Katz v. UPMC
| Decision Date | 15 August 2019 |
| Docket Number | 2:16cv1627 |
| Parties | DONNA KATZ, Plaintiff, v. UPMC, UPMC HOLDING COMPANY, INC., UPMC HEALTH NETWORK, INC., CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, and STACEY A. COTE, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Electronic Filing
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.
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 addressmore 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 tosecure 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 andlast 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 ...
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