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Crosby v. UPMC

March 20, 2009

DEBORAH CROSBY, PLAINTIFF,
v.
UPMC, DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION

CONTI, District Judge.

In this memorandum opinion the court considers the motion for summary judgment (Docket No. 23) filed by defendant UPMC ("UPMC" or "defendant"), against all claims asserted by plaintiff Deborah Crosby ("Crosby" or "plaintiff") under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§12101 et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 951 et seq. in her complaint (Docket No. 1).*fn1 After considering the joint concise statement of material facts ("joint statement" or "JS") (Docket No. 35),*fn2 and the other submissions of the parties, and based upon the undisputed facts of record, and all reasonable inferences drawn in favor of plaintiff, defendant's motion for summary judgment will be granted.

Factual and Procedural Background

From November 14, 2005, through January 23, 2006, Crosby provided services as a home health nurse for UPMC/South Hills Health System Home Health, LP ("Home Health"). (JS ¶1.) According to UPMC, Crosby was employed by Home Health, whereas Crosby maintains that she was an employee of UPMC in its Home Health business unit. (Id.) Crosby avers that employees hired by Home Health were welcomed to the UPMC team, were paid by UPMC and required to have their pay directly deposited, and UPMC retained the power to terminate employment and refuse to rehire. (JS ¶102.) UPMC, however, maintains that those employees were at all times employed by the relevant business unit. (Id.) Home Health employs approximately 650 individuals and has its principal place of business in Seven Fields, Pennsylvania. (JS ¶2.)

During the time period relevant to this lawsuit, according to UPMC, Home Health was a joint venture, limited partnership comprised of UPMC Home Health, South Hills Health System Home Health Agency, UPMC Beaver Valley Home Health, and UPMC Horizon Home Health; Home Health provided in-home and community based medical services. (JS ¶3.) UPMC avers that the governance of Home Health is conducted by a management committee, which operates as a board of directors, but Crosby contends that during her employment Home Health's governance was performed by a board of managers consisting of representatives from UPMC and South Hills Health System. (JS ¶6.) UPMC states that Home Health is responsible for its own budget and compensation determinations, although its payroll functions are performed by UPMC. (JS ¶7.) Crosby alleges that her salary was paid by UPMC under UPMC's employer identification number, which also appeared on her W-2 form and ERISA plan summary. (Id.)

Crosby also contends that the compensation packages for Home Health employees were subject to UPMC policies. (Id.)

Although Home Health is responsible for its own budget and balance sheets and accountable for its own profits and losses, according to Crosby, its budget is subject to the approval of UPMC, its employees' wages are funded by UPMC, and Home Health is accountable to UPMC. (JS ¶8.) Home Health's personnel policies and procedures, including those pertaining to hiring, benefits, leaves of absence, discipline, and termination, were administered by its own human resources consultant, but Crosby maintains that the personnel policies followed were those of UPMC, and the human resources consultant was UPMC trained and answered to a senior vice president of UPMC. (JS ¶9.) The human resources consultant, who worked exclusively for Home Health during Crosby's employment, was Tracey Kolo ("Ms. Kolo").*fn3 (JS ¶10.) UPMC offers benefit plans to employees of all its member organizations, including Home Health, which Crosby contends are funded by and subject to the authorization of UPMC. (JS ¶11.) UPMC member organizations employ an internet-based application known as MyHUB, a centralized human resources information database. (Id.)

Crosby's supervisor at Home Health was Marylou Nemeth ("Ms. Nemeth"). (JS ¶14.) As a home health nurse, Crosby was responsible for providing in-home nursing care to patients, which required frequent lifting of up to 50 pounds and occasional lifting up to 100 pounds. (JS ¶15.) Crosby's first six weeks of employment were an orientation period consisting partly of classroom instruction from Carol Rogers, RN, ("Nurse Rogers"), and clinical instruction from Judy Neville, RN ("Nurse Neville"). (JS ¶16.) UPMC alleges that on December 19, 2005,*fn4 in her sixth week with Home Health, Crosby experienced an adverse reaction to a steroid injection in her hip; the injection was to treat bursitis pain in the joint. (JS ¶17.) Crosby called off work to Ms. Nemeth, advising that she expected to return to work the following day. (Id.)

According to UPMC, upon returning to work the next day, Crosby informed Nurse Rogers and Nurse Neville that on an occasion the previous week she had difficulty standing after sitting on the floor while administering care to a patient, and later advised Nurse Rogers and Ms. Nemeth that she was receiving treatment from an orthopedist for bilateral hip pain and that the physical demands of the home health nurse position may exceed her physical capability. (JS ¶18.) Crosby's version is that she told Nurses Rogers and Nurse Neville, as well as Ms. Nemeth, about her reaction to the steroid injection, which occurred on December 15, 2005, but that she further informed them that (1) on December 17, 2005, she had been in an automobile accident, but had no work restrictions from a physician at that time, and (2) her hip symptoms were abating, but that she was experiencing increasing back pain and radiculopathy from the accident. (Id.) Nurse Rogers suggested a reduction in hours to casual employment, but Crosby was not interested in that arrangement. (Id.) Crosby was able to work the remainder of that week, although she experienced a progressive increase in her back pain. (JS ¶20.)

Crosby called off work again on December 29, 2005,*fn5 and advised Ms. Nemeth that her physician ordered her to cease working until she could undergo an MRI sometime in the following week. (JS ¶21.) Crosby further informed Ms. Nemeth that she was seeking a position with another UPMC entity that required less physical exertion. (JS ¶22.) According to Crosby, when she informed Ms. Nemeth on December 29, 2005, about her disability and request for alternative employment, Ms. Nemeth replied "be sure you can do the next job you take." (JS ¶101.) UPMC, however, disputes that Crosby made those representations to Ms. Nemeth, or that Ms. Nemeth made the statement alleged. (Id.) UPMC avers that Crosby indicated to Ms. Nemeth at the time that she intended to return to her position as a home health nurse once she had medical clearance to do so, but Crosby denies giving any such assurance. (JS ¶22.) Crosby presented a physician's prescription to Ms. Nemeth proscribing her from engaging in any work due to neck and back strain until seen again by her physician. (JS ¶23.) Because Crosby would be off work for more than three days, Ms. Nemeth instructed Crosby to contact Ms. Kolo to request a leave of absence. (JS ¶24.) Crosby alleges that on December 29, 2005, she reported her disability to Ms. Kolo and indicated she was seeking alternative employment, although UPMC disputes that she indicated to Ms. Kolo that she was disabled or that she could return to work. (JS ¶100.)

On December 30, 2005, Crosby made a disability claim with UNUM Provident, pursuant to Ms. Kolo's instruction. (Id.) According to UPMC, Crosby, as a new employee, was not eligible for leave, but Home Health nevertheless granted her two weeks of personal leave from December 29, 2005, to January 11, 2006. (JS ¶25.) Crosby asserts that she had entered an agreement with UPMC during the recruitment process in which she was granted 120 hours of leave, and that, furthermore, she was entitled to six months of short-term disability leave. (Id.) On January 3, 2006, before the end of her approved leave, Crosby informed Ms. Nemeth that her next appointment with her physician would not be until January 12, 2006. (JS ¶26.) UPMC contends that, despite the expiration of her personal leave on January 11, 2006, Crosby's employment was continued pending an update from her physician. (JS ¶27.) Crosby disputes that her leave expired on January 11, 2006. (Id.)

On January 17, 2006, Crosby reported to Ms. Nemeth that she was unable to resume her duties as a home health nurse for an indefinite period of time, and subsequently provided a physician's prescription confirming her inability to resume those duties. (JS ¶28.) The prescription stated "[p]lease [e]xcuse [Crosby] from work until further notice." (Crosby's Deposition, Feb. 5, 2008, Ex. 14.) Crosby claims, however, that she informed Ms. Nemeth, Ms. Kolo, Jamey Jones ("Ms. Jones"), an employment specialist with UPMC Health Plan ("Health Plan"), Kurt Stillwagon ("Mr. Stillwagon"), a recruiter with Health Plan, and UNUM Provident, the third party administrator of UPMC's short-term disability plan, that she was endeavoring to secure alternative employment at the sedentary exertional level. (Id.) According to UPMC, because of Crosby's exhaustion of all available leave and her inability to offer an approximate return to work date, Crosby's employment was terminated as of January 23, 2006. (JS ¶29.)

Crosby argues that she repeatedly assured Ms. Nemeth, Ms. Jones, Mr. Stillwagon, and Ms. Kolo that she was immediately available to return to work in a sedentary capacity, that she was attempting to secure such employment, and that she had applied for such a position with another UPMC entity. (Id.) UPMC avers that Crosby supplied very little information about her medical condition other than her work restrictions, but Crosby maintains that not only did she divulge all information known to her, but also that she executed an authorization for UPMC to obtain information from her medical records and that all the information relative to her condition was available to UPMC because it was held by various entities controlled by UPMC. (JS ¶30.)

UPMC alleges Crosby did not request to return to work in a limited capacity, nor did she provide clearance from her physician indicating she was able to work in any capacity. (JS ¶31.) Crosby states that she communicated her interest in working at the sedentary level with Ms. Nemeth and reiterates that she applied for a sedentary employment position. (Id.)

During the time of Crosby's disability, UPMC offered a Return to Work Assistance Program (the "Program") for employees with physical restrictions on work activities. (JS ¶96.) Crosby contends that Ms. Kolo or Ms. Nemeth could have referred her to the Program. (JS ¶97.) The Program was the recipient of the 2007 Quality Leadership Award from the Certification of Disability Management Specialists Commission , in recognition of the Program's innovative plan to promote health and productivity of the workforce. (Ms. Kolo's Deposition, Mar. 1, 2008, Ex. 9.) UPMC contends that Crosby was not eligible for the Program through UPMC Work Partners ("Work Partners"), which UPMC identifies as Home Health's third-party administrator for worker's compensation claims, because her physician did not provide a release for her to work in any capacity. (JS ¶32.) Crosby responds by asserting that she repeatedly told Ms. Nemeth, Ms. Kolo, and Ms. Jones that she could perform sedentary work, that she was treated by UPMC physicians, and that she could have been recommended to Work Partners by Ms. Nemeth or Ms. Kolo. (Id.)

Crosby never regained the ability to meet the physical requirements of the home health nurse position, nor could any reasonable accommodation allow her to be able to perform the essential functions of that job. (JS ¶¶33-34.) On April 14, 2006, plaintiff underwent a functional capacity evaluation by UPMC St. Margaret. (JS ¶99.) That evaluation indicated that Crosby was incapable of performing the duties of a home health nurse, but that she could perform work at the sedentary exertional level. (Id.) UPMC disputes that Crosby underwent an evaluation and disputes the alleged results of any evaluation, because Crosby relies upon unsupported, unauthenticated documents. (Id.) Crosby was awarded short-term disability benefits through UNUM Provident, Home Health's disability claims administrator, beginning December 29, 2005, for twenty-six weeks. (JS ¶35.)

The short-term disability plan is funded by UPMC and names UPMC as the employer, and provides that "the employer is the final decision-maker as to the interpretation of the Plan and the payments made thereunder." (JS ¶88.) UPMC disputes the validity of the facts related to the short-term disability plan, arguing that those facts are supported by unauthenticated documents, the origin of which UPMC is unaware. (Id.) Under the short-term disability plan, all medical information acquired by UNUM Provident is the property of UPMC, although UPMC disputes this assertion. (JS ¶89.) Crosby authorized the release of medical information to UNUM Provident on January 12, 2006,*fn6 when her claim for benefits commenced. (JS ¶90.)

Health Plan offers an array of group health insurance services to UPMC and other regional employers. (JS ¶36.) UPMC, the majority shareholder of Health Plan, provides certain services to Health Plan such as human resources, legal, and information technology support. (JS ¶37.) Health Plan's principal place of business is located at One Chatham Center in Pittsburgh and it employs approximately 1,300 individuals. (JS ¶38.) Health Plan employs its own management team, which includes an executive officer of UPMC, and Health Plan is governed by a board of directors. (JS ¶¶39-40.) UPMC avows that Health Plan determines its own employee compensation packages, which are paid from Health Plan's own budget. (JS ¶41.)

Crosby asserts that Health Plan's employees' compensation packages were subject to UPMC policies. (Id.)

Health Plan is responsible for its own budget and balance sheets and accountable for its profits and losses, but Crosby declares that its budget is subject to UPMC approval and that Health Plan is accountable to UPMC. (JS ¶42.) Crosby contends that Health Plan is subject to all UPMC personnel policies, although UPMC avows that Health Plan had discretion in administering the policies. (JS ¶43.) Health Plan retains its own human resources personnel who are responsible for implementing the employment policies with respect to its employees, including those relating to hiring, leaves of absence, and termination, but Crosby maintains that Home Health's personnel policies were those of UPMC. (JS ¶44.)

Crosby contacted Ms. Kolo in late 2005 or early 2006, while still employed as a home health nurse, to explore the prospect of securing other employment with a UPMC business entity. (JS ¶45.) Ms. Kolo informed Crosby that permission from her supervisor would be required in order to be considered for employment with another UPMC entity because she had been in her position with Home Health for less than a year. (JS ¶46.) Shortly thereafter, Crosby requested information regarding applying for a staff attorney position*fn7 available at Health Plan from Ms. Jones, an employment specialist with Health Plan. (JS ¶47.) Ms. Jones informed Crosby that she must submit her application for the staff attorney position electronically through MyHUB, UPMC's system-wide human resources database, because Crosby was currently employed by another UPMC entity. (JS ¶48.) Because the staff attorney position posting on MyHUB had expired after seven days, Ms. Jones made the page visible again on MyHUB at Crosby's request. (JS ¶49 n.3.) On January 1, 2006, Crosby completed her application. (JS ¶49.) UPMC declares that Ms. Jones did not discover that Crosby had only been in her position with Home Health for a few weeks until she began to process Crosby's application. Crosby, however, contends that Ms. Jones was aware of her length of service with Home Health before re-listing the position on MyHUB, and even told Crosby that the listing could not be reopened until Ms. Nemeth provided the transfer permission. (JS ¶50.)

According to Health Plan's recruitment and selection policy, an employee is prohibited from transferring between UPMC member organizations within the first twelve months of employment, which Crosby characterizes as a UPMC policy proscribing "internal" transfers by employees with less than twelve months of continuous service at "UPMC." (JS ¶51.) Ms. Jones stated that Health Plan would routinely waive the twelve-month service requirement if written permission for the transfer was received from the applicant's supervisor. (JS ¶52.) Ms. Jones informed Crosby about the necessity of having written permission from Ms. Nemeth to be considered for the position because she did not have the requisite amount of time in her current position. (JS ¶53.) Crosby, however, attests that Ms. Jones related this information to her prior to reopening the position on MyHUB, leading Crosby to believe that Ms. Nemeth had forwarded by email the necessary permission when she saw the position posted again on MyHUB. (Id.) Crosby asserts that the posting was refreshed on MyHUB specifically for her. (Id.) UPMC counters that the purpose of posting the position, by definition, is to make the position available to a pool of applicants. (JS ¶53 n.4.)

UPMC notes that the resume submitted with Crosby's application for the legal position did not denote her current position with Home Health. (Id.) Crosby retorts that it was unnecessary to submit a resume disclosing her current position with Home Health because (1) she had discussed that situation on the phone with Ms. Jones, and (2) the application was being submitted through MyHUB, which was only accessible by internal candidates, and for that reason her position with a UPMC entity would be known to anyone reviewing the application. (JS ¶53.) Any UPMC entity receiving an application for an internal transfer was granted access to the applicant's employee file and work records, although the records were limited to work history, current salary, attendance record, performance history, corrective action history, and performance appraisals. (JS ¶85.) Crosby was made aware that it was her responsibility to ensure that permission from Ms. Nemeth was received by Health Plan in order for her application to be considered. (JS ¶54.) It is disputed whether Crosby ever requested written permission for the transfer from Ms. Nemeth, and whether, after the submission of her application on January 1, 2006, Crosby confirmed with Ms. Nemeth, Ms. Jones, or Mr. Stillwagon, that the written permission was actually received by Health Plan. (JS ¶55.)

During a phone conversation in late December 2005, Ms. Nemeth purportedly told Crosby that she had "never stood in the way of a transfer," but UPMC avers that Crosby failed to follow up with Ms. Nemeth or provide Ms. Nemeth with Ms. Jones' email address in writing. (JS ¶56.) Crosby asserts that, although she did not follow up in writing, she did phone Ms. Nemeth and forwarded Ms. Jones' email, which included Ms. Jones' email address, to Ms. Nemeth. (Id.) Ms. Jones claims that she never received the necessary written permission, which resulted in her rejection of Crosby's application as not qualified for the position in January or early February 2006. (JS ¶57.) Ms. Jones changed her job on February 5, 2005, and the decision to reject Crosby's application occurred before then. (JS ¶57 n.5.) Although Ms. Jones asserts that she rejected the application because the requisite permission was not provided, Crosby states that she was informed by Ms. Jones that the permission had been received by Health Plan. (JS ¶57.)

The staff attorney position with Health Plan was posted from November 22, 2005, until February 28, 2006. (JS ¶58.) Although interviews were conducted with some of the applicants, the position was closed without being filled. (JS ¶59.) In March 2006, the position was reopened only to the original pool of qualified candidates. (Id.) Crosby did not resubmit an application after her original application on January 1, 2006. (JS ¶60.) The final hiring decision for the staff attorney position was made by Daniel Vukmer ("Mr. Vukmer"), general counsel, chief compliance officer, and vice president of product development for Health Plan. (JS ¶61.) The successful candidate was hired on or about March 28, 2006, from the original pool of qualified applicants; Crosby admits the position was filled at the time UPMC alleged. (JS ¶62.) According to UPMC, no individual making employment decisions on behalf of Health Plan, including Ms. Jones and Mr. Vukmer, was aware of Crosby's medical condition or physical limitations. (JS ¶63.) Crosby claims, however, that she personally notified Ms. Jones and Mr. Stillwagon about her back injury and her inability to meet the physical demands of the home health nurse position. (Id.) Crosby was never apprised about the reasons why she was not considered for the staff attorney position. (JS ¶64.)

Crosby alleges total disability from performing the duties of a home health nurse and that no reasonable accommodation would make it possible to perform the essential functions of that job. (JS ¶66.) Despite being proscribed from engaging in any work activity by the physician's prescription provided to Home Health, Crosby maintains that she was able to perform sedentary work, and that Ms. Nemeth, Ms. Jones, Ms. Kolo, and Mr. Stillwagon were advised about her ability to do that kind of work. (JS ¶67.) Neither Ms. Nemeth nor Ms. Kolo made any inquiry into other work Crosby was capable of doing after her injury. (Id.) Crosby reports informing human resources representatives of both Home Health and Health Plan that she had the ability to perform sedentary employment, a claim that UPMC disputes. (JS ¶92.)

Crosby is generally able to perform the necessary functions of daily living, although she has difficulty with certain tasks, and she exercises and engages in a physical therapy routine. (See generally JS ¶¶68-75.) Crosby's physicians restricted her to lifting no more than 10 pounds and cautioned that she should neither walk nor stay stationary for a long period of time, limitations which were identified in the functional capacity evaluation conducted at the behest of UNUM Provident, UPMC's agent. (JS ¶76.) The results of the functional capacity evaluation requested by UNUM Provident to determine the extent of Crosby's disability were not received until September 2006,*fn8 although UPMC asserts that the face of the document indicates that it was not completed until October 2006. (JS ¶93.)

According to UPMC, Crosby reported to Ms. Nemeth on January 3, 2006, that her injury may have resulted from an incident which occurred while caring for a patient on or about December 15, 2005, making the injury work related. (JS ¶77.) Crosby, however, denied that she ever expressed that the injury was work related, and stated that on December 20, 2005, she informed Ms. Nemeth, Nurse Neville and Nurse Rogers, that she had experienced discomfort in her hip while rising from the floor at a patient's house, but the symptoms were subsiding. (Id.) Believing the injury may be work related, under UPMC's version of the facts, Ms. Nemeth told Crosby to submit a worker's compensation claim to Work Partners. (JS ¶78.) Crosby concedes that she was instructed to report the injury to Work Partners. (Id.) Any employee submitting a worker's compensation claim with Work Partners was required to treat with UPMC panel physicians. (JS ¶84.) On or about January 5, 2006, Crosby submitted a claim for worker's compensation which was ultimately denied, although Crosby contends that she never intended to pursue a claim. (JS ¶79.) Crosby filed her worker's compensation claim because she was told to do so by Ms. Nemeth, and ...


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