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Kaufer v. UPMC Health Plan

July 13, 2006

GERALD KAUFER, M.D., PLAINTIFF,
v.
UPMC HEALTH PLAN, INC. AND UPMC HEALTH BENEFITS, INC., DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Before the Court for consideration and disposition is the MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT, with brief in support (Document Nos. 22 & 23), PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Document No. 26), and DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Document No. 30). The issues have been fully briefed, and the matter is ripe for disposition. For the reasons which follow, the Motion will be denied.

Background

Plaintiff Gerald Kaufer, M.D. ("Plaintiff") was employed by defendants UPMC Health Plan Inc. and UPMC Health Benefits, Inc. (collectively "Defendant") beginning November 11, 1999 in the position of Medical Director. Def's Stmt. of Facts at ¶ 1. Plaintiff was initially employed under the terms of the Employment Agreement between the parties effective November 11, 1999 and, subsequently, under the terms of the Employment Agreement effective February 12, 2001. Id. Most of Plaintiff's time as a Medical Director was spent determining whether UPMC Health Plan, a health insurance company, would cover the costs of health care services provided by health care providers such as hospitals and physicians. Id. at ¶ 5.

In 2003, Sandra McAnallen ("McAnallen") was UPMC Health Plan's Vice President of Network Performance and Corporate Compliance and was responsible for the Medical Management Department. Id. at ¶ 6. Beginning in April 2003, Linda Gerheim ("Gerheim") was UPMC Health Plan's Director of Medical Management, and she reported to McAnallen in the Medical Management Department. Id. at ¶ 11. Generally speaking, Gerheim felt that Plaintiff was fairly difficult to work with, and when McAnallen asked about Plaintiff, she told McAnallen what she thought. See Def's Stmt. of Facts at ¶¶ 12-14.

On August 18, 2003, Plaintiff suffered a ruptured anterior communicating artery aneurism for which he underwent hospitalization and rehabilitation. Id. at ¶ 17. The limitations which resulted from the aneurism form the foundation of Plaintiff's claim of disability. See id. Following his hospitalization, Plaintiff was treated for his aneurism by Rebecca Garrett, M.D. ("Dr. Garrett"), a physiatrist who worked in the brain injury division of the UPMC Rehabilitation Center. Id. at ¶ 18. In October of 2003, Dr. Garrett referred Plaintiff to ReMed, a business which specializes in neurorehabilitation. Id. at ¶ 19.

A meeting was held on October 28, 2003 among Dr. Garrett, Jennifer Fandray ("Fandray"), a vocational case manager with ReMed, McAnallen, Gerheim, and Dana Malin ("Malin"), a Human Resources manager with the Health Plan. Id. at ¶ 20. At the meeting it was agreed that Plaintiff would "return to work" for on-site job therapy the week of November 3, 2003, and would work two hours per day, two days per week. Def's Stmt. of Facts at ¶ 22; Pltf's Resp. to Stmt. of Facts at ¶ 22. Plaintiff's on-site job therapy was subject to various limitations, e.g., his hours were limited and he was not permitted to take any cases or handle "live" phone calls. Pltf's Resp. to Stmt. of Facts at ¶ 22. Plaintiff was basically re-learning how to do his job.

Defendant was released to return to work by three of his treating physicians on December 22, 2003. Def's Stmt. of Facts at ¶ 52. A few minutes after he arrived at work, Plaintiff was instructed to report to Human Resources, where he was informed that his employment was terminated. Pltf's Stmt. of Facts at ¶ 23. Plaintiff was told that his employment was terminated without cause, and he was provided with a letter signed by McAnallen which indicated the same. Id. at ¶ 24.

On February 3, 2005, Plaintiff filed an Amended Complaint which alleges unlawful retaliation, disability discrimination and failure to accommodate, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951 et seq. ("PHRA"). Defendant has moved for summary judgment on all claims.

Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows: [Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993).

In federal employment discrimination cases, the familiar McDonnell Douglas*fn1 formulation regarding the appropriate burdens of proof and allocation of production of evidence govern and guide the analysis of the evidence presented on a motion for summary judgment. Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination; if this burden is met, the defendant must then articulate some legitimate, nondiscriminatory reason for the employee's treatment. McDonnell Douglas, 411 U.S. at 802. If the defendant articulates a legitimate, nondiscriminatory reason for the employee's treatment, then the plaintiff must demonstrate that the defendant's stated reasons were a pretext for discrimination. Id. at 804. The prima facie case under McDonnell Douglas "is not intended to be onerous." Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159 (1995). The prima facie case raises an inference of discrimination because the courts presume that the challenged acts, if otherwise unexplained, are "more likely than not based on the consideration of impermissible factors." Id.

Discussion

A. Retaliation - ADA and PHRA*fn2

The Amended Complaint alleges that "Defendants fired Kaufer in retaliation for requesting a reasonable accommodation under the ADA, in violation of 42 U.S.C. § 12203(a)." Amended Complaint at ¶ 13. To establish a prima facie case of retaliation under the ADA, a plaintiff must show "(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action." Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997); see also Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).*fn3

Defendants contend that summary judgment should be granted because Plaintiff did not request an accommodation, and because there is no evidence of a causal link between any protected conduct and the decision to terminate his employment. Def's Br. at 13. However, there is evidence that Plaintiff requested an accommodation through both his physician and through ReMed. Pltf's Stmt. of Facts at ¶¶ 19, 126-29, 133, 143-44; see also Trepka v. Board of Educ., 28 Fed. Appx. 455, 459 (6th Cir. 2002) ("A request for accommodation by an employee or her physician triggers the employer's statutory duty reasonably to accommodate the employee's condition."); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1284 (7th Cir. 1996) (employee who communicated through his doctor that he wanted a "less stressful" position put defendant on notice that it was to engage in the interactive process). As for evidence of a causal link, there is a close temporal relationship between Plaintiff's requests for accommodation and his termination. In fact, the evidence of record reflects that his employment was terminated during the interactive process. This fact, combined with other circumstantial evidence of causation, are sufficient to create a genuine issue of material fact. See Pltf's Br. at 19-20; Pltf's Stmt. of Facts at ¶¶ 145-88. Therefore, the Court finds that Plaintiff had demonstrated a prima facie case of unlawful retaliation.

Defendant also contends that Plaintiff cannot rebut its legitimate, nondiscriminatory reasons for his termination. Def's Br. at 14. Defendant's explanation is that "[b]ased on information regarding plaintiff's demeanor and the difficulty in working with him before he had sustained his brain injury, which was told to her by Linda Gerheim and other nurses, McAnallen decided to terminate defendants' employment agreement with plaintiff because she knew that she wanted a Medical Director who would be more interactive than plaintiff under the soon-to-be implemented new business model." Def's Br. at 10 (citing Def's Stmt. of Facts at ¶ 56). Defendant has cited ample evidence to support its position. See id. (citing Def's Stmt. of Facts at ¶¶ 14-15) (evidence that Plaintiff was negative, blunt, gruff, unprofessional, undiplomatic, and often raised his voice). The Court finds that Defendant has adduced a legitimate, nondiscriminatory reason for terminating Plaintiff's employment.

"[T]o defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons for its action, or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). The Fuentes court went on to describe the quantum of evidence required to avoid summary judgment as follows:

[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons ... was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual ...


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