CONTI, District Judge.
Pending before the court is a motion for summary judgment (ECF No. 37) filed by defendants University of Pittsburgh Medical Center ("UPMC") and Biotronics, Inc. ("Biotronics" and together with UPMC, "defendants") pursuant to Federal Rule of Civil Procedure 56 with respect to all claims asserted in the amended complaint (ECF No. 9) filed by plaintiff Sherrilynn Grosso ("Grosso" or "plaintiff"). The law suit arises from defendants' decision to terminate plaintiff's employment on August 8, 2008. Plaintiff asserted four counts against defendants, claiming that (1) defendants terminated her employment because of her disability, failed to make reasonable accommodations, and denied her subsequent employment in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a), (b)(5)(A) ("ADA"),
This court exercises subject-matter jurisdiction over plaintiff's ADA and FMLA claims as federal questions under 28 U.S.C. § 1331 and has supplemental jurisdiction over plaintiff's PHRA claims pursuant to 28 U.S.C. § 1367. Pennsylvania courts interpret the PHRA under the same standards as the ADA and other analogous federal statutes. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 979 n. 1 (3d Cir.1998) ("Although they are not bound to do so, Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts, among them the ADA."); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996). The Court of Appeals for the Third Circuit has stated that "[t]he PHRA is basically the same as the ADA" and allowed its disposition of an ADA claim to apply equally to a PHRA claim. Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir.2002). Therefore, the court will not consider the PHRA claims independently of the analogous federal claims.
Because no reasonable jury would render a verdict in favor of plaintiff, defendants' motion for summary judgment will be GRANTED.
In 1986 Grosso was hired as a staff perfusionist by Shadyside Hospital, which was eventually acquired by UPMC. (Sherrilynn Grosso Dep. Tr. ("Pl.'s Dep.") (ECF No. 38-1) at 17.) Eventually, she began providing perfusion services for Biotronics (id. at 17, 20-21) and serviced other UPMC hospitals within the region (id. at 22-23). Initially, Jack McEwen ("McEwen") was plaintiff's Biotronics' supervisor, but in 1995 or 1996, Steven Stewart ("Stewart"), the Director of Perfusion Services, became the supervisor. (Id. at 26-27.) In 2002 or 2003, plaintiff stopped servicing some of the hospitals within UPMC's network and only worked for Butler Memorial Hospital and North Hills Passavant Hospital, where lead perfusionist Lisa Knauf ("Knauf"), who also reported to Stewart, was plaintiff's direct supervisor (Id. at 24, 27.)
Grosso's primary task as a staff perfusionist was to run the cardiopulmonary bypass machine, also called the heart-lung machine, (Donna Lucas, M.D. Dep. Tr. & Exs. ("Lucas' Dep.") (ECF No. 38-6) at 15-16), which is used during open-heart surgery and sustains the life of the patient (Ronald V. Pellegrini Dep. Tr. & Ex. ("Pellegrini's Dep.") (ECF No. 38-5) at 27). In
Grosso is a Type I diabetic and also suffers from Hypoglycemic Unawareness Syndrome ("HUS"). (Pl.'s Dep. (ECF No. 38-1) at 41; Vijay Bahl, M.D. Dep. Tr. ("Bahl's Dep.") (ECF No. 38-7) at 10, 31.) Type I diabetes is an auto-immune disease where the body fails to produce insulin, leaving a sufferer with high blood sugar levels. (Bahl's Dep. (ECF No. 38-7) at 11-12.) The disease is managed by taking insulin, either through a pump or outright injections. (Id. at 12-14.) Sometimes, however, the taking of insulin leads to hypoglycemia — a condition of low blood sugar, also known as the blood glucose level, which is often evidenced by lethargy and sometimes by disorientation. (Id. at 21, 24.) Typically when a person's blood sugar level is dropping, the body produces adrenaline, causing outward symptoms such as sweating, palpitations, and tremors. (Id. at 29.) These symptoms often appear at the onset of diabetes, but over time, the body produces less adrenaline, causing the symptoms eventually to lessen and disappear. (Id.) After time, the body begins to produce no warning signals to indicate low blood sugar levels, which ultimately may result in HUS; HUS prevents a diabetic from knowing that he or she is experiencing low blood glucose levels. (Id. at 29-30.) HUS may also develop in a person who has wide fluctuations in blood glucose levels because keeping track of the levels may become too difficult. (Id. at 30.) A person with HUS can pass out without any warning signs whatsoever. (Id. at 31.)
In order to cope with HUS, plaintiff wears a sensor that alarms her when her blood sugar is too low. (Pl.'s Dep. (ECF No. 38-1) at 103.) Plaintiff began wearing the sensor in October 2009. (Id. at 104.)
The parties are in dispute over the severity of plaintiff's HUS and whether plaintiff does in fact know when she is having, or about to have, a hypoglycemic episode. (Reply Br. Supp. Defs.' Mot. Summ. J. ("Reply Br.-Defs.'" (ECF No. 53) at 3.)
(Pl.'s Aff. Ex. 16 (ECF No. 49-32) ¶ 19.) Defendants consider these statements irreconcilable with plaintiff's definition of HUS: "You are unaware that you are hypoglycemic." (Pl.'s Dep. (ECF No. 38-1) at 57.) Grosso responded to the deposition question of whether Knauf was familiar with plaintiff's hypoglycemic symptoms by stating: "Well, when I don't even know I am low glucose, I don't think she would know. I mean, I have no outward sign."
In addition to wearing an insulin pump and counting carbohydrates when she eats (Pl.'s Dep. (ECF No. 38-1) at 41-42), plaintiff is careful to check her blood glucose levels six to eight times per day (id. at 43). Grosso requested some work accommodations from defendants in order to help her self treat; generally, she is allowed to take breaks to eat, to have another person get her something to eat (id. at 63-64), and to take food from the intensive-care unit patient refrigerator (id. at 98).
(Id. at 37.)
On July 23, 2008, in an effort to lose weight, plaintiff elected to have laparoscopic band surgery and was on a clear liquid diet from the day of her surgery until August 1, 2008. (Pl.'s Dep. (ECF No. 38-1) at 123, 127.) The diet made plaintiff prone to low blood sugar levels and increased her difficulty in maintaining normal blood glucose levels, but Grosso used vacation days after the surgery to recuperate and to make sure she could maintain her blood sugar levels. (Id. at 123-25.) Plaintiff began working again on July 28, 2008. (Id. at 123.) On July 28, 2008, Grosso had a conversation Knauf about plaintiff's surgery and diet. During that conversation, Knauf asked if plaintiff was able to work. (Id. at 127-28; Lisa Marie Knauf Dep. Tr. ("Knauf's Dep.") (ECF No. 38-1) at 28-29.) Plaintiff responded by indicating that she could work, but would need help moving the machine. (Pl's Dep. (ECF No. 38-1) at 127-28; Knauf's Dep. (ECF No. 38-9) at 28-29.)
On the morning of July 31, 2008, Grosso reported to work and immediately went into the operating room to begin setting up the bypass machine. (Pl.'s Dep. (ECF No. 38-1) at 66-67.) When she set up the bypass machine, plaintiff was not preparing to use it immediately; the surgery was several hours later. (Id. at 68, 74-76.) During set up, plaintiff checked her blood sugar and had low glucose levels. She did not report her glucose levels to any superiors; she instead took glucose tablets and turned down her insulin pump. (Id. at 16, 49, 67.)
Around 7:30 a.m., Grosso took a break because that was the usual time the backup,
(Id.)
During the surgery, but before initiating the bypass, Grosso was sitting behind the surgeon, Pellegrini, with her feet elevated on a stool and was wrapped up in a blanket; she also propped her head up by leaning her arm against the equipment and her head on her arm and hands. (Id. at 71-72.)
Following this incident, Grosso left the operating room and unknown to Knauf (Knauf's Dep. (ECF No. 38-9) at 26), had coffee, popsicles, and milk; she did not check her blood sugar (Pl.'s Dep. (ECF
In addition to the incident described above, the record reveals a second incident.
Following the surgery, Knauf met with Grosso and informed her that Lucas was going to write her up for sleeping while a patient was on bypass. (Id. at 85.) Plaintiff told Knauf that she was not sleeping while the patient was on bypass and that Knauf was using the first incident, which occurred during the surgery, but before use of the bypass machine, to support the contention that plaintiff was sleeping while the patient was on bypass. (Id. at 86-87.) Grosso told Knauf that she had low blood sugar earlier in the day, and Knauf instructed plaintiff to write down her "side of the story." (Id. at 87-88.) According to plaintiff, all her supervisors and the perfusionists with whom she worked were aware that she was diabetic. (Id. at 49.)
During the meeting, Grosso elaborated about the effects of the laparoscopic band surgery that she had on July 23, 2008. (Id. at 87-88.) Grosso explained to Knauf her belief that the combination of the band surgery and her diet caused her to experience low blood glucose levels and a hypoglycemic episode during the surgery on
After plaintiff returned home from work on July 31, 2008, she wrote her statement regarding the day's events, describing the operating room on that day as being "eerily quiet and warm" and said she "rested [her] eyes, intermittently." (ECF No. 38-2 at 22.) Grosso submitted a second statement to more accurately portray what had happened. She omitted the "quiet and warm" description and instead added information regarding her diabetes and stated that she "could have been a little low glucose." (Id. at 24.) Plaintiff admitted that the "quiet and warm" description was inaccurate, but said that in telling her to write a statement, Knauf commented that "if it was warm, say it was warm" and said the same thing about it being quiet. (Pl.'s Dep. (ECF No. 38-1) at 91-92.) Grosso testified that she only rested her eyes prior to the patient going on bypass, but not during bypass. (Id. at 96.)
On August 4, 2008, after receiving materials reporting the incident, Kathryn Shirk, who worked at UPMC as a human resources employee (Dep. of Kathryn Shirk ("Shirk's Dep.") (ECF No. 38-11) at 9-10), met with Knauf to discuss what had happened. (Id. at 98.) Shirk was in possession of written statements from three witnesses present in the operating room on July 31, 2008, indicating that plaintiff had appeared to be asleep. (Id. at 96.) Under UPMC policy, the recommendation given for employees who are either sleeping on the job or appear to be sleeping is termination of employment. (Id. at 53.) According to Shirk, this recommendation is given only after an investigation takes place and it is determined that the employee was either sleeping on the job or appeared to be sleeping on the job. (Id. at 54.)
(Id. at 175-76.)
Plaintiff was terminated on August 8, 2008, just over a week after the incidents, for "giving the appearance of sleeping on the job." (Pl.'s Dep. (ECF No. 38-1) at
Although Stewart was not present for the termination meeting, Stewart communicated with Shirk via email during the decision-making process. When Shirk asked Stewart, by email, if he knew about plaintiff's diabetic condition, his response stated "[y]es, we've known this for years, and frankly, that's why we've put up with her shenanigans over the years." (ECF No. 38-13 at 12.) He stated that Grosso "always used her diabetes as an excuse" and noted that defendants "have had problems with [Grosso] for as long as she has been employed."
After being terminated, Grosso followed UPMC's procedures and filed an internal grievance regarding her termination with Lisa Sackett, the Human Resources Manager at UPMC Corporate. (Pl.'s Dep. (ECF No. 38-1) at 136-37; ECF No. 38-2 at 35-36; Lisa Sackett Dep. Tr. ("Sackett's Dep.") (ECF No. 38-14) at 14-15.) Plaintiff's grievance was handled by Celeste Rhodes, a human resources generalist at UPMC, who met with plaintiff for a couple hours on August 21, 2008. (Celeste Rhodes Dep. Tr. ("Rhodes' Dep.") (ECF
In addition to Grosso's contentions that she was fired for discrimination, Grosso testified that she was terminated because she "needed to use FMLA." (Pl.'s Dep. (ECF No. 38-1) at 109.) The issues surrounding the FMLA claim are difficult to follow because Grosso submitted an amended complaint correcting her original complaint with respect to the FMLA claims. (J.S.F-Defs.' (ECF No. 55) ¶ 106.) During Grosso's deposition, she admitted to never having requested or taken FMLA leave. (Id. at 116.) In Grosso's amended complaint, however, she asserted that defendants used her "absences from work for FMLA qualifying leave as a negative factor" in their decision making. (Am. Compl. (ECF No. 9) ¶ 22.) When questioned about what "absences" she was referring to, Grosso answered that these absences were "[w]hen I was hypoglycemic in the operating room." (Pl.'s Dep. (ECF No. 38-1) at 116.) Plaintiff and her attorney clarified that "Grosso's claims under the FMLA do not relate to her [laparoscopic band] surgery but are based on the July 31, 2008 incident during which she was unable to perform her job without reasonable accommodations." (Pl.'s Opp'n M.S.J. (ECF No. 46) at 26.)
Plaintiff was questioned about allegations in her amended complaint in which she contended that she "took FMLA leave because of her own serious health condition" (Am. Compl. (ECF No. 9) at ¶ 26), "took FMLA qualifying leave" (id. ¶ 27), and "took leave protected by FMLA" (id. at ¶ 28). During her deposition, Grosso admitted that these allegations were incorrect, on their face (Pl.'s Dep. (ECF No. 38-1) at 119-23), and that she took no FMLA leave on July 31, 2008 (id. at 120).
Federal Rule of Civil Procedure 56 provides in relevant part:
FED. R. CIV. P. 56.
Marten v. Godwin, 499 F.3d 290, 295 (3d Cir.2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir.2007) (citing Anderson, 477 U.S. at 248-52, 106 S.Ct. 2505); (Celotex Corp., 477 U.S. at 322-26, 106 S.Ct. 2548) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof."). The Supreme Court held in Celotex Corp. that:
Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (emphasis added). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). The United States Supreme Court later emphasized:
Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Woodside v. Sch.
The purpose of the ADA is to eliminate discrimination against qualified individuals with disabilities. 42 U.S.C. § 12101(b)(1). Those with disabilities face discrimination in various areas of life including employment, housing, transportation, and health services. Id. § 12101(a)(3), (5). Under § 12112(a), "covered entit[ies]" are prohibited from discriminating against disabled persons in hiring, termination, compensation, advancement, training, and "other terms, conditions, and privileges of employment." Id. § 12112(a). Covered entities include employment agencies, labor organizations, and employers with at least fifteen employees. Id. § 12111(2), (A). The Congressional intent behind the 2008 Amendments to the ADA, the ADAAA, was to broaden the range of individuals protected by the statute, by retooling the definition of disabled. S. Res. 3406, 110th Cong. § 2(a)(1) (2007) (enacted). The matter at hand, however, must be analyzed under the ADA as it existed before the 2008 amendments because Grosso's termination occurred prior to 2009, the effective date of the ADAAA. See ADAAA of 2008, Pub. L. No. 110-325, 122 Stat. 3553; Britting, 409 Fed.Appx. at 569 & n. 3.
Because Grosso claimed that defendants' proffered reason for terminating her is a pretext for disability discrimination, based on circumstantial evidence, the McDonnell Douglas burden-shifting framework must be employed. See Snyder v. Norfolk S. Ry. Corp., 463 F.Supp.2d 528, 534 (E.D.Pa.2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see also Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 65, 69 (3d Cir.1996) (noting that the Court of Appeals for the Third Circuit has adopted the McDonnell Douglas burden-shifting framework for age discrimination cases brought under pretext theory and that the framework can be used in ADA cases).
Under the pre-2009 ADA, disability with respect to an individual is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
A plaintiff trying to prove that his or her disability comes within the meaning of the pre-2009 ADA must establish that he or she has an impairment and that the impairment substantially limits a major life activity. Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 382 (3d Cir.2004). At a hearing held on December 15, 2011, defendants conceded for the purposes of this motion for summary judgment that Grosso does have an impairment. (Defs.' M.S.J. (ECF No. 40) at 8.) An impairment is "[a]ny physiological disorder, or condition ... affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2(h)(1) (2008).
"[F]unctions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" constitute major life activities. 29 C.F.R. § 1630.2(i) (2008). The regulations generally define "substantially limits" as being "unable to perform a major life activity that the average person in the general population can perform." Id. § 1630.2(j)(1)(i). The term is further explained as being "significantly restricted" in the manner or duration of performing a major life activity than an average person. Id. § 1630.2(j)(1)(ii). With respect to working, "[t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Id. § 1630.2(j)(3)(i). In interpreting these terms under the pre-2009 ADA, the United States Supreme Court has held that corrective measures taken to cope with the impairment must be considered in determining "whether that person is `substantially' limited in a major life activity and thus `disabled' under the Act." Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).
Defendants first noted that plaintiff failed to allege any major life activity and that failure to do so "is fatal to Plaintiff's claim." (Defs.' M.S.J. Br. (ECF No. 40) at 9 (citing Cruz v. Northwest Airlines, Inc., Civ. A. 01-cv-2167, 2002 WL 376899 (E.D.Pa. Mar. 5, 2002).) Defendants attacked the record for plaintiff's failure to show she is substantially limited in any activity. (Id. at 10.) Plaintiff replied by pointing out that based upon her doctor's testimony, she is substantially limited in the activities of eating and metabolizing food, and she filed a motion for leave to amend her complaint and supporting brief to address fully the activities of eating and metabolizing food. (Pl.'s Opp'n M.S.J. (ECF No. 46) at 3 (citing Bahl's Dep. (ECF No. 38-7) at 11, 13).) Grosso also argued that her impairment does substantially limit her because she must wear an insulin pump, strictly monitor her diet, and HUS can cause her to pass out but rarely does so. (Id. at 5-6.)
To allow this motion to be resolved, and as part of an agreement by which the court denied plaintiff's motion to file a second amended complaint, the parties agreed only for purposes of defendants' motion for summary judgment that Grosso's diabetes and HUS qualify her as a person with a disability under the ADA. Therefore, there is no genuine dispute of material fact concerning whether Grosso was in fact disabled under the ADA.
In order to be protected by the ADA, a person must be considered a "qualified individual with a disability." 42 U.S.C. § 12111(8). That term is defined as
Id. The Court of Appeals for the Third Circuit has utilized a two-prong test to determine whether a person meets this definition. Gaul, 134 F.3d at 580. The first prong is "whether `the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.'" Id. (quoting app. to pt. 1630 — Interpretive Guidance on Title I of the Americans with Disabilities
Essential job functions are "those that are `fundamental,' not `marginal.'" Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir.2001) (quoting 29 C.F.R. § 1630.2(n)(2)). That distinction is made on a case-by-case basis, Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 326 (3d Cir.2003) (citing Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir.1998) (en banc)), and is a factual question for the jury, id. at 327 (citing Deane, 142 F.3d at 148). The regulations contain a nonexhaustive list of factors to consider when identifying essential job functions including "[t]he consequences of not requiring the incumbent to perform the function," 29 C.F.R. § 1630.2(n)(3)(iv), and "[t]he current work experience of incumbents in similar jobs," id. § 1630.2(n)(3)(vii)."
An employer's failure to provide reasonable accommodations is a violation of the ADA. 42 U.S.C. § 12112(b)(5)(A). Under the ADA, providing reasonable accommodations is defined as
Id. § 12111(9). The regulations further define reasonable accommodation as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii). In determining what reasonable accommodations an employee needs, the employer may need to engage in an "informal, interactive process" with the employee. Conneen, 334 F.3d at 329; Mengine v. Runyon, 114 F.3d 415, 416 (3d
An employer is not required to provide reasonable accommodations if doing so would be unreasonable, resulting in undue burden or hardship, 42 U.S.C. § 12112(b)(5)(A),
Under the pre-2009 ADA, an employee constitutes a direct threat if he or she poses "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Id. § 12111(3). The employer has the burden of showing that the employee is direct threat. EEOC v. Hussey Copper Ltd., 696 F.Supp.2d 505, 520 (W.D.Pa.2010). Determining whether an employee is a direct threat requires an "individualized assessment" using "reasonable medical judgment" of the employee's ability to perform his or her essential job functions. 29 C.F.R. § 1630.2(r). The regulations list four factors to consider when making the determination: "(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm." Id. § 1630.2(r)(1)-(4). The question is not whether a risk exists, but whether the risk is significant. Doe v. County of Centre, 242 F.3d 437, 447 (3d Cir.2001) (quoting Bragdon v. Abbott, 524 U.S. 624, 649, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)).
Defendants in this case provided Grosso reasonable accommodations for her diabetes and HUS before she was terminated, such as allowing her to take breaks and to send other staff members to get food for her. (Pl.'s Opp'n M.S.J. (ECF No. 46) at 11; Pl.'s Dep. (ECF No. 38-1) at 63-64.) Plaintiff was also allowed to take food from the ICU patient refrigerator. (Pl.'s Dep. (ECF No. 38-1) at 98.) Plaintiff argues she was able to perform her job with these accommodations.
The court must decide if a genuine dispute exists with respect to whether Grosso could perform her job with reasonable accommodations. Plaintiff argues: (1) she could perform the essential functions of her job with the reasonable accommodations defendants had already provided; and (2) defendants could have provided additional reasonable accommodations, without undue burden, but failed to do so. The court will consider plaintiff's arguments in the alternative: even if Grosso could not perform her job with the existent accommodations, plaintiff argues there are sufficient facts from which a jury could find that with additional accommodations, she could perform the essential functions of her job.
With respect to plaintiff's first argument, there is no genuine dispute that she was unqualified to perform the essential functions of her job with the then-existing reasonable accommodations. Defendants argue that Grosso submitted a sham affidavit that conflicts with her deposition testimony in order to create issues to preclude summary judgment.
Viewing the facts in the light most favorable to plaintiff, it is clear that not every hypoglycemic incident results in her becoming unconscious, and sometimes, Grosso is able to self treat. The problem is that plaintiff has no way of determining beforehand when she might become unconsciousness and have no opportunity to self treat. Plaintiff's risk of those incidents occurring increased recently because she admitted that two-thirds of her "passing out" incidents occurred since January 2008. (Pl.'s Dep. (ECF No. 38-1.))
Plaintiff's responsibilities as a staff perfusionist were to run the cardiopulmonary bypass machine (Lucas' Dep. (ECF No. 38-6) at 15-16), which according to Pellegrini, the surgeon with whom Grosso worked on July 31, 2008, sustains the life of the patient during surgery (Pellegrini's Dep. (ECF No. 38-5) at 27). As the machine circulates the patient's blood during surgery, Grosso's responsibilities were to maintain the patient's blood pressure, oxygenation, body temperature (Lucas' Dep. (ECF No. 38-6) at 15-16), and administer an anti-coagulant into the patient's bloodstream (Pellegrini's Dep. (ECF No. 38-5) at 17-18). As a perfusionist, Grosso was also charged with monitoring medications given during the course of an operation, including anesthetics. (Lucas' Dep. (ECF No. 38-6) at 15-16; Pellegrini's Dep. (ECF No. 38-5) at 15.)
Pellegrini stated that "it would be malpractice" to have plaintiff run the machine and had he known of her condition, he would not have permitted her to do so. (Pellegrini's Dep. (ECF No. 38-5) at 37.) According to his medical judgment, the risks in allowing someone with plaintiff's condition are high because if a perfusionist were to become unconscious while running the machine, the patient could suffer irreparable injury or even die. (Id. at 54.)
There is no genuine dispute that the essential function of plaintiff's job as a perfusionist was to set up and operate the bypass machine, which includes administering some medications and monitoring various life signs of the patient, such as the patient's body temperature. (See Lucas' Dep. (ECF No. 38-1) at 15-16; Pellegrini's Dep. (ECF No. 38-1) at 17-18.) Looking at Grosso's deposition testimony as a whole shows that this was her only job function. Not requiring Grosso to operate the bypass machine would strip her of virtually all functions that she fulfilled while employed by defendants. See 29 C.F.R. § 1630.2(n)(3)(iv).
In this case, summary judgment is appropriate on the ADA claim both because there is no genuine dispute about the existence of unreasonable accommodations and because plaintiff would be a direct threat to defendants' patients were she allowed to continue working as a perfusionist. Plaintiff admitted that she loses consciousness without warning. (Pl.'s Dep. (ECF No. 38-1) at 31, 51.) Her job as a perfusionist requires her to monitor a bypass machine to ensure the safety of a patient (Lucas' Dep. (ECF No. 38-6) at 15-16), whose life depends on the proper operation and function of the machine (Pellegrini's Dep. (ECF No. 38-5) at 27). No accommodation, short of assigning a second person to monitor plaintiff, would allow plaintiff to perform the functions required of a perfusionist. As discussed in more detail below, such an accommodation is unduly burdensome because it would essentially require the hiring of a second person to fulfill plaintiff's job requirements. Clearly, no reasonable jury could conclude that even with plaintiff being able to take breaks and get food when necessary or have someone
With respect to the direct threat issue, no reasonable jury could conclude that plaintiff was not a direct threat to defendants' patients. Applying the four factors provided by the regulations, 29 C.F.R. § 1630.2(r)(1)-(4), the risk would exist whenever plaintiff was working; the severity of the harm would be high, including risked loss of human life; and it is fairly likely, given plaintiff's own testimony regarding the frequency with which she loses consciousness, that plaintiff would pass out at some point in the imminent future during a bypass procedure (see Pl.'s Dep. (ECF No. 38-1) at 104-06). The record demonstrates, at the very least, that Grosso already had some hypoglycemic issues with alertness while operating the bypass machine. Considering the facts of record and making reasonable inferences in favor of plaintiff, and in review of the approach taken by other courts, as set out more fully in the paragraphs below, the court concludes that no reasonable jury could find that plaintiff was not a direct threat to defendants' patients. There is no genuine dispute that to continue to employ Grosso as a perfusionist would constitute "a significant risk to the health or safety" of her patients "that [could not] be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). No reasonable accommodation could mitigate the risk posed by plaintiff's employment; beyond hiring a second person to monitor plaintiff (which would be unduly burdensome), it is not possible to mitigate the risk created by Grosso performing life-maintaining functions during an open-heart surgery.
Other courts have come to the same conclusion in similar cases. In Haas v. Wyoming Valley Health Care System, 553 F.Supp.2d 390, 402 (M.D.Pa.2008), the district court concluded that an orthopedic surgeon with bipolar disorder was a direct threat to patient safety under the ADA and having a general surgeon supervise during the plaintiff's surgeries did not amount to a reasonable accommodation. During surgery, the plaintiff became confused due to his mental disorder and could not complete the surgery without instruction from others. Id. at 393. The success of the surgery was irrelevant to the court. Id. at 400-01.
Id. at 401. Similarly, if Grosso were to become disoriented and confused, let alone unconscious, while a patient was on the machine, a patient could be harmed by her careless or negligent monitoring of the patient and machinery. Grosso stated that she changes suddenly from feeling fine to becoming disoriented at least once a month (Pl.'s Dep. (ECF No. 38-1) at 106), and her risk of passing out appears to be a more frequent occurrence (see id. at 104-07). Because plaintiff stated that there are times when she is unable to predict that an incident could lead to unconsciousness (id. at 106-07), a reasonable jury could only conclude that she could experience a serious episode while a patient is on bypass.
The Court of Appeals for the Fifth Circuit has held that a police officer with insulin-dependent diabetes posed a direct threat to others when operating firearms and driving a police vehicle were viewed as his essential job functions. Gonzales v. City of New Braunfels, 176 F.3d 834, 838 (5th Cir.1999). Other courts have held
Even if more steps were taken to monitor plaintiff's alertness (but not reaching the level of specifically paying another person to monitor plaintiff), there is still no genuine dispute over the additional accommodations. Some people with whom plaintiff worked already knew about her condition. (Pl.'s Dep. (ECF No. 38-1) at 49.) For example, Knauf, the lead perfusionist who worked with plaintiff on July 31, 2008, knew about plaintiff's medical conditions and her elective surgery. (Id. at 127-28; Knauf's Dep. (ECF No. 38-9) at 28-29.) Plaintiff stated that she had no outside warning signs preceding some of her hypoglycemic incidents: "Well, when I don't even know I am low glucose, I don't think [Knauf] would know. I mean, I have no outward sign." (Pl.'s Dep. (ECF No. 38-1) at 51.) Even a staff that would be more aware of her condition could not help when Grosso experiences hypoglycemic episodes without any outward signs. The staff would not always be able to recognize when Grosso was nonfunctioning.
Defendants' practice was to have a backup, or second, perfusionist available. (Knauf's Dep. (ECF No. 38-9) at 25.) The facts of record reflect that the second perfusionist has a somewhat flexible role in the operating room. For example, on July 31, 2008, Knauf, assumed the role as the backup perfusionist under Grosso. (Id.) Knauf was not standing behind or beside plaintiff every minute the patient was on bypass. After the patient was on bypass, Knauf realized the patient was on a drug with which she was unfamiliar. (Id. at 26.) Knauf left the operating room and went into the adjacent pump room to look up the drug using a computer. (Id.) One of the responsibilities of a perfusionist is to monitor any medications administered to the patient during surgery. (Pellegrini's Dep. (ECF No. 38-5) at 15; Lucas' Dep. (ECF No. 38-6) at 15-16.) Becoming familiar with these medications is obviously important. If the second perfusionist were required to always remain in the operating room while the patient was on bypass, Knauf would have been unable to look up the drug. This important task could have only been accomplished if another person in the operating room could do it or if another person were added to the staff.
The problem with requiring a second perfusionist to always be ready to take over for the on-duty perfusionist is that such an arrangement would require defendants to have another perfusionist at all times in the operating room. Several other courts have decided that having other personnel perform some of the functions of the disabled employee is unreasonable and not required under the ADA. See, e.g., Murphy v. United Parcel Serv., Inc., 946 F.Supp. 872, 872, 882-83 (D.C.Kan. 1996) (holding that because driving was an essential job function of a truck mechanic required to take road service calls, the employer did not have to provide another mechanic to accompany the plaintiff mechanic, who suffered from a blood pressure disability, to drive); Guneratne v. St. Mary's Hosp., 943 F.Supp. 771, 775
Because there is no genuine dispute that (1) Grosso is a direct threat to the safety of others, and (2) no reasonable accommodations exist which could mitigate the threat, no reasonable jury could conclude that Grosso is a "qualified individual with a disability" under the ADA. See 42 U.S.C. § 12111(8). Grosso has not adduced facts from which a reasonable jury could find that she is a "qualified individual with a disability," see id., and, therefore, plaintiff failed to establish a prima facie case, see Sulima, 602 F.3d at 185 (listing the elements of a prima facie ADA discrimination claim). The court need not address the third element of an ADA claim — that plaintiff suffered an adverse employment decision as a result of defendants' discrimination against her because of her disability, see id. (describing the third element of an ADA claim). Consequently, it is unnecessary for the court to employ the McDonnell Douglas burden-shifting framework and address whether there is sufficient evidence from which a jury could find pretext. Because no reasonable jury could conclude that plaintiff is a "qualified individual with a disability," see 42 U.S.C. § 12111(8), the court must grant defendants' motion for summary judgment with respect to Grosso's ADA claim.
The FMLA assists families by establishing a "minimum labor standard for leave." Churchill v. Star Enters., 183 F.3d 184, 192 (3d Cir.1999). The purposes of the FMLA are
Sommer v. Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006) (quoting 29 U.S.C. § 2601(b)(1), (2)). Under the FMLA, eligible employees have the right to take twelve work-weeks of qualified leave during a twelve-month time period. 29 U.S.C. § 2612(a)(1). Taking leave because of "a serious health condition that makes the employee unable to perform the functions" of his or her job is one form of qualified leave. Id. When the employee returns, the employee is entitled to reinstatement or reassignment to a similar position. Id. § 2614(a)(2). There are two types of FMLA claims: (1) interference and (2) retaliation.
Under the FMLA, employers are not permitted "to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." Id. § 2615(a)(1). For a plaintiff employee to establish an FMLA interference claim, the employee only must "`show that he was entitled to benefits under the FMLA and that he was denied them.'" Sommer, 461
This court has previously listed the elements a plaintiff is required to show in order to state a claim for interference.
Mascioli v. Arby's Rest. Grp., Inc., 610 F.Supp.2d 419, 429-30 (W.D.Pa.2009) (citing Lombardo v. Air Prods. & Chems., Inc., No. 06-1120, 2006 WL 2547916, at *11 (E.D.Pa. July 7, 2006)). The fourth element is dispositive in the instant matter. Under 29 C.F.R. § 825.302, employees wishing to take FMLA qualified leave must provide adequate notice to their employers. Although the regulations state that advance notice of thirty days is necessary when the need for leave is foreseeable, id. § 825.302(a), "[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave," id. at § 825.302(c). Formal, written notice is unnecessary, but it is well established that the employee is required to give the employer notice. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401-02 (3d Cir.2007). Even in cases of intermittent leave, the employee is required to "advise" the employer. 29 C.F.R. § 825.302(f). In determining whether the employee provided adequate notice to the employer,
Sarnowski, 510 F.3d at 402.
Grosso is not claiming that she was entitled to FMLA leave for her lap band surgery; rather, she is claiming that on July 31, 2008, when, according to her, she was unable to perform her duties because she had a hypoglycemic attack, she was on FMLA leave. (J.S.F. — Defs.' (ECF No. 55) ¶ 103.) Plaintiff contends that because defendants knew enough about her diabetes and lap band surgery, the events of July 31, 2008 constituted notice that she was seeking FMLA leave. (Id.)
The record contains no evidence that Grosso ever mentioned leave to her supervisors and the circumstances do not show she indicated leave to them. No reasonable jury could find that notice was given to defendants. A reasonable jury could not, therefore, find in Grosso's favor on the FMLA interference claim, given her burden of proof at trial, and the court must enter summary judgment in favor of defendants with respect to any FMLA interference claim. During the first incident on July 31, 2008, Knauf, the lead perfusionist, thought she saw plaintiff sleeping and told her to walk around and make sure that she was awake. (J.S.F. — Defs.' (ECF No. 55) ¶ 65; Knauf's Dep. (ECF No. 38-9) at 26.) Grosso left the operating room to get some food and then returned. (Pl.'s Dep. (ECF No. 38) at 79-80.) According to Grosso,
Under the FMLA, "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). In order to successfully establish a FMLA retaliation claim under § 2615(a)(2), "`a plaintiff must demonstrate that: (1) he or she is protected under the FMLA, (2) he or she suffered an adverse employment action, and (3) the adverse action was causally related to the plaintiff's exercise of his or her FMLA rights.'" Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508 (3d Cir.2009) (quoting Erdman v. Nationwide Ins. Co., 510 F.Supp.2d 363, 370 n. 4 (M.D.Pa.2007), aff'd in part, vacated in part, 582 F.3d 500 (3d Cir.2009) (citing Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.2004))). In an unpublished decision, the Court of Appeals for the Third Circuit repackaged the first element listed in Erdman as requiring not that the plaintiff be protected by the FMLA, but rather that he or she have "invoked his rights right to FMLA benefits." Hayduk v. City of Johnstown, 386 Fed.Appx. 55, 59-60 (3d Cir.2010) (citing Erdman, 582 F.3d at 509), cert. denied, ___ U.S. ___, 131 S.Ct. 1002, 178 L.Ed.2d 834 (2011). The McDonnell Douglas burden-shifting analysis is employed for retaliation claims. Sommer, 461 F.3d at 399. "An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave ... employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions ...." 29 C.F.R. § 825.220.
The first element of a FMLA retaliation claim, being protected under the FMLA, relates to whether or not an employee took leave. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.2004). The Court of Appeals for the Third Circuit does not require that an employee actually take FMLA leave; an "invocation of FMLA rights" is sufficient. Erdman, 582 F.3d at 509. In order to invoke FMLA rights, the employee must give the employer adequate notice of his or her need for FMLA leave. Hayduk, 386 Fed.Appx. at 60 (citing Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir.1997)); see Scobey v. Nucor Steel-Ark., 580 F.3d 781, 786 (8th Cir.2009) (citing Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 472 (8th Cir.2007)) (noting that the employee's notice must enable the employer to distinguish between ordinary sick days versus leave for a serious medical reason). The regulations state that for unforeseeable FMLA leave, "an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). The regulations clarify that an employee is permitted to wait one to
In Grosso's responses in the joint statement of facts, she alleged (1) that the time she was unable to perform her duties on July 31, 2008 should be classified as FMLA leave, and (2) because defendants knew enough about her medical condition, the events of July 31, 2008 constituted notice to them that she was seeking FMLA protection. (J.S.F. — Defs.' (ECF No. 55) ¶ 103.) Grosso initially admitted during her deposition to never having taken FMLA leave on July 31, 2008. (Pl.'s Dep. (ECF No. 38-1) at 120.) She, however, eventually characterized the time she was unable to perform her job in the operating room on July 31, 2008 as FMLA leave. (Id. at 122-23.)
Although Grosso does not need to show that she in fact took FMLA leave in order to establish a FMLA retaliation claim, she must show that she invoked her FMLA rights. See Erdman, 582 F.3d at 509. No reasonable jury could conclude that she invoked her FMLA rights because defendants, her employers, were not given notice of the assertion of her rights. She failed to provide notice for the same reasons set forth above in the section addressing her FMLA interference claim. It was not until Grosso's deposition, far beyond the "as soon as practicable standard" set by 29 C.F.R. § 825.303(a) for unforeseeable leave, that she specifically argued the time she was unable to function on July 31, 2008 should be considered FMLA protected leave. (Pl.'s Dep. (ECF No. 38-1) at 122-23.) No reasonable jury could conclude that Grosso invoked any right under the FMLA under these circumstances. The post hoc characterization by Grosso's counsel of her hypoglycemic incidents as FMLA leave does little more than establish that Grosso never took leave — or invoked any right to FMLA leave — in the first place.
In the alternative, defendants are also entitled to summary judgment on this FMLA retaliation claim because a reasonable jury could not determine that the third element of a retaliation claim, causation, is supported by the facts in the record. See Erdman, 582 F.3d at 508. For the same reasons that led the court to conclude that plaintiff did not provide notice to defendants, plaintiff did not show that her termination was causally related to her FMLA rights. At the time defendants made the decision to terminate Grosso, which was August 8, 2008 (Pl.'s Dep. (ECF No. 38-1) at 129-30), Grosso had not given them notice. Because they were not aware that Grosso had asserted rights under the FMLA, it could not have caused their decision to fire her. Defendants could not have used Grosso's alleged invocation of FMLA rights when making their employment decisions with respect to Grosso, and they are entitled to summary judgment on the FMLA retaliation claim.
Because there are no genuine disputes of material facts with respect to the question whether Grosso is a qualified individual with a disability under the ADA, and no reasonable jury could conclude that Grosso was not a direct threat to the safety of defendants' patients and that no reasonable accommodations exist which could mitigate the threat, defendants are entitled to judgment as a matter of law on the ADA claims as set forth above. Because no reasonable jury could conclude that plaintiff gave notice of her alleged FMLA time-off request to defendants, defendants are also entitled to judgment as a matter of law on the FMLA interference claim. Similarly, no reasonable jury could enter a verdict in Grosso's favor on the FMLA
Accordingly, for the reasons set forth in this memorandum opinion the court will grant defendants' motion for summary judgment with respect to all claims asserted by plaintiff. The court will enter judgment in favor of defendants on all counts. An appropriate order follows.
"A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." Jiminez, 503 F.3d at 253. Because the trial court is vested with the inherent power to grant summary judgment on disputed records, Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the court may conclude that no reasonable jury could accord evidentiary weight to an affidavit that is clearly offered solely for the purpose of defeating summary judgment. Jiminez, 503 F.3d at 253. The practical underpinning of the sham affidavit doctrine "is that prior depositions are more reliable that affidavits." Id.
In Jiminez, the Court of Appeals for the Third Circuit recognized that other courts of appeals have "adopted a particularly robust version of the sham affidavit doctrine, holding that, whenever a subsequent affidavit contradicts prior deposition testimony, it should be disregarded." Id. at 254. The Court of Appeals for the Third Circuit has "adopted a more flexible approach." Id. The court recognized in Jiminez that "not all contradictory affidavits are necessarily shams." Id. Notably, "`[w]hen there is independent evidence in the record to bolster an otherwise questionable affidavit, courts generally have refused to disregard the affidavit.'" Id. (quoting Baer v. Chase, 392 F.3d 609, 625 (3d Cir.2004)). "Such corroborating evidence may establish that the affiant was `understandably' mistaken, confused, or not in possession of all the facts during the previous deposition," and the affiant should have the opportunity to provide a "satisfactory explanation" for the conflict between the prior deposition and the affidavit. Id.; see Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir.1988) ("When, as in the present case, the affiant was carefully questioned on the issue, had access to the relevant information at the time, and provided no satisfactory explanation for the later contradiction, the courts of appeals are in agreement that the subsequent affidavit does not create a genuine issue of material fact.").
When deposition testimony is ambiguous or incomplete, subsequent affidavits may be provided to clarify the testimony and will not be discarded as sham documents. See Lytle v. Capital Area Intermediate Unit, No.1:05-CV-0133, 2009 WL 82483, at *2 (M.D.Pa. Jan. 9, 2009) ("Situations may arise where an affidavit does not `raise a new or distinct matter,' but rather explains certain aspects of a deposition testimony that caused confusion." (quoting Baer, 392 F.3d at 625)). To that end, "[d]isregarding statements in an affidavit is appropriate on `clear and extreme facts' ... when the affidavit is `flatly contradictory' to the prior testimony ...." Coleman v. Cerski, No. 3:04-cv-1423, 2007 WL 2908266, at *5 (M.D.Pa. Oct. 4, 2007) (quoting Videon Chevrolet, Inc. v. Gen. Motors Corp., 992 F.2d 482, 488 (3d Cir.1993)). When allegations in a subsequent affidavit could support statements made in prior deposition testimony, the dueling statements "are more appropriately dealt with on cross-examination than on summary judgment." Ragan v. Fuentes, No. 05-2825, 2007 WL 2892948, at *11 (D.N.J. Sept. 28, 2007).
The court need not consider the sham affidavit argument raised by defendants, because the court concluded that no reasonable jury could find in favor of plaintiff, even upon consideration of the evidence presented in the allegedly sham affidavits.
(Id. at 52.)
(ECF No. 38-13 at 12.)
29 C.F.R. § 1630.2(n)(3)(i)-(iii), (v)-(vi).
Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 772 (3d Cir.2004) (quoting Taylor, 184 F.3d at 319-20).
