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Sherrilynn Grosso v. Upmc and Biotronics

March 9, 2012


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



Pending before the court is a motion for summary judgment (ECF No. 37) filed by defendants University of Pittsburgh Medical Center ("UPMC") and Biotronics, Inc. ("Biotronics" and together with UPMC, "defendants") pursuant to Federal Rule of Civil Procedure 56 with respect to all claims asserted in the amended complaint (ECF No. 9) filed by plaintiff Sherrilynn Grosso ("Grosso" or "plaintiff"). The law suit arises from defendants' decision to terminate plaintiff's employment on August 8, 2008. Plaintiff asserted four counts against defendants, claiming that (1) defendants terminated her employment because of her disability, failed to make reasonable accommodations, and denied her subsequent employment in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a), (b)(5)(A) ("ADA"),*fn1 (Am. Compl. (ECF No. 9) ¶¶ 17-18); (2) defendants "interfered with, restrained, and denied Grosso's exercise of her rights" under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2614(a) ("FMLA"), "by failing to fully inform her of her rights and obligations under the FMLA" and negatively considered FMLA qualifying work absences when making the decision to terminate her (Am. Compl. (ECF No. 9) ¶ 22 ); (3) defendants retaliated against her in violation of the FMLA, 29 U.S.C. § 2516(a)(2), because she took qualifying leave*fn2 (Am. Compl. (ECF No. 9) ¶ 28); and (4) defendants' discriminatory actions violated the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 955(a) ("PHRA") (id. ¶ 32).*fn3 Grosso is seeking reemployment in the position from which she was discharged, lost wages and benefits, and punitive damages. (Id. ¶¶ 20, 24, 30, 33.) She is also seeking reimbursement for the costs of litigation and that defendants be enjoined from discriminating against her in violation of the ADA, FMLA, and PHRA. (Id.)

This court exercises subject-matter jurisdiction over plaintiff's ADA and FMLA claims as federal questions under 28 U.S.C. § 1331 and has supplemental jurisdiction over plaintiff's PHRA claims pursuant to 28 U.S.C. § 1367. Pennsylvania courts interpret the PHRA under the same standards as the ADA and other analogous federal statutes. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 979 n.1 (3d Cir. 1998) ("Although they are not bound to do so, Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts, among them the ADA."); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). The Court of Appeals for the Third Circuit has stated that "[t]he PHRA is basically the same as the ADA" and allowed its disposition of an ADA claim to apply equally to a PHRA claim. Rinehimer v. Cemcolift, Inc., 292 F.2d 375, 382 (3d Cir. 2002). Therefore, the court will not consider the PHRA claims independently of the analogous federal claims.

Because no reasonable jury would render a verdict in favor of plaintiff, defendants' motion for summary judgment will be GRANTED.


In 1986 Grosso was hired as a staff perfusionist by Shadyside Hospital, which was eventually acquired by UPMC. (Sherrilynn Grosso Dep. Tr. ("Pl.'s Dep.") (ECF No. 38-1) at 17.) Eventually, she began providing perfusion services for Biotronics (id. at 17, 20-21) and serviced other UPMC hospitals within the region (id. at 22-23). Initially, Jack McEwen ("McEwen") was plaintiff's Biotronics' supervisor, but in 1995 or 1996, Steven Stewart ("Stewart"), the Director of Perfusion Services, became the supervisor. (Id. at 26-27.) In 2002 or 2003, plaintiff stopped servicing some of the hospitals within UPMC's network and only worked for Butler Memorial Hospital and North Hills Passavant Hospital, where lead perfusionist Lisa Knauf ("Knauf"), who also reported to Stewart, was plaintiff's direct supervisor (Id. at 24, 27.)

Grosso's primary task as a staff perfusionist was to run the cardiopulmonary bypass machine, also called the heart-lung machine, (Donna Lucas, M.D. Dep. Tr. & Exs. ("Lucas' Dep.") (ECF No. 38-6) at 15-16), which is used during open-heart surgery and sustains the life of the patient (Ronald V. Pellegrini Dep. Tr. & Ex. ("Pellegrini's Dep.") (ECF No. 38-5) at 27). In addition to running the machine and fully monitoring it while in use during surgery, the perfusionist must have the machine ready to go prior to the patient being taken into the operating room. (Lucas' Dep. (ECF No. 38-6) at 15-16.) The bypass machine is used to circulate artificially the patient's blood during surgery, and by operating it, a perfusionist maintains the patient's blood pressure, oxygenation, and body temperature. (Id.) In addition, a perfusionist administers an anti-coagulant into the patient's bloodstream (Pellegrini's Dep. (ECF No. 38-5) at 17-18) and monitors medications given during the course of an operation including anesthetics (id. at 15; Lucas' Dep. (ECF No. 38-6) at 15-16). Plaintiff characterized the scope and duration of these responsibilities as only occurring while a patient is on the bypass machine, and not during the entire course of a surgery. (Joint Statement of Material Facts- Defs.' Statement & Pl.'s Resps. ("J.S.F.-Defs.'") (ECF No. 55) ¶¶ 14-15.) More specifically, putting a patient "on bypass" means that the patient's chest is opened and up and tubes are placed going into the heart. (Pellegrini's Dep. (ECF No. 38-5) at 17.) The perfusionist administers the anti-coagulant to the bloodstream, and the blood is drained from the heart and lungs to the cardiopulmonary bypass machine. (Id.) The blood is pumped back into the patient through additional tubes, but it is shut off from the heart and lungs, enabling the surgeon to work on the heart. (Id.)

Grosso is a Type I diabetic and also suffers from Hypoglycemic Unawareness Syndrome ("HUS"). (Pl.'s Dep. (ECF No. 38-1) at 41; Vijay Bahl, M.D. Dep. Tr. ("Bahl's Dep.") (ECF No. 38-7) at 10, 31.) Type I diabetes is an auto-immune disease where the body fails to produce insulin, leaving a sufferer with high blood sugar levels. (Bahl's Dep. (ECF No. 38-7) at 11-12.) The disease is managed by taking insulin, either through a pump or outright injections. (Id. at 12-14.) Sometimes, however, the taking of insulin leads to hypoglycemia-a condition of low blood sugar, also known as the blood glucose level, which is often evidenced by lethargy and sometimes by disorientation. (Id. at 21, 24.) Typically when a person's blood sugar level is dropping, the body produces adrenaline, causing outward symptoms such as sweating, palpitations, and tremors. (Id. at 29.) These symptoms often appear at the onset of diabetes, but over time, the body produces less adrenaline, causing the symptoms eventually to lessen and disappear. (Id.) After time, the body begins to produce no warning signals to indicate low blood sugar levels, which ultimately may result in HUS; HUS prevents a diabetic from knowing that he or she is experiencing low blood glucose levels. (Id. at 29-30.) HUS may also develop in a person who has wide fluctuations in blood glucose levels because keeping track of the levels may become too difficult. (Id. at 30.) A person with HUS can pass out without any warning signs whatsoever. (Id. at 31.)

In order to cope with HUS, plaintiff wears a sensor that alarms her when her blood sugar is too low. (Pl.'s Dep. (ECF No. 38-1) at 103.) Plaintiff began wearing the sensor in October 2009. (Id. at 104.)*fn4 During her deposition, Grosso estimated that since 2008 she has had thirty to thirty-five incidents where she goes from feeling fine to becoming suddenly disoriented. (Id. at 106.) Plaintiff admitted that this kind of incident happens "at least once a month." (Id.) Grosso stated that she has passed out nine times in her life and estimated six to seven of those times occurred since January 2008. (Id. at 106.) Grosso declared in a subsequent affidavit that the instances where she "lost consciousness," or passed out, were caused by unique circumstances including skipping meals or staying up throughout the night; she stated that once she identifies a triggering circumstance, she tries to avoid it. (Aff. of Sherrilynn Grosso Ex. 16 ("Pl.'s Aff. Ex. 16") (ECF No.49-32) ¶ 28.)

The parties are in dispute over the severity of plaintiff's HUS and whether plaintiff does in fact know when she is having, or about to have, a hypoglycemic episode. (Reply Br. Supp. Defs.' Mot. Summ. J. ("Reply Br.- Defs.'" (ECF No. 53) at 3.)*fn5 According to plaintiff's expert doctor, Dr. Vijay Bahl, her HUS prevents her from predicting or sensing when she is going to pass out. (Bahl's Dep. (ECF No. 38-7) at 31.) In her deposition testimony, plaintiff answered that before wearing her sensor, she had no way to predict when she would have a serious hypoglycemic episode where her mere disorientation would quickly escalate to unconsciousness. (Pl.'s Dep. (ECF No. 38-1) at 106-07.) Grosso, however, noted the following in a subsequent affidavit:

The Hypoglycemic Unawareness Syndrome does not typically prevent me from knowing that I am hypoglycemic; it just prevents me from realizing it right away. Most times during a hypoglycemic episode, I am able to quickly self-treat and correct my glucose level easily by obtaining nourishment. It is only at those rare times when I am unable to self-treat that my glucose level drops to a dangerously low level (at 40 mpd) and I can become unconscious. (Pl.'s Aff. Ex. 16 (ECF No. 49-32) ¶ 19.) Defendants consider these statements irreconcilable with plaintiff's definition of HUS: "You are unaware that you are hypoglycemic." (Pl.'s Dep. (ECF No. 38-1) at 57.) Grosso responded to the deposition question of whether Knauf was familiar with plaintiff's hypoglycemic symptoms by stating: "Well, when I don't even know I am low glucose, I don't think she would know. I mean, I have no outward sign."*fn6 (Id. at 51.)

In addition to wearing an insulin pump and counting carbohydrates when she eats (Pl.'s Dep. (ECF No. 38-1) at 41-42), plaintiff is careful to check her blood glucose levels six to eight times per day (id. at 43). Grosso requested some work accommodations from defendants in order to help her self treat; generally, she is allowed to take breaks to eat, to have another person get her something to eat (id. at 63-64), and to take food from the intensive-care unit patient refrigerator (id. at 98).*fn7

Dr. Ronald Pellegrini ("Pellegrini"), a cardiothoracic surgeon with whom plaintiff worked, stated that a perfusionist who could become unconscious poses serious risks to the patient.*fn8 (Pellegrini's Dep. (ECF No. 38-5) at 54.) If a perfusionist were to become unconscious while monitoring the patient and running the bypass machine, the patient could face irreversible injury or death. (Id.) According to Pellegrini, this could happen if the perfusionist administers too much or too little medications, allows the anticoagulation level to get too high, or inadvertently pumps air into the patient by letting the blood reservoir in the machine get too low. (Id.)*fn9 Pellegrini stated at his deposition his opinion that Grosso "poses a risk to any patient that she tries to manage with a heart-lung machine." (Id. at 60.) He stated:

I wouldn't-under no circumstances, none, would I ever have her run the pump with me doing a case with this medical problem. I think it's-it would be malpractice on my part to allow that to occur. Even if she had a second in command sitting right beside her, I think it would be-I would be derelict in my responsibility to the patient to allow her to do that.

(Id. at 37.)

On July 23, 2008, in an effort to lose weight, plaintiff elected to have laparoscopic band surgery and was on a clear liquid diet from the day of her surgery until August 1, 2008. (Pl.'s Dep. (ECF No. 38-1) at 123, 127.) The diet made plaintiff prone to low blood sugar levels and increased her difficulty in maintaining normal blood glucose levels, but Grosso used vacation days after the surgery to recuperate and to make sure she could maintain her blood sugar levels. (Id. at 123-25.) Plaintiff began working again on July 28, 2008. (Id. at 123.) On July 28, 2008, Grosso had a conversation Knauf about plaintiff's surgery and diet. During that conversation, Knauf asked if plaintiff was able to work. (Id. at 127-28; Lisa Marie Knauf Dep. Tr. ("Knauf's Dep.") (ECF No. 38-1) at 28-29.) Plaintiff responded by indicating that she could work, but would need help moving the machine. (Pl's Dep. (ECF No. 38-1) at 127-28; Knauf's Dep. (ECF No. 38-9) at 28-29.)

On the morning of July 31, 2008, Grosso reported to work and immediately went into the operating room to begin setting up the bypass machine. (Pl.'s Dep. (ECF No. 38-1) at 66-67.) When she set up the bypass machine, plaintiff was not preparing to use it immediately; the surgery was several hours later. (Id. at 68, 74-76.) During set up, plaintiff checked her blood sugar and had low glucose levels. She did not report her glucose levels to any superiors; she instead took glucose tablets and turned down her insulin pump. (Id. at 16, 49, 67.)*fn10 Grosso helped prepare the patient for surgery (id. at 68), while Dr. Donna Lucas, the anesthesiologist ("Lucas"), and a few others were present in the operating room (id. at 68-69).

Around 7:30 a.m., Grosso took a break because that was the usual time the backup, or second, perfusionist would come to the operating room to assist. (Knauf's Dep. (ECF No. 38-9) at 25.) Knauf was serving as the backup perfusionist on July 31, 2008, and entered the operating room at the time plaintiff was taking her break. (Id.) Plaintiff returned at approximately 8 a.m., and the surgery started. (Id.) Knauf left the operating room and went to her office to take care of some administrative responsibilities, but she returned in less than thirty minutes. (Id.) According to Knauf, aside from being the backup perfusionist for July 31, 2008, she stayed with Grosso during some of the procedure because of the type of procedure and risks involved. (Id.)

Since it was a redo procedure, I stayed in the room with Sherri. Lots of times for a re-entry heart you can nick something or cut something, and things start to move along a little bit fast. So, it's nice to have another person in the room with you. And we all do that for each other. (Id.)

During the surgery, but before initiating the bypass, Grosso was sitting behind the surgeon, Pellegrini, with her feet elevated on a stool and was wrapped up in a blanket; she also propped her head up by leaning her arm against the equipment and her head on her arm and hands. (Id. at 71-72.)*fn11 While reclined in that manner, plaintiff was waiting for the surgeon's order to put the patient on the bypass machine; the patient was not yet on bypass though the surgery had started. (Id. at 70-71.) While waiting, plaintiff remembers saying to her co-workers "alls [sic] we need are pillows." (Id. at 73.) Knauf, who was in the pump room at that time, which is adjacent to the operating room, said she saw plaintiff through the operating room window wrapped up in the blanket and thought she was sleeping.*fn12 (Knauf's Dep. (ECF No. 38-9) at 25-26; see also Lucas' Dep. (ECF No. 38-6) at 13, 21.) Plaintiff remembers Knauf coming in and saying "Go. You need to get out of here, go walk around." (Pl.'s Dep. (ECF No. 38-1) at 73.)*fn13 Grosso does not remember what happened after that statement was made and testified that she was not in a "full state of consciousness" (id. at 189) and did not remember what had specifically happened (id. at 73.)

Following this incident, Grosso left the operating room and unknown to Knauf (Knauf's Dep. (ECF No. 38-9) at 26), had coffee, popsicles, and milk; she did not check her blood sugar (Pl.'s Dep. (ECF No. 38-1) at 79-80).*fn14 Once she returned to the operating room, plaintiff began operating the bypass machine, and Pellegrini instructed her to turn off the "vent." Grosso immediately repeated back "Okay. Vent's up," which is what she thought were his instructions.

Pellegrini repeated his instructions and plaintiff said: "Okay. It was. It was. I'm turning the vent off." (Id. at 82.) Because the operating room is filled with noise from machines, Grosso's habit was to repeat the surgeon's instructions to ensure she correctly heard them. (Id.)

In addition to the incident described above, the record reveals a second incident.*fn15 While the patient was on bypass and Knauf briefly moved from the operating room to the pump room, Lucas went to get Knauf because Lucas was concerned; Lucas told Knauf that Grosso looked "sleepy and lethargic." (Knauf's Dep. (ECF No. 38-9) at 26-27.)*fn16 Knauf said that plaintiff asked if Lucas had sent Knauf back into the operating room; Knauf said "yes" and asked Grosso how she was doing. (Id. at 27.) According to Knauf's deposition, Grosso replied "Yeah, I'm fine. This is just a long case." (Id.) After remaining to observe plaintiff and asking if she needed lunch, to which the plaintiff said "no", Knauf found plaintiff's performance satisfactory and stated that plaintiff seemed fine. (Id.) Grosso's version of this incident slightly differs. Grosso testified that right after she incorrectly repeated Pellegrini's orders regarding the vent, Lucas "went flying into the pump room." (Pl.'s Dep. (ECF No. 38-1) at 82.) Lucas and Knauf exited the pump room and approached her, asking if she was feeling alright. (Id.) The deposition testimonies of Lucas and Knauf did not reflect that this situation occurred immediately following plaintiff's apparent mistake regarding the vent instructions.

Following the surgery, Knauf met with Grosso and informed her that Lucas was going to write her up for sleeping while a patient was on bypass. (Id. at 85.) Plaintiff told Knauf that she was not sleeping while the patient was on bypass and that Knauf was using the first incident, which occurred during the surgery, but before use of the bypass machine, to support the contention that plaintiff was sleeping while the patient was on bypass. (Id. at 86-87.) Grosso told Knauf that she had low blood sugar earlier in the day, and Knauf instructed plaintiff to write down her "side of the story." (Id. at 87-88.) According to plaintiff, all her supervisors and the perfusionists with whom she worked were aware that she was diabetic. (Id. at 49.)

During the meeting, Grosso elaborated about the effects of the laparoscopic band surgery that she had on July 23, 2008. (Id. at 87-88.) Grosso explained to Knauf her belief that the combination of the band surgery and her diet caused her to experience low blood glucose levels and a hypoglycemic episode during the surgery on July 31, 2008. (Id.) According to plaintiff, she even had a low glucose attack during that meeting, and Knauf, at one point, stepped out of the room to get her something to drink. (Id. at 87.) Because Knauf knew Grosso was diabetic and had witnessed her on prior occasions with low blood glucose levels,*fn17 Knauf asked plaintiff during the meeting if plaintiff felt low glucose that day. (Knauf's Dep. (ECF No. 38-9) at 9.)

After plaintiff returned home from work on July 31, 2008, she wrote her statement regarding the day's events, describing the operating room on that day as being "eerily quiet and warm" and said she "rested [her] eyes, intermittently." (ECF No. 38-2 at 22.) Grosso submitted a second statement to more accurately portray what had happened. She omitted the "quiet and warm" description and instead added information regarding her diabetes and stated that she "could have been a little low glucose." (Id. at 24.) Plaintiff admitted that the "quiet and warm" description was inaccurate, but said that in telling her to write a statement, Knauf commented that "if it was warm, say it was warm" and said the same thing about it being quiet. (Pl.'s Dep. (ECF No. 38-1) at 91-92.) Grosso testified that she only rested her eyes prior to the patient going on bypass, but not during bypass. (Id. at 96.)

On August 4, 2008, after receiving materials reporting the incident, Kathryn Shirk, who worked at UPMC as a human resources employee (Dep. of Kathryn Shirk ("Shirk's Dep.") (ECF No. 38-11) at 9-10), met with Knauf to discuss what had happened. (Id. at 98.) Shirk was in possession of written statements from three witnesses present in the operating room on July 31, 2008, indicating that plaintiff had appeared to be asleep. (Id. at 96.) Under UPMC policy, the recommendation given for employees who are either sleeping on the job or appear to be sleeping is termination of employment. (Id. at 53.) According to Shirk, this recommendation is given only after an investigation takes place and it is determined that the employee was either sleeping on the job or appeared to be sleeping on the job. (Id. at 54.)*fn18 Shirk recommended that Grosso be terminated for appearing to sleep on the job and based this recommendation on Grosso's statement about propping her feet up and resting her eyes. (Id. at 175.) When asked why she recommended the termination, Shirk stated the following:

I recommended termination for Sherri Grosso because, based on her statement, she admitted to propping her feet up on some type of equipment, resting her eyes intermittently. She did not put forth any reason during that investigation of checking her glucose, telling her manager that she had any issues. It was based on the fact that she admitted to resting her eyes and giving the appearance for sleeping on the job. (Id. at 175-76.)

Plaintiff was terminated on August 8, 2008, just over a week after the incidents, for "giving the appearance of sleeping on the job." (Pl.'s Dep. (ECF No. 38-1) at 129-30.) McEwen, Knauf, and Shirk were at the termination meeting. (Id. at 130.) McEwen was handling the termination meeting because Stewart, plaintiff's direct supervisor, was on vacation. (McEwen's Dep. (ECF No. 38-10) at 48.) According to McEwen, Stewart and Shirk had already determined that plaintiff should be terminated, and although he disagreed with them, he went along with the decision because the investigation had ended. (Id. at 52.) He was troubled by having to the fire plaintiff. (Id. at 51-52.)*fn19 He disagreed with the decision because he had not been involved in the situation and did not work at Passavant; he also implied that he prefers to give people second chances for messing up on the job.*fn20 (Id.) McEwen was unaware whether Grosso had tried to explain to UPMC management that she had low glucose or possibly was unconscious during the July 31, 2008 incidents. (Id. at 54-55.) No one ever talked to McEwen about plaintiff's claim of having low blood glucose levels on that day. (Id. at 40.)

Although Stewart was not present for the termination meeting, Stewart communicated with Shirk via email during the decision-making process. When Shirk asked Stewart, by email, if he knew about plaintiff's diabetic condition, his response stated "[y]es, we've known this for years, and frankly, that's why we've put up with her shenanigans over the years." (ECF No. 38-13 at 12.) He stated that Grosso "always used her diabetes as an excuse" and noted that defendants "have had problems with [Grosso] for as long as she has been employed."*fn21 (Id.)

After being terminated, Grosso followed UPMC's procedures and filed an internal grievance regarding her termination with Lisa Sackett, the Human Resources Manager at UPMC Corporate. (Pl.'s Dep. (ECF No. 38-1) at 136-37; ECF No. 38-2 at 35-36; Lisa Sackett Dep. Tr. ("Sackett's Dep.") (ECF No. 38-14) at 14-15.) Plaintiff's grievance was handled by Celeste Rhodes, a human resources generalist at UPMC, who met with plaintiff for a couple hours on August 21, 2008. (Celeste Rhodes Dep. Tr. ("Rhodes' Dep.") (ECF No. 38-15) at 29.) During this meeting, Grosso felt as though Rhodes genuinely considered her side of the story. (Pl.'s Dep. (ECF No. 38-1) at 142.) According to Rhodes, Grosso mentioned her surgery and that she was, at the time, "trying to adjust to new insulin levels." (Rhodes' Dep. (ECF No. 38-15) at 30.) Rhodes did not remember discussing what type of surgery plaintiff had and admitted that she assumed plaintiff's comment about regulating insulin levels meant that plaintiff is diabetic and takes insulin. (Id.) Rhodes also admitted to not looking into the effects of Grosso's low blood sugar. (Id. at 32.) Although Rhodes was aware of plaintiff's diet following her surgery, Rhodes did not inquire into the effects of her diet. (Id.) On September 4, 2008, Rhodes denied plaintiff's grievance and upheld her termination (ECF No. 38-2 at 44; ECF No. 38-13 at 29, 33-34.) Plaintiff was informed that she had seven days to file an appeal, but she never did so. (Pl.'s Dep. (ECF No. 38-1) at 149.)

In addition to Grosso's contentions that she was fired for discrimination, Grosso testified that she was terminated because she "needed to use FMLA." (Pl.'s Dep. (ECF No. 38-1) at 109.) The issues surrounding the FMLA claim are difficult to follow because Grosso submitted an amended complaint correcting her original complaint with respect to the FMLA claims. (J.S.F- Defs.' (ECF No. 55) ¶ 106.) During Grosso's deposition, she admitted to never having requested or taken FMLA leave. (Id. at 116.) In Grosso's amended complaint, however, she asserted that defendants used her "absences from work for FMLA qualifying leave as a negative factor" in their decision making. (Am. Compl. (ECF No. 9) ¶ 22.) When questioned about what "absences" she was referring to, Grosso answered that these absences were "[w]hen I was hypoglycemic in the operating room." (Pl.'s Dep. (ECF No. 38-1) at 116.) Plaintiff and her attorney clarified that ...

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