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Franzi v. UPMC Presbyterian Shadyside

United States District Court, W.D. Pennsylvania

September 4, 2014




Plaintiff Lorraine R. Franzi ("Franzi") brings this civil rights action under the Americans with Disabilities Act ("ADA") and the Pennsylvania Human Relations Act ("PHRA") against Defendant UPMC Presbyterian Shadyside ("UPMC"). (Docket No. 19). Franzi alleges disability discrimination, retaliation, and failure to promote under the ADA. Id. UPMC filed a Motion for Summary Judgment arguing no liability on all counts. Said Motion is now fully briefed. (Docket Nos. 27, 29, 30, 32, 35, 38, 39, 41, 43, 46). Upon consideration of the parties' filings, their arguments presented at the March 20, 2014 Motion Hearing, [1] (Docket No. 40), their supplemental materials, [2] (Docket No. 41, 43, 46), and for the reasons more fully stated herein, Defendant's Motion, (Docket No. 27), is GRANTED, in part, and DENIED, in part.


Franzi suffers from depression and severe anxiety, dating back to 1980.[4] Franzi Dep. 31:8-22, (Docket No. 28-1 at 13). On March 7, 2005, she began working at UPMC as a dietician specialist and Certified Nutrition Support Clinician ("CNSC"). Franzi Dep. 9:24-10:1, (Docket No. 28-1 at 7-8). Currently, she cannot work due to agoraphobia.[5] (Docket No. 29 at 18). Consequently, she has been receiving disability benefits under the Social Security Act since July 2013. Franzi Dep. 28:3-29:3, (Docket No. 28-1 at 12).

Franzi was interviewed and hired by Kelly Danis ("Danis"), Manager of Nutrition[6] at UPMC's Presbyterian campus, [7] who became her immediate supervisor.[8] Danis Dep. 18:3-21, (Docket No. 28-7 at 7). One reason that Danis hired Franzi was her CNSC certification and her experience[9] in writing Total Parenteral Nutrition ("TPN") Orders.[10] Danis Dep. 18:3-21, (Docket No. 28-7 at 7). From 2005 to 2007, Franzi did not have any problems at UPMC, and her disability did not affect her work performance.[11] (Docket No. 40). However, starting in 2007, Franzi began receiving disciplinary write-ups and marginal performance ratings in teamwork and communication. (Docket No. 28-2 at 25-27, 50, 62-63, 73-76, 82, 93). She also took several extended leaves of absence in 2008, 2009, 2011, and 2012. (Docket No. 29 at 4).

When Danis hired Franzi, she informed Franzi that she could potentially move into a lead role in teaching current dieticians, as the UPMC staff lacked experience in writing TPN orders, [12] and Franzi had more experience in same based on her prior work at the Cleveland Clinic. Danis Dep. 18:7-19:11, (Docket No. 28-7 at 7); Franzi Dep. 10:23-11:11, (Docket No. 28-1 at 8). When UPMC created the position of Dietician Coordinator ("2007 promotion") in March 2007, however, it was awarded to Jean Nickleach ("Nickleach"). (Docket No. 29 at 2). Nickleach thus reported to Danis and replaced Danis as Franzi's immediate supervisor. (Docket No. 29 at 2).

Danis testified that although Franzi had the most experience in writing TPN Orders, the Dietician Coordinator was responsible for supervising all dieticians, not just those who wrote TPN orders. Danis Dep. 40:23-41:7, (Docket No. 28-7 at 12). Nickleach did not have as much experience in the TPN process as Franzi, but she had "more experience with the general nutrition, general dietician work." Danis Dep. 42:9-14, (Docket No. 28-7 at 13). Danis made the final decision to hire Nickleach as the Dietician Coordinator, with input from Joyce Scott-Smith ("Scott-Smith"), the Director of the Food and Nutrition Department. Danis Dep. 41:11-16, (Docket No. 28-7 at 12). She chose Nickleach based on her "more global experience in all of the functions of the clinical nutrition area, " and the fact that Nickleach had already served in a "lead dietician" role since 2005. Danis Dep. 41:19-42:5, (Docket No. 28-7 at 12-13).

Concurrently, Franzi experienced a severe bout of depression following her 2007 annual review, wherein she received an overall rating of 2.48 from Danis (on a scale of 1-3), which rating Franzi attributed to "lies."[13] (Docket Nos. 28-1 at 21; 28-2 at 10; 32 at 3). According to Franzi, these "lies" were not contained in the performance review, but were verbally transmitted during the review. Franzi Dep. 86:10-92:3, (Docket Nos. 28-1 at 27-28). Franzi's March 2007 review rounded down to 2, i.e., "consistently meets expectations." (Docket No. 28-2 at 10).

In subsequent reviews, Franzi continued to receive overall ratings of 2, which corresponded to "Solid, Strong, Good Performer."[14] (Docket Nos. 28-2 at 18, 37, 61, 71, 82). Prior to 2009, Danis conducted Franzi's reviews. (Docket No. 28-2 at 17, 24). Starting in 2009, Nickleach conducted her reviews. (Docket No. 28-2 at 49). Although Franzi signed her 2007 Performance Review, (Docket No. 28-2 at 16), she refused to sign any subsequent performance reviews, (Docket Nos. 28-2 at 24, 49, 76, 84; 29 at 6; 32 at 5). Franzi also submitted detailed comments disputing her ratings on teamwork and communication. (Docket No. 28-2 at 25-27, 50, 62-63, 73-76, 82). Nickleach reduced Franzi's annual 3% salary raise by one-half in 2009 and 2010. (Docket No. 28-2 at 9, 17, 38, 63); Franzi Dep. 95:18-96:7, (Docket No. 28-1 at 29).

In light of her bout of depression in 2007, Franzi applied for and received medical leave under the Family and Medical Leave Act ("FMLA") and short term disability payments from UPMC in April 2007. (Docket No. 32 at 4); EEOC Complaint, (Franzi Dep. Ex. 56). Franzi never discussed her disability with her supervisors, Franzi Dep. 43:3-6, (Docket No. 28-1 at 16), and she did not believe that anyone knew about her medical condition prior to July 2007, Franzi Dep. 62:16-19, (Docket No. 28-1 at 21). Despite same, when she first went on FMLA leave in 2007, Scott-Smith sent an email to Danis on April 19, 2007 stating, "Can't wait to hear... STD?? Mental??" (Docket No. 32-2 at 1). A physician assistant, Denise Keriotis ("Keriotis"), also apparently called Franzi "crazy" and warned Franzi not to go crazy again on her. Franzi Dep. 46:11-49:16, (Docket No. 28-1 at 17). Franzi subsequently took several extended leaves of absence in 2008, 2009, 2011, and 2012, as well as many days of intermittent leave. (Docket No. 29 at 4). All of these leaves were approved by UPMC. EEOC Complaint, (Franzi Dep. Ex. 56).

According to Kathy Grills ("Grills"), a Manager of Human Resources at UPMC Presbyterian Shadyside, UPMC WorkPartners was supposed to handle employee FMLA and disability leave requests, as well as requests for accommodations due to disabilities, and all medical information was to be provided confidentially to UPMC WorkPartners. (Docket No. 28-10 at 5). No information was to be given to supervisors or Human Resources other than information about restrictions on an employee's ability to work or necessary accommodations. (Docket No. 28-10 at 5).

When Franzi returned from her first FMLA medical leave on July 2, 2007, however, Danis requested her return to work authorization. Danis Dep. 26:1-27:2, (Docket No. 28-7 at 9). Although she was willing to provide same, Franzi did not wish to disclose that she had been treated at the Western Psychiatric Institute and Clinic ("WPIC"). Franzi Dep. 35:1-16, (Docket No. 28-1 at 14). Danis called Human Resources to request the authorization, which they faxed to Danis on June 28, 2007. Franzi Dep. 38:18-39:21, (Docket No. 28-1 at 15); Danis Dep. 26:1-27:2, (Docket No. 28-7 at 9). As a result, both Danis and Scott-Smith improperly received her return-to-work authorization, which stated that Franzi had been treated at WPIC in the "Mood and Anxiety Intensive Outpatient and Partial Programs." (Docket No. 28-2 at 2); Danis Dep. 26:24-27:17, (Docket No. 28-7 at 9). Human Resources then called Danis to ask if she had received a copy of the return-to-work form and to destroy it, because its dissemination was a Health Insurance Portability and Accountability Act ("HIPAA") violation. Danis Dep. 27:19-28:1, (Docket No. 28-7 at 9). Danis later testified that she never told anyone that Franzi had treated at WPIC until after Franzi's filing of her Equal Employment Opportunity Commission ("EEOC") Complaint in January 2012. Danis Dep. 28:16-29:10, (Docket No. 28-7 at 9); (Docket No. 46 at 9).

Following this incident in July 2007, Franzi filed a complaint with UPMC Corporate Compliance asserting a HIPAA violation, as Human Resources had allegedly advised Danis that she had not done anything wrong. Franzi Dep. 41:3-42:20, (Docket No. 28-1 at 15-16). The HIPAA violation was never resolved, as the Corporate Compliance official determined that it was not UPMC's responsibility, but UPMC WorkPartner's responsibility. Franzi Dep. 42:23-43:8, (Docket No. 28-1 at 16). Yet, when Franzi contacted the director of UPMC WorkPartners, she was informed that UPMC was "in transition, " so Human Resources still had her papers. Franzi Dep. 43:8-19, (Docket No. 28-1 at 16). Franzi again spoke with Human Resources, after which they indicated they would flag her papers to make sure no one saw them, but Franzi maintains that the damage was already done. Franzi Dep. 43:19-23, (Docket No. 28-1 at 16).

Meanwhile, on September 5, 2008, [15] Franzi received "Verbal Counseling" for violating the UPMC Code of Conduct, after an incident in which Franzi supposedly did not identify herself fully to a nurse practitioner and two doctors. (Docket No. 28-2 at 93). Franzi repeated several times that she was "Lorraine from GI Nutrition, " but the doctors were evidently unable to determine if Franzi was a doctor, nurse, or pharmacist, etc., as Franzi did not identify herself as a dietician.[16] (Docket No. 28-2 at 93). Franzi refused to sign the acknowledgement of the related verbal warning, which stated that "[a]ny other violation of Hospital or Departmental Policies or Procedures will result in additional corrective action up to and including termination of employment." (Docket No. 28-2 at 93). The verbal warning appears to have been the first step in a four-step corrective action process, including: (1) verbal counseling, (2) written warning, (3) suspension for three days, and (4) termination.[17] (Docket No. 28-2 at 93).

Six months later, Franzi received a "Written Warning for Inappropriate Communication with her Supervisor, which bordered on Insubordination, " for her refusal to acknowledge Nickleach's authority to check on her work. (Docket No. 28-2 at 97). Franzi refused to sign the acknowledgment of the Warning, which also stated that it was the second step in the UPMC corrective action process. (Docket No. 28-2 at 97). The Warning stated that if Franzi "fail[ed] to demonstrate immediate and sustained improvement or further violate[d] hospital/departmental policy, practice or procedure, " she would "advance in the Corrective Action process, up to and including termination from employment." (Docket No. 28-2 at 97). It also encouraged Franzi to review Policy HS-HR0704, Corrective Action and Discharge, [18] to understand UPMC's corrective action process and her rights and responsibilities. (Docket No. 28-2 at 97).

In late May 2009, Franzi received yet another written warning: a "Written Warning in Lieu of 3 Day Suspension, " for using pre-signed TPN order sheets, which violated Policy CP47, Evaluation of Nutrition Support Patients.[19] (Docket No. 28-2 at 98). Although this Warning did not include the Corrective Action checklist, it listed the prior warnings that Franzi had received in September and November, 2008. (Docket No. 28-2 at 98). It also stated that under UPMC Policy HS-HR0704, Corrective Action and Discharge, Franzi was "receiving a written warning in lieu of a 3 day suspension, " and "[a]ny additional violation of UPMC policy will result in further corrective action up to and including termination of employment at UPMC." (Docket No. 28-2 at 98). It further advised Franzi that she could file a grievance within seven (7) calendar days with the Grievance Committee of Human Resources.[20] (Docket No. 28-2 at 98). As with the prior warnings, Franzi refused to sign this Warning. (Docket No. 28-2 at 98).

Franzi later testified that this Warning was a result of what she termed a "class action, " in which all the CNSCs had been disciplined for using pre-signed forms, including Lisa Gannon ("Gannon"), because physicians had requested that CNSCs use pre-signed forms, and they were caught in between management and the physicians. Franzi Dep. 61:5-18, (Docket No. 28-2 at 20). Danis acknowledged that this Warning had been given to all "clinicians, managers and supervisors" because "everyone was using presigned TPN order sheets, " and "Franzi was just following the policy that everybody else was using." Danis Dep. 73:15-25, (Docket No. 28-7 at 20). Franzi testified that the clinicians wrote a collective grievance to Human Resources, but they did not hear back from Human Resources. Franzi Dep. 109:2-20, (Docket No. 28-1 at 32).

Almost a year later, Franzi received a "Final Written Warning in Lieu of 5 Day Suspension, " for her "failure to improve her job performance and conduct, after numerous corrective steps have been taken." (Docket No. 28-2 at 102). She was accused of bypassing "the GI Nutrition staff member who was assigned to approve and sign TPN orders" by going "directly to the Physician attending for order approval." (Docket No. 28-2 at 102). This Warning detailed the three prior warnings she had received since September 2008, and stated: "[f]urther violation will result in additional corrective action up to and including termination of employment" and that the "next step in the corrective action process is termination of employment." (Docket No. 28-2 at 102). When she received this Warning, she again refused to sign. (Docket No. 28-2 at 102). Instead, she filed a grievance on March 26, 2010 requesting that the Final Warning be overturned. (Docket No. 28-2 at 108). Even though Human Resources Vice President Louis Goodman ("Goodman") assured her that he would not tolerate any retaliation, Franzi canceled her April 2010 grievance appointment based on fear of retaliation.[21] (Docket No. 28-2 at 110).

To place this Warning in context, Danis testified that no other CNSCs had ever had a situation in which it was easier or faster for the physician to sign the orders rather than wait for the nurse practitioner. Danis Dep. 81:14-18, (Docket No. 28-7 at 22). Danis did acknowledge, however, that UPMC changed its procedure in 2007, several years after Franzi had already begun working at UPMC, from a system in which CNSCs were working one-on-one with physicians to write TPN orders, to one in which they worked with physician assistants rather than the physicians, before going to the physicians. Danis Dep. 21:3-22:19, (Docket No. 28-7 at 8).

Meanwhile, Franzi engaged counsel[22] and on July 6, 2011, counsel sent a letter to Goodman[23] containing seven workplace accommodation requests. (Docket No. 28-2 at 5). Additionally, Franzi's physician, Dr. Alexandra Kreps, sent UPMC a letter dated July 5, 2011 requesting: (1) that Franzi be placed on a four day, ten-hours-per-day schedule; (2) that she be placed in a calm and supportive working environment; and (3) that any concerns about her work be addressed by only one person rather than a group of people. (Docket No. 32-2 at 2). As such, Dr. Kreps supported Franzi's counsel's additional recommendations. (Docket No. 32-2 at 2).

Approximately three weeks later, Franzi met with Grills[24] concerning Franzi's request to extricate her prior warnings from her Human Resources record. (Docket No. 28-2 at 121). Two days after her meeting, Franzi sent a follow-up email thanking Grills and expressing optimism in achieving the workplace accommodations that Franzi, her lawyer, and her doctor had requested. (Docket No. 28-2 at 121). The next day, UPMC WorkPartners sent via fax a follow-up questionnaire to Dr. Kreps asking whether: (1) Franzi could work for five consecutive days; (2) whether she could work any shift time; (3) her preferred shift times; (4) the number of hours per day that she could work; (5) specific recommendations for the requested "calm, supportive work environment"; and requesting (6) any additional recommendations for UPMC in dealing with supervision, communication, and frustration/anxiety within the normal chain of command. (Docket No. 32-2 at 3). Six weeks later, Dr. Kreps confirmed that Franzi could work only four days per week, during daylight hours, with ten-hours-per-day shifts, supportive rather than critical supervisors, and "1 on 1" communication so that she "doesn't feel ganged up on." (Docket No. 32-3 at 3). However, on October 18, 2011, Dr. Kreps sent a follow-up letter to UPMC indicating that although she had confirmed Franzi's workplace accommodations with UPMC in August 2011 and again on September 15, 2011, she received no response from UPMC, nor did Franzi receive her requested workplace accommodations.[25] (Docket No. 32-2 at 1).

Danis testified that she had never seen Franzi's July 6, 2011 accommodation requests nor did she speak with Goodman or an in-house attorney about these requests. Danis Dep. 29:15-30:6, (Docket No. 28-7 at 9-10). But, Danis did discuss Franzi's return-to-work accommodations following her leaves of absence. Danis Dep. 30:13-24, (Docket No. 28-7 at 10). According to Danis, there had "never been anyone in the clinical nutrition department on a four, [sic] ten hour a day schedule, " despite five or six requests for that schedule, because their "work flow does not support a four day workweek" due to their "seven day a week coverage, " Danis Dep. 32:7-12, 33:5-17, 33:20-34:7, (Docket No. 28-7 at 10-11).

Thereafter, Franzi submitted to Grills a formal complaint with six examples of alleged harassment. (Docket No. 28-10 at 7-15). Even though Franzi described these incidents in extensive detail, Grills declared[26] that she dismissed her complaints, (Docket No. 28-10 at 7-15), finding them meritless. Grills Decl. ¶ 6, (Docket No. 28-10 at 3). Before doing so, Grills investigated Franzi's complaints and "spoke with her supervisors and any other necessary witnesses." Grills Decl. ¶ 8, (Docket No. 28-10 at 3). She affirmed that she informed Franzi in early August 2011 that she found her July 2011 complaints unsubstantiated, but she cites no documentary evidence to support her declaration. Grills Decl. ¶ 5, (Docket No. 28-10 at 2). She also could not recall whether she informed Franzi of her findings concerning her August 2011 complaints. Grills Decl. ¶ 9, (Docket No. 28-10 at 3). Subsequently, she authorized the September 12, 2011 "Written Warning in Lieu of a 5 Day Suspension."[27] Grills Decl. ¶ 10, (Docket No. 28-10 at 3). (Yet, Danis later testified that Grills actually recommended that Franzi be terminated for this incident. Danis Dep. 90:1-26, (Docket No.28-7 at 25).)

This Warning accused Franzi of taking a packet of patient-confidential emails to Kopy Kat[28] to be bound, without prior authorization.[29] (Docket No. 28-2 at 111-15). It documented her prior warnings on September 5 and November 11, 2008, May 29, 2009, and March 9, 2010. (Docket No. 28-2 at 111). And it warned that failure to demonstrate immediate and sustained improvement or further violations could lead to termination from employment pursuant to HS-HR0704, Corrective Action and Discharge, and that it was a repeat of the "written warning in lieu of 5 day, " but it did not state that termination was the next step, [30] as did the prior warning on March 19, 2010. (Docket No. 28-2 at 111). Franzi signed the September 2011 Warning, but she wrote that she did not agree to its contents. (Docket No. 28-2 at 111-12).

Franzi filed a grievance challenging this Warning on September 19, 2011, asserting that she did not exhibit poor judgment or improperly handle patient information, because she guarded the packet closely and was extremely sensitive to patient privacy, in light of the previous disclosure of her own treatment at WPIC. (Docket No. 28-2 at 122-24). She also maintains that there was a cover sheet to prevent exposure of patient information, and "not once did it leave [her] eyes." (Docket No. 28-2 at 124). She relies on UPMC's Privacy Officer Guidelines, Franzi Dep. 52:1-21, (Docket No. 28-1 at 18), which state that disclosure of Protected Health Information is not a reportable breach if "there is a good faith belief that the unauthorized person would not reasonably have been able to retain the information, " (Docket No. 41-4 at 2).

Before Franzi received the Written Warning, she also sent Grills an email describing the events that occurred in September 2011 as another example of harassment by Danis. (Docket No. 28-2 at 116). Franzi's grievance was denied by the Manager of Human Resources at UPMC Presbyterian Shadyside, Laura J. Zaspel ("Zaspel"), on November 11, 2011. (Docket No. 28-2 at 125-26). Zaspel noted that because Franzi's most recent corrective action in March 2010 was a written warning in lieu of five (5) day suspension, the next step in the corrective action process was termination; however, Franzi received yet another written warning in lieu of five (5) day suspension. (Docket No. 28-2 at 125-26). Franzi then appealed this decision to the President of UPMC Presbyterian Shadyside, John Innocenti. On January 23, 2012, after reviewing Franzi's file and meeting with her and other individuals, he denied her grievance and upheld the written warning in lieu of five day suspension. (Docket No. 28-2 at 127).

Four and a half months later, Franzi sent an email[31] to Danis containing the words, "No threat." In response, Danis sought guidance from Emily T. Bowman[32] ("Bowman"), Frerk, and Grills. (Docket No. 28-2 at 128). They recommended that Danis provide Franzi with verbal counseling and document the incident. (Docket No. 28-2 at 128). Danis then met with Franzi on June 14, 2012, (Docket No. 28-2 at 132), though Franzi denied that this meeting ever occurred, Franzi Dep. 138:16-139:6, (Docket No. 28-1 at 40). Franzi also submitted an email complaint to Grills on June 19, 2012, writing that Danis forced her to attend another "gang-up" meeting, in which Danis brought in a "cafeteria supervisor" to join the meeting despite her request that the meeting be conducted one-on-one with Danis, and her prior workplace accommodation request against "gang-up" meetings. (Docket No. 28-4 at 35). Franzi also complained that Nickleach scheduled Franzi for both the week directly before and directly after her vacation despite her advance request not to be assigned to those weeks. (Docket No. 28-4 at 35). Franzi testified that Danis agreed that this scheduling was a "bit much" and allowed her to find another clinician to cover those weeks. Franzi Dep. 167:12-168:14, (Docket No. 28-3 at 7).

In October and November 2012, Franzi submitted additional formal complaints to Grills, [33] (Docket No. 28-4 at 2-5, 35-58):

• Her first complaint was against Meredith Ponczak ("Ponczak"), another clinician, for not following established communication protocols and for horizontal violence[34] ...

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