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McEwen v. UPMC Shadyside Presbyterian Hospital

November 23, 2010


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


Now pending before the Court is the MOTION FOR SUMMARY JUDGMENT (Document No. 20), with brief in support, filed by Defendant UPMC Shadyside Presbyterian Hospital ("UPMC"). The parties have developed their respective positions as to the Concise Statement of Material Facts ("CSMF") (Document Nos. 22, 26). Plaintiff John McEwen has filed a brief in opposition (Document No. 27), UPMC has filed a reply brief (Document No. 28), and the motion is ripe for disposition.

Factual and Procedural Background

Plaintiff's Complaint asserts claims for failure to accommodate his disability under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12111(9), and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 962(c).

Plaintiff began working for UPMC in the early 1990s as a Radiological Technologist. From 2005-2007, McEwen worked in the Cardiac Catheterization Lab ("Cath Lab") at Shadyside Hospital. At all times relevant to this case, Plaintiff's immediate supervisor was Karen LaGard, the Lead Nurse in the Cath Lab. LaGard's supervisor was Judy Biernesser, the Director of Cardiology.

On August 25, 2005, McEwen was involved in a serious motorcycle accident resulting in the amputation of his left leg. McEwen was unable to work and was placed on medical leave. Ultimately, Biernesser extended McEwen's medical leave beyond the 26 weeks to which he was entitled pursuant to the UPMC Family Medical Leave of Absence policy. On May 23, 2006, Plaintiff presented a note from his treating physician, which stated that McEwen could return to work for a maximum of four hours per day, two days per week, and noted that McEwen's ability to stand and walk was limited. On June 5, 2006 Plaintiff returned to work as a "casual" employee in the Cath Lab as a Radiation Technologist with the noted restrictions, at his former rate of pay. McEwen performed his duties in the Cath Lab for over a year without incident.

In July 2007, McEwen requested that his hours be increased from eight (8) hours per week to twenty (20) hours per week. His objectives were: (1) to eventually get back to work full-time; and (2) to maintain UPMC health benefits, which would otherwise have been lost as a result of his wife leaving the employ of UPMC.*fn1 CSMF 27. In connection with his request for increased hours, McEwen submitted a note from his doctor, Mary Ann Miknevich, M.D., which stated: "The above [patient] may increase his current work hours to a part-time basis (20 hrs/week) with no restrictions."

At the time of McEwen's request, UPMC concluded that there was not a sufficient volume of work in the Cath Lab to support additional work hours. McEwen believes that work was available in the Cath Lab because three employees left the department and another one was working overtime, and McEwen did not observe a low volume of patients. UPMC did offer McEwen the option of working an additional 10-12 hours per week in the Interventional Radiology Lab ("Angio Lab"). McEwen was given the opportunity to "shadow" a technologist in the Angio Lab for an eight-hour shift prior to deciding whether to accept the offer. Once a technician "scrubs in" to assist with a procedure in the Angio Lab, he/she is required to stand for the entire procedure, which may take 1-2 hours, to maintain a sterile environment. As McEwen explained, "It's real hard to leave a case whenever you're in the middle of it. It's not something you can just walk away from." McEwen Deposition at 101. Although the job description for McEwen's job in the Cath Lab was similar, in actuality he was able to sit and stand alternately because two technologists took turns with procedures and one technologist always sat to shoot pictures. By contrast, there was only one technologist in the Angio Lab, who served as a "Jack of all trades" and scrubbed in for all procedures. Plaintiff asserts that the inability to sit down while in the Angio Lab is the essence of his Complaint. Response to CSMF ¶ 45.

Plaintiff asserts that he informed Delano Brown, the supervisor of the Angio Lab, that he was experiencing difficulties with the amount of standing. However, on October 26, 2007, approximately three months after McEwen began working in the Angio Lab, Dr. Miknevich issued a second note, which stated: "The above [patient] is to limit work hours to 20 hours/week." The note did not set forth any other restrictions on McEwen's activities, nor did it set any limits on the amount of standing which may be involved.

On November 14, 2007, Plaintiff provided a third note from Dr. Miknevich, which noted that McEwen had been seen that day with "worsening pain." Dr. Miknevich stated that McEwen could "perform sedentary/light duty work 4-6 hours per day only 1 to 2 days/week effective immediately." Upon receipt of this note, UPMC restricted McEwen's hours by no longer assigning him to the Angio Lab. The reduction in hours resulted in McEwen again becoming classified as a "casual" employee rather than a "part-time" employee.

LaGard testified in her deposition that Biernesser had offered McEwen the option of performing data entry on the fourth floor in the Cath Department (outside of the Cath Lab), but that McEwen was not interested, expressed concerns about sitting that long, and wanted to stay in the lab. LaGard Deposition at 47-50. Plaintiff subsequently prepared an affidavit which asserted that this data entry work was never offered to him, and that he would have accepted had it been offered. Biernesser's deposition contains no discussion about this topic and there is no affidavit/declaration from her in the record.

On December 6, 2007, Dr. Miknevich submitted another note, which explained that McEwen was experiencing chronic stump pain associated with the amputation of his left leg and that he had suffered a medial meniscus tear in his right knee. Dr. Miknevich opined that McEwen should be permitted to change positions as tolerated and that he not be required to stand or walk greater than 15 minutes at a time. December 10, 2007 was McEwen's last day of work at UPMC. He did not call to resign or submit a letter of resignation.

In December 2007, Plaintiff applied for Social Security disability benefits and represented that he was unable to perform any gainful employment due to his medical condition, with or without accommodation. Plaintiff's application was approved and he began receiving Social Security disability benefits in ...

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