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Cicchiello v. Beard

July 21, 2010


The opinion of the court was delivered by: Judge Munley


Before the court for disposition is the defendants' motion for summary judgment (Doc. 48). Having been fully briefed, the matter is ripe for disposition.


This is a retaliation and wrongful termination action concerning the January 2007 termination of Plaintiff Joan Cicchiello ("Plaintiff") from her position as a registered nurse at the State Correctional Institution at Frackville, Pennsylvania ("SCI-Frackville"). All defendants ("Defendants") are current or retired employees of the Pennsylvania Department of Corrections ("DOC"). (Defs.' Statement of Material Facts ¶ 2 (Doc. 49)).*fn1

Defendants include Jeffrey A. Beard, Secretary of the DOC; Robert D. Shannon, Superintendent of SCI-Frackville until his retirement in September 2009; Thomas Kowalsky, Personnel Director of SCI-Frackville; Marirosa Lamas, Deputy Superintendent for Centralized Services of SCI- Frackville from August 2005 to September 2006; Michael Wenerowicz, former Deputy Superintendent for Centralized Services and current Superintendent of SCI-Frackville; and Donna Jones, Nursing Supervisor and Plaintiff's immediate supervisor during the time period prior to Plaintiff's termination. (Id. ¶¶ 3-8, 12).

Prior to her termination on January 16, 2007, Plaintiff had been employed by the DOC since 1994, when she began working at the State Correctional Institution at Muncy, Pennsylvania, as a registered nurse. (Id. ¶¶ 9, 58). In July 2004, Plaintiff transferred to a registered nurse position at SCI-Frackville. (Id. ¶ 10). There, Plaintiff was responsible for providing medical care to inmates, including "dispensing medication . . . , making assessments, taking off orders, making walking visits and working in clinics." (Id. ¶ 11). In addition, Plaintiff believed she was required to report nursing violations as part of both her work responsibilities and her nurse licensing requirements. (Id. ¶¶ 14, 15).

On May 19, 2006, Plaintiff attended a labor/management meeting where she raised the issue that nurses at SCI-Frackville were dispensing psychotropic medications with expired prescriptions in violation of DOC policy and nurse licensing requirements. (Id. ¶¶ 17, 32). Following the meeting, Defendant Shannon instructed Defendant Lamas and Defendant Jones to investigate the problem. (Id. ¶ 33). After confirming that psychotropic medications were being dispensed with expired orders, a new policy was instituted. (Id. ¶¶ 34-35). The new policy required nurses to obtain a telephone order from the on-call psychiatrist until the inmate could be seen by a psychiatrist in-house. (Id. ¶ 35).

In July 2006, the Mental Health Unit discovered that nursing staff were violating the new policy by again dispensing medications with expired orders. (Id. ¶ 36). The parties dispute whether Defendant Jones was aware of such violations prior to July 2006. (Id. ¶ 37; Pl.'s Statement of Material Facts ¶ 37 (Doc. 52)).

On October 13, 2006, Plaintiff examined an inmate ("Inmate Duffy") at sick call. (Id. ¶ 44). The following day, she ordered medication for the inmate. (Id.) The parties dispute whether Plaintiff had the required doctor's authorization prior to ordering the medication. (Id.; Doc. 52 ¶ 45). Plaintiff maintains she ordered the medication with the verbal authorization of Nurse Practitioner Ron Slivka. (Doc. 52 ¶ 44). On October 23, 2006, Plaintiff was directed to report to a fact-finding investigation regarding the incident. (Doc. 49 ¶ 43; Doc. 49-9 (Ex. M)). The investigation took place on October 27, 2006. (Doc. 49-9 (Ex. M)).

On October 29 and 30, 2006, Plaintiff filed two separate written complaints using DC-121 forms against Tracy Frantz ("Frantz"), a licensed practical nurse subordinate to Plaintiff. (Doc. 49 ¶ 18; Doc. 49-8 (Ex. H, Ex. I)). The first complaint alleged that Frantz repackaged medications without a pharmacology license in violation of DOC policy and nurse licensing requirements, and the second alleged that Frantz came to work "booze sick." (Doc. 49 ¶¶ 18, 19, 22).

On November 1, 2006, Eileen Motuk ("Motuk") filed a Commonwealth Employee Witness Statement in which she reported inappropriate comments made by Plaintiff. (Id. ¶ 49; Doc. 49-10 (Ex. Q)). Motuk reported that Plaintiff said "she was conversing with RN Pavlock that morning and [said that Pavlock] is part of this and someday [Pavlock will] be paying [Plaintiff] rent for her house because she'll lose it." (Doc. 49-10 (Ex. Q)). Motuk also reported that Plaintiff "stated that her boss in Muncy. . . had an aneurysm and died from all the stress she put her through." (Id.) Plaintiff denies she made such comments. (Doc. 52 ¶ 49). Plaintiff alleges that Registered Nurse Joan Pavlock ("Pavlock") was harassing her. (Id. ¶¶ 48-49). Plaintiff maintains she told Pavlock, "I've gone to see my lawyer. Please stop this harrassment in the workplace. You need to stop." (Id. ¶ 48). In addition, Plaintiff says she told Pavlock that if the harrassment did not stop, Plaintiff would file a lawsuit of harassment against her. (Id. ¶ 49).

On November 2, 2006, Defendant Jones and Defendant Wenerowicz spoke with Plaintiff and notified her that "some of her inappropriate comments were causing a hostile work environment in the Medical area . . . ." (Doc. 49 ¶ 47; Doc. 49-9 (Ex. O)). Defendant Wenerowicz reported he told Plaintiff "that if her behavior continued, she would be held accountable for her actions. At that time, she stated she understood her job description/duties and would not go outside her assigned duties. She would not make anymore [sic] inappropriate comments to staff." (Doc. 49-9 (Ex. O)). Plaintiff denies she made inappropriate comments to staff. (Doc. 52 ¶ 47).

On November 6, 2006, Correctional Officer Eugene McCormick ("McCormick") filed a Commonwealth Employee Witness Statement in which he reported inappropriate comments made by Plaintiff. (Doc. 49 ¶ 48; Doc 49-9 (Ex. P)). McCormick reported that Plaintiff stated "she would own RN Pavlock's house if she keeps 'messing' with [Plaintiff] and that goes for [Defendant Wenerowicz] also." (Doc. 49-9 (Ex. P)). Plaintiff denies making such comments to McCormick. (Doc. 52 ¶ 48). That same day, Frantz filed a DC-121 form reporting that Plaintiff was spreading rumors about Frantz being "drunk at work" and demanding disciplinary action. (Doc. 49 ¶ 50; Doc. 49-10 (Ex. R)). Plaintiff denies she was spreading rumors, maintaining she "was merely stating the truth." (Doc. 52 ¶ 50).

By a letter dated November 7, 2006, Plaintiff was suspended from her position pending a fact-finding. (Doc. 49 ¶ 51). Defendants allege Plaintiff was suspended "[a]s a result of the staff complaints and the ongoing investigation into dispensing medication without a valid order" (id.); however, Plaintiff maintains she was suspended in retaliation for her complaints about Frantz and her reports of illegal packaging and dispensing of medications. (Doc. 49 ¶ 51; Doc. 52 ¶¶ 51, 94). On November 21, 2006, a fact-finding was held to determine whether "any violations of Policy and/or Code of Ethics ha[d] occurred." (Doc. 49 ¶ 52; Doc. 49-10 (Ex. T)). On December 4, 2006, Plaintiff was notified that a Pre-Disciplinary Conference ("PDC") had been scheduled in order to give Plaintiff an opportunity to respond to the following charges:

1. Conduct Unbecoming of a Department of Corrections Registered Nurse/Poor work performance/negligent behavior; in that [Plaintiff];

A. Diagnosed, prescribed and dispensed medication to FZ-6129 Inmate Duffy On October 14, 2006 without a valid physician's order.

2. Misconduct in the workplace/Intimidation/ Threatening remarks in the Workplace; in that [Plaintiff];

A. Made threatening statements indicating [Plaintiff] would own RN Pavlock's and Deputy Wenerowicz's houses if they kept messing with [Plaintiff];

B. Intimidated LPN Tracy Frantz by filing inaccurate DC-121's on 10/29/06 and again on 10/30/06 which insinuated that she was under the influence of alcohol and also not practicing proper nursing procedures according to the Licensed Practical Nurse job duties. These allegations were also not reported ...

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