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Steven M. Linhart v. Zitelli & Brodland

October 19, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer



In this employment discrimination action, Plaintiff Steven M. Linhart ("Plaintiff") alleges that he was terminated by Defendant Zitelli & Brodland, P.C. ("Defendant") in violation of the Americans With Disabilities Act, of 1990, as amended, 42 U.S.C. § 12101, et seq. ("ADA"). (Docket No. 1). Plaintiff claims that he was terminated from his position as a histology*fn1 technician ("histotech") shortly after disclosing to his employer that he was diagnosed with avascular necrosis*fn2 and was in need of hip replacement surgery. (Id.). Presently before the Court is Defendant‟s motion for summary judgment. (Docket No. 26). Defendant maintains that Plaintiff was discharged from his brief stint as a histotech for performance reasons and argues that he has failed to present any evidence supporting his claim of discrimination, and, alternatively, that Plaintiff is not entitled to back pay or front pay as to his discrimination claim if it survives summary judgment. (Id.). Upon consideration of the parties‟ submissions, and for the following reasons, Defendant‟s motion for summary judgment [26] is DENIED.


The following facts were compiled from the parties‟ submissions pursuant to Local Rule 56. Unless otherwise specified, the facts of record are uncontested. Viewed in the light most favorable to Plaintiff, they are as follows.

A.Plaintiff's Educational Background and Prior Work History

Plaintiff is both a high school and college graduate as he earned a Bachelor of Arts degree in History in 2001. (Docket No. 34). He worked as an emergency medical technician for Elizabeth Township from 2001 to June 30, 2008. (Id.; Docket No. 31-2 at ¶¶ 1, 8). He attained the position of "Captain" with Elizabeth Township but sought other work because that position did not present him with any opportunity for further advancement. (Id.; Docket No. 34). As a consequence, he applied for a position as a histotech with Defendant in June of 2008. (Id.).

B.Zitelli & Brodland

Defendant is a medical practice established in 1987 by Dr. John A. Zitelli ("Zitelli") and Dr. David G. Brodland ("Brodland"). (Docket Nos. 29 at ¶¶ 1, 9; 32 at 1). Both Zitelli and Brodland are dermatologic surgeons whose practices focus on skin cancer surgery, particularly advanced treatment procedures such as Mohs surgery.*fn3 (Id.). Their medical practice "functions as a Mohs surgery training center and is accredited by the American Council for Graduate Medical Education." (Docket Nos. 29 at ¶ 1; 32 at 1). Defendant operates out of two Pittsburgh-based facilities, i.e., the Shadyside Medical Building and the Jefferson Regional Medical Center. (Docket Nos. 29 at ¶ 10; 32 at 1).

Defendant employs histotechs at these locations to assist the surgeons with Mohs surgery and other procedures. (Docket Nos. 29 at ¶ 4; 32 at 1). Eric Stein ("Stein") was hired by Defendant as a histotech in May of 1997. (Docket Nos. 29 at ¶ 12; 32 at 1). Stein has been Defendant‟s Chief Histotech throughout the pendency of this lawsuit. (Docket Nos. 29 at ¶ 11; 32 at 1). In this role, Stein is responsible for recommending the hiring and retention of laboratory staff, including histotechs and for the training and development of these employees. (Id.). Thus, Stein was Plaintiff‟s immediate supervisor. (Docket Nos. 29 at ¶ 16; 32 at 1).

As noted, Mohs surgery is an advanced skin cancer treatment procedure. (Docket Nos. 29 at ¶ 2; 32 at 1). In this procedure, the surgeon excises the visible tumor from a patient, by removing layers of skin tissue which are then color coded and mapped. (Docket Nos. 29 at ¶¶ 2-3; 32 at 1). After removal, the tissue is provided to the histotech, whose role is to take the tissue, freeze it in a cryostat, mount it in the cryostat, accurately cut very thin sections in the tissue, mount it on a slide and stain it so that the surgeon is able to read the slide under a microscope and determine if cancerous cells remain. (Docket Nos. 29 at ¶¶ 3-5; 32 at 1). This procedure "relies on the accuracy of a microscope to trace and ensure removal of skin cancer down to its roots. This technique allows the surgeon to see beyond the visible disease, and to precisely identify and remove the entire tumor, leaving healthy tissue unharmed." (Docket Nos. 29 at ¶ 2; 32 at 1). The entire process takes approximately one day to be completed. (Docket Nos. 29 at ¶ 8; 32 at 1).

The surgeon therefore relies on the accuracy of the histotech‟s cuts of the tissue and preparation of the slides. (Docket Nos. 29 at ¶ 6; 32 at 1). If the tissue is incorrectly placed on the slides, the surgeon would examine the wrong side of the tissue. (Id.). Or, if there are errors in the cuts made by the histotech, that portion of tissue becomes unusable, requiring the surgeon to restart the entire process, including performing further surgery to excise additional layers of the patient‟s skin. (Id.).

C.Plaintiff's Employment at Zitelli & Brodland

As noted, Plaintiff submitted a formal application to Defendant wherein he disclosed that he had "back issues" but no other medical issues. (Docket Nos. 34; 29 at ¶ 13; 32 at 1). Plaintiff was also interviewed by Stein and Zitelli and questioned about his "back issues." (Docket Nos. 29 at ¶¶ 13-15; 32 at 1). In response, Plaintiff advised that his "back issues" would not limit his ability to perform the duties required in the histotech position. (Id.). Plaintiff was hired on June 30, 2008 and he started work immediately. (Docket Nos. 29 at ¶ 15; 32 at 1).

The parties have presented widely divergent evidence regarding Plaintiff‟s performance as a histotech for Defendant. (Docket Nos. 29 at ¶¶ 17-32; 32 at § C, p. 1-4). The parties agree that it is very difficult for a histotech to become proficient in cutting tissue and preparing slides as required in the Mohs procedure. (Docket No. 31-4, Zitelli Depo, at 9, 17). Plaintiff states that he spent the first two weeks of his job simply observing other histotechs cut tissue and prepare slides. (Docket No. 31-2 at ¶ 12). He then trained by cutting tissue on practice slides for some time. (Id. at ¶ 13). Plaintiff admits that his slides were "not perfect" at the beginning of his employ. (Id. at ¶ 14). However, he claims that everyone understood that there was a steep learning curve in the position and that he received positive encouragement and support from Stein and Brodland. (Id. at ¶ 15). But, he states that he progressed to the point where he was successfully working with real tissue from patients toward the end of his short tenure with Defendant. (Id. at ¶ 16).

On the other hand, Defendant states that Plaintiff‟s performance was poor. Specifically, Zitelli testified that he perceived Plaintiff as having a bad attitude and also stated that he seemed disinterested in learning histopathology.*fn4 (Docket No. 29 at ¶ 19). Zitelli did not believe that Plaintiff spent enough time practicing the procedure. (Id. at ¶ 20). He testified that the quality of Plaintiff‟s work was poor and that he consistently produced slides which were incomplete or torn, requiring him to redo them. (Id. at ¶ 17). Zitelli did not believe that Plaintiff was making sufficient progress and discussed his performance with Stein, suggesting on more than one occasion that they should let Plaintiff go rather than continuing to employ him as a histotech. (Id. at ¶ 31). Stein, however, convinced Zitelli on at least two occasions that they should keep Plaintiff on and continue to attempt to train him. (Id. at ¶ 31).

The parties agree that Defendant had certain workplace rules in place to which Plaintiff was subject. (Docket Nos. 29 at ¶¶ 21, 25-26; 32 at 2-3). Defendant claims that Plaintiff broke several of these rules during his employment and was verbally reprimanded for his rule violations. (Docket No. 29 at ¶¶ 22-24, 27-32). Plaintiff disputes that he broke the cited rules. (Docket No. 32 at 3-4). But it is undisputed that Defendant issued no written reprimands to Plaintiff and has not maintained any written documentation of the alleged verbal reprimands that were given. (Docket No. 31-2 at ¶¶ 19-21).

To this end, all of Defendant‟s employees were required to follow Universal Precautions safety procedures,*fn5 including that "any blood or bodily fluid of any patient is assumed or presumed to be infected with either AIDS or hepatitis" and should be handled accordingly. (Docket Nos. 29 at ¶ 26; 32 at 2). Zitelli testified that Plaintiff consistently refused to follow these procedures for working with blood-borne pathogens. (Id. at ¶ 27). For example, he stated that Plaintiff often failed to take his gloves off while getting coffee and wore dirty gloves while retrieving files and handling coffee cups. (Id. at ¶¶ 28, 29). Likewise, Stein testified that Plaintiff would take frequent coffee breaks and often take them in the middle of a procedure. (Id. at ¶ 30). Plaintiff admits that on one occasion he was advised by a co-worker not to drink coffee while wearing medical gloves but denies that he generally failed to follow Universal Precautions. (Docket No. 31-2 at ¶ 20, 24, 27). Plaintiff also claims that it would be "impossible" to take a coffee break in the middle of a procedure. (Id. at ¶ 25).

In addition, smoking is prohibited on the grounds at both the Shadyside and Jefferson Hospital locations. (Docket Nos. 29 at ¶ 21; 32 at 2). Defendant claims that Plaintiff was reprimanded for smoking on the grounds. (Id. at ¶ 22). Plaintiff denies that he was ever reprimanded for smoking but admits that on one occasion a co-worker told him that smoking was not permitted on the grounds. (Docket No. 31-2 at ¶¶ 20, 23). Stein also testified that Plaintiff arrived at work late on two occasions and verbally reprimanded him for doing so. (Docket No. 29at ¶¶ 23, 24). Plaintiff denies that he was ever late or reprimanded for tardiness. (Docket No. 31-2 at ¶ 29).

D.Decision to Terminate Plaintiff

Zitelli and Stein testified that they decided to terminate Plaintiff during a meeting at the Shadyside office on August 18 or 19, 2008. (Docket No. 29 at ¶ 33). They planned to inform Plaintiff of their decision on the afternoon of August 20, 2008 when all of them would be at the Jefferson Medical Center location at the same time. (Docket No. 29 at ¶¶ 33, 34). Zitelli explained that the termination meeting would be held in the afternoon on August 20 because mornings were typically very busy at the lab. (Id. at ¶ 36). Plaintiff testified that he was unaware that Zitelli and Stein had such a meeting or that they had decided to terminate him prior to August 20, 2008. (Docket No. 29 at ¶ 37).

E.Plaintiff's Hip Ailment

On August 19, 2008, Plaintiff was diagnosed with avascular necrosis*fn6 by his physician, Dr. Habib, and was advised that this condition required hip replacement surgery. (Docket No. 31-2 at ¶ 48). Dr. Habib explained to him that this ailment was caused by a loss of blood to his hips. (Id.). Plaintiff advised Stein of his need for hip replacement surgery the following morning, August 20, 2008. (Docket Nos. 29 at ¶ 38; 32 at 4). From Plaintiff‟s view, Stein was supportive and encouraging. (Docket No. 31-2 at ¶¶ 49, 50). Plaintiff states that he also told Zitelli that he was in need of hip surgery that morning but could not recall if he advised him of his specific diagnosis of avascular necrosis. (Id. at ¶¶ 52, 53). Plaintiff further states that upon hearing this news, Zitelli did not say anything to him but turned in disgust and walked away from him. (Docket No. 31-2 at ¶¶ 52). In contrast, Zitelli testified that Plaintiff only told him on the morning of August 20, 2008 that he had a problem with "water on his leg" or "water on his thigh" and did not mention a need for surgery. (Docket No. 29-2, Zitelli Depo, at 14). Zitelli also testified that Plaintiff‟s disclosure "meant absolutely nothing to him." (Id.).

F.August 20, 2008 Meeting

On the afternoon of August 20, a meeting was held between Zitelli, Stein, Office Manager Donna Latterio and Plaintiff at the Jefferson Medical Center office. (Docket Nos. 29 at ¶ 41; 32 at 4). At the meeting, Zitelli informed Plaintiff that he was not catching on and that they made a decision to discontinue his training. (Docket No. 29 at ¶ 42). Plaintiff testified that Zitelli told him during the meeting that he "was not a good long term investment." (Docket Nos. 29 at ¶ 43; 31-2 at ¶ ...

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