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Gray v. Primecare Medical Inc.

United States District Court, E.D. Pennsylvania

June 25, 2018



          R. BARCLAY SURRICK, J.

         Presently before the Court are Defendant PrimeCare Medical Inc.'s (“PrimeCare”) Motion for Summary Judgment (ECF No. 19), and Defendant Montgomery County's (the “County”) Motion for Summary Judgment. (ECF No. 20.) For the following reasons, PrimeCare's Motion will be denied, and the County's Motion will be granted in part and denied in part.

         I. BACKGROUND

         A. Procedural History

         On April 29, 2016, Plaintiff Tonya Gray (“Plaintiff” or “Gray”) filed a Complaint against PrimeCare and Montgomery County (collectively, “Defendants”). (ECF No. 1.) The Complaint asserts claims for violation of Title VII of the Civil Rights Act of 1964, violations of the Family Medical Leave Act (“FMLA”), and supplemental state-law claims. (Id.) On November 14, 2016, PrimeCare and the County filed Motions for Summary Judgment. (ECF Nos. 19 and 20.) On November 15, 2016, the case was reassigned to this Court.[1] (ECF No. 23.) On November 28, 2016, Plaintiff filed a Memorandum in Opposition to the County's Motion for Summary Judgment, (ECF No. 24), and a Memorandum in Opposition to PrimeCare's Motion for Summary Judgment. (ECF No. 25.) On December 2, 2016, PrimeCare filed a Reply to Plaintiff's Response. (ECF No. 26.) On December 5, 2016, the County filed a Reply to Plaintiff's Response. (ECF No. 27.) On January 3, 2017, Plaintiff filed a Supplemental Memorandum in Opposition to Defendants' Motion for Summary Judgment. (ECF No. 28.)

         B. Factual Background

         1.Plaintiff's Hiring and Job Description

         The record reflects that in January of 2012 PrimeCare and the Montgomery County Correctional Facility (“MCCF”) entered into a contract for the provision of medical services to MCCF inmates. (MCCF and PrimeCare Health Servs. Agreement (“HSA”), PrimeCare Mot., Ex. B.) On January 4, 2012, Plaintiff interviewed with PrimeCare's Director of Nursing at the MCCF facility and was offered a full-time job as a Licensed Practical Nurse. (Gray Dep. 19-20, Pl.'s Resp. to PrimeCare, Ex. D.) Plaintiff's employment offer letter stated that she would be working with PrimeCare at the MCCF facility at an hourly rate of $21, with shift differentials. (Id. at 20-21.) Plaintiff's job description included providing medical services at MCCF. (HSA; Pl.'s Resp. to MCCF 3; Haskins Dep., County Mot. Ex. E.)

         During the interview process, Plaintiff did not meet with any MCCF Human Resources representatives, nor did she speak with any MCCF representatives after she was provided an overview of her benefits. (Gray Dep. 22-23.) Plaintiff testified that when she signed her offer of employment letter, she was under the impression that PrimeCare-not the County-would provide her benefits. (Id. at 23.) Plaintiff's offer letter stated that receiving and maintaining a security clearance was a prerequisite for her to work with PrimeCare. (Id. at 23-24.) In addition, Plaintiff would need approval of all vacation requests from PrimeCare, not the County. (Id. at 32.) Moreover, any issues with supervisors would also go through PrimeCare. (Id. at 38-39.) In 2014, Plaintiff met with Marcy Hoffman-Schlegel, PrimeCare's President of Human Resources, to discuss an FMLA leave request. (Id. at 40.)

         2. FMLA Leave and Treatment Upon Return

         In July 2014, Plaintiff submitted a written FMLA request to take time away from work to undergo hip replacement surgery. (Id. at 39-40.) On July 30, 2014, PrimeCare approved Plaintiff's request for FMLA leave. (Id. at 40.) She began her FMLA leave on August 5, 2014, and returned to work on November 16, 2014. (Id. at 50, 108.)

         When Plaintiff returned from her FMLA leave, she was placed back on PrimeCare's normal shift schedule. (Id. at 50.) However, according to Plaintiff, during the days preceding her departure for FMLA leave, and following her return to work in November 2014, various supervisors treated her differently. (Id. at 107-113.) She claims that when she returned, her direct supervisor, Debbie McFadden, as well as another supervisor, Alexis Koenig, treated her with “cold indifference.”[2] (Id.) Specifically, prior to her departure, McFadden commented that “[Plaintiff] was putting [Primecare] at a disadvantage because [Plaintiff] was giving them such short notice and that they had the right to refuse it.” (Id. at 107.) Plaintiff informed McFadden that PrimeCare HR had approved her leave. (Id. at 108.) McFadden responded that PrimeCare could revoke its approval. (Id.) Plaintiff never called Hoffman-Schlegel, PrimeCare's HR Director, to report McFadden's statement.[3] (Id. at 108-09.)

         3. Interaction With MCCF Officials

         Plaintiff acknowledged that no one at MCCF had any knowledge of her FMLA leave, and that she did not provide documentation of her leave to any MCCF officials. (Id. at 51-52.) In addition, Plaintiff testified that she could not recall ever being called into meetings with MCCF Officials, including Deputy Warden Frey, Assistant Warden Pitania, Assistant Warden McGee, or Major Mark Murray. (Id. at 54.) However, she acknowledged that they were her bosses, explaining that each of these individuals “ha[d] dominion over us, we ha[d] to do what they say, [and] we ha[d] to follow their rules.” (Id. at 55.) While Plaintiff never requested that her Supervisor, Warden Algarin, show her the prison standard operating procedures, PrimeCare provided her with the guidelines that outlined her responsibilities at the facility. She also received training from an MCCF officer with regard to facility security procedures. (Id. at 55-56.)

         4. Denial of Religious Accommodation Request

         Approximately six weeks after returning from FMLA leave, Plaintiff requested what she classified as a “religious accommodation.” (Gray Dep. 67; Pl.'s e-mail, Pl.'s Resp. to the County Ex. G.) According to Plaintiff, her nondenominational church was planning a “corporate fast, ” which was “not an established holiday that normal people celebrate, ” but was “a season of fasting [they] go on every year at the same time.” (Gray Dep. 67.) Although the fast takes place every year, 2016 was the first time Plaintiff participated in the “complete and total fast.” (Id. at 68.) While Plaintiff had participated every other year during the fasting window, she had only eliminated certain meals. (Id. at 68-69.)

         MCCF policies prohibit outside food or beverages from entering secured areas of the facility without prior permission.[4] (MCCF Policy Mem., County Mot. Ex. B.) Plaintiff was aware of this policy. (Gray Dep. 44.) In an e-mail to Warden Algarin on January 4, 2015, Plaintiff requested permission to bring in “pressed juice” to her daily shift as part of a sixty-day “season of prayer and fasting” affiliated with her Christian church. Plaintiff indicated that she needed to “consume an adequate amount of liquid nutrition to keep [her] energy levels up.” (Pl.'s e-mail request exchange, Pl.'s Resp. to PrimeCare Ex. H.) On January 5, 2015, Warden Algarin responded that he could not approve Plaintiff's request to bring any liquid or food items into the facility, and that she must direct her request to her “HSA” and to speak with her supervisor to determine a suitable alternative. (Gray Dep. 71-72.) In an e-mail exchange from January 4-6, 2015, Koenig explained to PrimeCare's Vice President of Operations, Kelly Ehrich, Jr., that Plaintiff could not bring her pressed juice into the facility. (Pl.'s Resp. to PrimeCare Ex. H.) Ehrich offered as a possible solution that Plaintiff could “keep [the pressed juice] in her locker.” (Id.) Koenig never offered Plaintiff this proposed alternative. (Gray Dep. 76-77.) Koenig testified that she informed Plaintiff in person that her request was being denied. (Koenig Dep. 52, Pl.'s Resp. to PrimeCare Ex. B.) Koenig also stated that the staff dining room could provide her with alternative sources of sustenance, such as water or iced tea. (Pl.'s Resp. to PrimeCare Ex. H.) In addition, Warden Algarin stated that he was “sure” that the staff dining room provided viable alternatives for Plaintiff to receive her required nutritional sustenance.


         5. Cell Phone Video Incident

         On January 5, 2015, Warden Algarin issued an Inter-Office Memorandum detailing that MCCF would be implementing stricter screening policies for all personnel-including PrimeCare employees. (PrimeCare Mot. Ex. K.) One of these new protocols concerned cell phones:

A list of staff who are authorized to keep mobile phones in their possession will be provided and there will be no exceptions unless provided in writing. No. cell phones are permitted unless authorized in writing by the Warden, Deputy Warden or Assistant Wardens only.


         Frey explained that there are three security video cameras, which hang from the ceiling and monitor the waiting area outside the medical unit offices. (Frey Dep. 34-35, PrimeCare Mot. Ex. C.) The cameras provide both live feeds and recorded surveillance that can be viewed at a later date. (Frey Dep. 36.) According to Frey, video surveillance is routine. (Id. at 34.) He further testified that he was informed by Captain Negron that as routine procedure, Sergeant Berger reviewed the medical department surveillance footage at Koenig's request.[5] (Id. at 33-34.) Captain Negron then informed Frey and Sergeant Berger that he observed Plaintiff in the medical area speaking on a cellphone. (Id. at 39.) Frey testified that he, Negron, and Berger examined the video in slow motion, and reviewed it multiple times from all camera angles. (Id. at 39, 43.) They all agreed that Plaintiff was shown in the footage talking on a cell phone. (Id.) Frey then played the video for Koenig, who concurred. (Id. at 39-40; Koenig Dep. 71-72.) Sergeant Berger's incident report detailed that during his observation of the surveillance footage, Plaintiff “appeared to be talking on a cell phone.” (Berger Report, PrimeCare Mot. Ex. M.) Berger's report indicated that he reviewed the footage from three different angles and that “in all angles [Plaintiff] appeared to be having a conversation on a cell phone.” (Id.) Frey testified that he then immediately told Koenig that he was pulling Plaintiff's security clearance, and that she would no longer be permitted in the correctional facility. (Frey Dep. 41.) Koenig stated that she would inform Plaintiff. (Id. at 42.) She did not, however, inform Frey that Plaintiff would be fired or suspended without pay if her security clearance was revoked. (Id. at 42-43.) Frey testified that he was unsure of what occurred next, but he believed at that time that his investigation into the matter was complete. (Id. at 43.) Sergeant Berger prepared an incident report dated January 19, 2015, which summarized all relevant events. (Id. at 44.)

         Plaintiff acknowledges that she is depicted in the surveillance footage. (Gray Dep. 62-63.) However, she explains that contrary to Frey and Koenig's testimony, she is not using a cell phone in the video, but is instead simply yawning and scratching her ear. (Id. at 63.) Plaintiff further acknowledges that she owned a cell phone during this time period, that her cell phone was on a monthly plan-not prepaid minutes-but that the cell phone was not in her possession at the time that the MCCF officials claim that it was. (Id. at 63-65.) Plaintiff testified that she was very aware that her cell phone needed to be secured and could not be brought with her into the facility. (Id. at 43.) Plaintiff's cell phone records corroborate that she was not on a telephone call during the time in question. (Pl.'s Resp. to County Mot. Ex. K.) Frey acknowledged that he never checked the security feed to determine whether Plaintiff had passed through the security checkpoint with a cell phone. (Frey Dep. 45.) Frey also knew that Sergeant Berger had informed him that video footage of Plaintiff passing through the metal detector did not indicate that she had a cell phone on her. Frey never asked Plaintiff to view her telephone records. (Id. at 45-46.) Moreover, Frey and his staff repeatedly tested whether a cell phone could pass through security without triggering an alarm. (Id.) These tests were consistently negative. (Id.)

         6. Disciplinary Note in Plaintiff's File and Revocation of Security Clearance

         Plaintiff asserts that after she returned from FMLA leave, she was falsely accused by one of her supervisors, Kevin Frantz, of failing to report an absence with sufficient notice. (Gray Dep. 129-31, PrimeCare Mot. Ex. F.) Plaintiff provided Frantz with the contact information of the individual she had called to report her absence, which proved that she had indeed given sufficient notice. (Id. at 130-31.) Frantz then retracted the disciplinary report. (Id.)

         Prior to conducting a comprehensive investigation, and without speaking with Plaintiff, Frey decided to both revoke Plaintiff's security clearance and to terminate her employment. (Frey Dep. 42-45.) This was the first instance Frey could recall where he revoked an employee's security clearance for an infraction involving a cell phone.[6] (Id. at 21.) He acknowledged, however, that he had once suspended a staff member for violating the cell phone rule, although he could not recall that staff member's name. (Id. at 22.) Plaintiff testified that Officer Santiago had been suspended when he brought a cell phone into the facility, when the phone was discovered “hanging out of his pocket.” (Gray Dep. 134.)

         On January 28, 2015, Plaintiff received a letter from Hoffman-Schlegel, advising that PrimeCare had completed its investigation, that Plaintiff had been suspended, that Plaintiff's security clearance was being revoked, and that PrimeCare “ha[d] no other choice than to separate [Plaintiff] from [her] position.”[7] (Hoffman Letter, Pl.'s Resp. to PrimeCare Ex. L.)

         Plaintiff testified that Koenig called to inform her that she was being suspended due to her cell phone infraction.[8] (Gray Dep. 116.) The exchange proceeded as follows:

[S]he said that she had to suspend me pending an investigation, and I asked her an investigation of what, and she said that I was caught talking on a cell phone. My response was I laughed. And I told her, no, it isn't. And she said yeah, they have you on camera talking on a cell phone. I said, no, they don't have me on camera talking on a cell phone because I have never taken a cell phone in. She said, well, that's what they have and I have to suspend you until the investigation was over. I said, okay. And that was the end of that conversation.

(Id. at 116.) This phone conversation was the last communication Plaintiff received from PrimeCare until Hoffman's January 28 letter, which formally informed Plaintiff that her employment had been terminated. (Id. at 117.)

         Frey confirmed that following the MCCF staff's initial review of the surveillance footage, no further investigatory steps were taken. (Frey Dep. 45.) Between January 19-28, the time period during which Plaintiff was suspended, she was not paid by MCCF and received no communication from MCCF or PrimeCare. (Gray Dep. 117-18.) Neither PrimeCare nor MCCF reached out to Plaintiff to address the circumstances of her suspension, the investigation, or her ultimate termination. (Koenig Dep. 76; Gray Dep. 117-20.) Plaintiff repeatedly called the prison facility and twice spoke with a secretary to attempt to discuss the investigation with prison officials. (Id. at 118-19, 127.) Hoffman explained that she informed Koenig that she requested evidence in writing from the prison administration that Plaintiff had been suspended. (Hoffman Dep. 24, Pl.'s Resp. to PrimeCare Ex. N.) Hoffman acknowledged, however, that neither she herself, nor PrimeCare, ever conducted an independent internal investigation. (Hoffman Dep. 28-29.) Hoffman believed that she did not have to conduct an independent investigation since “[t]hat is the complete control of [the County] with which we do business.” (Id. at 29-30.)

         Hoffman also contradicted herself at various stages of her deposition. She first testified that once a clearance is revoked an employee is automatically terminated. (Id. at 33.) She also stated that therefore, once she received notice of Plaintiff's security revocation, she believed that Gray was terminated. (Id. at 24-25.) She later acknowledged, however, that she was not aware of Plaintiff's employment status after her clearance was revoked but before she was terminated. (Id. at 31-32.) The termination letter Hoffman signed stated, “[a]s you are aware, you were suspended from work at the Montgomery County Prison in the Medical Department pending disposition of an internal investigation.” (Hoffman Letter.)

         Frey issued an internal memorandum to Koenig on January 28, 2015, explaining that due to Plaintiff's purported cell phone use, she was no longer permitted into MCCF per Sergeant Berger's January 19 report.[9] (PrimeCare Mot. Ex. N.) On January 30, 2015, Plaintiff's counsel, Elizabeth Lubker, Esq., sent a follow-up e-mail requesting information on the status of Plaintiff's employment. (Pl.'s Resp. to PrimeCare Ex. M.)

         On February 2, 2015, Lubker send a letter to Warden Algarin and Major Murray, which stated: “[W]e would very much like to see the video at issue. Would you kindly advise us of any procedures for viewing and requesting a copy of the video at issue.” (Pl.'s Resp. to PrimeCare Ex. Q.) Counsel for MCCF responded in a letter dated February 9, 2015 that the requested video was “not available to the public.”[10] (Pl.'s Resp. to PrimeCare Ex. R.) On August 18, 2016, during Frey's Deposition, Lubker requested access to the security video from January 18, 2015, showing Plaintiff going through security and entering the facility. (Frey Dep. 68.) On November 16, 2016, Lubker sent a follow-up e-mail to Nicole Forzato, once again requesting the January 18-19, 2015 video footage of Plaintiff passing through the security checkpoint. (Pl.'s Resp. to PrimeCare Ex. U.) Forzato responded that Lubker requested the footage at Plaintiff's August 18, 2016 deposition, that the PrimeCare staff checked their records, but that since company policy is to save footage for sixty days unless a request is otherwise made, and since no such request was made, the footage is no longer available. (Id.)

         7. Damages

         Plaintiff testified that she has suffered severe emotional damages as a result of her 14-day unpaid suspension and termination. (Gray Dep. 120-21, 133.) This includes headaches, sleeplessness, anxiety, nausea, and nervousness, which lasted until she began working again in February 2015. (Id. at 120-22.) She was also almost evicted from her home, her car was almost repossessed, she got behind on her utility bills, and she was forced to execute an unemployment deferment for her student loan payments.[11] (Id. at 121-22, 133.) Plaintiff filed a claim with the EEOC and PHRC, and received a Right to Sue Letter dated April 5, 2016. (Pl.'s Resp. to PrimeCare Ex. W.)


         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “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.” A dispute is “genuine” if there is a sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[A] factual dispute is material only if it might affect the outcome of the suit under governing law.” Id. The court must view the evidence in the light most favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D. Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record. . . .”); see also Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (noting that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted); Sammons v. Phila. Gas Works, No. 14-2419, 2016 WL 1161547, at *3 (E.D. Pa. Mar. 23, 2016).


         A. The County and PrimeCare “Joint” Employment Status

         The County argues that Plaintiff has failed to establish that the County and PrimeCare were her “joint-employer” for the purposes of analyzing Plaintiff's allegations of FMLA violations. (the County Mot. 18-19.)

         In Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015), the Third Circuit recognized that “[t]wo entities may be “co-employers” or “joint employers” of one employee for purposes of Title VII. See also Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997)); Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1349 (3d Cir. 1991) (explaining that at common law, an employee could serve as a “dual servant acting for two masters simultaneously” or else as a “borrowed servant, ” who may “become the other's servant” if “directed or permitted by his master to perform services for another” (citing Restatement (Second) of Agency § 226)).

         A review of this record reveals that Plaintiff has offered sufficient evidence to create an issue of material fact as to whether the County and ...

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