United States District Court, E.D. Pennsylvania
F. KELLY, Sr. J.
Michael Morrone ("Morrone") filed suit in this
Court against Defendants Jeanes Hospital ("Jeanes")
and Karen Neale ("Neale") (collectively,
"Defendants"), alleging violations of interference
and retaliation under the Family and Medical Leave Act of
1993 ("FMLA"), 29 U.S.C. §§ 2601
etseq., and common law wrongful discharge for
workers' compensation retaliation.
before the Court is Defendants' Motion for Summary
Judgment, which seeks dismissal of all claims in the action.
Morrone has filed a Brief in Opposition, and Defendants have
filed a Reply Brief. For the reasons that follow,
Defendants' Motion is denied.
hired Morrone as a respiratory therapist in 1992, and his
title later changed to senior respiratory therapist.
(PL's Br. Opp'n Defs.' Mot. Summ. J. 6.) As a
senior respiratory therapist, he was responsible for
"perform[ing] prescribed diagnostic and therapeutic
interventions and function[ed] as a resource person to
achieve therapeutic goals in the care of [a] patient's
cardiopulmonary dysfunctions with special expertise in the
practice of a subspecialty in Respiratory Care, such as
diagnostic testing such as pulmonary function or
bronchoscopy." (Defs.' Mem. Law Supp. Mot. Summ. J.,
Ex. 4 (Senior Respiratory Therapist Job Profile) at 1.)
March 2014 and June 2015, Neale, who at the time was a
Respiratory Therapist Supervisor, supervised Morrone.
(PL's Br. Opp'n Defs.' Mot. Summ. J. 7.) In June
or July 2015, Neale became Respiratory Department Director
and Paulette Vogler ("Vogler") became the
Respiratory Therapist Supervisor. (Id. at 7-8.) Both
Neale and Vogler had the authority to hire, discipline, and
terminate respiratory therapists. (Id. at 8) (citing
Ex. D ("Neale Dep.") at 17-18; Ex. E ("Vogler
Dep.") at 9-10).
October 2016, Dr. Mary Ann Devine directed Morrone on the
transport of a patient. (Defs.' Mem. Law Supp. Mot. Summ.
J. 4.) While Morrone was eating his lunch later in the day,
he spoke to Vogler about the complicated transport and that
he would be receiving a "heart" (a patient
returning from open-heart surgery). (Id. at 5.)
Vogler stated she would meet Morrone on the floor when the
patient came out of heart surgery. (Id.) When that
time came, Morrone called Vogler's office, but she did
not immediately appear. (Id.) Lindsey Howard
("Howard"), another respiratory therapist, offered
to take care of the heart patient while Morrone made his
transport. (Id.) Howard informed Morrone that her
badge would not scan to run the "blood gas
machine," which was necessary for the heart patient.
therapists at Jeanes have badges not only for identification
purposes, but also for credentials that allow them to access
certain equipment. (Id. at 4.) Jeanes has a policy
that prohibits employees from "assisting] others in
gaining unauthorized access to Resources or accounts on the
[Temple University Health System, Inc.] Network or any other
system, including [the employee's] own account."
(Id., Ex. 8 (Computer Usage Policy).) Notably,
Howard's own badge would not have allowed her to run the
blood gas machine. (Id. at 5.) Vogler later learned
that Howard operated the blood gas machine by using
Morrone's badge, resulting in Vogler informing Neale
about the situation. (Id.) Neale and Vogler
suspended Morrone and Howard for one day. (Id.)
Morrone served his suspension on November 2, 2016, and he
understood that any future infractions could result in
termination. (Id. at 5-6.)
November 25, 2016, Morrone injured his knee at work while
going up stairs to care for a patient. (PL's Br.
Opp'n Defs.' Mot. Summ. J. 10.) He received an MRI a
few days later and was diagnosed with a medial meniscus tear
in his right knee. (Id.) Morrone then reported the
knee injury to Vogler on December 3, 2016, and a workers'
compensation claim was initiated that same day.
(Id.) Morrone also requested and took time off from
work as a result of the knee injury beginning on
approximately December 8, 2016. (Id. at 11.) His
FMLA medical leave lasted from December 8, 2016 to February
18, 2017. (Id. at 12.) At the time he took his FMLA
leave, Morrone worked forty hours per week as a full-time
senior respiratory therapist. (Id.)
letter dated February 21, 2017, Jeanes informed Morrone that
his leave exhausted on February 18, 2017. (Id. at
14.) On March 6, 2017, Morrone hand-delivered to Vogler his
medical clearance, which stated he could return to work on
March 10, 2017. (Id. at 15.) Morrone alleges that
Neale required him to wait another two weeks, until
approximately the end of March 2017, to return to work, and
that upon returning, reduced his hours from forty per week to
thirty-six. (Id. at 17.) Also, once he returned to
Jeanes at the end of March 2017, his title was changed from
"senior respiratory therapist" to "respiratory
therapist." (Id. at 24.)
April 8, 2017, a patient required the administration of
Aerosolized Epoprostenol ("Flolan"). (Defs.'
Mem. Law Supp. Mot. Summ. J. 6.) Morrone requested the
assistance of Kay Park ("Park"), who was a nurse,
and Janice Cook ("Cook"), who was another
respiratory therapist, in providing the medication. (PL's
Br. Opp'n Defs.' Mot. Summ. J. 30) (citing Ex. A
("Morrone Dep.") at 91-92). In doing so, Cook
"bagged" the patient, which means the patient was
taken off the ventilator and manually resuscitated. (Morrone
Dep. 92-93.) Park changed the pump and Morrone changed the
nebulizer. (Id.) After the process was complete,
Morrone wrote in his clipboard what he and Park had done, but
he did not verify Park's work. (Id. at 94.)
Jeanes' policy regarding Flolan provides that only a
respiratory care practitioner is permitted to administer the
medication. (Id. at 95-96.)
night of April 8, 2017, Vogler received a phone call from
Rebecca Redling ("Redling"), a respiratory
therapist who took over when Morrone's shift ended.
(Vogler Dep. 51.) Redling explained that she went to check on
the patient who was being administered Flolan and noticed
that the pump was set up incorrectly, resulting in the
patient receiving no medication. (Id. at 51-52.)
Vogler told Redling to have a private conversation with
Morrone about the observation. (Id. at 52-53.) When
Redling and Morrone spoke, Morrone said the mistake was not
his fault because the nurse set up the Flolan pump.
(Id. at 53.)
notified Neale of the incident, and the two then informed
Marie Gardner ("Gardner"), the "HR business
partner" at Jeanes, of the infraction. (Id. at
52.) Vogler and Neale met with Morrone to discuss what
occurred, during which he admitted that Park set up the pump
and that he did not check it. (Id. at 55-56.) Vogler
and Gardner interviewed Cook, who did not observe what
Morrone or Park were doing because she was solely focused on
bagging the patient. (Id. at 59.) Cook was not
disciplined because she was not responsible for the patient.
(Id. at 61.) Park was given a counseling note
because the administration of Flolan, albeit improperly, was
outside the scope of her responsibilities.
individuals, including Gardner, the Vice President of Human
Resources, Beverly Sherbondy, the Chief Nursing Officer,
Denise Frasca, and Neale, met collectively to discuss the
infraction and ultimately determined that Morrone's
appropriate level of discipline was termination. (Defs.'
Mem. Law Supp. Mot. Summ. J. 8) (citing Ex. 12 ("Gardner
Dep.") at 90-91). The termination assessment was made
based on the blood gas machine incident in October 2016 in
conjunction with the Flolan error. (Id. at 91-94.)
Jeanes terminated Morrone on April 17, 2017.
Rule of Civil Procedure 56(a) states that 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." Fed.R.Civ.P. 56(a). The
Court asks "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether . .
. one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). The moving party has the initial burden of
informing the court of the basis for the motion and
identifying those portions of the record that demonstrate the
absence of a genuine dispute of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact
is material if it could affect the outcome of the suit after
applying the substantive law. Further, a dispute over a
material fact must be 'genuine,' i.e., the evidence
must be such 'that a reasonable jury could return a
verdict in favor of the non-moving party.'"
Compton v. Nat'l League of Prof'I Baseball
Clubs, 995 F.Supp. 554, 561 n.14 (E.D. Pa. 1998)
(quoting Liberty Lobby, 477 U.S. at 255).
judgment must be granted "against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Celotex, Ml U.S. at 322. Once the moving party has
produced evidence in support of summary judgment, the
non-moving party must go beyond the allegations set forth in
its pleadings and counter with evidence that presents
"specific facts showing that there is a genuine issue
for trial." See Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992).
"More than a mere scintilla of evidence in its
favor" must be presented by the non-moving party in
order to overcome a summary judgment motion. Tziatzios v.
United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996).
If the court determines there are no genuine disputes of
material fact, then summary judgment will be granted.
Celotex, 477 U.S. at 322.