McNulty v. Cnty. of Warren, 1:16-CV-843 (NAM/DJS)

LESLIE M. MCNULTY, Plaintiff, v. COUNTY OF WARREN, NEW YORK, Defendant.

1:16-CV-843 (NAM/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 7, 2019

Appearances:

D'ORAZIO PETERSON, LLP

Giovanna A. D'Orazio, Esq., Of Counsel

125 High Rock Avenue

Saratoga Springs, New York 12866

Attorneys for Plaintiff

LEMIRE, JOHNSON & HIGGINS, LLC

Gregg T. Johnson, Esq., Of Counsel

April J. Laws, Esq., Of Counsel

2534 Route 9 - P.O. Box 2485

Malta, New York 12020

Attorneys for Defendant

Hon. Norman A. Mordue, Senior United States District Court Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Leslie McNulty commenced this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., asserting claims for discrimination and retaliation. (Dkt. No. 1). On March 23, 2018, Defendant County of Warren, New York filed a motion for summary judgment, (Dkt. No. 40), which Plaintiff has opposed, (Dkt. No. 45). For the reasons that follow, Defendant's motion is granted in part, and denied in part.

II. BACKGROUND

A. Employment History

Plaintiff began working for Warren County in 1992 when she worked at the County's Women, Infants and Children program. (Dkt. Nos. 40-14, ¶¶ 1-2; 45-15, ¶¶ 1-2).¹ In 2000, Plaintiff began working for the County's Health Services Department as a full-time registered nurse in the Long-term Healthcare Program ("LHCP"). (Dkt. Nos. 40-14, ¶ 3; 45-15, ¶ 3). Plaintiff worked as a Community Health Nurse from 2000 until the end of her employment with Warren County in 2013. (Dkt. Nos. 40-14, ¶ 5; 45-15, ¶ 5).

As a Community Health Nurse, Plaintiff traveled out into the community to patients' homes to provide nursing care to patients receiving services from Warren County Public Health. (Dkt. No. 40-11, ¶ 3). Plaintiff used County-owned vehicles when visiting her patients. (See Dkt. No. 40-10, ¶ 12). In this role, Plaintiff's specific job duties included: (1) assessment of health care needs; (2) initial implementation of nursing care plans; (3) providing skilled nursing care and prescribing treatment to patients in their homes and clinics; (4) demonstrating nursing care to patients and their family members; (5) coordinating plans for services with other medical and clinical professionals, such as nutritionists, social workers, physical therapists, mental health care professionals, and physicians; (6) counseling and guiding individuals and family members towards self-help in recognition and solution of physical, emotional, and environmental health problems; and (7) maintenance of the physical and mental condition commensurate to the demands of the position. (Dkt. No. 40-7, p. 2).

Plaintiff's last assignment with Warren County was as a full-time registered nurse with the County's Certified Home Health Agency ("CHHA"). (Dkt. No. 40-10, ¶ 3). Between 2012and 2013, Plaintiff performed job functions under both the CHHA and LHCP programs while the LHCP was being phased out by the New York State Department of Health. (Id., ¶¶ 3-4). All Warren County employees transitioning from LHCP to CHHA had two supervisors during that time. (Id., ¶ 4). Under LHCP, Plaintiff's direct supervisor was Mary Lamkins. (Id.). When Plaintiff was transferred to the CHHA program, she was also supervised by Valerie Whisenant. (Id.). As Plaintiff's direct supervisors, Ms. Whisenant and Ms. Lamkins reported directly to the County's Assistant Director for Patient Services, Sharon Schaldone. (Dkt. No. 40-10, ¶ 5). Ms. Schaldone's job duties included providing quality assurance for the LHCP and CHHA programs including medication documentation and billing review. (Dkt. No. 40-12, ¶ 4). Ms. Schaldone reported all supervisory concerns to her supervisor, Patricia Auer, the Public Health Director for Warren County Health Services. (Id., ¶¶ 2, 5).

B. Medical History and FMLA Leave

At all relevant times, Plaintiff suffered from depression and alcoholism. (Dkt. No. 1, ¶ 11). From December 2011 until January 2012, Plaintiff took her first medical leave of absence under the Family and Medical Leave Act ("FMLA") to seek treatment for depression and alcoholism. (Dkt. Nos. 40-14, ¶ 20; 45-15, ¶ 20). Defendant was aware that Plaintiff's first FMLA leave was to seek treatment for depression and alcoholism. (Id.). Plaintiff later took a second medical FMLA leave of absence to seek additional treatment for depression and alcoholism from July 2012 until October 2012. (Dkt. Nos. 40-14, ¶ 22; 45-15, ¶ 22).

Pursuant to Section 825.30 of the FMLA, the County required Plaintiff to provide medical certification attesting to her ability to perform her core job functions before she returned to work from her second FMLA leave. (Dkt. No. 40-10, ¶ 7). On September 18, 2012, a Physician Assistant approved Plaintiff to return to full work duty without restrictions on or afterOctober 1, 2012. (Dkt. No. 45-8, p. 3). Defendant then requested additional medical documentation and clearance before allowing Plaintiff to return to work. (Dkt. No. 45-14, ¶ 20). On October 4, 2012, Dr. Bryan Smead approved Plaintiff's return to work without restrictions on or after October 9, 2012. (Dkt. No. 45-8, p. 1). According to Dr. Smead's report:

Leslie [McNulty] is able to, under supervision, perform public health nursing activities involving responsibility for assessment of health needs and developing the plan of care for individuals and families.

This includes skilled nursing care and prescribed treatments to patients in their homes and clinics. She can lead a team of peers and subordinates providing nursing care and evaluate the effectiveness of team activities; provide for the continuity of care by promoting referrals to other community agencies, coordinate plans for service with nutritionists, social worker, physical therapists, physicians and other professional workers concerned with individual and family health care.

She can counsel and guide individuals and families towards self-help in recognition and solution of physical, emotional and environmental health problems, provide nursing services in clinics and schools as assigned. She can teach classes, address groups, and participate in community planning related to nursing and health, coordinate investigate, follow up, reporting and education of communicable and vaccine preventable diseases. Pt is able to drive independently to and from work for her nursing abilities; may return to work 10-09-2012.

(Id.).

C. Alleged Performance Issues

While Plaintiff was on her second FMLA leave, other nurses assumed her caseload and had access to Plaintiff's client notes and billing entries. (Dkt. Nos. 40-14, ¶ 25; 45-15, ¶ 25). During that leave, Plaintiff's supervisors began receiving reports of various performance issues with regard to Plaintiff's compliance with required recordkeeping and billing procedures. (Dkt. No. 40-10, ¶ 5). In August 2012, while Plaintiff was out on FMLA leave, Director Auerconsulted the County Attorney regarding the possibility of placing Plaintiff on involuntary medical leave under Section 72 of New York State Civil Service Law ("Section 72"). (Id.).

On October 15, 2012, just days after returning from her second FMLA leave, Plaintiff met with her supervisors, Mses. Schaldone, Whisenant, and Lamkins, to discuss her work performance. (Dkt. No. 40-12, ¶ 7). The supervisors informed Plaintiff that the nurses covering Plaintiff's patients and Plaintiff's direct supervisors observed numerous deficiencies in her medical charting and billing records. (Id.). Specifically, the alleged deficiencies in Plaintiff's job performance included: (1) inaccurate and untimely record keeping; (2) incomplete medical file notes resulting in a lack of information regarding critical patient medical issues; (3) routine inability to manage patients' medications resulting in patients receiving incorrect medications and dosages; and (4) inability to prioritize delivery of patient care to patients with the most critical care needs over patients with non-critical needs. (Dkt. No. 40-10, ¶ 10). Plaintiff's supervisors reminded her of the County's job requirements and counseled Plaintiff on how to improve her performance in the future. (Id., ¶ 6). The supervisors advised Plaintiff that her documentation would be reviewed by one of her supervisors daily. (Id.).

On October 22, 2012, Mses. Auer, Schaldone, and Lamkins met with Plaintiff and one of Plaintiff's family members to discuss "any concerns she may have had about her job performance and to offer [Plaintiff] assistance in implementing a plan so she could be a successful nurse." (Dkt. Nos. 40-10, ¶ 8; 45-9, p. 41:19-24). According to Director Auer, "Plaintiff seemed to understand what was expected of her during this meeting." (Dkt. No. 40-10, ¶ 8).

On October 24, 2012, Director Auer provided Plaintiff with a memorandum highlighting important points discussed during the October 22nd meeting. (See Dkt. No. 40-4). DirectorAuer's memorandum instructed Plaintiff "to come directly to her to address any issues or concerns she may have with any of her direct superiors." (Id.). Director Auer's memorandum does not document any specific criticisms or errors found in Plaintiff's work. (Id.).

Following Plaintiff's meetings with her supervisors on October 15 and October 22, the County identified a series of alleged deficiencies, including:

¦ On November 6, 2012, Plaintiff was performing a home visit when, during patient assessment, the patient was in jeopardy of falling to the floor. The agency procedures for this type of situation is to immediately call for EMS to assist. However, Plaintiff did not follow procedure and, instead, contacted her supervisor while leaving this patient in a compromised position. Plaintiff also left this same patient unattended when EMS arrived, and Plaintiff did not contact the family to check on the patient's status later in the day.

¦ On November 10, 2012, Plaintiff saw a patient for wound care. Plaintiff referred care to home care aids and LPN's but did not

...