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Raskind v. Resources for Human Development, Inc.

United States District Court, E.D. Pennsylvania

November 3, 2017

MICHAEL MOSHE RASKIND, Plaintiff,
v.
RESOURCES FOR HUMAN DEVELOPMENT, INC., Defendant.

          MEMORANDUM

          ROBERT F. KELLY, SR. JUDGE

         Plaintiff Michael (Moshe) Raskind (“Raskind”) filed suit in this Court against Defendant Resources for Human Development, Inc. (“RHD”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”), alleging that RHD discriminated against him on the basis of his religion and retaliated when he made a complaint of religious discrimination.

         Presently before the Court is RHD's Motion for Summary Judgment, which seeks dismissal of all claims in this action. Raskind filed a Response in Opposition, RHD filed a Reply Brief, and Raskind filed a Sur-Reply. For the reasons noted below, RHD's Motion for Summary Judgment is granted.

         I. BACKGROUND

         A. Factual History

         RHD manages Lower Merion Counseling Services (“LMCS”), which is an outpatient clinic that offers individual, group, and in-home services for people seeking mental health, alcohol, and drug treatment programs. (See Def.'s App.[1] C (“Raskind Dep.”) at 63-64; Def.'s App. E (“Padgett Dep.”) at 84.) Raskind worked as the Unit Director of LMCS from November 4, 2013, until his termination on March 25, 2015. (See Raskind Dep. at 220; see also Compl. ¶ 13.) In his capacity as Unit Director, Raskind had the responsibility of, inter alia, supervising the completion of all clinical and medical documentation required by Medicare and other insurers; managing the LMCS staff and budget; upholding RHD's values; and ensuring that all consumers' needs were met. (See Raskind Dep., Ex. 2 at 1-2.)

         During the interview process with RHD, Raskind disclosed to a number of individuals, including Linda Donovan (“Donovan”), an Assistant Corporate Director, Jesse Padgett (“Padgett”), a Program Coordinator, and Hayes Russock, that he was a devout member of the Orthodox Jewish faith and would need flexibility to observe the Sabbath and Jewish High Holidays.[2] (See Raskind Dep. at 22, 25; Padgett Dep. at 88-89; Def.'s App. D (“Donovan Dep.”) at 52-53.) Raskind's faith requires him to cease “all work-related affairs throughout the duration of the Sabbath and Jewish Holidays.” (Pl.'s App.[3] P3.) Jewish holy days commence at the sunset of the previous day and extend through nightfall of the holy day itself, during which “activities such as cooking and bathing are either forbidden outright or seriously curtailed.” (Id.) Donovan and Padgett assured Raskind that accommodating his request for religious observance would not be a problem. (Raskind Dep. at 30-31.)

         Raskind had “routine” supervisory meetings with Donovan and Padgett throughout his tenure with RHD that typically resulted in a “Counseling/Supervision Form” (“Supervision Form”) being placed in his file. (See Donovan Dep. at 56 (noting that the supervision forms are “routine”).) The first Supervision Form on record is dated January 7, 2014, which provides, among other things, that, although “[o]verall the first two months have gone well for [Raskind], ” there was “some early feedback that [he] was perceived as ‘unapproachable' from a staff member.” (Pl.'s App. P9.)

         Raskind had another supervisory meeting on March 27, 2014. (Id. P10.) The Supervision Form notes that Anna Ryan (“Ryan”), the LMCS Office Manager, reported that Raskind made her feel disrespected and belittled. (Id.) In addition, Ryan reported that Raskind had yelled, “what is wrong with you people?, ” at a staff meeting and at one time called an RHD coordinator “a bitch.” (Id.) Raskind admitted to making the, “what is wrong with you people?” statement, but stated that the context was different than how it was reported, as staff members apparently laughed along with him. (Id.) He further noted that using the term “bitch” did not sound like language he would use, but that he may have said “bitchy” or “witchy.” (Id.) Lastly, the note indicates that Ryan complained that Raskind wanted all females to wear dresses at work. (Id.) The allegation that Raskind wanted all females to wear dresses at work was unsubstantiated. (Donovan Dep., Ex. 16; Pl.'s App. P15.)

         Raskind had a supervisory meeting and his six-month performance evaluation on May 5, 2014. (Pl.'s App. P11, P18.) His six-month performance evaluation form noted that “[t]here has [sic] been several incidents with staff who claimed they were feeling disrespected by your comments or actions (office manager and clinicians). It does appear that you have taken this seriously and made plans to address it with staff.” (Id. P21.) The Supervision Form from May 5, 2014 did not provide for any performance problems. (Id. P11.)

         On August 7, 2014, another supervisory meeting took place, with the Supervision Form stating that “[Donovan] reviewed with [Raskind] his scheduled hours at the program. Upon hire, [Raskind] requested accommodation for flexibility on Fridays so he can observe his religious practices. [He] will continue to work extended hours during the week to assure program needs are met.” (Id. P1.) Additionally, the Supervision Form provides that there was an “us versus them” mentality in the office. (Id.) In particular, Padgett noted instances from the outpatient services and the Recovery Support Team where the Central Office/HUB was referred to as “them.” (Id.) Raskind was apparently open and receptive to the feedback and would examine ways to ensure the staff understood that they were all working towards the same goals. (Id.)

         On September 9, 2014, Raskind emailed Donovan and Padgett and identified three days when he would be leaving early and six days that he would need off between September 24, 2014 and October 17, 2014 to observe Jewish holidays. (Id. P24.) Donovan forwarded the email to Barbara Hammer, writing, “So . . . heard of these?” (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 9; Pl.'s App. PC1.) According to Raskind, within two or three days of his email, Donovan brought him aside near her desk and asked him whether the requested time off was time that he could not work. (Raskind Dep. at 33.) Raskind answered affirmatively, to which Donovan stated, “well, I need a director who's present.” (Id.) Raskind testified that he took Donovan's “present” comment as a threat. (Id. at 37.) However, he was ultimately assured by either Donovan or Padgett that he would be able to take his requested days off. (Id. at 51.)

         Donovan's recollection of the events is slightly different. She testified that she saw Raskind in the office and asked him whether there was any flexibility with the days he requested off. (Donovan Dep. at 105.) Raskind answered there was no flexibility, and Donovan acknowledged that he would be taking those days off. (Id.) Raskind then informed her that he was taking a week off around Christmas because he and his wife had a time share, and if they did not take it, they would lose it. (Id.) Donovan testified that “at that point I did say I need a director who is present because there was so much to do at the program. I did need somebody who was going to be there to work.” (Id.) Donovan was concerned because there was an added financial crisis because RHD had just received notification that it was losing $200, 000 in funding. (Id. at 104-05.) In addition, Raskind had already exhausted all but one day and a few hours of paid time off in 2014. (Id. at 104.)

         On September 15, 2014, Raskind complained to Padgett that Donovan's “present” comment amounted to religious discrimination. (Raskind Dep. at 41; Pl.'s App. P27.) Raskind testified that “it seemed discriminatory the way she addressed me about my request for times off - time off, saying that I needed a director that was present and why are the holidays so close together.” (Raskind Dep. at 41.) When Padgett told Donovan about Raskind's complaint, they scheduled a meeting with Human Resources to discuss the issue. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 10.) Raskind, Donovan, and Padgett met with RHD's Human Resources Generalist, Melissa Scholfield (“Scholfield”), on September 16, 2014 to discuss the complaint. (Id.) At the meeting, Raskind said Donovan was defensive and that Donovan said she did not intend her comment to mean that he could not take the days off to observe the Jewish holidays. (Id.; see also Raskind Dep. at 47.) Donovan summarized the meeting in her notes. (Pl.'s App. P30-P31.) Her notes provide that “[Raskind] states that discrimination was a strong word, and that what he felt may not have been exactly that, but more of insensitivity.” (Id. at ¶ 31.) She further wrote that Raskind stated there was a difference between how he felt and thought about discrimination. (Id.) He stated “he knew I did not mean it in that way, that his mind and heart felt two separate ways.” (Id.)

         After the meeting with Padgett, Donovan, and Scholfield, Raskind claims that Donovan began treating him differently. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 11.) In particular, he testified that “[s]he was short, critical, more critical of everything I did. I felt like if I didn't dot an I or cross a T, it was being examined. I was trying to work under a situation where I felt like there were - like too many eyes were watching me all the time. It made working there very, very difficult.” (Raskind Dep. at 133.) In addition, Raskind claims he was “effectively demoted” on October 13, 2014 when Donovan implemented a reorganization of LMCS by promoting his assistant director, Stephanie Sanger (“Sanger”), to the position of co-director, which allegedly stripped him of approximately fifty percent of his responsibilities. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 12-13.)

         On October 30, 2014, Padgett conducted a supervisory meeting with Raskind. (Pl.'s App. P44-P45.) The Supervision Form notes that they discussed an accommodation, and that an “accommodation tool” would be forwarded to him to complete in order to coordinate his religious time off for 2015. (Id.) Raskind completed the “accommodation tool” and submitted it on November 10, 2014. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 14; Pl.'s App. at ¶ 46-P47.)

         On November 12, 2014, Padgett and Donovan met with Sara Deichman (“Deichman”), a therapist at LMCS. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 14.) Padgett created a summary of the meeting in bullet point format, noting, among other things, that:

• There is an “incredible amount of negativity” coming from director Moshe Raskind[;]
• [Raskind] is very unprofessional and constantly complains about [Padgett] and [Donovan] in front of individual staff as well as groups of staff[;]
• [Raskind] stood by the values sign and stated how [Padgett] and [Donovan] broke each value during his meetings with us[;]
• When there are successes at the program, [Raskind] takes all of the credit, [but] when there are failures, it's always the fault of others who he then blames[;]
• [Raskind's] negativity is affecting the culture of the program, and he constantly criticizes everyone[;]
• Any time after he has supervision with [Donovan] he comes back to the program and complains about her[;]
• [Deichman] has constantly asked for [Raskind] to write procedures for Incident To Billing, which he has not done. She took it upon herself to do so, and is worried that if anything goes wrong with it she will be the person blamed for it[;]
• [Raskind] is setting up an atmosphere of “us versus them”, meaning he is separating LMCS from the Central Office[;]
• [Deichman] stated “I'm here when he gets here, and I'm here when he leaves”. She doubts that he really has that many meetings that take him away from the office[;] [and]
• [Deichman] has heard [Raskind] say in groups that he is being discriminated against because he [is] an Orthodox Jew. She did not remember how long ago that was.

(Pl.'s App. P48-P49.) On November 19, 2014, another therapist, Michelle Fitzpatrick (“Fitzpatrick”), complained to Padgett that she did not feel comfortable about being on-call. (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 15; Pl.'s App. P50-P51.) Fitzpatrick's complaint was sent in response to an email Raskind sent to Deichman, Fitzpatrick, and Melanie Fox, where Raskind stated that they would begin an on-call rotation beginning on December 1, 2014. (Pl.'s App. P50-P51.)

         Raskind was issued his first formal written warning on December 5, 2014 (“First Written Warning”). (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 15; Pl.'s App. P7-P8.) The First Written Warning contained many of the items from the summary of the meeting with Deichman, but also included many of Donovan's own observations, including, among others:

• [Raskind] had in an email to Chester Hospital mentioned that “he had won this one” against the RHD Corporate office. We are on the same team, and need to act accordingly.
• On the day of the Hub meeting, [Raskind] arrived at 9am, not realizing this was the Book Club portion of the day, even though it had been on several emails. He sat at the circle, and was on his cell phone texting or emailing the entire hour during the book club discussion.
• [Raskind] recently informed staff through email that they would have to participate in on call rotation [sic], and sent this while he was supposed to be participating in the hub [sic] meeting. Staff were very upset that this had never been discussed or problem solved with them, and that they were informed this way. This is an unacceptable way to communicate with staff about an important program change.
• [Raskind] has used up all of his [Paid Time Off], and currently owes 5.7 days from September and October. [Raskind] has not made sure that these days were deducted from his pay. This is his responsibility. [Padgett] and [Raskind] discussed this issue on 10/30/14, [Padgett] emailed him an update on 10/31/14 and requested a reply, and [Raskind] did not respond.
• There have been concerns that [Raskind] is not managing the incident to billing or completing the task of assisting the doctors with information to bring to their insurance carriers about adding RHD to their insurance. These are not tasks to delegate to other staff; they would fall under the role of Director.

(Pl.'s App. P7.) Raskind wrote a “Corrective Action Response, ” providing, in part:

• First, I recognize I have been negative as of late and have inappropriately expressed this to some of the staff at LMCS creating a climate that thwarts productivity and creates discomfort. For this I am very sorry and plan to make amends to the best of my ability.
• I believe I have a nervous habit of checking my phone for messages and then answering things that seem urgent even when the situation calls for NOT doing this. I can only say that I will give it my best effort to leave the room to check on [sic], answer, and send messages to LMCS staff while in a meeting and only when appropriate. True emergency calls will be taken outside the room.
• I have arranged PTO to be taken. I had thought this would be done at my supervisory level, as similar issues were handled at other agencies I have worked for. I apologize that it was not clear that I should make those arrangements (after the fact).
• Incident to billing had been handled solely by my Assistant Director. We (myself and other staff members) oriented her. It was my responsibility to check that case assignments were being done correctly, and I let this drop, trusting that it was. I take ownership of that. I am working to repair this.
• Last, there has [sic] been some report [sic] that I do not work a full 40 hour week. I leave early Fridays for religious reasons. I work extended hours throughout the week to make up for the [2-2.5] hour difference and often work more than the 37.5 hours that I am required (nature of the position). I have been keeping track of these on a calendar since September 4th.

(Id. P52-P53.)

         On January 20, 2015, RHD issued its second formal written warning to Raskind (“Second Written Warning”). (Pl.'s Response Opp'n Def.'s Mot. Summ. J. at 18 (citing Pl.'s App. P91).) The Second Warning was a result of a recent internal audit of the “Incident to Billing” service that established a high error rate with the process.[4] (Id. at 18 (citing Pl.'s App. P91).) At deposition, RHD's Director of the National Regulatory Systems Team and Chief Compliance Officer, Carol Flinn-Roberts (“Roberts”), explained that Incident to Billing is a Medicare regulation where a provider may bill Medicare at a physician's rate of pay when a non-physician delivers the service. (Id. (citing Def.'s App. F (“Roberts Dep.”) at 36-37).) Shortly after Raskind started working for RHD, he was tasked with implementing a system for Incident to Billing in order to obtain higher reimbursement rates from Medicare. (Padgett Dep. at 142-44.) Donovan testified that Incident to Billing was one of the most important tasks that needed to be handled at the LMCS program. (Donovan Dep. at 151.) However, the internal audit of sample data showed that twenty percent of services from January 31, 2014 to October 24, 2014 had been improperly billed.[5] (Roberts Dep. at 52.) Roberts testified that “any error rate above five percent we consider high.” (Id.) Raskind testified that improper billing was “a very big issue” because Medicare takes a percentage of billing that ...


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