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Barley v. Fox Chase Cancer Center

United States District Court, E.D. Pennsylvania

September 3, 2014

ELAINE BARLEY
v.
FOX CHASE CANCER CENTER

Page 566

For ELAINE BARLEY, Plaintiff: CHRISTOPHER A. TINARI, LEAD ATTORNEY, MICHAEL RONALD MILLER, MARGOLIS EDELSTEIN, PHILADELPHIA, PA.

For FOX CHASE CANCER CENTER, Defendant: RICHARD R. HARRIS, LEAD ATTORNEY, LITTLER MENDELSON, PHILADELPHIA, PA; KATE SUE-ELLEN ARDUINI, LITTLER MENDELSON, P.C., PHILADELPHIA, PA.

Page 567

MEMORANDUM

STEWART DALZELL, J.

Before us are cross-motions for summary judgment arising from Elaine Barley's (" Barley" ) termination during her ninety-day orientation period in the histology lab at Fox Chase Cancer Center (" Fox Chase" ). Barley sued Fox Chase for failing to (a) provide her with a reasonable accommodation for her asthma and (b) engage in an interactive process regarding her need for accommodation, in violation of the Americans with Disabilities Act (" ADA" ) and Pennsylvania Human Relations Act (" PHRA" ).

For the reasons articulated at length below, we will deny Barley's motion for summary judgment and will grant Fox Chase's motion for summary judgment.

I. Factual Background

The agreed-upon facts are scant.[1] In February of 2012 Fox Chase hired Barley as a clerk in its histology laboratory, subject to a ninety-day so-called orientation period during which Fox Chase would evaluate her ability to carry out her job duties. Barley MSJ, Ex. R at 49 and Ex. H. Barley was an experienced administrative assistant who had worked in hospitals and other healthcare settings, but had not worked in a laboratory. Id., Ex. G. Before her start date, Barley submitted to a required physical exam on February 9 or 10, 2012, at which time Barley stated that she had asthma and managed it with medications. Id., Ex. D, at 60:23-61:8; see also Ex. J at 2 and 3. Barley's start date was delayed by a week -- to February 27, 2012 -- because she was hospitalized for asthma. Id., Ex. K at 1 and Ex. R at 58.

Page 568

On March 30 she complained about the chemical odors in the lab to a nurse in Fox Chase's Employee Health Department, who also observed that Barley " suffers from chronic asthma and has trouble breathing." Fox Chase MSJ, Ex. P. On April 9 Barley returned to Employee Health complaining of shortness of breath and was advised to go home; another hospitalization for asthma followed. Id. On April 20 Barley returned to work with a prescription from her doctor stating (without further elaboration) that she " may return to work full duty 4/23/12 with mask." Id., Ex. O. On May 23, 2012, before the conclusion of the ninety-day orientation period, Fox Chase terminated Barley. Id., Ex. T.

The parties disagree about Barley's performance during her brief employment, the extent to which Fox Chase accommodated her asthma, and the circumstances of her termination.

Barley's duties as an accession clerk included (1) verifying that all specimens received into the grossing -- that is, for an initial pathology exam by the naked eye -- met criteria; (2) recording time and date of specimen receipt; (3) accessioning specimens into the lab's information system by assigning each a unique tracking number; (4) ensuring that the proper number of blocks and slides were made from each specimen; (5) providing or obtaining proper information for each specimen; (6) maintaining the " doctor dictionary" ; (7) maintaining accurate records; (8) checking supply inventories and picking up supplies from the storeroom; (9) picking up specimens when requested; (10) cleaning glassware and other surfaces; and (11) assisting with slide retrieval.[2] Barley MSJ at Ex. F.

Barley contended in her deposition that her supervisor, Denise Green, trained her for a single day during which Green was constantly interrupted, id. at Ex. R, 80:17-81:13. Thereafter, Barley stated, she " went live," id. at 80:24-25, and was urged to seek help from the pathologist assistants (" PA" ) or Green. Id. at 83:5-24. Calling the training " insufficient," id. at 82:21, Barley said she was never trained or shown how to do a number of the duties specified for her job. Id. at 74:18-19; 77:3-4, 8; 78:16, 23-24; 79:4, 7-10. She testified that she satisfactorily completed duties for which she had been trained with a minimum of mistakes and contested the defendant's conclusions otherwise. Id., e.g., at 97, 107-108.

Barley's supervisor and the PAs in the lab present a rather different picture. Green maintained a log of Barley's duties, documenting when these were explained and whether Barley was performing under supervision or without help. Fox Chase MSJ, Ex. H. The notes reflect that Barley accomplished the first three duties working with the PAs. Id. But Green noted on April 4, 2012 that Barley " was having a hard time and she did not understand the process" of ensuring the quantity of blocks and slides prepared to expedite the PA's initial specimen review, or grossing process. Id. By the date of her termination, Barley had still not performed several other duties or " was not ready." Id. In her deposition, Green stated that Barley's predecessor and successor had each required two to three days' training. Barley MSJ, Ex. B at 172:3-5 and 173:22-24. As to Barley, Green testified that she had required more than a week, id. at 172:8, and was " struggling" to complete jobs, id. at

Page 569

132:20. Jennifer Rowland, one of two PAs in the histology lab, testified that Barley began making errors in the second week. Id., Ex. P at 32:5. Romy Auguste, the other PA, showed Barley how to accomplish assigned tasks. He stated, " The only problem I had was if I show her something at 10:00 in the morning, by lunchtime she would forget it. . . . She would go back and do it the wrong way again. . . . [F]or some reason, she would not get, she could not get it. I have no idea why." Fox Chase MSJ, Ex. J at 40:24-41:10. Maryanne Tapley, the Administrative Manager in Pathology to whom Green reported, stated that she and others showed Barley the billing aspect of her duties and " [s]he seemed to be very overwhelmed by it." Barley MSJ, Ex. E at 90:4.

Barley disputes Tapley's, Green's and her co-workers' conclusions that she was having difficulty mastering her responsibilities and making many mistakes. See id., Ex. R.

The parties also disagree about the extent to which Fox Chase accommodated Barley's needs in response to her asthma -- by considering her for another position or offering her masks while she worked in the histology lab.

During the ninety-day trial period, the possibility arose of transferring Barley to another Fox Chase position for which she appeared suitable. On March 30, Lorraine Dagostino, the Employee Health nurse who documented Barley's chronic asthma, also observed in writing: " Manager is trying to arrange with H.R. -- a change of position -- transcription. Employee will physically move to another area in dept. away from chemical odors." Id., Ex. L. Barley testified that Tapley told her of the transcription job because she knew Barley had trouble breathing in the lab. Id., Ex. R at 121:2-21. Tapley believed Barley would be well-suited for that job because she had previously been a pathology transcriptionist. Id., Ex. E at 158:5-6. To try for the job, Barley took a test that involved transcribing dictation of surgical pathology, id., at 143-146, and, despite not seeing the results, believed she had performed well. Id., Ex. R at 126-128. Her supervisors at Fox Chase concluded otherwise as the test results revealed seventeen errors. Id., Ex. E at 153:3-4 and 159:16-17. Tapley showed the results to three pathologists with whom Barley would have worked, and was informed that the " amount of errors was not acceptable." Fox Chase MSJ, Ex. L at 6.

Barley contends she was never informed of the test results and that the error-riddled test shown to her during her deposition was not hers. Barley MSJ, Ex. R at 139:10-17.

The parties also disagree about Fox Chase's response to Barley's asthma. Barley returned to work after her second hospitalization on April 20, 2012, with the doctor's note requiring her to wear a mask. Barley testified that she was given a paper mask instead of the respirator mask that she maintains her doctor specified. Id., Ex. R at 154:18-156:25. She stated she had difficulty breathing through the paper mask and never received any other type of mask. Id. at 167-168, 179. She testified that she gave the doctor's note to Tapley who " told [Barley] it was not her problem. She hollered and yelled at [Barley]. She threw her hands up in the air and said, 'I don't have time for this. This is not my problem.'" Id. at 162:2-5. Barley also testified that Tapley said she had spoken with Barley's doctor. Id. at 177. Barley said her doctor told her, " I spoke to your supervisor and I let her know what type of mask you needed," id. at 178, by which Barley stated he meant a respirator mask. Id. Barley also stated that she showed the note to her supervisor,

Page 570

Green, and her co-worker Auguste, both of whom leafed through a catalogue with her to find what Barley identified as an appropriate mask. Id. at 162:20-165:9. The appropriate mask she sought was never ordered, Barley contended. Id. at 165. On May 15, 2012, Barley left a note for Dagostino in Employee Health, stating:

It has been required by my physician that I wear a mask at work. I have made several attempts to get the correct mask. To date, I have not.
The paper mask I have been given does not allow me to breath properly, and takes away my oxygen. I have asked about a respirator mask, which will allow me to breathe. I have talked to Maryann Tapley[,] Administrative Director[,] on numerous occasions, she asked me to speak with you.
To date, (after approximately 3 months), I have gotten no response or help regarding my medical situation. Please let me know who can help me.

Id., Ex. M. Dagostino acknowledged receipt of the note. Id., Ex. N.

Again, the Fox Chase perspective differs from Barley's in every respect. Green's supervisor Tapley disputes Barley's account of their interaction. She testified that, upon Barley's return, she contacted Barley's doctor for additional information but " he could not give me any detail as to what type of mask she should be wearing." Id. at Ex. E, 74:18-23. She stated that she told Employee Health to provide the conical mask for which Barley was fitted. Id. at 76. Thereafter, according to Tapley, Barley would complain that the mask was " cutting off her air" and " generally have it around her neck," despite Tapley's frequent admonitions to wear it on the job. Id. at 77:7-13. Tapley also stated the conical mask replaced Barley's initial paper mask and that Barley was also given a respirator mask but complained she could not breathe while wearing it. Id. at 80.

Dagostino, the nurse in Employee Health, stated it was her responsibility to determine what kind of mask could accommodate Barley's needs, id., Ex. D at 35:3-10, but also explained that Tapley's role in the interactive process was " [t]o figure out how to accommodate [Barley] so that she would be able to do her job." Id. at 26:8-13. Dagostino's logs show that she was aware on April 20 that Barley's physician required her to wear a mask. Fox Chase MSJ, Ex. P. When Barley next visited Employee Health on May 3, the log reflects that Dagostino gave Barley a N95 conical face mask and showed her how to wear it. Id. The Fox Chase employees, separately, offered testimony that Barley persistently refused to wear the mask despite repeated urgings to do so. On May 10, 2012, Dagostino observed that " [Barley] continues to work without a mask." Id. at 2. Barley's supervisor, Green, testified that Barley wore the mask Fox Chase provided around her neck, not on her face. Barley MSJ, Ex. B at 145:21-22 and 148:9-10. Green frequently told Barley she had to wear the mask, but Barley complained repeatedly about it: " She always said I just don't want to wear it. She always had the mask around her neck." Id. at 150:20-22. Asked whether she reminded Barley to wear the mask, Green answered, " All the time." Id. at 151:1.

Similarly, Barley's lab coworker Rowland instructed her to wear the mask, but Barley " said it was too big and bulky." Id., Ex. P at 28:7. Rowland testified, " I would see it honestly dangling from her ear. It would just be hanging there because she said it was restrictive." Id. at 23:4-6. Rowland also testified that she suggested Barley use the lab's respirator mask, accessible to all three lab employees,

Page 571

when she returned from her second hospitalization. Id. at 23:16-24:5. Barley tried it on but also found it too big and bulky and opted not to wear it. Id. at 24:7-14.

Finally, the parties disagree about the circumstances of Barley's termination. Barley's supervisor, Green, asked her superior, Tapley, to extend the probation period for two weeks because of Barley's hospitalization, but Tapley denied her request. Id., Ex. B at 230. Tapley testified she made the decision not to extend the probation period " [b]ased upon the facts that Denise [Green] had provided [Tapley] of the issues that were going on with [Barley] not being able to complete A through Z, the PAs often being interrupted, stepping away from the grossing to help her." Id., Ex. E at 117:19-23. She further testified that Barley was not terminated because of her repeated failure to wear the mask, id. at 208:10-12, but only because of her poor performance, id. at 205:20-23. Barley's May 23, 2012 Notice of Termination from Tapley states that Green met with Barley to discuss her errors, which " continued causing delays and interruptions to the workflow within the histology lab." Fox Chase MSJ, Ex. T. In the Notice, Tapley detailed meetings between Barley and Green on March 5, 7 and 19; April 5 and 30; and May 9 and 21, 2012, to discuss errors or Barley's failure to improve her speed and accuracy. Id.

Barley testified that her asthma did not affect her ability to complete her duties, except to the extent that she was exposed to certain chemicals in which specimens were sent to the lab. Barley MSJ, Ex. R at 70. As she has from the inception of this case, Barley maintained that her work was satisfactory and she was terminated because she has asthma and had been out sick numerous times. Id., at 200.

The parties also dispute whether and/or when Green advised Barley as a friend that she would be terminated some weeks before the actual event. See id. at 194-195; see also Fox Chase MSJ, Ex. D. at 58-59.

II. Legal Standard

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A party moving for summary judgment bears the burden of proving no genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To that end, the movant must inform the district court of the basis for its argument by " identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the movant is the defendant or the party that does not have the burden of proof on the underlying claim, it " has no obligation to produce evidence negating its opponent's case," National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). The movant need only point to the lack of evidence supporting the non-movant's claim. Id.

When both parties move for summary judgment, our task is no different. As our Court of Appeals teaches,

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily

Page 572

justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists it must be disposed of by a plenary trial and not on summary judgment.

Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968). Cross-motions must be considered separately and should not be interpreted necessarily to mean that judgment should be entered on either one of them. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he is entitled to a judgment as a matter of law. 10A Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, § 2720 (3d ed. 2014). As in any summary judgment motion, the determination whether a genuine issue concerning a material fact exists is itself a question of law that the Court must decide. It does not depend upon what either or both of the parties may have thought about the matter. A party moving for summary judgment concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of his own motion. Id. As Wright and Miller observe, " It follows that the legal theories the movant advances in support of a Rule 56 motion and the assertion that there is no issue of material fact may not be used against the movant when the court rules on his adversary's motion." Id.

It is well-established that Rule 56 requires the nonmoving party " to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324; see also Fed.R.Civ.P. 56(c). The reviewing court should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). A factual dispute is " genuine" if it turns on " evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if it " might affect the outcome of the suit under the governing law." Id. at 248. However, to prevail on a motion for summary judgment, " the non-moving party must present more than a mere scintilla of evidence; 'there must be evidence on which the jury could reasonably find for the [non-movant].'" S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 256 (3d Cir. 2013) (quoting Anderson, 477 U.S. at 252) (internal citation omitted).

Because we consider cross-motions before us, " [t] he fact that one party fails to satisfy that burden on his own Rule 56 motion does not automatically indicate that the opposing party has satisfied his burden and should be granted summary judgment on the other motion." 10A Wright & Miller at ยง 2720. Both motions must be denied if we find there is a genuine issue of material fact, but if there is no genuine issue and ...


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