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Walsh v. University of Pittsburgh

United States District Court, W.D. Pennsylvania

January 8, 2015

AMY WALSH, Plaintiff,


MAUREEN P. KELLY, Chief Magistrate Judge.

Pending before the court is a Motion for Summary Judgment (ECF No. 44) filed by Defendants the University of Pittsburgh ("Pitt"), Judy Mermigas ("Mermigas"), Michael Neft ("Neft"), and John O'Donnell ("O'Donnell") (collectively "Defendants"). Plaintiff Amy Walsh ("Walsh") initiated this action on February 5, 2013, by filing a five-count Complaint in Civil Action (ECF No. 1) alleging: (i) disability discrimination under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("ADA") and (ii) disability discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq. ("Rehabilitation Act") against Pitt; (iii) defamation and (iv) intentional infliction of emotional distress ("IIED") against Mermigas, Neft, and O'Donnell; and (v) negligent infliction of emotional distress ("NIED") against all Defendants. On April 15, 2013, Defendants filed an Answer and Affirmative Defenses. (ECF Nos. 4-7).

On April 1, 2014, after an unsuccessful attempt to mediate, Plaintiff was granted leave to file an Amended Complaint. (ECF No. 30). Plaintiff filed the Amended Complaint on April 9, 2014, adding a sixth claim for breach of contract against Pitt. (ECF No. 31). On April 23, 2014, Defendants filed a responsive Answer and Affirmative Defenses. (ECF Nos. 32-35). On July 3, 2014, following the close of discovery, Plaintiff filed an uncontested motion seeking permission to withdraw counts (iii) and (iv), for defamation and IIED respectively. (ECF No. 41). Defendants filed a Motion for Summary Judgment and a brief in support on July 17, 2014. (ECF Nos. 44 and 45). Defendants also submitted a concise statement of material facts (ECF No. 46) and seven volumes of supporting exhibits. (ECF Nos. 47-53). Plaintiff filed her concise statement of material facts with supporting exhibits (ECF No. 55) on August 22, 2014, accompanied by a Response Brief in Opposition to Defendant's Motion for Summary Judgment. (ECF No. 56). Defendants filed a reply brief (ECF No. 58) and response to Plaintiff's concise statement of material facts (ECF No. 60) on September 11, 2014. Finally, Plaintiff filed a sur-reply brief (ECF No. 62) on September 22, 2014.

After consideration of the parties' submissions and the applicable legal principles, the Court concludes that in light of the summary judgment standard of review and based upon the evidence of record, Plaintiff cannot prove that her dismissal from the University of Pittsburgh's Nurse Anesthesia Master's Program was the result of unlawful discrimination under either the ADA or the Rehabilitation Act, or that she was harassed under either law. Further, Plaintiff cannot prove that Defendants' conduct leading up to Plaintiff's release constituted a breach of any contractual duty or resulted in any damages to her. Finally, Plaintiff cannot prove either the sort of contractual or fiduciary duty or the existence of a direct physical injury caused by Defendants' allegedly negligent conduct necessary to support a claim for NIED in Pennsylvania. Accordingly, for the following reasons, Defendants' Motion for Summary Judgment (ECF No. 44) will be GRANTED.


The factual background is derived from the undisputed evidence of record and the disputed evidence, viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor").

Walsh graduated from Pitt in mid-1998 with a B.S. in psychology and a B.A. in anthropology. (ECF No. 55, ¶ 2). In late 2004, she obtained a B.S. in nursing, from Pitt (ECF No. 55, ¶ 3) and in the summer of 2011 Walsh was later accepted into Pitt's Nurse Anesthesia Master's Program (the "Program"). (ECF No. 55, ¶ 4). The Program is described in the "Nurse Anesthesia Program Student Handbook" (the "Handbook"), which explains that the curriculum consists of 52 didactic credits and 60 equivalent credits of clinical practice over a 28 month period. (ECF No. 48, p. 39, ¶ 7; ECF No. 55). Walsh performed well in the didactic portion of the Program. (ECF No. 55, ¶ 8). The clinical portion of the Program requires students to rotate through affiliated clinical sites and anesthesia related specialty areas while receiving individualized instruction from certified registered nurse anesthesiologists ("CRNAs") and anesthesiologists. (ECF No. 48, p. 45; ECF No. 55, ¶ 7). At least one of these CRNAs or physicians acts as a site coordinator at each clinical site with responsibilities that include providing feedback to students through the use of daily evaluations and a Rotation Summary Evaluation of Clinical Performance ("Rotation Summary") conducted at the conclusion of each clinical practicum. (ECF No. 49, p. 2; ECF No. 55, ¶¶ 11, 18, 19). This Rotation Summary provides an evaluation of the student's performance in each of five areas: 1) organization/preparation; 2) clinical knowledge base; 3) technical skills; 4) management of anesthetics; and 5) professionalism/motivation. (ECF No. 53, p. 2; ECF No. 55, ¶ 19). In each of these five categories, the student can receive a classification of superior, satisfactory, or unsatisfactory. Id . After factoring in the evaluations for each of these individual categories, a student must receive an overall grade of satisfactory to move on to the next practicum. (ECF No. 48, p. 45; ECF No. 55, ¶ 9).

Walsh received "satisfactory" marks in all five categories of the Rotation Summary for her first clinical practicum, which took place at UPMC Passavant between November of 2011 and March of 2012. (ECF No. 53, p. 2; ECF No. 55, ¶¶ 18, 20). Walsh then moved on to her second site, the Veterans Affairs Medical Center ("VA") in the Oakland section of Pittsburgh, Pennsylvania, where she worked from March through May of 2012. (ECF No. 55, ¶ 21). During her time at the VA, Walsh revealed to Sally Ollio ("Ollio"), one of her clinical coordinators at the site, and Diane Boettger ("Boettger") that she had a medical history of breast cancer and related surgical treatment (ECF No. 55, ¶ 28), which Walsh claims to have resulted in mild weakness and a reduced range of motion in her left arm and persistent joint stiffness. (ECF No. 55, ¶ 26). Walsh further claims that this weakness and limited range of motion causes her to move and perform certain manual tasks in a different manner than her nursing peers. (ECF No. 55, ¶ 27). According to Walsh, she chose to reveal this information following an incident during which she was mask ventilating a patient under Boettger's instruction, and Boettger grabbed Walsh's arm and attempted to twist it into what Boettger considered to be proper form for the procedure. (ECF No. 55, ¶ 217; ECF No. 55-1, p. 16).

Walsh says that, after informing Boettger that Walsh's left arm could not move in the manner Boettger wished it to, Boettger, Ollio, and Dr. Mohr, one of the anesthesiologists at the VA, began making comments that Walsh would be unable to perform in the role of a CRNA due to her physical limitation. (ECF No. 55, ¶¶ 219-22). Walsh claims that she brought concerns about this allegedly harassing conduct by the VA employees to the attention of Defendants Mermigas, Neft, and O'Donnell on multiple occasions, and that these concerns were dismissed. (ECF No. 55, ¶¶ 223-27, 231-32). As a result of having to endure the environment at the VA, Walsh says she developed depression and anxiety for which she was prescribed antidepressant and anxiolytic medications. (ECF No. 55, ¶ 233). Walsh's depression caused her to lose twenty pounds during her next clinical rotation, and she feels ill whenever she discusses her time at the VA or has to travel to Pittsburgh. (ECF No. 55, ¶ 234; ECF No. 55-1, 75-77). On the Rotation Summary for the VA, Ollio rated Walsh as "satisfactory" in four of the five categories, with a rating "somewhere between satisfactory and unsatisfactory" in the area of technical skills. (ECF No. 55, ¶¶ 22, 23).

Despite, Walsh's less than satisfactory mark for technical skills for her time at the VA, she received an overall grade of "satisfactory, " allowing her to then move on in June of 2012 to her next clinical site, UPMC Shadyside Hospital ("Shadyside"). (ECF No. 55, ¶ 34). Walsh had three clinical coordinators during her clinical practicum at Shadyside: Amy Herrmann ("Herrmann"), Vince Contendo ("Contendo"), and Bob Lorh. (ECF No. 55, ¶ 35). Very early on during her time at Shadyside, Walsh attended a meeting with her faculty advisor, Defendant Neft, and the director of the Program, Defendant O'Donnell, which was organized in response to reports from Shadyside concerning Walsh's performance there. (ECF No. 55, ¶ 42). Students having difficulty at a clinical site may be placed onto a performance improvement plan ("PIP") in an effort to correct perceived shortcomings. (ECF No. 55, ¶ 41). On or around July 6, 2012, following the meeting with Neft and O'Donnell, Walsh was placed on such a PIP. (ECF No. 52, pp. 14-16; ECF No. 55, ¶ 43). This PIP contained six overall goals, dealing with organization, maintaining focus and composure, demonstrating attention to detail, communicating effectively, and handling constructive criticism. (ECF No. 52, p. 15).

Walsh says that the hostility she perceived from members of the VA staff was perpetuated by several of the CRNAs at Shadyside, including Hermann, who unjustifiably criticized her performance and attempted to portray her as incompetent. (ECF No. 55, ¶¶ 235-38). Again, Walsh says she brought concerns about this behavior to Defendants Mermigas, Neft, and O'Donnell on several occasions, who took no action but rather told Walsh that the behavior she was experiencing was a normal part of the nursing profession and that Walsh should learn to accept personal accountability. (ECF No. 55, ¶¶ 240-43, 246-47).

Near the end of Walsh's rotation at Shadyside, O'Donnell, Neft, and Contendo met with her to inform her that, while she showed some improvement against the goals stated in the PIP, additional improvement was still necessary, and therefore she would remain on a revised PIP during her next clinical rotation. (ECF No. 55, ¶ 49). In her Rotation Summary for Walsh, which was completed in late August of 2012, Herrmann evaluated Walsh as "unsatisfactory" in the areas of organization/preparation, management of anesthetics, and professionalism/motivation, with the remaining two areas graded as "satisfactory." (ECF No. 55, ¶¶ 37-39). Ultimately, Walsh received a "G" grade for her clinical practicum at Shadyside, (ECF No. 55, ¶ 50), which is given when a class is incomplete with extenuating circumstances and can be improved to a "satisfactory" once the student is found to have met certain goals. (ECF No. 49, pp. 45-46; ECF No. 55, ¶ 51). Walsh received a letter from Neft on September 4, 2012, which summarized the situation as it existed at that point, including a discussion of the "G" grade and the revised PIP, and restated the same goals at the first PIP. (ECF No. 52, pp. 39, 42; ECF No. 55, ¶ 12). The letter explained that Walsh was being placed on probation until at least the end of the fall 2012 term. (ECF No. 52, p. 40).

Shortly after receiving the September 4th letter, Walsh began what would be her final clinical practicum at UPMC St. Margaret ("St. Margaret") (ECF No. 55, ¶ 53), and continued there until her last day of active participation on October 18, 2012. (ECF No. 55, ¶ 66). On that day, Walsh committed two separate medication errors which necessitated her completion of a "Clinical Event Report." (ECF No. 52, p. 48; ECF No. 55, ¶ 67). The first of those errors was a "near miss" in which her supervising CRNA, Laura Kridler ("Kridler"), had to intervene to prevent Walsh from administering the drug labetalol when she had been instructed to administer the drug ketamine. (ECF No. 52, p. 48; ECF No. 55, ¶¶ 68, 74). The second of those errors occurred ten minutes later, when in response to an instruction to administer labetalol, Walsh began to administer the drug fentanyl, and had actually administered approximately 10-15 mcg of the 5 ml dose before the CRNA noticed the error. (ECF No. 52, p. 48; ECF No. 55, ¶¶ 68, 69). Walsh met with O'Donnell and a Pitt School of Nursing faculty member, Joseph Goode, to discuss these events the following day. (ECF No. 55, ¶ 70). The parties disagree as to whether Walsh was able to suggest what she would do differently in the future to prevent such errors when asked by O'Donnell. (ECF No. 55, ¶¶ 72, 251-52). Following that meeting, O'Donnell discussed the incident with the clinical faculty at St. Margaret, who gave the opinion that Walsh was not functioning safely at St. Margaret. (ECF No. 55, ¶ 73).

As the October 18, 2012 incident arguably constituted "Unsafe Student Clinical Performance, " O'Donnell referred to School of Nursing Policy 305 ("Policy 305"), as required by the Handbook (ECF No. 49, p. 17; ECF No. 55, ¶ 77), which provides in great detail the procedure through which potentially unsafe student conduct is reviewed. (ECF No. 50, pp. 8-11). Policy 305 begins by stating that "[s]tudents whose clinical practice is determined to be dangerous, or potentially dangerous to patients or others will be dismissed from the School of Nursing." (ECF No. 50, p. 8). "[M]edication errors... that could result in serious injury or death" are included as one of the two examples of "unsafe behavior" which would require "immediate faculty intervention to protect patients or others." (ECF No. 50, p. 8). Policy 305 requires that once a faculty member makes a professional judgment that a student's behavior is dangerous or potentially dangerous, he must immediately relieve the student of direct patient care responsibilities and communicate his concerns to "the Associate Dean for Clinical Education." (ECF No. 50, p. 9).

In this case, O'Donnell communicated his concerns about the October 18, 2012 incident to Susan Albrecht ("Albrecht"), Associate Dean for External Relations at the Pitt School of Nursing, who was handling Associate Dean for Clinical Education Sandra Engberg's ("Engberg") responsibilities, during her absence. (ECF No. 55, ¶¶ 86-88). This triggered Policy 305's three-level review process, which began with a letter sent to Walsh by Albrecht on October 24, 2012, informing Walsh that she had been suspended from clinical activities in the Program. (ECF No. 50, p. 6; ECF No. 55, ¶ 76).

At Policy 305's first level of review, the Associate Dean for Clinical Education must determine whether she agrees with the initial faculty member's judgment that the relevant student behavior was dangerous or potentially dangerous, and whether there were any mitigating circumstances present. (ECF No. 50, p. 9). If the Associate Dean disagrees with the initial assessment of the student's behavior, the suspension is lifted. Id . In the first alternative, if she agrees but finds mitigating circumstances, she must work with a defined team to determine the conditions under which the suspension will be lifted. Id . Finally, if she agrees and finds no mitigating circumstances, the next level of review is triggered, and a Faculty Review Panel ("Panel") must then review the judgment. Id . The determination to be made by the Panel is essentially the same, although mitigating circumstances are not explicitly mentioned as a consideration. (ECF No. 50, p. 10). The final level of review occurs only if the Panel agrees that the student's behavior was dangerous or potentially dangerous, and is prompted by the Assistant Dean for Clinical Education's recommendation to the Dean that the student be dismissed. Id . The Dean still has the ability to lift the suspension should she disagree with the lower findings. Id . However, if she concurs with the original faculty member, the Associate Dean for Clinical Education, and the Panel, the Dean must communicate the student's dismissal from the school. Id.

On November 12, 2012, once the Policy 305 review process was completed in the instant matter, Jacqueline Dunbar-Jacob ("Dunbar-Jacob"), the Dean of Nursing, sent Walsh a letter explaining that, at each level of review, the judgment that Walsh had engaged in "unsafe practice that was potentially dangerous to the patient" was upheld. (ECF No. 50, p. 34). As such, Walsh was dismissed from the Program effective as of that date. Id . This occurred even though, early on at St. Margaret, Walsh was exceeding expectations. (ECF No. 51, p. 13). However, the Rotation Summary for this site ultimately completed by Kridler on November 30, 2012, reflected four "unsatisfactory" grades, with only one "satisfactory" mark in professionalism/motivation. (ECF No. 52, p. 45; ECF No. 55, ¶ 61).

Walsh now argues that the Defendants breached a contractual duty created by Policy 305, which required that Walsh's past clinical performance not be considered in making the determination that her conduct on October 18, 2012, was dangerous or potentially dangerous, and which resulted in her dismissal from the Program. (ECF No. 56, pp. 3-13). Walsh also argues that Pitt breached its contract with her because the decision to dismiss her was either arbitrary or made in bad faith. (ECF No. 56, pp. 14-18). Walsh next asserts that Pitt subjected her to unlawful harassment, and that the decision to dismiss her from the Program was based on her disability, in violation of both the ADA and Rehabilitation Act. (ECF No. 56, pp. 18-27). Finally, Walsh claims that she suffered severe emotional distress caused by the negligent conduct of Defendants during her time in the Program. (ECF No. 56, pp. 27-31).


Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record, " by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1). See Celotex, 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." ...

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