United States District Court, W.D. Pennsylvania
Stewart Cercone United States District Judge
Second Amended Complaint, Plaintiff, Donna Katz
(“Katz” or “Plaintiff”), alleges: (1)
discrimination in violation of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (the “ADA”) against Defendants, UPMC,
UPMC Holding Company, Inc. (“UPMC Holding”), UPMC
Health Network, Inc. (“UPMC-HN”), and
Children's Hospital of Pittsburgh of UPMC
(“CHP” or the “Hospital”))
(collectively “the UPMC Defendants”); (2) failure
to accommodate in violation of the ADA against the UPMC
Defendants; (3) retaliation in violation of the ADA against
the UPMC Defendants; (4) disability discrimination in
violation of the Pennsylvania Human Relations Act, 43 Pa.
Cons. Stat. §§ 951 et seq. (the
“PHRA”) against the UPMC Defendants and Stacey A.
Cote (“Cote”) (collectively the
“Defendants”); (5) failure to accommodate in
violation of the PHRA against all Defendants; (6) retaliation
in violation of the PHRA against all Defendants; (7)
disability discrimination in violation of the Pittsburgh
Ordinance against all Defendants; (8) retaliation in
violation of the Pittsburgh Ordinance against all Defendants;
(9) failure to accommodate in violation of the Pittsburgh
Ordinance against all Defendants; (10) failure to pay wages
in violation of the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (the “FLSA”)
against the UPMC Defendants; (11) failure to pay wages in
violation of the Pennsylvania Wage Payment and Collection Law
(the “PWPCL”), 43 Pa. Cons. Stat. §
260.9a(b), against the UPMC Defendants; (12) retaliation in
violation of the family Medical Leave Act, 29 U.S.C. §
2601 et seq. (the “FMLA”) against the
UPMC Defendants; and (13) interference in violation of the
FMLA against the UPMC Defendants. The Defendants have filed a
Motion for Summary Judgment, the Plaintiff has responded and
the motion is now before the Court.
of the Case
was employed by CHP as a Registered Nurse from August 3,
1981, until the termination of her employment on February 17,
2015. Defendants, Concise Statement of Material Facts
(“Def. CSMF”) ¶ 1. At the time of her
termination, Katz was a nurse in the Transplant Unit of CHP.
Id.; Plaintiff's Counterstatement of Material
Facts (“Pl. CSMF”) ¶ 1. CHP nurses are
subject to a written Corrective Action and Discharge policy
that provides for progressive discipline including corrective
action and discharge. Def. CSMF ¶ 2; Pl. CSMF ¶ 2.
Under the policy, corrective steps consist of counseling and
warnings intended to help the staff member improve his or her
conduct. When determining corrective action, previous
corrective events and the length of time between events are
considered factors. Def. CSMF ¶ 3.
actions include verbal supervisor counseling, a written
warning, suspension/final written warning, and
discharge/suspension pending investigation. Def. CSMF ¶
4. Before a staff member is discharged, the policy requires a
full investigation, due deliberation over the facts of a
given situation, and consideration of the nature of a staff
member's record. Pl. CSMF ¶ 4. Discharge may be used
even without prior progressive corrective action to address
more serious violations or as a last resort when prior
progressive corrective action steps have failed. Id.
2009, nurses in the Transplant Unit of CHP were allowed to
take up to a 30-minute meal period during each shift. Meal
periods were unscheduled, meaning that nurses were
responsible for coordinating breaks to ensure coverage for
patients in the unit. Def. CSMF ¶ 16. If a nurse
receives an uninterrupted meal period as defined by the
policy, the lunch is unpaid. Pl. CSMF ¶ 16. UPMC
policies require the meal period to be paid if any of the
following conditions are not met: (1) the meal period must be
scheduled for 30 minutes; (2) the employee must receive
twenty (20) consecutive minutes of uninterrupted meal time;
and (3) the employee is free to leave the workstation, unit,
or area. Id. CHP nurses used a timekeeping system
where they would swipe their badge at the start of their
shift and at the end of their shift and, upon swiping out,
would be asked whether they received an uninterrupted meal
break or not. If a nurse selected “yes, ” then
the meal break time would be deducted from their pay; if a
nurse selected “no”, then the meal break time was
not deducted from his or her pay. Def. CSMF ¶ 20. Katz
admits that she received a copy of this policy while working
at CHP. Def. CSMF ¶ 21; Pl. CSMF ¶ 21.
UPMC Defendants contend that nurses are encouraged to take a
lunch break and do not get in trouble if they do so. Def.
CSMF ¶ 17. Nursing staff often use “pickle
phones”, which are hospital-issued phones that
interface with the patient call bell/alarm system. To ensure
an uninterrupted meal break, CHP encourages nurses not to
take their pickle phones with them to lunch. Def. CSMF ¶
contends, however, that nurses are forced on a regular basis
to take their pickle phones with them on their lunch breaks
or to work through lunch due to inadequate staffing and
workload. Pl. CSMF ¶ 16. Katz further contends that
nurses were yelled at when they attempted to secure time to
take a lunch break through assigned relief and/or scheduled
lunches. Pl. CSMF ¶ 17. Further, nurses were chastised
for selecting “no” to indicate they did not
receive an uninterrupted meal break on the timekeeping
system. Id. Therefore, Katz selected
“yes” on the timekeeping system if she ate
anything during the day, regardless of whether she received a
full 20-minute, uninterrupted meal break, and she selected
“yes” when she did not get an uninterrupted meal
break because she was afraid she would get in trouble with
her supervisor, Stacey Cote, if she selected “no”
on the timekeeping system. Pl. CSMF ¶ 22.
nurses are subject to a written Social Networking Policy to
ensure that staff protect patient and proprietary
information. Def. CSMF ¶ 9. Under this policy, staff are
specifically prohibited from making any references to
patients and/or specific patient information on social
networks such as Facebook, MySpace, LinkedIn, and Twitter,
among others. Id. Staff who violate the policy will
be subject to discipline, up to and including termination.
Id. The policy also applies to everyone who is a CHP
staff member, including physicians, residents, and fellows.
Pl. CSMF ¶ 9.
10, 2011, Katz posted the following message on Facebook with
respect to an HGTV contest involving the family of one of her
former, deceased patients:
Please take a few minutes to vote! The Durbin's are truly
an awe inspiring family, who have experienced such a heart
renching [sic] loss of their only child, [REDACTED]
(transplant recipient) and then the tragic loss of their
home. This family in spite of all this adversity continues to
reach out and support others in their community. Please
support them in their time of need.
Pl. CSMF ¶ 27. Because of her post on June 10, 2015,
Katz was issued a one (1) week suspension without pay on July
15, 2011, to be served from July 17, 2011, through July 23,
2011, for conduct that violated CHP's Social Networking
and Patient Confidentiality. Def. CSMF ¶ 27.
Specifically, Katz was issued this corrective action for
posting a patient's first and last name on Facebook, as
well as the patient's diagnosis. Def. CSMF ¶ 28.
Katz admitted that in the post at issue, she included the
patient's family's last name, the patient child's
last name, and identified the patient child as someone who
had died and had received a transplant. Def. CSMF ¶ 29.
Katz received the notice of suspension memorandum, signed the
document, and acknowledged that she knew she could file a
grievance related to the suspension. Pl. CSMF ¶ 31.
Katz, however, did not file a grievance related to the
corrective action. Id.
March 13, 2014, Katz was issued a Final Written Warning for
conduct on February 27, 2014, that violated various patient
care policies. Def. CSMF ¶ 43. Specifically, Katz was
issued this Final Written Warning for administering a
medication to a patient without the proper filter as
indicated by the on line formulary, administering Parental
Nutrition at the incorrect rate for a prolonged period of
time while disregarding the safety measure put into place to
prevent such an event, and failing on two occasions during
bed side report to verify the medication with the electronic
medication administration system (“EMAR”) or the
medication label. Def. CSMF ¶ 44.
disagreed with the discipline because a thorough
investigation was not completed. Pl. CSMF ¶ 43. Katz
further contends that the March 13, 2014, Final Written
Warning was issued in retaliation for her filing a grievance
over her discipline for the Social Media Policy warning. Pl.
CSMF ¶ 44. The Final Written Warning specifically stated
that any other violation of company policy “shall
result in further corrective action, up to and including
termination of employment.” Def. CSMF ¶ 45. While
Katz understood that she had the right to file a grievance,
she chose not to file a grievance with regard to the
corrective action. Pl. CSMF ¶ 46.
August 15, 2014, Katz met with her supervisor, Stacey Cote
(“Cote”) to discuss her 2014 performance review.
Def. CSMF ¶ 47. During such performance review it was
noted that: Katz: (1) received counseling regarding
medication safety; (2) was intimidating to newer staff,
making them uncomfortable to ask questions: (3) made her
peers uncomfortable with her interactions with them; and (4)
was reluctant to allow others to cover her for meal breaks,
yet she complained about not getting lunch. Pl. CSMF
¶¶ 47, 48 & 49.
her review, Katz also discussed her diabetes and medications
with Cote. Pl. CSMF ¶ 55. Though disputed by Katz, Cote
contends that she encouraged Katz to contact WorkPartners
regarding her medical issues. Def. CSMF ¶ 55. Katz
admits, however, that she knew about WorkPartners and that it
assisted UPMC employees with work-related issues. Pl. CSMF
this discussion, Katz explained to Cote that she had
difficulty managing her blood sugar levels because of her
diabetes when she was scheduled for 12-hour shifts. Pl. CSMF
¶ 56. Katz's schedule was changed so she could work
two (2) 12-hour shifts and two (2) 8-hour shifts each week.
Id. Nurses in the transplant unit were generally
scheduled for 12-hour shifts, however, nurses in other units
at CHP were scheduled for a combination of 8-hour and 12-hour
shifts. Id. Though Katz has been diagnosed as a
diabetic since 2007, she did not want to be labeled disabled
at that time. Pl. CSMF ¶ 59.
Friday, February 6, 2015, Katz was scheduled to work a
12-hour shift from 7 AM to 7 PM. Def. CSMF ¶ 58. During
her shift, Sherry Floyd (“Floyd”), an RN Clinical
Leader, called Katz to inform her that she was assigning Katz
one of two transfers to the unit. Def. CSMF ¶ 60, 64.
Floyd contends that Katz angrily responded “Are you
fucking kidding me.” Def. CSMF ¶ 63. Katz admits
only that she said to Floyd “what the hell.” Def.
CSMF ¶ 63; Pl. CSMF ¶ 63. Katz told Floyd that she
did not feel well and that she needed to eat. Pl. CSMF ¶
62. Floyd told Katz that if she needed to eat, she should eat
“now.” Pl. CSMF ¶ 61; Def. CSMF ¶ 61.
Katz contends, however, that she could not take a lunch break
because no other nurse was assigned to relieve her and
provide nursing coverage for her patients. Pl. CSMF ¶
61. After her angry response, Katz ended the call with
Floyd. Def. CSMF ¶ 63.
that same day, it was reported that Katz raised her voice to
a nursing student who was attempting to relay a message to
Katz about one of her patients, and she got very
argumentative with Dr. Armando Ganoza (“Dr.
Ganoza”) regarding medical orders he had given
regarding one of his patients that was assigned to Katz. Pl.
CSMF ¶¶ 67, 69 & 70. Dr. Ganoza wanted the
patient's insulin pump shut off, but he failed to give
Katz a written order as required by the Hospital's
policies. Def. CSMF ¶ 70. Once Katz received a proper
written order from Dr. Ganoza, she shut off the insulin pump
and finished all the processes associated with the order.
Def. CSMF ¶ 71. Dr. Ganoza told Katz he was going to
talk to her supervisor about the confrontation and went to
speak with the clinical leader of the unit to address the
situation. Pl. CSMF ¶ 72. Dr. Ganoza observed Katz argue
with the clinical leader, but, after confirmation from the
clinical leader that the patient would be fine despite the
situation, Dr. Ganoza finished his patient assessment.
same day, it is further alleged that Whitney Vavra
(“Vavra”), a Professional Staff Nurse, heard Katz
say “I can see why people hurt [and] kill
co-workers.” Pl. CSMF ¶ 74. Katz admits that she
generally “remember[s] being crazy” that day but
does not “remember anything [about saying she would
hurt/kill coworkers] because [her] sugar was so low, ”
but she had no recollection of her exact words. Pl. CSMF
immediately notified Cote with regard to Katz's alleged
disrespectful behavior, and Cote informed her boss, Clinical
Director Paula Eicker (“Eicker”). Pl. CSMF
¶¶ 79 & 80. Eicker directed Cote to get
statements from everyone involved in the day's events and
Eicker would then review them with Human Resources. Pl. CSMF
¶ 80. As part of Cote's investigation, she met with
Katz on February 9, 2015. Def. CSMF ¶ 81. Katz contends
that at this meeting she asked Cote for regularly scheduled
lunch breaks and for assigned relief because of her diabetes.
Pl. CSMF ¶ 82. Katz also admitted, however, that
“She never requested an accommodation for her
disability, nor did she submit anything to [CHP] in writing
requesting an accommodation because from the time she
received her diagnosis until her termination she did not
consider herself disabled.” Katz Deposition p.
164:18-164:24. Further, Katz never submitted a Staff Member
Request for Accommodation Form to Human Resources or Work
Partners. Def. CSMF ¶ 86.
February 10, 2015, Cynthia Ruszcyk of Work Partners emailed
Cote notifying her that Katz had requested intermittent FMLA
leave on February 9, 2015 with a beginning date of January
12, 2015 through January 11, 2016. Def. CSMF ¶ 87. Katz
contends that she injured her back in a car accident during
the first week of January 2015 and began receiving medical
treatment in connection with problems lifting due to bulging
discs and spinal stenosis. Pl. CSMF ¶ 87. Because of
such injury, Katz needed intermittent FMLA leave to go to
physical therapy twice each week. Id.
the investigation, Cote met with Eicker and Janelle Taylor of
Human Resources to review the documents related to the
investigation, any related company policies, and Katz's
previous corrective action history. Pl. CSMF ¶ 89.
Because Katz already had two Final Written Warnings, Cote,
Eicker, and Taylor reached a consensus that a recommendation
be made to the Chief Nursing Officer and Human Resources
Director to proceed to the next level of corrective action,
which was termination. Id.
recommendation for termination was approved on February 17,
2015, and Katz was sent a letter (the “Termination
Letter”) informing her that her employment was
terminated effective immediately. Pl. CSMF ¶ 91. The
Termination Letter specifically noted that Katz: (1) had been
issued a Final Written Warning on July 15, 2011, for a
Facebook posting that contained patient information; (2) had
been issued a Final Written Warning on March 17, 2014 for not
meeting the expectations in various patient care policies
including “Administration of Medications to
Children”; and, (3) on February 6, 2015, had created a
hostile work environment by the use of comments and actions
that others perceived as offensive and such behavior was not
isolated to one event or one individual and is consistent
with her previous pattern of behavior that she has been
counseled for but has not shown improvement. Pl. CSMF
¶¶ 92 & 93; Def. Appendix, Eicker Deposition
receipt of the termination notice, Katz filed a grievance
regarding the decision to terminate her employment. Pl. CSMF
¶ 96. By letter dated April 7, 2015, Katz was informed
that the Hospital believed the actions taken were appropriate
and upheld her termination. Pl. CSMF ¶ 97. The letter
also informed Katz that she could appeal the decision in
writing within seven ...