Evans v. Capital Blue Cross

BARBARA EVANS, Plaintiff v. CAPITAL BLUE CROSS, Defendant

CIVIL ACTION NO. 1:19-CV-497

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 4, 2021

(Judge Conner)

MEMORANDUM

Plaintiff Barbara Evans (hereinafter "Ms. Evans" or "Evans") advances claims for discrimination, retaliation, and violation of Pennsylvania state law against her former employer, Capital Blue Cross. Before the court are Capital Blue Cross's motion for summary judgment as to each of Evans' claims, and Evans' motion for partial summary judgment as to her disability-based discrimination claim. For the following reasons, we will deny Evans' motion for partial summary judgment and Capital Blue Cross's motion to strike. We will grant in part and deny in part Capital Blue Cross's motion for summary judgment.

I. Factual Background & Procedural History¹

Capital Blue Cross is a Pennsylvania nonprofit corporation that issues and administers healthcare benefit programs in Pennsylvania. (Doc. 29 ¶¶ 5, 6; Doc. 30 ¶¶ 5, 6). Ms. Evans is a Black female who began her employment with Capital Blue Cross in June of 2002. (Doc. 50-2 ¶¶ 2, 3). She was initially hired as a Customer Service Representative and was subsequently promoted to Senior Customer Service representative in December of 2006, to Technical Assistant in October of 2007, and to Customer Analyst in May of 2009. (Id. ¶¶ 4-7). Her last promotion was in March of 2015 to Senior Commercial Appeals and Grievance Resolution Specialist in the Commercial Appeals and Grievance Department. (Id. ¶ 8).

Ms. Evans was assigned to Capital Blue Cross's Tecport office until late 2012 or early 2013, when she was relocated to the Elmerton office. (Doc. 42 ¶ 12; Doc. 47 ¶ 12; Doc. 50-1 at 8; Doc. 50-2 ¶ 13). Evans' supervisor at the Elmerton facility was Melissa Schreck. (Doc. 50-2 ¶ 14). Between 2010 and December of 2012, Evans participated in the company's work-from-home program, (id. ¶ 9; Doc. 50-1 at 7), and received positive reviews, (see Doc. 42 ¶¶ 7-10; Doc. 47 ¶¶ 7-10).²

A. Requests for Disability Accommodations

Ms. Evans began to experience allergy symptoms in the late 1990s. (Doc. 50-1 at 6). In 2006, she began treatment with Robert Zuckerman, MD, a specialist in allergy and asthma conditions. (Doc. 42 ¶ 3; Doc. 47 ¶ 3). Dr. Zuckerman diagnosed Evans with asthma, allergic rhinitis, and sinusitis. (Doc. 42 ¶ 4; Doc. 47 ¶ 4).

Evans claims that the workplace conditions at Capital Blue Cross's Elmerton facility exacerbated her symptoms. She asserts that, over a one-and-a-half-year period, she made several requests for air quality and mold testing for her cubicle. (Doc. 50-2 ¶ 16; Doc. 57 at 5; Doc. 57-1 at 7). Specifically, Evans believed a panel on the partition at her cubicle desk was covered in mold spores. (Doc. 50-2 ¶ 18). She testified that, during 2014, she would experience allergy symptoms 10 to 15 minutes after entering the Elmerton facility and that, at some point in 2014, she asked Capital Blue Cross to replace the suspect panel, have it professionally cleaned, or move her to another desk. (Id. ¶¶ 17, 19; Doc. 36-1 at 85).

The record reflects that in May and June of 2014, Evans requested to work from home due to illness, (Doc. 42 ¶ 72; Doc. 47 ¶ 72), and to work "in a less stressful environment," (Doc. 43-1 at 54; see also Doc. 42 ¶ 73; Doc. 47 ¶ 73). Internal emails among managerial staff³ conclude that the company could not accommodate her request, (Doc. 42 ¶ 73; Doc. 47 ¶ 73), and on October 3, 2014, a human resources employee advised Ms. Evans via email of this decision, (Doc. 43-1 at 55). Capital Blue Cross asserts that its denial was consistent with its decision to terminate its work-from-home policy for certain positions in May of 2014. (Doc. 47 ¶ 73); see also supra at 3 n.2. Evans inquired as to the availability of other positions that would allow her to work from home, but management advised her that there were no openings. (Doc. 43-1 at 56-57).

On November 5, 2014, Dr. Zuckerman wrote to Capital Blue Cross and explained:

We treat [Evans] for recurrent sinusitis and allergy. Part of her care includes avoiding triggers in her environment. She has indicated that she wants to use an air filter at her work due to excessive dust and mold in the air which is known to trigger her respiratory problems. I agree that this is a medical necessity. Please make accommodations so that she can keep an air filter at her desk.

(Doc. 42 ¶ 27; Doc. 47 ¶ 27). Dr. Zuckerman also issued Evans a prescription for a "Filter Air PP hepa style for an open space at work," (Doc. 42 ¶ 28; Doc. 47 ¶ 28), which he reissued on May 22, 2015, (Doc. 42 ¶ 29; Doc. 47 ¶ 29). In addition to Dr. Zuckerman's recommendation, Sue Blumenschein—a trained nurse who worked at the Elmerton facility—diagnosed Evans with rhinitis and recommended that she use an air purifier at her desk. (Doc. 42 ¶¶ 20-22; Doc. 47 ¶¶ 20-22).

Evans reiterated her concerns about suspected mold in her workplace to Schreck at some point in early March of 2015. (See Doc. 47-1 at 47). After Schreck raised this complaint internally,⁴ (Doc. 50-2 ¶ 16; Doc. 47-1 at 47), Capital Blue Cross management enlisted Michael Ketner, its Director of Facilities, to investigate the suspect workspace, (see Doc. 47-1 at 47). Ketner examined the panel under Evans' workspace and, after observing a stain, asked one of his associates to try to extract it. (Doc. 36-1 at 77). In a reply email, Ketner's associate reported he had "extracted under the workstation panel with a couple of different chemicals, including disinfectant" and that, in his view, the stain "appeared to be something to the effect of grape kool-aid/soda or a blue slushie type drink. It is not mold!" (Id.) Ketner forwarded this email to Schreck, who replied that she "spoke to [Evans] and she is fine with the panel." (Id.) Evans denies making such a statement. (Doc. 50-1 at 15). She testified that the panel looked virtually no different after Ketner's team cleaned it, and that she could still see "black stuff . . . with the little white spots on it" under the stain. (See id.)

On May 21, 2015, Lisa Owens—a Caucasian employee⁵ slated to replace Evans in her cubicle—advised Schreck that she did not want to move to a cubicle with mold and that Schreck should find her another location or replace the panel. (Doc. 42 ¶ 40). Email records suggest Evans and Owens met with Wright on May 22, 2015, to express their concerns regarding the panel and the potential mold. (Id. ¶ 41). The same day, Schreck alerted her colleagues to the continued complaints of mold on the panel and Evans' request to have the air quality tested. (Id. ¶ 42; Doc. 47 ¶ 42). When asked for his opinion, Ketner stated that he stood by his original conclusions but would have his team test for mold. (See Doc. 42 ¶¶ 42-44; Doc. 47 ¶¶ 42-44). According to Ketner's declaration, he ordered mold test kits for the panel on or before May 22, 2015. (Doc. 36-1 at 119; see also Doc. 43-1 at 82).

After learning that Owens also requested testing and that both Evans and Owens "questioned the integrity of the mold test kit," Ketner arranged for Cocciardi and Associates ("Cocciardi") to conduct an indoor air quality investigation, including mold and mold spore testing. (Doc. 36-1 at 119-20). Cocciardi conducted its investigation on May 26, 2015, during which it "assess[ed] general indoor air quality parameters and airborne fungal concentrations." (Id. at 68). That same day, Wright directed Evans to attend an examination with WORKNET Occupational Medicine for a possible worker's compensation claim regarding her respiratory conditions. (Doc. 42 ¶ 31; Doc. 47 ¶ 31). WORKNET's notes are dated May 26, 2015, July 14, 2015, and February 23, 2016. (Doc. 42 ¶ 32; Doc. 47 ¶ 32). The May 26, 2015 note states "Recommend: Air quality testing and HEPA filter use. Starting 5/26/15 Continuing." (Doc. 42 ¶ 33; Doc. 47 ¶ 33).

On May 28, 2015, Cocciardi's representative advised Ketner that "there are no issues and that the air quality is one of the best reports that he has ever seen. No spores, no mold, nothing." (Doc. 42 ¶ 55; Doc. 47 ¶ 55). Cocciardi issued its official report to Ketner the next day. (Doc. 42 ¶ 58; Doc. 57 ¶ 58). According to the report, there were "[n]o visible signs of fungal growth in any of the areas inspected." (Doc. 42 ¶¶ 59, 60; Doc. 47 ¶¶ 59, 60). The air quality in Capital Blue Cross's facility was, according to Cocciardi's representative, "better than most places I've seen over the years." (Doc. 36-1 at 108). Evans reviewed the Cocciardi report with her physician. (Doc. 47-1 at 10).

Although the exact timing is unclear, it is undisputed that Evans was eventually moved to another desk, (Doc. 47-1 at 12), likely at the end of May or the beginning of June of 2015, (see Doc. 43-1 at 82-83).⁶ On June 12, 2015, a WORKNET physician assistant again recommended that Evans have an air filter at her desk. (Doc. 36-1 at 57-58). On June 23, 2015, Morrissey emailed Evans and directed her to ask her physician for more information about an adequate filter, including a website, name, or model number. (Doc. 39-6 at 88).

The parties dispute whether Evans provided Capital Blue Cross with the necessary information regarding a suitable air filtering device. Evans testified that, in 2015, she gave the employee health suite at Capital Blue Cross a printout that Dr. Zuckerman had provided her about a battery-operated air filter device. (See Doc. 50-1 at 11). Morrissey denies receiving information about the device. (Doc. 47-1 at 63; see also id. at 67). On July 14, 2015, a WORKNET doctor issued Evans a prescription for "HEPA filter due to possible work-related Allergy Asthma symptoms." (Doc. 42 ¶ 34; Doc. 47 ¶ 34). Ketner testified that Evans did not get approval for a HEPA filter because she failed to supply necessary details about the filter. (Doc. 42 ¶ 83; Doc. 47 ¶ 83).

In sum, the record is very unclear as to the status of the air filter request at various points in...