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Chapman v. UPMC Health System

September 25, 2007


The opinion of the court was delivered by: Conti, District Judge


In this memorandum opinion, the court considers the motion for summary judgment (Doc. No. 18) filed by defendant UPMC Health System ("defendant" or "UPMC") with respect to all claims against UPMC asserted by plaintiff Dreama L. Chapman ("plaintiff" or "Chapman"). Plaintiff in her complaint asserted claims against UPMC for interference and retaliation under the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. §2601 et seq. ("FMLA") and for failure to accommodate and for failure to engage in good faith in the interactive process under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. ("Rehab Act"). After considering the joint statement of material facts and the other submissions of the parties, and drawing all reasonable inferences in favor of plaintiff, the nonmoving party, the court will grant summary judgment in favor of defendant with respect to plaintiff's interference claim under the FMLA and plaintiff's Rehab Act claims. With respect to plaintiff's retaliation claim under the FMLA, defendant's motion for summary judgment will be denied.

Factual Background

Plaintiff's employment with UPMC

Plaintiff began her employment with UPMC in December 2002 at UPMC's Braddock Hospital Rehabilitation Psychiatric Emergency Room ("Braddock Hospital"). When plaintiff began her employment with UPMC, she received a copy of UPMC's employee handbook containing its policies and procedures. (Deposition of Dreama Chapman ("Chapman Dep.") at 21-22; Chapman Dep. Ex. 8.) The employee handbook provides, in part, that UPMC has a FMLA policy for its employees. (Chapman Dep. Ex.34.) In order to apply for FMLA leave, an employee must have certain paperwork completed by the employee, the employee's manager or supervisor, the employee's physician and the HR department. (Chapman Dep. Ex. 34.) Intermittent FMLA leave allows an employee to be excused from work for one to two weeks per month as needed by the employee. (Deposition of Shannon Dembowski ("Dembowski Dep.") at 12-13.) The maximum number of weeks that any employee may be excused from work pursuant to an FMLA leave is twelve weeks per year. (Chapman Dep. Ex. 34; Dembowski Dep. at 13.) Once intermittent leave has been approved for an employee, the employee must do two things to take intermittent FMLA leave. (Dembowski Dep. 12-13.) First, the employee must notify her manager that she needs to call off sick. (Id. at 13.) Next, the employee must notify her manager that the day should be recorded FMLA leave. (Id. at 13.)

UPMC's employee handbook also provides that UPMC intends to provide a workplace free of illicit drugs. (Chapman Dep. at 27; Chapman Dep. Ex. 10.) The employee handbook further provides that any employee who tests positive for illicit drug use will be confronted by superiors, tested for the presence of drugs or alcohol, and sent to treatment. (Chapman Dep. at 29.) In some instances, UPMC will enter into Last Chance Agreements with employees. Last Chance Agreements require that the subject employee submit to random drug and alcohol testing and treatment for a minimum of three years. (Chapman Dep. Ex. 12.) UPMC enters into Last Chance Agreements in order to preserve the employee's status with UPMC while encouraging the employee to receive treatment for drug and alcohol abuse. (Id.)

In January 2004, plaintiff requested and received a transfer from Braddock Hospital to UPMC Living Sober Rehabilitation ("Living Sober"). (Defendant's Joint Statement of Material Facts ("J.S.") Doc. No. 38 at 2, ¶ 3, Chapman Dep. at 10-12, 14.) Living Sober is a residential drug and alcohol treatment program. (Chapman Dep. at 49.) Plaintiff's first day of employment with Living Sober was June 13, 2004 and she served as an outpatient nurse clinician. While employed at Living Sober, plaintiff's supervisors were Curt Bell ("Bell"), RN clinical supervisor, Pam Bucci ("Bucci"), clinical supervisor, and Catherine Coleman ("Coleman"), director. (Id. at 12-13.)

Plaintiff repeatedly complained about her work schedule to her supervisors. (Id. at 62-63.) Plaintiff believed that the scheduling was starting to have negative physical effects on her. (Id. at 15-16, 62-63.) For example, plaintiff often had difficulty catching her breath during her employment at Living Sober. (Id. at 49.) Plaintiff also had difficulty talking on the phone because she would occasionally lose her voice as a result of a prior bout with throat cancer. (Id. at 49.) Plaintiff, however, was able to perform each of her job functions while employed at Living Sober. (Id. at 51.)

Plaintiff's Medical Conditions

Plaintiff suffers from a number of medical conditions including: throat cancer (recovery), a weakened immune system, chronic obstructive pulmonary disease, asthma, chronic back pain, bulging disc, hypothyroid, hepatitis C, possibly sarcoidosis, cirrhosis of the liver, arthritis, depression and bipolar disorder. (J.S. at 1, ¶ 1; id. at 24, ¶ 37; Chapman Dep. at 44-45, 53, 55.) As a result of her chronic back pain and bulging disc, plaintiff cannot lift more than 15-20 pounds, has difficulty bending and cannot stoop. (Chapman Dep. at 54.) Plaintiff's medical conditions impair her ability to walk, sleep, recreate, work, stand, cook and do laundry. (Id. at 59.) Plaintiff has joint pain when she stands or walks. (Id. at 59-60.) As a result, plaintiff has difficulty walking both long and short distances on a daily basis. (Id. at 60.) Plaintiff has difficulty sitting for long periods of time. (Id. at 61.) Plaintiff, however, does not have any difficulty thinking or concentrating, but suffers more from the physical side effects of her medical conditions. (Id. at 61.)

While employed at Living Sober, plaintiff informed supervisors that she needed a schedule change as a result of her physical ailments. (Id. at 62-63, 66.) In the summer of 2004, plaintiff informed Bell that she suffered from a number of medical conditions but did not detail the medical conditions for Bell. (Id. at 67-68.) She further informed Bell that she could not continue working the schedule that she was currently working because of her physical ailments. (Id. at 67.) Bell advised plaintiff that she had to work out the scheduling problems with the other nurses. (Id.) Plaintiff repeatedly requested schedule changes. (Id. at 62.) Plaintiff requested schedule changes from Bell four to five times during 2004 and also informed Coleman that she was unhappy with her schedule. (Id. at 64, 69-70.) Plaintiff did not inform Coleman that she needed a different schedule because of her medical conditions, but instead referred to a general dissatisfaction with the scheduling. (Id. at 69-70.) Plaintiff did advise Coleman that she was physically feeling worse. (Id. at 71.)

In the fall of 2004, Bell informed plaintiff that another nurse was being hired and the new nurse would relieve some of the scheduling problems from which plaintiff was currently suffering. (Id. at 67.) When the new nurse was hired, the scheduling problems as they related to plaintiff were not corrected. (Id. at 70, 72.)

Plaintiff was hospitalized on February 7-8, 2005.*fn1 (Id. at 73.) After plaintiff's hospitalization, plaintiff began calling off work more frequently due to various illnesses. (Id. at 73-74.) Plaintiff notified Coleman that she was afraid that she would lose her job as a result of her continued absences. (Id.) Coleman advised plaintiff to apply for FMLA leave. In response to Coleman's advice, plaintiff contacted Dembowski in the HR department, to obtain the paperwork related to FMLA leave. (Id. at 73-74.)

On April 4, 2005, plaintiff requested FMLA leave. (Id. at 62-63; Chapman Dep. Ex. 19.) In plaintiff's application for FMLA leave, plaintiff's physician, Dr. Philip J. Cichon ("Cichon"), indicated that plaintiff had a

Chronic Condition Requiring Treatment A chronic condition which:

(1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity, (e.g., asthma, diabetes, epilepsy, etc.).

(Chapman Dep. Ex. 20 (footnote omitted).) Cichon indicated that plaintiff suffered from medical conditions including cirrhosis, hepatitis C and laryngeal cancer. (Id.) Cichon further advised UPMC that plaintiff needed to work intermittently for one to two week intervals. (Id.) The application specifically requested information about whether plaintiff was able to perform any work or all of the essential functions of her position. (Id.) Cichon informed UPMC that plaintiff was able to work and perform all the essential functions of her job. (Id.) (answer to question number 7(b).)

Dembowski informed plaintiff that plaintiff was eligible for FMLA leave. (Chapman Dep. at 108; Dembowski Dep. at 12.) By email dated April 15, 2005, plaintiff informed Dembowski that "when I came in HR I was so sure that my problem had worsened that week and I was very anxious. . . fortunately it cleared up in 3-4 days. . . ." (Chapman Dep. Ex.B.) In an April 26, 2005 email exchange with Dembowski, plaintiff indicated that she would "go long periods [of time] without being ill." (Chapman Dep. Ex D.) Plaintiff also informed Dembowski that she had been admitted to the hospital in February 2005, but had not been in the hospital since 2002. (Id.) After plaintiff submitted her completed FMLA leave paperwork, UPMC approved plaintiff for twelve weeks of intermittent family medical leave. (Chapman Dep. at 73, 76; Chapman Dep. Ex.E)

In May 2005, plaintiff requested a transfer from Living Sober to UPMC WPIC, Western Psych Institute ("Western Psych") because she believed her work schedule was overwhelming. (Id. at 11,15-16.) Plaintiff's last day of employment at Living Sober was June 9, 2005. (Id. at 11, 14.) On June 13, 2005, plaintiff began her employment at Western Psych. (Id. at 9.)

At Western Psych, plaintiff was a dual diagnosis nurse clinician. (Id.) As a dual diagnosis nurse clinician, plaintiff was responsible for doing admissions, discharges, medication administration, psychiatric assessments, monitoring and constant observation of patients. (Id. At 10.) Trish Thornton ("Thornton"), clinical supervisor, was plaintiff's supervisor. (Id. at 9.) When plaintiff transferred to Western Psyche, she did not inform Thornton that she had been previously approved for FMLA leave. Plaintiff did not tell Thornton about her FMLA leave until her last day of employment, June 20, 2005. (Id. at 9, 27, 79-80.)

Plaintiff's Recollection about the Events of June 20-21, 2005

On Monday, June 20, 2005, plaintiff was working in her position as a dual diagnosis nurse clinician at Western Psyche. (Id. at 91.) Plaintiff was suffering from increased swelling throughout her torso. (Id.) Throughout the evening of June 20, 2005, plaintiff was increasingly ill. Because plaintiff could not compose herself for work, at 5:00 a.m on June 21, 2005, plaintiff contacted the dual diagnosis unit and informed the night nurse, Lois Blanyer ("Blanyer"), that plaintiff would not report to work. Plaintiff told Blanyer that she was vomiting, short of breath and was still suffering from swelling. Plaintiff asked Blanyer to deliver this message to the appropriate parties. Plaintiff did not tell Blanyer that she was taking FMLA leave. (Id. at 93.)

At approximately 8:30 a.m. or 9:00 a.m., plaintiff contacted Dembowski and advised her that she was calling off for the week. Plaintiff informed Dembowski that she had a doctor's appointment the following Monday, June 27, 2005, and that she would either see the doctor at the scheduled appointment or that she would be in the hospital. Plaintiff informed Dembowski that she wanted to take the week off as intermittent FMLA leave. (Id. at 94.) Plaintiff did not know if Dembowski was aware that plaintiff had recently transferred from Living Sober to Western Psyche. (Id. at 94-95.)

At 5:30 p.m., on the evening of June 21, 2005, Thornton called plaintiff. Thornton asked plaintiff when she planned on returning to work. (Id. at 96.) Plaintiff informed Thornton that plaintiff had a doctor's appointment on the following Monday, June 27, 2005, and that she could not return to work until after she saw her doctor. Plaintiff also informed Thornton that she had previously called HR to request intermittent family medical leave. (Id. at 96.) Plaintiff had not previously informed Thornton that she was approved for FMLA leave. (Id. at 79-80.) Thornton informed plaintiff that she needed a resignation from plaintiff. (Id. at 96.) Plaintiff became increasingly upset and stated that she could not quit her job because she was having a number of problems. (Id. at 96.) The telephone conversation between Thornton and plaintiff escalated with Thornton asking plaintiff for her resignation and plaintiff becoming "hysterical." (Id. at 96-98.) The phone conversation ended abruptly when plaintiff hung up the phone. (Id. at 98.)

Leslie Owens, one of plaintiff's friends, was with plaintiff when plaintiff received the telephone call from Thornton at or around 5:00 pm. (Id. at 43-44, 98.) Plaintiff's brother was also with plaintiff when she received the telephone call from Thornton and witnessed plaintiff's end of the conversation. (Id. at 99.)

The following day, June 22, 2005, plaintiff contacted UPMC's employee assistance program regarding her telephone conversation with Thornton. Plaintiff spoke to Flo Van Cara ("Van Cara") during her call with the employee assistance program and asked Van Cara to contact the HR department regarding her telephone conversation with Thornton. On Friday, June 24, 2005, plaintiff contacted Judith Kurzdorfer ("Kurzdofer"), the coordinator of nursing recruitment, to request information about whether her PTO or FMLA leave had been applied to her paycheck. (Id. at 99-100.) Kurzdorfer advised plaintiff that plaintiff had previously resigned to Thornton earlier that week. (Id.) Plaintiff's last day of employment with UPMC was June 20, 2005. (Id. at 9, 27.) On June 27, 2005, Cichon released plaintiff to return to work. (Id. at 102.)

Thornton's Recollection about the June 21, 2005 Events

Thornton recalls that plaintiff did not request that she be permitted to work part-time during either of her two telephone conversations with plaintiff on June 21, 2005. (Declaration of Patricia Thornton ¶ 5.) Thornton also indicated that the individual that replaced plaintiff works full-time. (Id. ¶ 6.) Finally, Thornton indicated that plaintiff did not ask for FMLA leave during her June 21, 2005 telephone conversations with plaintiff and Thornton had no knowledge regarding plaintiff's pre-approved FMLA leave. (Id. ¶ 8.)

Kurzdorfer's Recollection about the June 21, 2005 Events

Kurzdorfer recalls that she spoke with Thornton sometime between 1:00 p.m. and 3:00 p.m. on June 21, 2005 regarding plaintiff's alleged resignation. (Deposition of Judith Kurzdorfer ("Kurzdorfer Dep.") at 7.) After Kurzdorfer received this information from Thornton, Kurzdorfer stated that she contacted plaintiff on the afternoon of June 21, 2005. (Id. at 8.) Telephone records, however, are devoid of any indication that Kurzdorfer made this telephone call to plaintiff. (Pl.'s Exs. 9, 10.) Kurzdorfer indicated that she informed plaintiff that she was accepting her verbal resignation. (Kurzdorfer Dep. at 9.) Plaintiff did not confirm that she was resigning from her employment during this conversation. (Id. at 24.) Shortly after Kurzdorfer made this alleged telephone call to plaintiff, plaintiff contacted Kurzdorfer and informed Kurzdorfer that she had not resigned from her employment. (Id. at 10.) Plaintiff further informed Kurzdorfer that she did not know what she was saying when she resigned and that she was physically ill. (Id. at 12.) After plaintiff called Kurzdorfer, Kurzdorfer informed Kelly Reale, supervisor, and Leigh Sevick ("Sevick"), that plaintiff had resigned. (Id. at 10-11.) Some time later, Kurzdorfer spoke to Thornton to confirm that plaintiff's resignation was complete. (Id. at 32.)

At the time Kurzdorfer spoke to plaintiff, Kurzdorfer was not aware that plaintiff had previously been approved for FMLA leave. (Id. at 13.) Kurzdorfer recalls that after she spoke with plaintiff the second time, Dembowski informed Kurzdorfer that plaintiff had requested FMLA leave. (Id. at 17.) Kurzdorfer then informed Dembowski that plaintiff had resigned. (Id. at 17.) Kurzdorfer did not believe that Dembowski knew anything about plaintiff's resignation prior to this exchange. (Id.)

Dembowski's Recollection about the June 21, 2005 Events

Dembowski does not remember speaking to plaintiff until sometime after 1:00 p.m. on June 21, 2005. (Dembowski Dep. at 36-37.) Dembowski recalls plaintiff contacting her and asking about her FMLA leave. Dembowski recalls that Kurzdorfer informed Dembowski that plaintiff had resigned sometime before 1:00 p.m on the day in question. (Id. at 30-31.) Upon receiving notification that plaintiff had resigned, Dembowski recorded a notation on a "LOA Information Collection Form." (Dembowski Dep. Ex. 2.) The notation indicated that plaintiff's resignation was communicated to Dembowski on June 21, 2005 at 1:00 p.m. (Id.) Dembowski's notation on the document was made at the time she received the information from Kurzdorfer. (Dembowski Dep. at 38.) Dembowski was not sure whether plaintiff communicated her resignation to either Kurzdorfer or Thornton. (Id. at 30-31.) Dembowski, therefore, informed plaintiff that she understood that plaintiff had previously resigned from her position. (Id. at 13-14.)

Drug Diversion

During plaintiff's employment at Living Sober, plaintiff became aware that there was drug diversion occurring in the unit. (Chapman Dep. at 80.) Drug diversion occurs when employees are unable to locate or account for patient medications. (Id.) Plaintiff first became aware of the drug diversion issue when she was working night shifts at Living Sober. (Id.) During her shifts, plaintiff was responsible for counting and reordering medications. (Id.) On numerous occasions, medications were missing and plaintiff could not locate the drugs. (Id.) When plaintiff suspected drug diversion, she reported it to her supervisor, Bell. (Id. at 81.) Bucci later reported the drug diversion to HR because no investigation occurred after plaintiff reported the issue to Bell. (Id.) Specifically, Bucci reported the matter to Sevick. (Id.)

In response to Bucci's report, Sevick began an investigation. (Id. at 81.) During her investigation, Sevick interviewed and questioned all the nurses who worked in the effected unit. (Id. at 81-82.) The nurses were asked to provide a urine specimen in accordance with the investigation. (Id. at 85.) On June 9, 2005, Sevick interviewed plaintiff and plaintiff provided Sevick with a written statement regarding the drug diversion. (Id. at 82.) Plaintiff provided a urine specimen on the same day. (Id. at 87.)

On June 20, 2005, Dr. Jay Harper, Medical Director for Employee Health Services ("Harper"), contacted plaintiff and informed her that her urine specimen tested positive for oxycodene. (Id. at 87-88; Deposition of Dr. Jay Harper ("Harper Dep.") at 14, 25.) Plaintiff provided Harper with a list of the medications that she had previously been prescribed.

(Chapman Dep. at 87-88.) Plaintiff denied ever taking oxycodene. (Id.) Harper reviewed the list of medications provided by plaintiff and determined that those prescription drugs should not have caused a positive result for oxycodene. (Harper Dep. at 14.) On June 21, 2005, Harper notified Sevick by way of telephone and email that plaintiff tested positive for oxycodene. (Id. at 14-16, 25-26.) Harper's email was sent at 2:42 p.m. on June 21, 2005. (Harper Dep. Ex. 1.)

Not every employee who tests positive for drug usage is terminated from employment with UPMC. (J.S. at 26, ΒΆ 71; Kurzdorfer Dep. at 22-23; Harper Dep. at 8.) In some cases, those employees who have tested positive for drug usage either enter treatment or enter into an agreement with UPMC ...

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