govinfo:USCOURTS-pawd-2_23-cv-00856-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
EMILE CHREKY, 
 
 Plaintiff, 
 
v. 
 
UNIVERSITY OF PITTSBURGH 
PHYSICIANS, 
 
 Defendant. 
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2:23-cv-00856 
 
OPINION 
Mark R. Hornak, United States District Judge 
Plaintiff Dr. Emile Chreky ( “Dr. Chreky,” “Chreky ,” or “Plaintiff”) filed this  lawsuit 
against his former employer, University of Pittsburgh Physicians (“UPP” or “Defendant”), alleging 
unlawful age discrimination in his employment. His claim centers on Defendant’s decision not to 
renew his employment contract as an emergency room physician at University of Pittsburgh 
Medical Center McKeesport (“UPMC McKeesport”) in 2021. (ECF No. 65, ¶ 20). He claims that 
this decision was the result of unlawful age discrimination in violation of the Age Discrimination 
in Employment Act ( “ADEA”), 29 U.S.C. § 621, and the Pennsylvania Human Relations Act 
(“PHRA”), 43 Pa. Stat. Ann. §§ 951–963 (West).1 Although Plaintiff’s Second Amended 
Complaint (“SAC”) also included discrete claims of harassment and retaliation, the only remaining 
claim in the litigation is unlawful age discrimination in violation of the ADEA and the PHRA.2  
 
1 PHRA claims are considered coextensive with ADEA claims  and are considered by the Court under the same 
substantive rules. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). 
 
2 After confirming with counsel at Oral Argument, t he Court entered an Order on January 23, 2026, stipulating that 
the only remaining claim in this action is age discrimination under the ADEA and the PHRA based on Defendant’s 
nonrenewal of Plaintiff’s contract. (ECF No. 94; see also ECF No. 67, at 9 n.1  (“Plaintiff is not pursuing his hostile 
work environment or retaliation claims at this stage”)). 
 
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Defendant filed a Motion for Summary Judgment on June 3, 2025. (Motion at ECF No. 63; 
Brief at ECF No. 64). Plaintiff filed a Response, (ECF No. 67), to which Defendant filed a Reply, 
(ECF No. 74). With their briefs, the parties filed concomitant statement s of facts, as well as 
responses to each other’s statements of facts. The Court will reference those filings throughout this 
Opinion, so they are listed as follows for clarity: 
• Defendant’s Statement of Facts, at ECF No. 65; 
• Plaintiff’s Statement of Facts, at ECF No. 70; 
• Plaintiff’s Response to Defendant’s Statement of Facts, at ECF No. 71; and 
• Defendant’s Response to Plaintiff’s Statement of Facts, at ECF No. 75. 
 
Following those submissions, Plaintiff moved for leave to file a Sur-Reply, (ECF No. 76), which 
the Court granted, (ECF No. 79). Plaintiff filed a Sur -Reply, (ECF No. 80), to which Defendant 
subsequently filed a Sur-Response, (ECF No. 83). Oral Argument was held via videoconference 
on January 14, 2026. (ECF No. 90). Defendant’s Motion for Summary Judgment is thus ripe for 
adjudication. For the reasons explicated below, the Court DENIES Defendant’s Motion. 
I. Factual Background 
From 2017 through mid -2021,3 Defendant employed Plaintiff as an emergency room 
physician at UPMC McKeesport. (ECF No. 74, at 6). Plaintiff was employed through successive 
one-year contracts. (ECF No. 67, at 3; ECF No. 71, ¶ 17). The employment contract was written 
 
3 There is some uncertainty in the record surrounding the length of Plaintiff’s employmen t. Plaintiff testified that he 
began working at the McKeesport Hospital in or around 1991 or 1992, but that his employment by Defendant UPP 
began in 2017. (ECF No. 69 -1, at 155:3-13). UPMC acquired the McKeesport Hospital in or around 1998. Plaintiff  
testified that he “was with UPMC for 25 years ,” (ECF No. 69-1, at 99:18), which would approximately line up with 
when UPMC acquired the McKeesport Hospital. But some of Plaintiff’s filings suggest that the Court should consider 
Plaintiff’s employment length to be much longer than the amount of time between 2017 and 2021. (See, e.g., ECF No. 
12, ¶ 8 (“Dr. Chreky worked for UPMC McKeesport for nearly 25 years as a pillar of  UPMC's McKeesport Hospital 
and had an exemplary record during his tenure.”); ECF No. 70, at 1 (“These facts, drawn from depositions, documents, 
and other evidence, tell the story of what happened when UPP decided to terminate Dr. Chreky after 18 years of 
exemplary service.”)). The ownership and employment structure of UPMC and UPP is not relevant to the disposition 
of the pending Motion. The Court infers that some other entity employed Chreky from 1998 to  2017 while he  
physically worked at the McKeesport Hospital location, and that, for purposes of adjudicating the pending Motion for 
Summary Judgment, the beginning of the employment relationship between UPP and Chreky was sometime in 2017.  
As explained below, the factual record relevant to the pending Motion really only begins in 2019.  
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such that it was automatically renewed unless the Plaintiff received written notice of non-renewal. 
(ECF No. 71, ¶ 17). On March 5, 2021, Defendant sent Plaintiff a letter serving as a written notice 
of non-renewal. (ECF No. 71, ¶ 20). The letter was signed by Dr. Donald M. Yealy in his capacity 
as Chair of Emergency Medicine. (Id.). Plaintiff’s employment at UPMC McKeesport officially 
ended on June 30, 2021. (ECF No. 67, at 8). The rest of this section of the Opinion goes through 
the facts and events relevant to the pending action chronologically.4  
A. Late 2019 
For reasons not revealed to the Court, the record in the present action really only begins in 
late 2019 — other than offhand mentions by deponents about Chreky’s employment with UPP 
prior to 2019, there is no record evidence about his performance in 2017 or 2018. As such, the 
Court will begin the recitation of the relevant factual history in late 2019, when Chreky received 
his 2019 Performance Review. In that Review, Dr. Rani Kumar — who served as Department 
Chair for the UPMC McKeesport Emergency Room (“ER” or “ED”) and supervised Plaintiff until 
her (Kumar’s) resignation in December 2020 — cautioned Chreky to maintain his  on-duty 
accessibility via phone. “A ccessibility to staff and APP’s [Advanced Practice Providers; sic ] is 
vital in the ED.” (ECF No. 71, ¶ 51).  Dr. Kumar noted that “[c]arrying a charged phone (spectra 
link) and letting the staff know of his work location was discussed”  in the Review  and that she  
would “continue to monitor [Chreky’s] accessibility.” (Id.).  
B. July 2020 
On July 26, 2020, Dr. Kumar sent Chreky an email notifying him that she had “heard 
complaints from your colleagues that you[] are leaving 45 minutes before your shift ends. Your 
 
4 Of course, this section does not purport to recount every relevant factual detail concerning the pending action. Rather, 
it attempts to construct a timeline of particularly salient events.  And unle ss noted, the facts set out are either 
undisputed, or to the extent there is a variance in the positions of the parties, such are not material.  
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team complains that most of the days you are ready to check out early.”  (ECF No. 65, ¶  27). 
Plaintiff does not dispute the contents of that email  but does dispute that “he had a practice of 
leaving 45 minutes prior to the end of his shift.” (ECF No. 71, ¶ 27).  
C. October 2020 
The record indicates that m any of the incidents relevant to this litigation occurred  in 
October, November, and December 2020. On October 4, 2020, an Advanced Practice Provider 
(“APP”)5 with the initials  “T.H.” submitted a written complaint to Assistant Administrator for 
UPP’s Emergency Department Kristen Boeltz (née Corbett) describing an incident that allegedly 
occurred on September 22, 2020. On that day, the UPMC McKeesport ER was very busy, and 
Plaintiff allegedly had to leave the ER work area to change his surgical scrubs because he spilled 
soup on them. When he returned, he allegedly was upset that T.H. had contacted another physician, 
Dr. Kumar, about a problem in the ER, instead of just waiting for him (Dr. Chreky) to return from 
changing his scrubs. T.H. complained that Chreky raised his voice at T.H. when T.H. told Chreky 
that he had called Dr. Kumar. (ECF No. 71, ¶¶ 29–40). The parties refer to this incident as the 
“T.H. Complaint” or “Soup Incident.” 
Sometime around the Soup Incident, T.H. also complained that Chreky had made a false 
report of T.H. leaving early from T.H.’s duty shifts on September 26 and 27. (ECF No. 71, ¶ 44). 
Defendant refers to this incident as the “Time Theft Claim.”  Senior Human Resources Director 
Heather Reading testified in her deposition that w hen ED leadership  investigated Chreky’s 
assertion that T.H. had left duty early, they found that T.H. had not left early. (ECF No. 71, ¶¶ 44–
45). Chreky disputes that the report of T.H. leaving early was “false,” and he testified in his 
deposition that T.H. “leaves one hour earlier.” (ECF No. 71, ¶ 46; ECF No. 69- 1, at 83:18-25). 
 
5 APPs are non-physician professional health care providers working in EDs, typically nurse practitioners or 
physician assistants (“PAs”). 
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Chreky also testified that  he complained about T.H. because he believed T.H. had complained 
about him first. (ECF No. 71, ¶ 46; ECF No. 69-1, at 75:13-17). 
 Later in October, Dr. Richard Wadas — then the Executive Vice Chair of the Community 
Division of UPP Emergency Medicine, in charge of overseeing ED operations at various UPMC 
community hospitals including UPMC McKeesport — received a report from a Physician’s 
Assistant, J.S., concerning Chreky. The report said that Chreky had left 45 minutes early from a 
shift, which resulted in J.S. being left alone with a heart attack patient  in the ER. (ECF No. 71, ¶  
49). The report also alleged that Chreky le ft the McKeesport ER for varying periods of time, 
avoided seeing patients, and would not see “GYN complaints.”6 (ECF No. 71, ¶ 50). Plaintiff has 
not disputed that Dr. Wadas stated that  Chreky would not see GYN patients. At O ral Argument, 
his counsel stated that he disputed leaving work early and did not address the report regarding 
GYN patients. Chreky has not in his filings specifically controverted the substance of that report 
by J.S., (see ECF No. 71, ¶ 50), so those matters are therefore not disputed for these purposes, see 
LCvR 56(E). 
D. November 2020 
Sometime in November 2020, Dr. Paul Kim  —  an approximately 34-year-old7 physician 
who Chreky alleges was hired to replace him  — visited the UPMC McKeesport ER. (ECF 70, ¶ 
14). Dr. Kim was an ER resident within UPMC from 2018 through 2021. (ECF No. 71, ¶ 148). In 
 
6 Both parties reference the claim that Chreky would not see “GYN complaints”  in their filings. (See ECF No. 64, at 
8, 16; ECF No. 65, ¶ 50; ECF No. 71, ¶ 50; ECF No. 74, at 3; ECF No. 75, at 27). On the Court’s review , the parties 
neither define nor discuss this term in any of the instances in which they use it. The Court infers that “GYN complaints” 
refers to women who presented in the ED with exigent gynecological concerns. A t least based on the extent to which 
the topic was discussed in the briefing , it appears that neither party attribute d much significance to this claim. The 
Court notes, however, that a reasonable jury m ight consider such a claim to be an important data point  regarding 
Chreky’s professional conduct.  
 
7 In Plaintiff’s filings, Dr. Kim is listed as being 30 years old in some instances and 34 years old in others. ( See, e.g., 
ECF No. 70, at 2, 5). According to Defendant’s Statement of Facts, Dr. Kim’s year of birth is 1987. (ECF No. 65, ¶ 
154). That would put him at approximately 33 or 34 years old during the relevant period.  
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or around November 2020, Dr. Flaherty accepted the Department Chair role, which was previously 
occupied by Dr. Kumar. (ECF No. 71, ¶ 143). 
On November 9, 2020, Dr. Wadas wrote in an email to another doctor: “Between you and 
I, I don’t think Chreky is long for our world. Interpersonal skills aside, clinical concerns are 
growing.” He also noted that UPP needed “new boots on the ground.” (ECF No. 70, ¶ 9). 
On November 19, 2020, Dr. Wadas was notified that C.R., a hospitalist at UPMC 
McKeesport, submitted a complaint about Chreky having cursed at C.R., and that complaint stated 
the following: 
I asked if [Dr. Chreky] could speak with neurosurgery prior to me accepting for 
admission as to the appropriateness of the admission to McKeesport given the 
nature of her very recent medical history and need for neurosurgery given her right 
upper and lower extremity numbness and gait dysfunction to which he stated “you 
can consult them yourself.” I reiterated that I did not want to accept the patient until 
I knew we could appropriately care for her by way of a neurosurgical clearance...I 
felt a page to the primary neurosurgical team of Dr. Zinn (the attending for 
Shadyside’s neurosurgical team on this patient’s case) would be imperative to 
ensure he felt the patient would be safe at our facility given her active neurologic 
impairment. To my request of consulting Dr. Zinn, Dr. Chreky snapped towards me 
saying, “you’re not gonna tell me what to do fucker. I don’t have time for this.” 
 
(ECF No. 71, ¶ 54). Plaintiff disputes the f acts within that  complaint, and also argues that the 
complaint constitutes inadmissible hearsay evidence that cannot be considered in support of a 
motion for summary judgment.
8 (Id.). 
Also on November 19, Dr. Wadas  wrote in an email to another doctor the following: 
“While I know [Chreky]  will never change, he is consistently getting worse in the last year . . . 
Plan for MCK --  new leadership, remove some dead wood, improve every aspect of it.” In that 
 
8 This Court recently considered whether, at the summary judgment stage, the Court can consider such  employee 
complaints (even anonymous ones) or whether they are barred as inadmissible hearsay. The Court determined that it 
can consider such complaints in the disposition of a summary judgment motion, even if the admission of the statements 
would be contested at trial on other evidentiary grounds. See Albert v. Allegheny Health Network, No. 2:21-CV-01625, 
2026 WL 234009, at *19 (W.D. Pa. Jan. 29, 2026). 
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email, Wadas also stated, “He [Chreky] is gone in June. We will notify him in February.” (ECF 
No. 70, ¶ 11–12). 
The next day, Chreky said in an email to Dr. Kumar that he did “ not remember any time 
INSULTING HIM [C.R.]. I have NEITHER insulted another colleague OR any other physician or 
any other nursing staff all the time I have been working. I HAVE ALWAYS been respectful to 
everyone working with me.” (ECF No. 71, ¶ 64). On November 21, 2020, Dr. Kumar sent Chreky 
an email that stated:  
As per our discussion last night I feel the need to give you clarity on the following 
issues: a. Disagreement in a treatment plan, amongst providers in [sic] not 
uncommon, but professionalism is always expected. b. Use of harsh language and 
inappropriate behavior is not tolerated in the work environment. c. I expect you to 
call the APP with whom you had the interaction and apologize on your behavior 
and choice of words. d. UPMC policy on the mutual respect/professional ethics and 
behavior is accessible on the UPMC intranet. Please rev iew that for your future 
education. I hope that I will not need to remind you of the expectations of your 
behavior at workplace. Please be aware that Dr. Wadas and HR will be contacting 
you for further discussions. This is a serious event. I hope that you will make sure 
that such incidents do not become a trend. Let me know if you need any professional 
assistance in the matter. 
 
(ECF No. 71, ¶ 63). It should be noted, however, that there is some evidence in the record that the 
alleged confrontation was not as hostile as the complaint made it sound. One hospital staff member 
(“P.R.”) wrote an email  to Dr. Kumar stating “ that she was sitting about 8 feet away from Dr. 
Chreky when he had a phone conversation with a hospitalist about a patient, and [that] . . . ‘[a]t no 
time was Dr. Chreky disrespectful, unprofessional, or vulgar.’” (ECF No. 71, ¶ 67). 
E. December 2020 
On December 1, 2020, Dr. Wadas sent Chreky  a letter requiring him to contact the 
Physician Assistance Program (“PAP”). (ECF No. 66 -7; ECF No. 71, ¶¶  70–71). His referral to 
PAP, according to the letter, was due to him “swearing and speaking in a loud tone of voice with 
one of the PAs.” (ECF No. 65, ¶ 73). A week later, Chreky met with Dr. Kumar to receive his 
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performance review for 2020. Chreky received a “Requires Improvement” review. The review 
stated the following:  
This year has been however challenging for Dr. Chreky. He has had confrontation 
with the APP and with the inpatient team requiring administrative intervention and 
HR involvement. Opportunity to enhance his communicative skills and his 
relationship with colleagues aligned with the UPMC values was discussed with him 
and he is eager to work on it in the coming year.  
 
(ECF No. 71, ¶¶ 79–81).  
Dr. Kumar sent the performance review to Dr. Radomski, who forwarded it to Dr. Wadas, 
Russell Meyers, and Kristen Corbett  — the latter two of whom were UPP administrators . (ECF 
No. 65, ¶ 29; ECF No. 70, at 3). In Dr. Radomski’s email, he stated, “This [Chreky’s performance 
review] may be too positive if we are looking to renew him…”
 He followed up by “replying-all” 
6 minutes later, seemingly to correct a misstatement in the previous email, saying, “Ugh…looking 
to NOT renew him.” With that correction, the full statement would read, “This may be too positive 
if we are looking to NOT renew him.” Russell Meyers replied to the group, asking, “Does he really 
make ‘good, safe clinical decisions’?” Kristen Corbett responded, on December 9, 2020, saying, 
“My thoughts exactly. I think that first part needs tweaked.” (ECF No. 69- 11, at 2). Dr. Wadas 
replied to the email chain concerning Chreky’s  2020 performance review, saying, “I’m not sure 
we can change what Kumar wrote but can certainly add that we have had some clinical concerns 
raised by the nursing staff and the hospitalists.” (ECF No. 69-11, at 2). 
The nex t day, on December 10, 2020, Dr. Wadas email ed Chreky asking why he 
administered a contraindicated drug to a patient. Chreky emailed back, admitting that he 
administered the drug because he initially thought the patient had an overly fast heart rate and only 
later realized that the patient had bradycardia, a condition instead characterized by a slowed heart 
rate. (ECF No. 71, ¶¶ 83–89). Dr. Wadas did not believe that Chreky took this situation as seriously 
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as he should have. (Id.). The parties and the Court refer to this incident as the “Wrong Medication 
Incident.”  
That same day, Dr. Wadas emailed Heather Reading — Senior Human Resources Director 
at UPP — cc-ing Kristen Corbett, copying and pasting Chreky’s response to the Dr. Wadas’s 
inquiry about the Wrong Medica tion Incident. Dr. Wadas noted that “This was a deviation form 
[sic] the level of care we would expect.” He goes on to state, “Would you recommend doing 
anything additional with this information at this time? It is still our plan to non -renew this 
physician.” Heather Reading replied asking, “Would you take any formal action if another 
physician would have this type of oversight?” to which Wadas replied, “I think a letter/email” and 
noted that this is “the first formal care related complaint [he] received directly.” Heather Reading 
responded recommending that Wadas proceed with the letter or email, noting that she did not know 
if “this would raise to a level that we’d issue a notice to cure but if there is a repeat event we might 
get there ahead of the non-renewal discussion.” (ECF No. 69-12). 
On December 15, 2020, Dr. Wadas emailed Dr. Kim  — the 34-year-old physician who 
toured UPMC McKeesport that prior November — offering him a full-time position starting July 
1, 2021. The offer email notes that the annual base salary of $375,174 would be for “ 750 ED 
hours/year at UPMC McKeesport and 750 ED hours/year at Mon Valley.” The email is signed by 
Dr. Wadas and Dr. Yealy. (ECF No. 69-10, at 2–3).  
The so -called “Worst Patient Chart Incident” occurred on December 19, 2020, when a 
UPMC quality reviewer forwarded a patient chart completed by Chreky to Dr. Wadas. Dr. Wadas 
emailed Chreky asking him to explain the chart, saying: 
Please review this chart. The dictation is so poor and without any evidence of 
proofreading, I struggle to understand much of what occurred in the case. 
Additionally, all of the historical elements are missing. You marked that you agree 
with the past, family, and social history, yet nothing is documented. If he was 
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unable to provide any history, that should be documented. The chart is grossly 
incomplete and in some areas unintelligible. There are no vs, no inter pretation of 
any of the diagnostic studies, and the exam is scant. Did you really test his gait and 
find it to be normal? Please explain. 
 
Chreky responded saying, “i am sorry i was very busy on that day” [sic] and “[r]egarding the gait 
it must have been inadvertently clicked.” (ECF No. 71, ¶¶ 95, 98). 
Although Chreky worked in the UPMC McKeesport ED through the end of June 2021, i t 
does not appear that any additional i ncidents concerning Chreky’s professional conduct  were 
documented after December 2020. (ECF No. 70, ¶ 38–39). 
F. January 2021 
On January 1, 2021, Dr. Sarah Flaherty began in her new role as Site Chief of the UPMC 
McKeesport ER. Dr. Flaherty testified tha t, in that role, she received “frequent” reports about 
Chreky “not coming to the ER to see patients or retreating to the break room and being unavailable 
for consultation.” (ECF No. 71, ¶ 107–109). 
Sometime in early 2021, Chreky completed the PAP program. (ECF No. 71, ¶ 74). 
G. March 5, 2021 
Chreky is notified by letter on March 5, 2021, that his contract with UPP was not being 
renewed. The letter was signed by Dr. Yealy. (ECF No. 66-8, at 31; ECF No. 70, ¶ 31). 
H. April 2021 
On April 12, 2021, an email exchange occurred between Dr. Flaherty, Dr. Wadas, and Dr. 
Radomski, with the subject line “Random opinion question.” (ECF No. 69-13). Dr. Flaherty asked 
the other two if it was okay, at a staff me eting, to say something along the lines of “with the 
retirement of Dr. Chreky,” or if she should say “departure” instead, or if she should not “say 
anything at all and just sort of leave it as the unspoken elephant in the room.” Flaherty noted that 
she knew “Chreky [was] not going quietly.” (Id.).  
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Dr. Radomski replied-all to that email, advising not to call it retirement, and, “if anything,” 
to say “departure.” Dr. Flaherty replied-all, saying, “Okay thanks . . . Everyone sort of knows for 
the most part, but no real announcement has been made so to speak and I hate the whispers lol. I 
wish he [was] just leaving with some degree of grace and we could treat it as retirement and ‘thank’ 
him for all his service. . . instead it is just super awkward.” (Id.). 
I. June 30, 2021 
Chreky’s last day employed by UPP was June 30, 2021. (ECF No. 70, ¶ 32). 
J. July 1, 2021 
Dr. Kim’s first day employed by UPP  was July 1, 2021. For the first six months of his 
employment, Dr. Kim split his time between the McKeesport ER and the Mon Valley ER.  (ECF 
No. 70, ¶¶ 32–33). 
K. January 2022 
In January 2022, D r. Kim began working all contracted clinical hours at UPMC 
McKeesport, no longer splitting between McKeesport and Mon Valley. (ECF No. 70, ¶ 35).  
II. Legal Standard 
The Motion before the Court is a wall -to-wall Motion for Summary Judgment by the 
Defendant. (ECF No. 63). In other words, if the Court were to grant Defendant’s Motion, Plaintiff’s 
entire case would be dismissed.  
At summary judgment, the Court must consider whether a reasonable jury could find in 
favor of the nonmoving party. “[S] ummary judgment is appropriate only where there is no issue 
of material fact and judgment is appropriate as a matter of law ” based on the record as it stands. 
Prather v. Prudential Fox & Roach, 326 F. App'x 670, 672 (3d Cir. 2009) . The burden is on the 
moving party to show that there is no genuine issue as to any material fact. “[S]ummary judgment 
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is to be entered if the evidence is such that a reasonable fact finder could find only for the moving 
party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) . If the nonmoving party 
bears the burden of proof on a claim yet fails to establish an element that is essential to that claim, 
summary judgment must be entered for the moving party. Id. (citing Celotex Corp. v. Catrett, 477 
U.S. 317, 322 (1986) ). Of course, in making the determination of whether to grant summary 
judgment, the Court must “ view the record in the light most favorable to [the nonmoving party] 
and resolve all reasonable inferences in his favor.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 
(3d Cir. 1999).  
III. Discussion 
The Court has carefully reviewed the evidence on the record, the parties’ detailed briefing, 
and counsels’ thorough and excellent presentations during Oral Argument. The Court concludes, 
based on that review, that summary judgment is not appropriate in this matter  because the Court 
concludes that a reasonable jury could conclude that Defendant’s proffered reasons for terminating 
Plaintiff’s service in the McKeesport ED were pretext for unlawful age-based discrimination. The 
disposition of this Motion comes down to the third and final step in the McDonnell Douglas  
burden-shifting analysis, at which it is the plaintiff’s burden to show by a preponderance of the 
evidence that the employer’s proffered reasons for the adverse employment action were pretextual. 
See McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973).  
A. McDonell Douglas Burden-Shifting Framework in ADEA Cases 
The Age Discrimination in Employment Act (“ADEA”)  prohibits employers from 
“discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to 
his compensation, terms, conditions, or privileges of employment, because of such individual's 
age.” 29 U.S.C. § 623(a)(1). The McDonnell Douglas burden-shifting framework applies in ADEA 
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cases, Keller v. Orix Credit All., Inc. , 130 F.3d 1101, 1108 (3d Cir. 1997), and the plaintiff must 
show by a preponderance of the evidence that age was the “but -for” cause of the adverse 
employment action to succeed on an ADEA claim, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 
177–78 (2009). 
Under McDonnell Douglas, the plaintiff must establish  a prim a facie case for age 
discrimination, and at the summary judgment stage, the record evidence must support the 
establishment of that prima facie case. The prima facie case for age discrimination consists of four 
elements: (1) that the plaintiff is at least forty years of age; (2) that the plaintiff suffered an adverse 
employment decision; (3) that the plaintiff was qualified for the position at issue; and (4) that the 
plaintiff was replaced by an employee who was sufficiently younger so as to support an inference 
of a discriminatory motive, or, in the alternative, that there is other evidence of record that would 
support a finding of discriminatory motive . Burton v. Teleflex Inc. , 707 F.3d 417, 426 (3d Cir.  
2013). 
The burden is on the employer at the second step in McDonnell Douglas framework. After 
the prima facie case has been established, the employer must “articulate a legitimate 
nondiscriminatory reason for the adverse employment action.” Jone s, 198 F.3d at 412. Such a 
reason, “if taken as true, would permit the conclusion that there was a nondiscriminatory reason 
for the unfavorable employment decision.”  Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). 
The Third Circuit has noted that this second step is a “relatively light” burden. Id. The employer’s 
burden at this step is one of production, not persuasion; the ultimate burden of persuasion rests 
with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). “If the defendant has 
failed to sustain its burden but reasonable minds could differ as to whether a preponderance of the 
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evidence establishes the facts of a prima facie case, then a question of fact does remain, which the 
trier of fact will be called upon to answer.” Id.  
At step three of McDonell  Douglas, the plaintiff bears the burden to show, by a 
preponderance of the evidence, that the employer’s proffered reason for the adverse employment 
action was pretextual. There are two ways that a plaintiff can show that an employer’s reason was 
pretextual. Klastow v. Newtown Friends Sch., 515 F. App'x 130, 133 (3d Cir. 2013) . The first 
involves the presentation of record evidence that casts doubt on the employer’s proffered reasons. 
The evidence must not “simply show that the employer’s decision was wrong or mistaken . . . . 
[r]ather, the non- moving plaintiff must demonstrate such weaknesses, implausibilities, 
inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for 
its action that a reasonable factfinder could rationally find them unworthy of credence and hence 
infer that the employer did not act for [the asserted] non-discriminatory reasons.” Fuentes, 32 F.3d 
at 765 (citations omitted). 
The second way to establish pretext is “to point to evidence that would allow a factfinder 
to believe that an invidious discriminatory reason was more likely than not a motivating or 
determinative cause of the employer's action. ” Willis v. UPMC Children's Hosp. of Pittsburgh, 
808 F.3d 638, 645 (3d Cir. 2015) . There are three main categories of evidence that are relevant 
here: evidence that “(1) the defendant previously discriminated against the plaintiff; (2) the 
defendant discriminated against others within the plaintiff's protected class; or (3) the defendant 
has treated similarly situated, substantially younger individuals more favorably.” Id. The plaintiff 
can “defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either 
circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that 
discrimination was more likely than not a motivating or determin ative cause of the adverse 
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employment action.” Fuentes, 32 F.3d at 764 (emphasis in original). A plaintiff need not show 
both.  
B. Plaintiff’s Prima Facie Case 
As stated above, a prima facie case for age discrimination is established by showing the 
following four elements: (1) that the plaintiff is at least forty years of age ; (2) th at the plaintiff 
suffered an adverse employment decision; (3) th at the plaintiff was qualified for the position at 
issue; and (4) that th e plaintiff was replaced by an employee who was sufficiently younger so as 
to support an inference of a discriminatory motive. Burton, 707 F.3d at  426. In the instant case,  
the record before the Court demonstrates that Chreky has established a prima facie case. 
The first and third elements do not appear to be in dispute  here. Plaintiff was age 70 and 
71 when the incidents that gave rise to this litigation occurred. And Defendant does not appear to 
contest that Chreky was qualified by virtue of his education, training, and certification for the 
position he held. ( See ECF No. 66-8, at 45–47). The first and fourth elements of the prima facie 
case are in dispute. Defendant argues that nonrenewal of Chreky’s contract was not an adverse 
employment decision and that Plaintiff cannot show that he was replaced by a sufficiently younger 
employee so as to support an inference of discrimination. (ECF No. 64, at 10–14).  
In this Circuit, nonrenewal of an employment contract is an adverse employment decision. 
In Wilkerson v. New Media Technical Charter School , the Third Circuit stated that “ [t]he failure 
to renew an employment arrangement, whether at -will or for a limited period of time, is an 
employment action, and an employer violates [antidiscrimination law]  if it takes an adverse 
employment action for a reason prohibited by [antidiscrimin ation law].” 522 F.3d 315, 320 (3d 
Cir. 2008). In the years since that case, our sister courts have noted that the “argument has already 
been rejected by the Third Circuit” that nonrenewal of an annual employment contract does not 
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constitute an adverse emp loyment action. Golembeski v. Moorestown Twp. Pub. Sch., No. CIV. 
11-02784 RBK/JS, 2013 WL 1007672, at *4 (D.N.J. Mar. 13, 2013) . Just  last year, the Third 
Circuit affirmed that nonrenewal of an employee’s contract was an adverse employment action, 
reversing in part a district court’s grant of summary judgment to a defendant. Sorokina v. Coll. of 
New Jersey, No. 24-1365, 2025 WL 1289148, at *7 (3d Cir. May 5, 2025). 
 Plaintiff in the present case had an annual employment contract with Defendant, UPP. (See 
ECF No. 66-8, at 32–41). The initial employment contract between the parties began on July 1, 
2017, and lasted for a period of twelve months , or one “Contract Year.” ( ECF No. 66-8, at 36). 
The contract stipulated that it would “automatically renew for successive one-year periods,” (id.), 
which occurred in 2018, 2019, and 2020, (ECF No. 71, ¶ 19). On March 5, 2021, UPP notified the 
Plaintiff that his contract would not renew for the twelve months from July 2021 through July 
2022. (ECF No. 66-8, at 31). Defendant asserts that because Chreky’s contract allowed him to be 
nonrenewed “under any conditions” or “for any or no reason, . . . [n]o adverse employment action 
occurred.” (ECF No. 64, at 11). But that assessment by Defendant does not cite any legal authority 
and sidesteps the law in this Circuit that nonrenewal of an employment contract constitutes an 
adverse employment action. As such, the Court accepts, as a factual matter, that Chreky was issued 
a nonrenewal letter and that, as a legal matter, his nonrenewal by UPP was an adverse employment 
decision for purposes of McDonnell Douglas.  
 Next, Plaintiff asserts that the hiring of Dr. Paul Kim, whose contract with UPP to provide 
ED servic es at UPMC McKeesport  began the day after Plaintiff’s last day of employment, 
establishes the fourth element of his prima facie case of age discrimination. (ECF No. 67, at 10). 
The Defendant asserts that the Plaintiff cannot establish the fourth element of  the McDonnell 
Douglas analysis because “there are no facts to support” the Plaintiff’s theory that “Dr. Paul Kim 
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was hired to replace him because  of his age.” (ECF No. 64, at 11 (emphasis added)). UPP also 
argues that Dr. Kim did not replace Chreky becaus e their job duties were different. Regarding its 
first argument, Defendant again misapplies  the law concerning McDonnell  Douglas. The Third 
Circuit has specifically held that whether a replacement employee is significantly younger than a 
replaced employee in an ADEA McDonnell  Douglas analysis is usually a factual question, not a 
legal one. Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021). In other words, the 
plaintiff need not show at this stage that the replacement employee was chosen because of his age. 
Rather, the fourth element of the prima facie case is simply whether  the employee “was replaced 
by a significantly younger employee.” Hodczak v. Latrobe Specialty Steel Co., 451 F. App'x 238, 
240 (3d Cir. 2011). The record reflects that Dr. Kim — approximately 34 years old at the relevant 
time — was significantly younger than the Plaintiff. This age differential is sufficient for this stage 
of the analysis.  
 Defendant also argues that Dr. Kim did not replace Chreky because Dr. Kim was hired to 
split his time between UPMC McKeesport and UPMC Mon Valley, whereas Chreky worked only 
at UPMC McKeesport. (ECF No. 64, at 12). This argument is si milarly unsuccessful, at least for 
these purposes. First, Dr. Kim shifted over to full -time work at UPMC McKeesport within six 
months of the start of his employment , which had at the outset included s ervice in the UPMC 
McKeesport ED. Further, the Third Circuit has cautioned lower courts that “[n]ot all of a plaintiff’s 
duties have to go to a single replacement; the replacement’s job does not have to match the 
plaintiff’s job exactly” to establish the fourth element of the prima facie case. Martinez, 986 F.3d 
at 267. The timeline also weighs against Defendant’s argument. On December 10, 2020, Dr. Wadas 
expressed via email that it was the “plan to non-renew” Chreky; on December 15, 2020, Dr. Wadas 
emailed Dr. Kim offering him employment. (ECF No. 69-10, at 2–3). Chreky’s final day employed 
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by UPP was June 30, 2021; Dr. Kim’s first day was the next day, July 1, 2021. (ECF No. 67, at 
11). The age differential between Drs. Chreky and Kim, their approximately equivalent job duties, 
and their respective non renewal and hiring timelines establish the fourth element of Plaintiff’s 
prima facie case, at least for purposes of the summary judgment analysis. At trial, the parties may 
end up litigating whether Dr. Kim indeed replace d Chreky, but, at present, the record — viewed 
in the light most favorable to Plaintiff — would support a conclusion that he did . That means that 
the summary judgment analysis marches on.  
 For the above reasons, the Court concludes — for purposes of ruling on the pending Motion 
— that Plaintiff has established a prima facie case for age discrimination. The next step of the 
McDonnell Douglas analysis is to consider whether the employer has satisfied its modest burden 
of production to offer a legitimate, nondiscriminatory reason for the adverse employment action.  
C. Defendant’s Proffered Reason for Nonrenewal 
Defendant proffers that its decision to not renew Plaintiff’s employment contract was based 
on Plaintiff’s professional misconduct. As noted above, this is a relatively light burden to carry for 
the employer. So long as “ the defendant presents evidence of a nondiscriminatory reason, the 
burden shifts back to the plaintiff to show that the employer's proffered justification for the adverse 
action is pretextual.”  Cridland v. Kmart Corp., 929 F. Supp. 2d 377, 384 (E.D. Pa. 2013)  
(quotations omitted). The Court concludes  that UPP has easily satisfied that burden by asserting 
— and providing record evidence that would allow a factfinder to conclude  — that there were 
nondiscriminatory business reasons for the nonrenewal of the Plaintiff’s  contract, including “a 
pattern of interpersonal and clinical issues occurring in 2020.” (ECF No. 64, at 13).  
In particular, Defendant points to five key  incidents concerning Plaintif f’s workplace 
behavior, some of which Plaintiff does not dispute. First, UPP asserts that there were multiple 
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instances in which Chreky a llegedly left his shifts early. On one day, that allegedly resulted in a 
PA being left alone to care for a heart attack  patient. (ECF No. 64, at 7–8). Second, UPP asserts 
that two employees submitted complaints about Chreky being confrontational and using 
inappropriate language toward them . (ECF No. 64, at 8–9) . Third, UPP points to Chreky’s 2020 
performance review, which noted that he  “required improvement.” (ECF No. 64, at  9). Fourth, 
UPP asserts that on December 10, 2020, just two days after he was given his performance review, 
Chreky gave a cardiac patient a contraindicated drug that compromised the patient’s safety. (Id.). 
And finally, on December 19, 2020, a quality reviewer noted that a patient chart completed by  
Chreky was “one of the worst charts that he had ever seen.” (Id.).  
Defendant emphasizes that Chreky does not dispute that various staff members actu ally 
submitted complaints about him, including for his treatment of staff, leaving early, and not seeing 
certain patients. (See ECF No. 71, ¶¶ 29, 49). Chreky does dispute the factual allegations in the 
underlying complaints — he just does not dispute that the complaints were made.  Defendant 
asserted that “there is no dispute of fact that the Wrong Medication Incident and the Worst Patient 
Chart Incident had act ually occurred and that they occurred shortly after Chreky met with Dr. 
Kumar to discuss his 2020 Performance Evaluation on December 8, 2020.” ( ECF No. 74, at 4 ). 
But at Oral Argument, the Court asked Plaintiff’s Counsel to clarify what incidents Plaintiff  
disputes. Counsel stated that Plaintiff does dispute the following: the “terrible chart” (in that the 
Plaintiff disputes it was so terrible); being gone when a patient had a heart attack; that the Plaintiff 
was inaccessible; and that the Plaintiff would leave work early. Plaintiff does not  dispute 
administering the wrong medication to a patient (the “Wrong Medication Incident”).  
 Ultimately, whether Plaintiff disputes the facts  underlying these incidents is irrelevant to 
the Court’s analysis at the second prong of McDonnell Douglas. That is because the only question 
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at this point in the analysis is whether there was some legitimate reason —  any reason, other than 
unlawful discrimination — that UPP would have cause to fire Chreky. The information  in the 
record reveals that UPP’s proffered reason s for not renewing Chreky’s contract are more than 
sufficient to meet the second prong of the McDonnell Douglas analysis. A factfinder could readily 
conclude that Defendant acted well within its rights, and the law, in not renewing Chreky’s 
employment contract based on his professional behavior.  
The burden accordingly shifts back to Plaintiff to show that the reasons offered by 
Defendant are pretextual. See Jalil v. Avdel Corp. , 873 F.2d 701, 707 (3d Cir.1989) (“Summary 
judgment is inappropriate, however, if the plaintiff  . . . counters the defendant's proffered 
explanation with evidence raising a factual issue regarding the employer's true motivation for 
discharge.”). And, as is often the case, this is where the rubber meets the road in resolving the 
pending Motion.  
D. Plaintiff’s Claim of Pretext 
A plaintiff can defeat summary judgment “by either (i) discrediting the proffered reasons, 
either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that 
discrimination was more likely than not a motivating or determi native cause of the adverse 
employment action.” Fuentes, 32 F.3d at 764; see also Klastow , 515 F. App'x at 133 (invoking 
Fuentes framework for establishing pretext in ADEA cases ). Evidence of discriminatory pretext 
can be either direct or circumstantial. Direct evidence is “evidence that the decisionmakers placed 
substantial negative reliance on an illegitimate criterion in reaching their decision.”  Gutknecht v. 
SmithKline Beecham Clinical Lab'ys, Inc., 950 F. Supp. 667, 670 (E.D. Pa. 1996), aff'd, 135 F.3d 
764 (3d Cir. 1997) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, 
J., concurring)). Alternatively, a plaintiff can present circumstantial evidence consisting of 
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“inconsistencies or implausibilities that support an inference that defendant did not act for its stated 
reasons.” Id. at 671.  
A plaintiff cannot survive a summary judgment motion simply by showing that the 
employer was wrong or mistaken in making the adverse employment decision. Instead, the plaintiff 
must “present evidence contradicting the core facts put forward by the employer as the legitimate 
reason for its decision .” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)  (quotations 
omitted) (emphasis in original). As was discussed at Oral Argument, under ADEA, a plaintiff must 
prove that age was the “but -for” cause of the employer’s adverse employment decision — not 
simply a motivating facto r in the decision, as is the case under other fair employment practices 
statutes. Gross v. FBL Financial Service s, 557 U.S. 167, 176 (2009). In other words, age must 
have had a “determinative influence” on the employer’s decision. Id.  
Importantly, though, the standard for granting summary judgment is not whether the 
plaintiff has definitively proven that the but-for cause of the adverse employment action was age-
based discrimination; rather, it is whether the plaintiff has presented evidence from which a 
reasonable jury could determine that the but -for cause of the employer’s adverse employment 
action was age-based discrimination. See, e.g., Byron v. Columbia Gas of Pennsylvania, No. 22-
3408, 2023 WL 8663876, at *2 (3d Cir. Dec. 15, 2023). 
District courts must “review[] the record in its entirety” rather than “pars[e] each issue” at 
this stage of the analysis. Snooks v. Duquesne Light Co., 314 F. App'x 499, 505 (3d Cir. 2009). In 
other words, the Court must consider “ all of [the plaintiff’s] arguments together as a whole” to 
determine whether a reasonable factfinder could find that the employer did not make its decision 
based on its proffered reason. Id. Accordingly, the Court will consider the combination of evidence 
presented by Chreky that allegedly “casts sufficient doubt ” on UPP’s proffered reason for 
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nonrenewal and that could “allow[] the factfinder to infer that discrimination was more likely than 
not a motivating or determinative cause” of nonrenewal. Fuentes, 32 F.3d at 762.  
Because facts must be viewed in the light most favorable to the non- moving party at the 
summary judgment stage, the Court must accept for these purposes Plaintiff’s assertion that the 
decision not to renew Chreky’s contract was made as of November 19, 2020, when Dr. Wadas —  
one of the central decisionmakers on such matters — wrote an email stating that Chreky “is gone 
in June. We will notify him in February.” (ECF No. 70, ¶ 11–12). A jury may — but is not required 
to — conclude that the die was cast as to nonrenewal at the time of that email. And that email 
occurred before Chreky was referred to PAP (on December 1, 2020); before Chreky met with Dr. 
Kumar to receive his annual performance review (on December 8, 2020); before the Wrong 
Medication Incident (December 10, 2020); and before the Worst Patient Chart Incident (December 
19, 2020).  
i. First Method of Proving Pretext 
The first way to establish pretext “is for the plaintiff to point to evidence that would allow 
a factfinder to disbelieve the employer's reason for the adverse employment action.” Willis, 808 
F.3d at 644. 
In this Circuit, comments by decision-makers suggesting age-related animus have, in some 
instances, been sufficient to defeat summary judgment. To determine whether a statement presents 
evidence of discriminatory animus, courts are directed to assess “whether the sp eaker was a 
decisionmaker, the content of the statement and whether the statement was related to the decisional 
process.” Kargbo v. Philadelphia Corp. for Aging, 16 F. Supp. 3d 512, 524 (E.D. Pa. 2014) (citing 
Armbruster v. Unisys Corp. , 32 F.3d 768, 779 (3d Cir. 1994)). Stray remarks do not suffice, 
especially if made significantly before an employment decision is made. Id.  at 523–24. But 
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statements that are “directly related to the plaintiff's job and [are] made by a decisionmaker a few 
months before” an adverse employment decision can constitute evidence of age- related animus. 
Id. at 524.  
Some case law examples may help  to buff off this otherwise fuzzy concept. In Fakete v. 
Aetna, Inc., the Third Circuit determined that a supervisor’s statements tha t he was “looking for 
younger single people” and that the plaintiff would not “be happy [at the workplace] in the future” 
were sufficient to show that “age was more likely than not a substantial factor in [that supervisor’s] 
decision to fire [the plaintiff].” 308 F.3d 335, 339 (3d Cir. 2002). In Karbago v. Philadelphia Corp. 
for Aging, the District Court for the Eastern District of Pennsylvania held that a supervisor’s 
comments to a plaintiff — which included but were not limited to that the supervisor did not 
believe the plaintiff was “the right man for this job” because the plaintiff was “52 years old” and 
“[t]his job is normally for young college graduates” — constituted evidence of age-based animus. 
16 F. Supp. 3d at 518. Such statements were not simply stray remarks because they “were made 
by a decisionmaker in a serious context.” Id. at 525.  
In contrast, the District Court for the Eastern District of Pennsylvania determined that the 
plaintiff had “not pointed to any  contradiction in the ‘core facts’ that undergird the employer’s 
proffered reasons” for its adverse decision regarding the plaintiff when the plaintiff’s evidence 
consisted of: (i) the fact that executives included the ages of potential candidates to succeed the 
president of the corporation; (ii) the termination of a 35-year old employee after a supervisor stated 
that he was “‘not sure about [the thirty- five-year-old employee's] long-term potential; [he] needs 
more direct supervision’”; and (iii) a “list of employee names and ages [a supervisor]  crafted . . . 
before he became CEO .” McGrath v. Lumbermens Merch. Corp., 851 F. Supp. 2d 855, 861–63 
(E.D. Pa. 2012). 
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In attempting to prove pretext via the first method, Plaintiff to an extent relies on what he 
says is direct evidence of age- based animus by decision- makers as indicated by allegedly age -
related comments; the timeline of the replacement of  Chreky by Dr. Kim; and that  Defendant’s 
reasons for nonrenewal allegedly evolved over time. 
Plaintiff alleges decision-makers at UPP made three categories of age -related comments: 
(1) mortality-based comments suggesting Chreky was too old (i.e., he is “not long for our world”); 
(2) derogatory stereotypes about older workers ( i.e., “dead wood,” “will never change”); and (3) 
explicit declarations of his termination plan (i.e., “He is gone in June”). (ECF No 67, at 12). These 
comments were contemporaneous to UPP decisionmakers considering whether to renew Chreky’s 
contract. 
Chreky also claims that Defendant “engineered a false paper trail to justify replacing an 
older physician with a younger one.” ( ECF No. 67, at 17) . Plaintiff reiterated this claim during 
Oral Argument, asserting that the cluster of events that constituted cause for Chreky’s nonrenewal 
all curiously occurred within less than six months. Further, Plaintiff asserts that the timeline belies 
Defendant’s contention that the Wrong Medication Incident and the Worst Patient Chart Incident 
were integral to  the nonrenewal decision. He points to the fact that Dr. Wadas’s  emails from 
November 19, 2020, and  December 10, 2020, state that Chreky would not be renewed, but t he 
Wrong Medication Incident occurred on December 10, 2020, and Dr. Wadas found out about the 
Worst Patient Chart Incident on December 19, 2020.  
Plaintiff argues that UPP’s allegedly evolving rationales for  nonrenewal of C hreky’s 
contract would allow a factfinder to infer discriminatory intent  because “inconsistencies” and 
“contradictions” in an employer’s story are probative of pretext. Fuentes, 32 F.3d at 765. In support 
of the changing rationales claim, Plaintiff cites his testimony in which he said that he was initially 
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told he was being nonrenewed because UPP was e liminating his position due to “restructuring.” 
(ECF No. 67, at 18 ). Later, however, UPP claimed the nonrenewal was due  to Chreky’s 
misconduct. Id. Subsequently, Plaintiff asserts that UPP added two additional reasons  for the 
nonrenewal decision —  both of which were  in line with its previously- provided reasons  for 
nonrenewal on the basis of  professional misconduct. Those additional reasons included that 
Chreky left a heart attack patient in the care of a PA and that the quality of his patient chart 
documentation was poor. Id.  
Defendant points out in briefing that “[s]eemingly age -related comments, such as ‘dead 
wood,’ ‘retired in place,’ etc., are not evidence of direct discrimination without any supplemental 
evidence to suggest these terms were used to denote age.” (ECF No. 74, at 10 n.30). In support of 
this proposition, Defendant cites various cases in its briefing. See, e.g., EEOC v. Clay Indus., 955 
F.2d 936, 942 (4th Cir. 1992) ; Wado v. Xerox Corp., 991 F. Supp. 174, 202 (W.D.N.Y. 1998); 
Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 513 (3d Cir. 2004).  And in a Notice of 
Supplemental Authorities filed prior to Oral Argument, Defendant cites  several additional cases 
that considered whether the comment “dead wood” constituted evidence of age -based animus. 
(ECF No. 88).  
The Court has reviewed those cases and reiterates what it stated at Oral Argument: if the 
only evidence that Plaintiff had of alleged age -based discrimination was a couple of otherwise  
random comments about “dead wood,” it is unlikely that the case would have made it this far  as 
such comments — while perhaps improvident  — would standing alone be too attenuated from 
Chreky’s overall employment situation. But as set out below, those comments do not travel alone, 
and they are properly considered in the context of the entire record before the Court.  
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ii. Second Method of Proving Pretext 
“[T]he second way a plaintiff can establish pretext is to point to evidence that would allow 
a factfinder to believe that an invidious discriminatory reason was more likely than not a 
motivating or determinative cause of the employer's action.” Willis, 808 F.3d at  645 (quotations 
omitted). Under Willis, there are three types of evidence that suggest “an invidious discriminatory 
reason was more likely than not a motivating or deter minative cause of the employer’s action”: 
evidence that “(1) the defendant previously discriminated against the plaintiff; (2) the defendant 
discriminated against others within the plaintiff's protected class; or (3) the defendant has treated 
similarly situated, substantially younger individuals more favorably.” Id.  
Plaintiff offers evidence that relates to the second and third categories of the Willis  
framework: evidence suggesting that younger physicians were treated more favorably by the 
Defendant and evidence of discrimination against others in the Plaintiff’s protected class. 
Chreky argues that UPP’s Physician Assistance Program (“PAP”) is not applied evenly to 
younger and older physicians. PAP is “UPP’s confidential rehabilitation pathway for physicia ns 
with behavioral concerns.” (ECF No. 67, at 24) . Plaintiff alleges that older physicians are let go 
after completing PAPs but that younger physicians are retained. He provides two comparator cases 
to illustrate this point. First, h e says t hat Dr. S, age 43, used racially offensive terms in the 
workplace and went through PAP but was retained. (ECF No. 71, ¶ 76). In contrast, Plaintiff (71) 
and another older physician, Dr. C (67), were terminated after completing PAPs even though their 
behavior was allegedly less egregious than the behavior of Dr. S. (ECF No. 70, ¶¶ 75–81). 
In response to Defendant’s argument that the PAP comparison between Dr. S, Dr. C, and 
Chreky was not apt, (ECF No. 74, at 14), Plaintiff states that the Defendant misinterprets the law 
concerning the use of comparators . (ECF 80, at 3). Plaintiff asserts that relevant factors may  
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include whether the comparators had the same supervisor, were subjected to the same standards, 
and engaged in similar conduct , but whether a comparator is appropriate is ultimately case-
dependent. Durst v. City of Phila., 798 Fed. App'x 710, 712 (3d Cir. 2020); Johnson v. Kroger Co., 
319 F.3d 858, 867 (6th Cir. 2003). In this instance, Plaintiff argues that the relevant factor is that 
all three were “certified as having completed the PAP program.” (ECF No. 80, at 3). 
Plaintiff also argues that another older physician, Dr. Kumar, was supposedly “pushed out” 
around the same time as Chreky. Dr. Kumar voluntarily retired in December 2020 after nearly 20 
years at UPMC McKeesport, midway through her contract. Although her retirement was voluntary, 
Plaintiff argues that there were pressures on Dr. Kumar to leave. For instance, Plaintiff alleges that 
Dr. Kumar also received a “requires improvement” performance evaluation when UPP was trying 
to implement its plan to “remove dead wood.” The Court does not place much weight on this 
argument, though —  there is no evidence in the record, other than Plaintiff’s conclusory claim, 
that Dr. Kumar was “ pushed out” due to her age, or that anyone ever referred to her as “dead 
wood,” or that that comment was made as to any other employee. If anything, the evidence on the 
record negates Plaintiff’s argument about Dr. Kumar’s departure from duty. (ECF No. 71, ¶ 138). 
So that argument is (charitably) a stretch and is not part of the Court’s decisional calculus.  
iii. Analysis of Aggregate Evidence 
The key inquiry is whether Chreky has “present [ed] evidence contradicting the core facts 
put forward by the employer as the legitimate reason for its decision.” Kautz v. Met -Pro Corp., 
412 F.3d 463, 467 (3d Cir. 2005). Construing all the material facts in the light most favorable to 
Plaintiff as the nonmoving party and considering the record as a whole, the Court concludes that 
Plaintiff has shown that a reasonable jury could conclude that age -based animus had a 
“determinative influence” on Defendant’s decision to not renew Plaintiff’s contract. 
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A core part of Plaintiff’s argument is that the die had been cast by November 19, 2020, 
when Dr. Wadas’s sent his first email stating that Chreky would not be renewed. (ECF No. 70, ¶ 
12). The Court agrees that a jury could so conclude. As such, the Court must look at what the world 
looked like before that date to determine whether a reasonable jury could find pretext for unlawful 
age discrimination. 
The timeline recounted in Part I of this Opinion is instructive. By November 19, 2020, 
there were only a couple of things that could have caused UPP to decide not to renew Chreky’s 
contract: the allegations that Chreky was leaving work early, the Soup Incident, broader complaints 
about Chreky’s unavailability and unwillingness to see certain patients , and the confrontation 
between him and C.R. Chreky had not yet been put on a PAP , and neither the Wrong Medication 
Incident nor Worst Patient Chart Incidents had yet occu rred.9 The legitimate nondiscriminatory 
reason proffered by Defendant regarding Chreky’s nonrenewal was that UPP leadership had lost 
confidence in him due to a repeated pattern of bad behavior and poor clinical conduct. But as of 
November 19, 2020, the incidents on which Defendant relies are sufficiently contested by Chreky 
to create jury que stions as to whether they occurred at all and whether they actually motivated 
Defendant’s employment decisions as to Plaintiff . The absence of a n unchallenged record of 
misconduct may not show, definitively, that age -based animus was the force behind the 
nonrenewal decision, but it does, at least to a certain extent, “contradict[] the core facts put forward 
by the employer as the legitimate reason for its decision.” Kautz, 412 F.3d at 467. 
 
9 The Court notes that even if the jury concluded that the die was cast on November 19, 2020, the incidents that 
occurred after that date may nonetheless come before the jury at trial under the after-acquired evidence doctrine. See 
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995); Teamsters Loc. Union No. 355 v. Ensinger Penn 
Fibre, Inc., No. 24-1037, 2025 WL 1098840, at *3 (3d Cir. Apr. 14, 2025) (“The doctrine presumes the employee was 
terminated without just cause (otherwise it would not apply), and asks whether the unjustly terminated employee's 
later-discovered conduct was so wrongful that, had the employer known about it at the time of discharge, the employee 
would have been terminated anyway based on that wrongdoing.”). 
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The comments made by Dr. Wadas in November and December 2020, given their temporal 
overlap with the conversations concerning Chreky’s employment, also weigh against Defendant’s 
position here. A reasonable jury may rationally ask why the record of Chreky’s misconduct is so 
concentrated in late 2020. And while comments such as those concerning “dead wood” do not, on 
their own, constitute sufficient evidence to defeat summary judgment, Dennison v. Indiana Univ. 
of Pennsylvania, No. 22- 2649, 2023 WL 8595426, at *3 (3d Cir. Dec. 12, 2023) , there is much 
more on the recor d than simply those comments. Chreky a lso asserts that the “dead wood” 
comment is indirect  evidence of age discrimination, not direct evidence. And while the heft of 
indirect evidence may turn out to be considerably less than that of direct evidence, such comments 
are nonetheless evidence properly considered in the mix. Contra Glanzman, 391 F.3d at 513. 
Stepping back and looking at the overarching evidentiary record, although not compelled 
to do so, a rational jury could conclude that the workplace issues that had occurred by the time of 
Dr. Wadas’s first email stating that Chreky’s employment contract wo uld not be renewed either 
did not occur or were overblown excuses to remove Dr. Chreky from the workforce, and that the 
incidents that occurred after that email played essentially no role in making that decision, since the 
nonrenewal decision had already been reached. And it was in that same timeframe that the 
considerably younger Dr. Kim toured the UPMC McKeesport ER. Coupled with that are comments 
by decisionmakers that, in the larger context, could be considered ageist and the reality that a jury 
could conclude that Defendant had the much younger Dr. Kim waiting in the wings to step into 
Chreky’s role, even before Chreky was notified of his nonrenewal and before the PAP process was 
put in place to improve his performance. Put together, that jury could reasonably conclude that the 
reasons advanced by Defendant for Chreky’s nonrenewal were a subterfuge for unlawful age 
discrimination.  
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But that same rational jury might well conclude that Defendant actually and legitimately 
decided that Dr. Chreky should no l onger be treating patients in Defendant’s ER because he left 
work shifts early, abandoned patients (including one having a heart attack) by leaving their care in 
the hands of non- physician ER staff, refused to see gynecology patients, was verbally abusive 
toward colleagues, on at least one occasion administered the exactly wrong medication to a cardiac 
patient, and did not competently document medical care in the charts of patients for whom he was 
responsible, and that the Defendant’s decision- making about Dr. Chreky’s employment had 
nothing to do with his age.  
It is that dichotomy , generated by the record here , that sets this case up for trial, and for  
that reason, the Court is compelled to deny the Defendant’s Motion for Summary Judgment. (ECF 
No. 63). 
IV. Conclusion 
For the reasons stated above, the Defendant’s Motion for Summary Judgment (ECF No. 
63) is DENIED. An appropriate Order will issue. 
 
 
s/ Mark R. Hornak    
Mark R. Hornak 
United States District Judge 
 
 
 
Dated: February 23, 2026 
 
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