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Tanya Furry v. Lehigh Valley Health System

September 28, 2012


The opinion of the court was delivered by: Stengel, J.


In this employment discrimination case, Plaintiff Tanya Furry alleges that Defendants Lehigh Valley Health System t/a Lehigh Valley Hospital ("LVH") and Gerry Kresge violated her disability and leave rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") ("Count I"), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") ("Count II"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA") ("Count III").

The parties filed cross motions for summary judgment. Defendants seek summary judgment on Count I's termination-based ADA claim, arguing it is both time barred and deficient for lack of a disability.*fn1 Plaintiff seeks partial summary judgment on Counts I and II. Regarding Count I, Plaintiff contends she has presented direct evidence of discrimination under the ADA. Regarding Count II, Plaintiff contends LVH denied her reinstatement under the FMLA. For the following reasons, I will grant Defendants' motion as to Counts I and III, grant in part and deny in part Defendants' motion as to Count II,*fn2 and deny Plaintiff's motion.


Gerry Kresge, LVH's director of security, interviewed and hired Tanya Furry as a security officer in March 2005. (Doc. No. 44*fn3 , ¶ 1.) Throughout her employment at LVH, Furry reported to Kresge. (Id. at ¶ 2.)

A. FMLA Leave Procedure at LVH

Jeri Lemanek was employed by LVH Health Network as the disability case manager in 2008. (Doc. No. 42*fn4 at ¶ 2.) Lamenek was responsible for considering the medical necessity of a person's need for leave and request for disability benefits. (Id. at ¶ 3.) The different types of medical leave that an LVH employee may qualify for are FMLA leave, non-FMLA medical leave, personal leave, intermittent family medical leave, and military leave. (Id. at ¶ 5.)

To pursue FMLA leave, an employee must obtain and complete an FMLA request packet, which includes an instruction sheet, an employee request, and a physician's certification. (Id. at ¶ 11.) Once the completed packet is provided to LVH's Employee Health department, Lemanek determines whether the employee's request is medically supported. (Id. at ¶ 7.) In-patient hospitalization automatically qualifies an employee for FMLA leave. (Id. at ¶ 10.)

An employee returning from FMLA leave may be required to undergo a fitness-for-duty examination. (Id. at ¶¶ 18, 20.) The decision to require a fitness-for-duty examination may be made by Lemanek, Director of Employee Health Carol Guanosky, an Employee Health nurse, or a disability counselor. (Id. at ¶ 21.) The criteria for making that decision relates to the reason the person is out of work. (Id. at ¶ 22.) An employee who has been out of work for an orthopedic condition, recent surgery, or mental health issue must undergo a fitness-for-duty evaluation in Employee Health, in addition to providing a release by the employee's personal physician. (Id.) Employee Health does not necessarily review an employee's personal physician's release prior to referring the employee for a fitness-for-duty examination. (Id. at 24.)

Employee Health physicians, whom LVH contracts through Health Works, conduct fitness-for-duty examinations in the Employee Health office. (Id. at ¶ 27.) The fitness-for-duty practitioner determines whether someone is able to resume the essential functions of their job upon returning to work. (Id. at ¶ 36.) The fitness-for-duty practitioner is empowered to order an employee not to return to work regardless of what the personal physician's release said. (Id. at ¶ 35.)

B. Furry's First FMLA Leave

LVH granted Furry FMLA medical leave for depression and anxiety from August 30, 2006, through December 11, 2006. (Doc. No. 44 at ¶ 5.) In January 2007, upon Furry's return from her first FMLA leave, LVH assigned Furry, at Kresge's request, to a receptionist position. (Id. at ¶ 6.) Furry was satisfied with her receptionist position and suffered no adverse consequences from taking FMLA leave in 2006. (Id. at ¶¶ 7-8.)

C. Furry's Second FMLA Leave

In October 2007, Furry requested and received her second FMLA medical leave. (Id. at ¶ 9.) Cheryl Brunovsky, an LVH disability counselor, approved Furry's request by letter dated October 26, 2007. (Id. at ¶ 10.) Furry was out on her second FMLA medical leave from October 10, 2007, to November 15, 2007. (Id. at ¶ 11.) Furry's clinical psychologist, Dr. Janice E. Cunningham, released Furry to return to work without restrictions beginning November 14, 2007. (Id. at ¶ 12.)

D. Approved Medical and Grief Leave

On March 18, 2008, Furry suffered a miscarriage. (Id. at ¶ 13.) That same day, Furry gave her supervisor, John Hess, a doctor's note stating that "suction dilation and curettage" surgery was scheduled for later that afternoon and that Furry would be absent for medical reasons until March 26, 2008. (Id. at ¶ 14.) LVH granted this medical leave request, and Furry never requested or sought FMLA leave for her miscarriage or surgery. (Id. at ¶¶ 15-16.) On March 21, 2008, Furry's uncle, who was also an LVH employee, died. (Id. at ¶ 17.) Kresge gave Furry three days off so she could grieve and attend her uncle's funeral. (Id. at ¶ 18.) Furry's attendance record indicates that she was absent on March 16, 17, 19, 20, and 21. Furry returned to her "normal schedule" on March 24, 2008, which was her last day of work at LVH. (Id. at ¶ 19.) Ms. Furry's attendance record indicates that she did not work thereafter, but does indicate why. (Doc. No. 42 at ¶ 41.)

E. The Return to Work Clearances

On or about April 7, 2008, Furry telephoned Kresge to ask for the next day off to visit her Ob/Gyn. (Doc. No. 44 at ¶ 20.) Kresge told Furry that, because of her miscarriage, she was too emotional to return to work and that she should speak with someone in Employee Health. (Id. at ¶ 21.) Kresge told Furry not to come to work the next day (the day of her Ob/Gyn appointment), but Kresge did not tell Furry how long she should be off work. (Id. at ¶ 22.) When the April 7 telephone conversation between Kresge and Furry occurred, Furry had not been to work at LVH for two weeks.*fn5 (Id. at ¶ 23.)

Furry visited her Ob/Gyn on April 8, underwent an exam, and was told everything was fine. (Id. at ¶ 25.) According to Lemanek, Furry was scheduled to undergo a fitness-for-duty evaluation at Employee Health on April 9, which Furry did not attend.*fn6 (Doc. No. 42 at ¶ 42.) On April 10, Furry claims that Jeanne Hoover, an LVH human resources consultant, told Furry she needed to submit three return-to-work notes to Employee Health before she could return to LVH. (Doc. No. 44 at ¶ 26.) The notes were to be provided by her family physician, Ob/Gyn, and mental health provider. (Id.) Hoover denies ever requiring Furry to submit a return-to-work note. (Doc. 48, Ex. 1. at ¶¶ 3-4.)

Furry's Ob/Gyn released Furry to return to work without restriction on April 8. (Doc. No. 44 at ¶ 27.) On April 11, Dr. Farbowitz, Furry's family physician, also released Furry to return to work without restriction. (Id. at ¶ 28.) However, Dr. Cunningham, Furry's mental health provider, refused to provide Furry with a return-to-work note.*fn7 (Id. at ¶ 29.)

F. The May 2, 2008, Employee Health Visit

On May 2, 2008, Furry visited Employee Health to provide the return-to-work notes from her Ob/Gyn and family physician and "to tell them what was going on." (Id. at ¶ 30.) Furry admits to feeling and appearing very upset during her meeting with the Employee Health physician because of her miscarriage, her uncle's death, and from being out of work. (Id. at ¶ 32.) Given Furry's emotional state, the Employee Health physician told Furry she would not be permitted to return to work without a note from Dr. Cunningham. (Id. at ¶ 34.) On May 5, 2008, Cheryl Brunovsky wrote to Furry conditionally approving a medical leave of absence retroactive to April 14, 2008. (Id. at ¶ 36.) Enclosed with this FMLA conditional approval letter was an FMLA medical certification form that Furry needed Dr. Cunningham to complete within 15 days. (Id.) Dr. Cunningham never completed, and Furry never provided, the FMLA medical leave certification form. (Id. at ¶ 37.)

G. The Termination Letter

On June 6, Jeanne Hoover wrote to Furry stating that LVH still had not received "medical documentation" to support Furry's "continued absence." (Doc. No. 44, Ex. C.) Based on this letter, Furry understood that if she failed to provide either a return-to-work note or the FMLA leave documents to Employee Health by June 13, 2008, LVH would terminate her employment. (Id. at ¶ 40.) On June 12, Furry telephoned Jeri Lemanek and complained that Dr. Cunningham refused to provide either a return-to-work note or FMLA leave certification. (Id. at ¶ 41.) Lemanek extended the deadline to June 18, by which time Furry was required to (1) supply Employee Health with a return to work clearance from Dr. Cunningham, (2) supply Employee Health with FMLA leave certification from Dr. Cunningham, or (3) have Dr. Cunningham contact the Employee Health Physician directly to discuss Furry's status. (Id. at ¶ 42.)

Furry never provided to Employee Health either a return-to-work note or FMLA leave certification from Dr. Cunningham. (Id. at ΒΆ 45.) On June 20, Hoover wrote to Furry terminating Furry's employment since she was "unable to provide [LVH] with the appropriate documentation to ...

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