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Katz v. UPMC Holding Co. Inc.

United States District Court, W.D. Pennsylvania

August 15, 2019

DONNA KATZ, Plaintiff,


          David Stewart Cercone United States District Judge

         I. Introduction

         In her 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.


         Statement of the Case

         Katz 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.

         Corrective 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.

         Since 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.

         The 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 ¶ 18.

         Katz 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.

         CHP 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.

         On June 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.

         On 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.

         Katz 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.

         On 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.

         During 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 ¶ 55.

         During 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.

         On 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[1]. Def. CSMF ¶ 63.

         Later 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. Id.

         On that 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 ¶ 75.

         Floyd 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.

         On 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.

         After 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.

         The 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 Exhibit 28.

         After 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 ...

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