Osorio v. TCV Cmty. Servs.

Decision Date10 February 2022
Docket NumberCivil Action 19-660
CourtU.S. District Court — Western District of Pennsylvania

J Nicholas Ranjan District Judge




Plaintiff Miriam Osorio (Osorio) brings this pro se action asserting various claims under Pennsylvania state law, Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act (“FLSA”) arising out of her loss of work for Capital Healthcare Solutions, Inc. (Capital) at TCV Community Services (TCV). ECF No. 39.

Presently before the Court is a Motion for Summary Judgment filed by Defendants TCV, Richard White (White), Dawn Berardo (Berardo), and Ashley Leonard Brinkman (Brinkman) (collectively, the “TCV Defendants). ECF No. 145. Also before the Court is a Motion for Summary Judgment filed by Defendant Capital. ECF No. 152. For the reasons below, it is respectfully recommended that the Motions for Summary Judgment be granted.


1. Factual Background

a. The parties

Capital is a healthcare staffing agency located in Irwin, Pennsylvania, which contracts with various client organizations to provide staffing. ECF No. 150 ¶ 1.[1] Capital actively recruits and screens healthcare professionals to work at the facilities operated by its clients. Id. ¶ 2.

TCV provides drug and alcohol recovery services, behavioral health services, and other services to communities in Pennsylvania to help individuals sustain their recoveries. Id. During the relevant time, Defendants White, Berardo and Brinkman were TCV supervisors or directors. Id. ¶ 31, 33; ECF No. 147-2 at 20.

Osorio is a Black, African-born healthcare worker, who was formerly employed by Capital. Osorio worked shifts at TCV and multiple other companies' sites. ECF No. 39 ¶ 75; ECF No. 150 ¶ 16, 24; ECF No. 154-5 at 14.[2]

b. Staffing Agreement between Capital and TCV

Under the Medical Staffing Service Agreement (“Staffing Agreement”), TCV contracted with Capital to locate and provide qualified registered nurses, licensed practical nurses, and nursing assistants for its facilities (“Consultants”). ECF No. 150 ¶ 11.

Under the Staffing Agreement, Capital assumed all payroll, benefit and tax responsibilities and maintained insurance for the Consultants. ECF No. 147 ¶ 31. The Consultants' pay rates were agreed upon in the Staffing Agreement. ECF No. 149-3 at 4. Capital billed TCV weekly for the total hours a Consultant worked. Id. at 3.

TCV was responsible for the Consultants' “orientation, work environment and supervision during the assignment.” Id. at 2. TCV was required to immediately notify Capital if a Consultant's performance was unsatisfactory so that the parties may respond. ECF No. 150 ¶ 12. The Staffing Agreement also provided that TCV was ultimately responsible for determining an individual's suitability for assignment at its facilities. Id. ¶ 13.

All Consultants remained employees of Capital “unless otherwise agreed to in writing by the parties.” ECF No. 147 ¶ 31. All scheduling occurred “only through Capital.” Id.

c. Osorio's employment with Capital

Capital hired Osorio as a direct care professional in March 2017. ECF No. 150 ¶ 16. Osorio signed an employment agreement with Capital, outlining her duties, compensation and other aspects of her employment. ECF No. 147 ¶ 29. She received a call-off policy and disciplinary procedure from Capital. Id. As a Capital employee, she had to abide by Capital's policies and procedures. ECF No. 150 ¶ 17. She received training from Capital about employee protections from discrimination and harassment. Id. ¶ 19.

d. Osorio's assignment to TCV

Beginning in May 2017, Capital assigned Osorio to work for multiple clients, including TCV. Id. ¶ 24. As a direct care professional at TCV, Osorio assisted clients with mental and physical disabilities in group home settings with daily needs, such as cooking, cleaning, administering medications, and providing transportation to appointments. Id. ¶ 25; ECF No. 147 ¶ 26.

Toward the end of 2018, Osorio's work at TCV primarily occurred at two of TCV's facilities: (1) the IDD facility, also known as “Breezewood, ”[3] an adult-training facility servicing individuals with intellectual and developmental disabilities; and (2) the DAS facility, a diversion and acute stabilization program providing individuals with short-term residency and mental health treatment. ECF No. 150 ¶ 29.

TCV coordinated Osorio's work schedule solely through Capital. ECF No. 147 ¶ 27. Her work schedule at TCV fluctuated, largely based on the clients' needs and Osorio's availability. ECF No. 150 ¶ 28. Osorio submitted her hourly time sheets to a supervisor at her TCV site location, and those time sheets were then forwarded to Capital for processing and payment. ECF No. 147 ¶ 28. Any employment issues were to be handled by Capital's Human Resources department. Id. Capital could discipline Osorio for any employment-related issues. Id.

e. Incident at TCV's Breezewood site on January 19, 2019

Osorio's claims primarily arise out of an incident that occurred at the TCV Breezewood site on January 19, 2019. Osorio described this incident by email to the Capital employee in charge of her scheduling, Melissa “Missy” Annesi (“Annesi”), on January 23, 2019. ECF No. 149-1 at 2; ECF No. 146-1 at 10. Osorio wrote that she was scheduled to work at the TCV Breezewood site on January 19, 2019. ECF No. 149-1 at 2. Britney, a Capital employee, informed her of this assignment by text. Id.[4] Upon arriving for this shift, Edna Burgess (“Burgess”), [5] a Capital employee, and Nicola Dempsey (“Dempsey”), a TCV employee, told Osorio they already had sufficient coverage. Osorio responded, “OK.” Osorio then told Dempsey that Britney had asked her to work the January 19, 2019 evening shift, but she would leave after going downstairs to make a copy of the schedule and to drop off one of her time sheets.

Burgess then told Osorio that White, Residential Supervisor of TCV's IDD facility, was on the phone with her. She repeatedly yelled at Osorio that Osorio had to leave, and that White said she had to leave now. When Osorio said that she wanted to make a copy of the time sheet, Burgess yelled that White said he “will take care of it and fax it when he comes in.” Burgess refused to let Osorio speak with White on the phone, telling her that White did not want to speak with her. At one point, Burgess “grabbed the schedule aggressively out of the copier and dangled it aggressively in [Osorio's] face then she pushed [Osorio].”[6]

Burgess continued to yell at Osorio as she walked upstairs to retrieve her cell phone, telling Osorio that she needed to leave so that Burgess could attend to a pot on the stove. Osorio repeatedly asked Burgess not to yell at her like “a child or a dog, ” and she told Burgess not to touch her. Burgess ended the call, and she told Osorio that White was on his way.

Osorio waited for White in the parking lot. When he arrived, she asked him to explain the situation. White invited her back inside to discuss. Osorio noted she was scheduled to work according to the schedule on the wall, and he did not notify her the shift was cancelled.

White responded that Dempsey or Burgess are in charge if he is not there. He informed Osorio that the hard-copy schedule is not immediately updated; that he sent three cancellation emails to Capital for her; and “it cannot be everyone else's fault but yours.”

Osorio told White that Capital never informed her that her shift was cancelled. She also told him that he could have conveyed this information to her over the phone, and she did not appreciate that he had another employee yell at her instead. White responded, “Oh! well. That's how you feel, ” shrugged his shoulders, and said, “I thank you and goodbye.”

f. White's email to Annesi about Osorio on January 20, 2019

On January 20, 2019, White also wrote to Annesi about Osorio. ECF No. 154-7. White stated that Osorio was asked to leave the TCV Breezewood site the day before because there were surplus staff, and she was not on the schedule. Id. at 3. After she refused to leave, White came to the site and told her in person that she “was cancelled from Breezewood weeks ago, ” and she must leave the premises. Id.

White also wrote that he spoke with “Ms. Denise weeks ago” and asked for Osorio to “be replaced” for the “safety and peace of the house (consumers and staff) for these reasons:

1) Miriam is mean toward the clients[.]
2) Miriam is mean toward other staff[.]
3) Miriam has been taking food and other products from the home (cereal, baby wipes, packs of meat).
4) Miriam has been late at least 15 minutes for every documented shift.
5) Miriam was off of the schedule and still showing up to work and sending others who were scheduled home.


g. Cancellation of Osorio's TCV shifts

On January 24, 2019, Brinkman, the Director of Residential Services of TCV's DAS facility, advised Capital via email that [d]ue to issues at other sites within our agency, ” Capital should remove Osorio from the schedule for the DAS facility. ECF No. 150 ¶ 33; ECF No. 154-8 at 2.

Based on TCV's requests, Capital promptly removed Osorio from the TCV schedule beginning on January 25, 2019. ECF No. 150 ¶ 34; ECF No. 43 ¶ 97.

h. Osorio's complaints regarding January 19, 2019 incident

Before her shifts at TCV were cancelled, Osorio claims that she made several complaints or reports relative to the January 19 2019 incident. During the incident, she called Capital's...

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