United States District Court, W.D. Pennsylvania
GIBSON UNITED STATES DISTRICT JUDGE.
years, Robin Litzinger worked as a licensed practical nurse
for Allegheny Lutheran Social Ministries, until she was fired
on July 22, 2014. Litzinger suffers from a back injury and
cardiac problems, and in December 2015 she sued Allegheny
Lutheran for discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq.
(“ADEA”), and the Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq.
(“ADA”). She alleges that she was fired because
of her age-she was 59-years-old when she was fired-and
because of her heart problems. Allegheny Lutheran has now
moved for summary judgment on both counts. It argues that
Litzinger fails to state a prima facie claim of
discrimination under either the ADEA or the ADA. Further,
Allegheny Lutheran argues that it had a legitimate reason for
firing Litzinger, and that she has not shown that this reason
is a pretext for discrimination.
Lutheran is correct on all points. The Court will therefore
grant its motion for summary judgment.
January 6, 1986, Litzinger began working for Allegheny
Lutheran as a licensed practical nurse at its Hollidaysburg
facility. Allegheny Lutheran is a faith-based, not-for-profit
organization that serves West Central Pennsylvania by
providing various social services, including senior-living
services. Allegheny Lutheran operates several senior-living
communities as well as short- and long-term-care facilities,
including the Lutheran Home at Hollidaysburg, Pennsylvania.
Lutheran Home is a long-term-care facility-otherwise known as
a nursing home-that provides care for approximately 89
residents. It was Litzinger's job to care for these
residents; her duties included checking on ill residents,
handling their medications, and assisting with their feeding
and bathing. From approximately 2004 until she was fired in
2014, Litzinger reported to Eva Pope, the director of nursing
at the Lutheran Home.
suffers from some medical problems. She testified that
between late 2011 and 2016 she regularly saw a chiropractor
for a back injury. Also beginning in 2011, Litzinger
submitted some medical documentation to Allegheny Lutheran in
connection with her back injury. That documentation-four
disability-release forms and a letter from her chiropractor-
imposed limited work restrictions for set durations.
Specifically, the disability-release forms recommended that
Litzinger not lift, push, or pull more than 25 pounds, and
that she not work more than 8 hours per day or more than 40
hours per week, all for periods of 4 weeks. The letter from
Litzinger's chiropractor-dated February 10, 2014, and
written in response to a letter from Allegheny Lutheran
inquiring about Litzinger's job restrictions-also
strongly recommended that she not be required to work more
than an eight-hour shift. The letter from Litzinger's
chiropractor imposed no temporal limit on that restriction.
Litzinger testified that, although she was required to work
more than eight hours per day once or twice after she
submitted her medical documentation, Allegheny Lutheran
honored her work restrictions.
also has coronary-artery disease, and in November 2013 she
suffered a major heart attack. She thereafter requested to take
leave from Allegheny Lutheran under the Family and Medical
Leave Act so that she could complete a cardiac-rehabilitation
program. In connection with that request, she submitted a
note from her cardiologist, which stated that she would
remain off from work until at least her next follow-up.
Allegheny Lutheran approved Litzinger's FMLA leave and
she missed six to eight weeks of work. Litzinger's doctor
approved her to return to work-without restrictions-effective
January 13, 2014, and she did return later that month. In
returning to work, Litzinger required no accommodations as a
result of her heart attack or in connection with her
coronary-artery disease. Allegheny Lutheran was not provided
with any documentation regarding her cardiac issues other
than her FMLA request, the note submitted in connection with
that request, and the January 2014 note. After she returned
to work Litzinger did have conversations related to her
cardiac issues with two of her supervisors. At one time she
asked Pope whether it would be permissible if she placed her
medicine cart in a set area instead of pushing it around
because pushing the cart was making her uncomfortable. Pope
told her that would be fine. At another time Litzinger had a
conversation about her coronary- artery disease with Debra
Husick-a resident-nurse supervisor-during which Husick told
her to take it easy and that Husick was concerned for her.
Other than those two conversations, Litzinger had no
discussions with any supervisor at Allegheny Lutheran about
her cardiac issues and no supervisor ever made any critical
comment about those issues.
received several disciplinary warnings during her employment
with Allegheny Lutheran. Four of the incidents underlying
those warnings-all of which involved allegations of
unprofessional and discourteous conduct-occurred between 2010
and her firing in 2014. Although the allegations in most of
those incidents were found to be unsubstantiated, Litzinger
was counseled and warned regarding her conduct after each
incident. In addition, Litzinger regularly received training
on topics relevant to her position, including residents'
rights and resident abuse and neglect. Between 2012 and when
she was fired, Litzinger took eight courses that touched on
January 2010, Litzinger received a first written
warning. The report for this incident explains that
the warning was given because Litzinger got into an argument
with a supervisor about a nurse-aide assignment. (ECF No.
18-9 at 11.) In addition to being warned, Litzinger was
required to take inservice training on work ethic and
attitude. She completed that training a week later.
second incident occurred in October 2010 when a
resident's son lodged a complaint against Litzinger for
verbally abusing the resident. Allegheny Lutheran submitted a
report to the Pennsylvania Department of Health regarding
this complaint, which states that the resident's son
alleged that Litzinger “yelled at resident, pointed her
finger at resident and said to resident, ‘you ring your
call bell too much, I can't please you no matter what I
do, you want in bed and out of bed, no matter what I do I
can't please you, and you are going to pay for
it.'” (ECF No. 18-9 at 8.) Pursuant to both
Allegheny Lutheran's and the Pennsylvania Department of
Health's policies, Litzinger was suspended for one day
while this complaint was investigated.
Lutheran's policies prohibit resident abuse. Allegheny
Lutheran's team-member handbook defines abuse as
“an action which causes physical harm or mental
distress to another person. If an action results in
unnecessary discomfort to another person, it is considered
abuse.” (ECF No. 18-7 at 22.) Under Allegheny
Lutheran's policies, “[v]erified evidence that
abuse has occurred is grounds for dismissal.” (ECF No.
18-7 at 22.) After investigating the October 2010 complaint,
Allegheny Lutheran determined that the allegation of abuse
was unsubstantiated and Litzinger returned to work. Although
no discipline was imposed on Litzinger for this
incident-other than the suspension to investigate-Pope and
the facility's administrator met with her and counseled
her to be more careful about how she spoke to and treated
people. As a result of that meeting, Litzinger
also understood that she could be terminated for
substantiated allegations of abuse.
third incident occurred in April 2013. A hospice aide
reported that she had asked Litzinger to assist her with
helping a resident go to the bathroom, and that while helping
this resident Litzinger became angry with the resident and
used profane language, upsetting the resident. Allegheny
Lutheran investigated this allegation and interviewed
Litzinger, the hospice aide, the social worker who had
received the complaint, as well as the resident. During the
resident's interview, she “did not state that
anything had occurred, ” and when asked said that she
was not afraid of Litzinger and had no objection to letting
Litzinger continue to care for her. (ECF No. 18-9 at 6.)
Allegheny Lutheran thus concluded that the complaint was not
substantiated. Nevertheless, Allegheny Lutheran issued
Litzinger an “on-the-spot education” about the
use of profanity around residents and
fourth incident occurred in June 2013 when a resident
reported that Litzinger had verbally abused her by yelling at
her. Allegheny Lutheran suspended Litzinger for three days
while it investigated this complaint. Litzinger testified
that when she returned to work she met with Pope and the
facility administrator and that during this meeting she
denied yelling at the resident. (ECF No. 18-6 at
84:18-85:23.) Litzinger testified further that Pope and the
administrator told Litzinger that the resident did not want
Litzinger to lose her job, and that they said she had to
apologize to the resident if she wanted to remain employed
with Allegheny Lutheran. (Id. at 85:12-21.)
Litzinger then apologized to the resident and this resolved
more incident occurred after June 2013. On July 17, 2014, a
resident-whom the Court will refer to as M.S.-reported to two
different Allegheny Lutheran employees that Litzinger had
threatened her. The facility administrator at that time,
Danielle Hale Pettit, and Pope began investigating this
complaint the same day. They interviewed Litzinger, M.S., and
the two employees to whom M.S. made the report. From their
statements, it appears that this incident was prompted by
M.S. not wanting to go to an appointment. But Litzinger did
not admit to saying anything inappropriate to M.S. In her
statement, she said that M.S. had refused to go the
appointment and told her to “get the hell out.”
(ECF No. 18-11 at 14.)
getting Litzinger's statement, Allegheny Lutheran
suspended her for three days while it investigated further.
Pettit interviewed M.S., who said that Litzinger had told her
“[y]ou will be left like an animal and no one would
[sic] ever come in here again. I'll see to it that you
won't get your meds.” (ECF No. 18-11 at 11.) M.S.
further stated that Litzinger went into “a wild
rage” and that she felt threatened and never wanted
Litzinger to take care of her again. (Id.) Nobody other
than Litzinger and M.S. was present when these statements
were allegedly made. But the two employees reported-and
testified during the course of discovery in this case-that
they found M.S. visibly upset and crying, and that M.S. had
told them too that Litzinger had threatened to take her
and Pope finished their investigation that same day-July 17,
2014. They concluded that firing Litzinger was warranted. She
was terminated effective July 22, 2014. Litzinger's date
of birth is December 5, 1954, meaning she was 59 years old
when she was fired.
August 6, 2014, Allegheny Lutheran listed the opening for
Litzinger's former position on its internal website.
Lorraine Kiel-another licensed practical nurse who worked for
Allegheny Lutheran but on a different shift-applied and was
hired for Litzinger's former position. Kiel's date of
birth is April 28, 1960, meaning she was 54 years old when
she was hired for that position.
December 1, 2015, Litzinger filed this lawsuit.
Jurisdiction & Venue
Litzinger's claims arise under federal law, this Court
has subject-matter jurisdiction over them pursuant to 28
U.S.C. § 1331. And because the events giving rise to
Litzinger's claims-namely her employment relationship
with Allegheny Lutheran and her firing-occurred in the
Western District of Pennsylvania, venue is proper in this
district pursuant to 28 U.S.C. § 1391(b)(2).