111-7 at 54-55).) Owens told Roth that Owens tried to “finesse” the situation between plaintiff and Bachowski by helping plaintiff understand Bachowski’s question so that plaintiff could give Bachowski the appropriate answer. (Dep. of Roth at 196 (ECF No. 111-7 at 58).) Roth testified that the appropriate answer to Bachowski’s question was that the DEC’s medical records were “within [plaintiffs] realm of responsibility.” (Dep. of Roth at 196 (ECF No. 111-7 at 58).)

iii. Medved

Medved testified that she was “one of a couple of people” along with Roth and Devine that made the decision to terminate plaintiffs employment with UPMC. (Dep. of Medved at 190 (ECF No. 111-5 at 18.) Medved testified that Roth first said they needed to discuss whether plaintiff should be fired, but that all three of them — Roth, Devine, and Medved — came to an agreement that plaintiff should be fired. (Dep. of Medved at 322-32 (ECF No. 111-5 at 43).)

iv. Devine

Devine testified that Medved and she “talked with [Roth] about options, and there was a vote of no confidence in [plaintiff] leading the department, and that at that point it was decided that we would terminate her employment.” (Dep. of De-vine at 142 (ECF No. 111-8 at 40).) According to Devine, Roth, Medved, and she made the decision to terminate plaintiffs employment. (Dep. of Devine at