Opinion
20-cv-2504-JMY
07-26-2022
CALEB ROGOVIN, v. TEMPLE UNIVERSITY HOSPITAL and M. DENISE DENNISON.
MEMORANDUM
JOHN MILTON YOUNGE JUDGE
Currently before the Court is a motion for summary judgment filed by Defendants. (Motion for Summary Judgment “MSJ”, ECF No. 18.) The Court finds this matter appropriate for resolution without oral argument. See Fed.R.Civ.P. 78; L.R. 7.1(f). For the reasons set forth below, the Court will grant in part and deny in part Defendants' Motion.
I. Summary of Relevant Procedural and Factual Background:
A. Summary of Relevant Procedure:
Plaintiff filed an Amended Complaint in this action on August 6, 2020. (Amended Complaint, ECF No. 9.) His Amended Complaint sets forth a claim for employment discrimination and retaliation against the Defendants under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and Pennsylvania Human Relations Act, 29 U.S.C. § 2611, et seq. (Id. ¶¶ 72-82.) Plaintiff also asserts that Temple University Hospital (Temple) retaliated against him for using medical leave in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. 2611, etseq. (Id. ¶¶ 83-88.) The Court will now address the Defendants' motion for summary judgment.
B. Summary of Relevant Facts:
In April of 2006, Plaintiff was offered a full-time position working for Temple University Hospital (Temple) as a Certified Registered Nurse Anesthetist (CRNA) in its Department of Anesthesiology. (Deposition Rogovin page 26 -30, MSJ Ex. 6; Statement of Material Facts “SMF” ¶ 9.) In November 2016, he was promoted to Chief CRNA for the Department of Anesthetists. (Rogovin Deposition page 45.) Plaintiff was ultimately terminated from the position he held as Chief CRNA in Temple's Department of Anesthesiology in July 2018. (Termination Letter dated July 23, 2018, MSJ Ex. 18; ECF No. 18-18; Pl's SMF ¶ 175.) The termination letter was signed by both Defendant Dennison and Adam Messer, and it stated that Plaintiff was being terminated for, “Insubordination: The repeated refusal or failure to comply with direct orders.” (Id.)
Adam Messer was an Associate Director of Temple University Hospital, and Denise Dennison was the Administrative Director, Anesthesiology Department.
Defendant Dennison was Plaintiff's administrative supervisor for the entire time that he worked for Temple including after he was promoted to Chief CRNA. (Rogovin Deposition pages 30-31, 53-54.) Dr. Vincent Cowell was Plaintiff's supervisor in regard to clinical duties while he worked for Temple. (Id. page 31, 53-54.) By letter dated November 17, 2016, Dr. Cowell expressed his support for Mr. Rogovin to be promoted to the position of Chief CRNA. (Cowell Letter, Opposition to MSJ, Ex P, ECF No. 22-20.) Dr. Morewood, another member of Temple's administrative staff, also submitted a letter of support for Plaintiff to be promoted to Chief CRNA. (Morewood Letter, Opposition to MSJ Ex. O, ECF No. 20-19.) By letter dated November 11, 2016, Plaintiff was offered the position of Chief CRNA in the Anesthesiology Department. (Chief CRNA Offer Letter, MSJ Ex. 12, ECF No. 18-12.)
Plaintiff alleges to have had multiple disabilities during the latter portion of his employment with Temple, including recurrent heart failure, a cardiac rhythm called atrial fibrillation, waxing and waning clinical depression, episodic gout, acute and chronic anemia and osteoarthritis which was particularly problematic in his hip. (Rogovin Deposition page 250251.) On September 24, 2015, through November 6, 2015, Plaintiff took leave under the Family Medical Leave Act (FMLA) for right hip surgery caused by osteoarthritis. (FMLA Forms, Opposition to SMJ Ex. F-H, ECF No. 20-10 through 20-12.) Plaintiff returned to work on November 11, 2015. (Id.)
Plaintiff had a significant cardiac situation in July 2016-he had emergency surgery to repair a Type A Aortic Dissection. (Rogovin Deposition page 48-49.) He took medical leave under the FMLA for nearly four months to recover from the surgery-from July 2016 through October 2016 due to his aortic dissection. (Rogovin Deposition page 49; Plaintiff's Answer to Interrogatories page 9, Opposition to MSJ Ex. J, ECF No. 20-14.) Plaintiff was cleared to return to work on October 20, 2016, and he assumed his new role as Chief CRNA in November of 2016. (FMLA Forms; Medical Records, Opposition to MSJ Ex. I, ECF No. 20-15.)
Plaintiff alleges that following his return from FMLA leave in October of 2016 and after he assumed his new role as Chief CRNA, Defendant Dennison subjected him to discrimination based on his disability. (Amended Complaint, ECF No. 9.) He characterized the situation as a hostile work environment. (Rogovin Deposition 113-116.) He specifically described a working relationship in which Dennison would generally refuse to speak to him-insisting that all of their communications be over the phone or email despite the fact that their offices were right next to each other. (Plaintiff's Answer to Interrogatories pages 14-15.) Plaintiff alleged that when they did speak, Dennison spoke down to him in a demeaning manner and made him feel undervalued and problematic. (Id. pages 14-15.) This took on particular significance in regards to job training in the administrative tasks associated with his new role as Chief CRNA. (Opposition to SMJ page 14, ECF No. 20.) At deposition, Plaintiff outlined numerous administrative tasks in which Dennison failed to provide training. (Rogovin Deposition page 80-82.) Plaintiff avers that Dennison's failure to provide training essentially ensured that he would fail in his new role. (Id. pages 81, 129 & 133.)
In support of his disability discrimination claim, Plaintiff contends that Dennison denied some of his requests for time off for medical appointments despite the fact that he had accrued sick-time. (Id. pages 230-231, 235-237.) On one occasion, when Mr. Rogovin needed to be off for a medical procedure, Plaintiff claims Ms. Dennison asked him to do it on a different week. (Id. pages 230-231, 242.) Plaintiff also identified a purported instance of discrimination and harassment, after his surgery, when he requested time off for educational purposes and Dennison allegedly responded by saying, “You've just been out for so long and now you want personal time too?” (Pl's SMF ¶ 35; Rovovin Deposition pages 253-254.) In that instance, Plaintiff contends that Dennison never approved his request for time off, so Plaintiff was forced to take a vacation day in order to attend the educational conference. (Rogovin Deposition page 263.)
Plaintiff identified various other remarks that he felt were made in a discriminatory manner-such as Dennison asking him, “Do you think you are well enough to do that right now?” (Plaintiff's Answer to Interrogatories pages 15.) Plaintiff further claims that Dennison outright denied his request for light duty after his 2016 surgery. (Opposition to SMJ pages 5-7.) In support of this contention, Plaintiff offers an email exchange that took place between September 20 and 23, 2016 in which Dennison rejected his request for light duty. (Pl's SMF ¶¶ 33-35.)
Plaintiff testified that he complained to various individuals in Temple's human resources department and administrative staff about what he described as Dennison's disrespectful behavior toward him. (Rogovin Deposition page 265.) He testified that he approached John Lashy, Temple's Executive Vice-President and Chief Human Resources Officer, with his complaints and was directed to speak with Cheryl DeVose, Temple's Director of Labor and Employee Relations. (Id. page 284.) Plaintiff testified that he met with Cheryl DeVose several times, approximately one hour a week for five weeks, in which Plaintiff complained about his treatment from Dennison and the hostile work environment which he alleges she created- including difficult communication and the lack of respect she exhibited. (Id. pages 64-66; Plaintiff's Answer to Interrogatories page 4.) Among other things, Plaintiff claims he told Ms. DeVose that he thought Dennison made inappropriate comments about his medical condition. (Id. page 266.) Plaintiff also testified that he spoke with Dr. Cowell about the purported discriminatory comments made by Dennison, and that Dr. Cowell responded with supportive statements. (Id. page 267.) Plaintiff contends that despite his complaints about Dennison, Mr. Messer told him he would not be allowed to report to someone else. (Messer Deposition pages 92-94, MSJ Ex. 3, ECF No. 3.)
Plaintiff admittedly had problems adjusting to his new role as Chief CRNA and submitted a resignation in February 2018 with the understanding that he would be permitted to return to his prior position as a clinical CRNA. (Resignation Letter, MSJ Ex. A; ECF No. 1813.) The process of transitioning Plaintiff back to his role as a clinical CRNA did not go smoothly. Temple contends that any offer to permit Plaintiff to return to bedside clinical practice was conditioned on his completion of various administrative tasks and/or projects which it alleges were not finished in a timely fashion. (SMF Facts ¶¶ 29, 33-34, 36.) Plaintiff disputes this contention and argues he substantially completed assigned administrative tasks-such as staffing evaluations. (Pl's Response to SMF ¶¶ 33-34, 36, ECF No. 4.)
Plaintiff sent two emails during the period that he was transitioning roles which are central to this litigation. (Plaintiff's Emails attached as Exhibits A & D to the Declaration of Adam Messer, MSJ Ex. 2, ECF No. 18-2 pages 6,16.) In the first email, Plaintiff informed the administrative staff in the Anesthesiology Department that he would be resigning as Chief CRNA because he was unable to handle the associated administrative tasks. In this email, he wrote, “It was NOT Ms. Dennison! Really, she tried to help me and although the Chief CRNA/Ms. Dennison relationship is very convoluted, she really did want me and the position to succeed!” (Id.) The second email was direct to Dr. Cowell and Dr. Morewood in reference to the fact that Plaintiff was or had taken health related personal days off from work. In this email, Plaintiff wrote, “I do not want to communicate with Denise any further [and] cannot interface with Denise any more. My working relationship with Denise is no longer possible.” (Id.)
Dennison along with other members of Temple's managerial staff found the emails forwarded by Plaintiff offensive. (SMF ¶¶ 31-32.) Ms. Dennison found the capital “NOT” and explanation point to be unprofessional. (Dennison Deposition page 24, MSJ Ex. 4, ECF No. 184.) She also did not understand what Plaintiff meant when he stated that her relationship with CRNAs was “convoluted” because she did not feel it was convoluted. (Dennison Deposition page 25.) After Plaintiff sent the first email, Temple opened an investigation into his conduct which ultimately led to Plaintiff being terminated. Dr. Cowell and Mr. Messer approached Dennison and requested that she compile a list of his insubordination and failures. (Pl's SMF ¶¶ 167-169.) Ms. Dennison wrote to Mr. Messer regarding alleged examples of Mr. Rogovin's “insubordination,” noting that most of problems she had with Plaintiff occurred during verbal interactions. (Id. ¶ 169.)
II. Legal Standard:
Summary Judgment is appropriate if the movant shows “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Liberty Mut. Ins. Co. v. Sweeney, 689 F.3d 288, 292 (3d Cir. 2012). To defeat a motion for summary judgment, there must be a factual dispute that is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24-49 (1986); Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). A material fact is one that “might affect the outcome of the suit under the governing law[.]” Anderson, 477 U.S. at 248. A dispute over a material fact is “genuine” if, based on the evidence, “a reasonable jury could return a verdict for the nonmoving party.” Id.
The movant bears the initial burden of demonstrating the absence of a genuine dispute of a material fact. Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). When the movant is the defendant, they have the burden of demonstrating that the plaintiff “has failed to establish one or more essential elements of her case.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). If the movant sustains their initial burden, “the burden shifts to the nonmoving party to go beyond the pleadings and come forward with specific facts showing that there is a genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At the summary judgment stage, the court's role is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249; Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Horsehead Indus., Inc. v. Paramount Commc'ns, Inc., 258 F.3d 132, 140 (3d Cir. 2001). Nonetheless, the court must be mindful that “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
III. Discussion:
A. Plaintiff Has Established a Claim for Disability Discrimination Under the McDonnell Douglas Burden-Shifting Analysis:
A plaintiff alleging employment discrimination under the ADA can prove his claim either through direct or circumstantial evidence. Desert Palace, Inc., v. Costa, 539 U.S. 90, 99 (2003). Where direct evidence of employment discrimination is not present, a plaintiff must establish a circumstantial case by satisfying the McDonnell Douglas burden-shifting analysis. “Where the complaining party relies upon circumstantial evidence to support a disability discrimination claim, the Third Circuit Court of Appeals has approved the use of the McDonnell Douglas burden-shifting framework.” Wilkie v. Luzerne Cty., 207 F.Supp.3d 433, 436 (M.D. Pa. 2016) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). To prevail under the McDonnell Douglas burden-shifting analysis, “First, a plaintiff seeking recovery pursuant to the ADA must establish a prima facie case of discrimination by demonstrating that (1) he is disabled within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Id. at 436-37.
“Once the plaintiff establishes the prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action.” Schneider v. Works, 223 F.Supp.3d 308, 318 (E.D. Pa. 2016). “If a legitimate reason for the employment action is articulated, the burden shifts back to plaintiff to demonstrate that the reason is merely pretextual.” Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). “For a plaintiff to ‘defeat summary judgment...[he] must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve [Defendant's] articulated legitimate reason[ ]; or (2) believe that an invidious reason was more likely than not a motivating or determinative cause of [Defendant's] action.'” Id.
Plaintiff came forward with evidence to establish that he suffered from transitory disability which entitles him to protection under the ADA as defined by the ADA Amendments Act of 2008 § 1630(j)(1)(vii). Therefore, the Court will not dismiss this action on summary judgment based on Defendants' argument that Plaintiff did not suffer from a qualifying disability. The Court is equally unpersuaded by Defendants' argument that they were not aware of Plaintiff's medical condition and ongoing medical problems because Plaintiff's medical records illustrate that he treated at Temple Hospital with some of the very same people with whom he worked. (Pl's SMF ¶¶ 42-43.) For example, Dr. Morewood was in the operating room with Plaintiff when he had an Aortic Dissection in 2016. (Rogovin Deposition page 73.) Plaintiff testified that his medical aliments were common knowledge among the staff in Anesthesiology Department. (Id. page 49, 261.) The evidence suggests that Plaintiff may not have been qualified to serve as Chief CRNA, but everything else suggests that he was qualified to work as a bedside clinical CRNA. In fact, his clinical qualifications were of such a high caliber that he was promoted to Chief CRNA. Therefore, the evidence suggests that Plaintiff was qualified to return to clinical practice, and Plaintiff has established a prima facia case of employment discrimination under McDonnell Douglas.
Defendants' proffered justification for termination is open to interpretation in this instance. Defendants cite to the two emails that they characterized as inappropriate, and Plaintiff's failure to complete assigned tasks as the justification for terminating Plaintiff for insubordination. However, the language used by Plaintiff in the proffered emails is not clearly inappropriate. Therefore, the nature of these emails is for a fact-finding body to considered after hearing all of the evidence. With regard to the failure to complete assigned tasks, Plaintiff disputes the amount of administrative work that remained incomplete at the time of his termination, and he maintains that administrative tasks were substantially finished, or that the proffered tasks were not his responsibility.
Under the facts and circumstances of this case, Defendants' argument regarding completion of administrative tasks is also open to question. Defendants argue that the offer to return Plaintiff to his role as a clinical CRNA was conditioned on his completion of certain assigned administrative tasks. While in direct contradiction, Plaintiff resigned from the position as Chief CRNA because he was unable to complete the administrative tasks required in that role. At the time Plaintiff resigned, the Parties all knew that he was having trouble completing administrative task; therefore, any requirement that he continue to perform administrative duties in the role of Chief CRNA is dubious and open to interpretation by a fact-finding body-Temple could simply have transferred Plaintiff back to a position as a bedside clinical CRNA.
At least from a circumstantial perspective under McDonnell Douglas, Dennison's denial of his request for light duty constitutes evidence of discriminatory animosity that a finder of fact might consider.
B. Plaintiff's Retaliation Claim Withstands Defendants' Motion for Summary Judgment:
“Retaliation against an employee for requesting an accommodation is prohibited discrimination under the ADA.” Biggs v. Thomas Jefferson Univ. Hosp., No. CIV.A. 13-03037, 2014 WL 3709749, at *4 (E.D. Pa. July 28, 2014) (citing 42 U.S.C. § 12203(a)). As with Plaintiff's disability discrimination claim, Plaintiff's retaliation claim is analyzed under the McDonnell Douglas burden-shifting framework. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). Thus, Plaintiff must first establish a prima facie case of retaliation by showing that: (1) he engaged in an ADA-protected activity; (2) he was subject to adverse action either after or contemporaneously with the protected activity; and (3) there is a causal connection between the protected activity and the adverse action. Id. “If the employee establishes a prima facie case for retaliation, the burden then shifts to the employer to advance a legitimate, non-retaliatory reason for its adverse employment action.” Id. (citing Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997)). Thereafter, the plaintiff can prevail only by establishing that she would not have suffered an adverse employment action “but for” her protected activity. Larochelle v. Wilmac Corp., 769 Fed.Appx. 57, 65 (3d Cir. 2019) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
“A causal connection can be demonstrated by providing direct or circumstantial evidence of (1) unusually suggestive temporal proximity; (2) a pattern of antagonism following the protected activity; or (3) a showing that the reason for his alleged adverse action is pretextual.” Id. (citing Leboon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)).
As outlined hereinabove in the summary of facts, Plaintiff described a pattern of discrimination that began when he returned from FMLA leave in 2016. From that point forward, he described being subjected to an ongoing pattern of antagonism from Dennison up and until he was terminated in 2018. Any argument raised by Defendants based on the doctrine of temporal proximity and the theory that Dennison's purported discriminatory behavior was remote in time from the decision to terminate Plaintiff is undercut by Plaintiff's claim that he spoke to various members of Temple's administrative staff and individuals in the human resources department about the problems he was having with Dennison. Although Defendants dispute the issue of whether Plaintiff formally filed a complaint about Dennison's alleged discriminatory conduct, a finder-of-fact could conclude that Plaintiff engaged in a protected activity when he complained to Temple's administrative staff about Dennison's behavior.
In the broader context of this case, the two emails Plaintiff forwarded which referenced problems he was having with Dennison could also be seen as a complaint about harassment and the hostile work environment that Plaintiff claims she created. Instead of investigating Plaintiff's complaints and attempting to mitigate the situation, Temple opened an investigation into the Plaintiff which ultimately led to his termination. Therefore, Plaintiff's retaliation claim survives summary judgment.
C. The Court will Enter Summary Judgment on Plaintiff's Claim for Failure to Accommodate and Will Dismiss that Legal Theory from this Lawsuit:
“[B]oth parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999). In particular, an employer is obligated to initiate an interactive process with an employee in need of accommodation. Colemanv. Keystone Freight Corp., 142 Fed.Appx. 83, 86 (3d Cir. July 29, 2005). A plaintiff can show that her employer breached its duty to provide a reasonable accommodation by failing to participate in the interactive process in good faith by showing that “(1) he was disabled and her employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Gardner v. SEPTA, 410 F.Supp.3d 723, 741 (E.D. Pa. October 17, 2019) (citing Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir 2017)); see also Taylor, 184 F.3d at 319-20. Failure to participate in the interactive process is not an independent claim, but rather part of the analysis for a claim of failure to accommodate. “Participation in the interactive process is simply part of the employer's duty to determine if a reasonable accommodation exists.” Whelan v. Teledyne Metalworking Prods., 226 F. App'x. 141, 147 (3d Cir. 2007).
Plaintiff's own testimony severely undercuts his claim for failure to accommodate. At deposition, Plaintiff was specifically asked if Defendants ever denied a request for an accommodation due to a medical issue, and he responded by stating “I don't recall” or remember. (Rogovin Deposition page 118.) Plaintiff also affirmatively agreed that all of his medical related requests for an accommodation were granted. (Id. page 249, 257-258, 268.) In Response to Defendants' motion for summary judgment, Plaintiff points to a request for light duty that was made in an email exchange with Dennison between September 20 and 23, 2016. However, any independent claim based on this email exchange is time-barred under the ADA. Under the ADA, Plaintiff had 300 days from the alleged unlawful employment practice to file a charge of employment discrimination with the EEOC. See 42 U.S.C. § 12117 (providing that the same procedures used to enforce Title VII of the Civil Rights Act of 1964 apply to ADA employment discrimination claims); 42 U.S.C. § 2000e- 5(e)(1) (establishing the 300-day limitation period); see also Zankel v. Temple Univ., 245 Fed.Appx. 196, 198 (3d Cir. 2007) (applying the 300-day limitation period to an ADA claim). A claim that is not filed within that time period becomes time-barred, and the claimant “lose[s] the ability to recover for it.” Nat'l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
Plaintiff did not file his initial Charge of Discrimination with the EEOC and PHRC until January 4, 2019, a total of 833 days from the September 23, 2016 denial of his purported accommodation request. (Amended Complaint ¶ 6.) The denial of a request for a reasonable accommodation is a discrete act of discrimination under the ADA because each failure to accommodate claim is “a separately actionable ‘unlawful employment practice' similar to wrongful termination or failure to hire” and subject to the relevant statute of limitations. Mercer v. SEPTA, 26 F.Supp.3d 432, 442 (E.D. Pa. 2014) aff'd, Mercer v. SEPTA, 608 Fed.Appx. 60 (3d Cir. 2015).
IV. Conclusion :
For these reasons, Defendants' motion for summary judgment will be granted in part and denied in part. An appropriate order will be entered.