Outten v. Genesis Health Care, LLC

ANN OUTTEN, Plaintiff, v. GENESIS HEALTH CARE, LLC, et al. Defendants.

CIVIL ACTION NO. 13-4708

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 12, 2014

MEMORANDUM

BUCKWALTER, S. J.

Pending before the Court is Defendants Genesis Health Care, LLC and 1245 Church Road Operations, LLC, d/b/a/ Hillcrest Center ("Defendants")'s Motion for Summary Judgment. For the following reasons, Defendants' Motion is granted.

I. FACTUAL AND PROCEDURAL HISTORY¹

Plaintiff Ann Outten ("Plaintiff") is an individual residing in Warrington, Pennsylvania. (Compl. ¶ 7.) Defendant Genesis Health Care, LLC ("Genesis") is a business providing nursing and rehabilitative care with its headquarters in Kennett Square, Pennsylvania. (Id. ¶ 8.) Defendant 1245 Church Road Operations, LLC, d/b/a/ Hillcrest Center ("Hillcrest") is a business providing nursing home related services in Wyncote, Pennsylvania. (Id. ¶ 9.)

Plaintiff is sixty years old. (Id. ¶ 12.) She suffers from diabetes, hypertension, diabetic peripheral neuropathy, osteoarthritis, gouty arthritis, chronic kidney disease, herniated and bulging discs in her cervical and lumbar spine, and nodules in her lungs. (Pl.'s Resp. Opp'nMot. Summ. J., Ex. A, Deposition of Plaintiff, March 12, 2014 ("Plaintiff Dep."), 41:3-42:1.) Plaintiff worked continuously for Defendants as a registered nurse beginning in January of 1990. (Id. at 18:3-8.)

1. Defendants' Policies and Practices

Defendants' employee handbook sets forth detailed graded disciplinary measures for certain workplace misconduct. (Pl.'s Resp. Opp'n Mot. Summ. J., Ex. O, Employee Handbook.) According to the handbook, three "unscheduled absences" in ninety days merits "Verbal Counseling." (Id.) The first offense of "no call/no show" carries with it a penalty of "Automatic Written Final Counseling." (Id.) A second "no call/no show" results in "Termination of Employment." (Id.) "Job abandonment" is deemed "Grounds for Immediate Dismissal." (Id.)

It is Defendants' practice not to permit personnel to miss work on account of weather. (Def.'s Mot. Summ. J., Ex. D, Deposition of Susan Pagliaro, Mar. 19, 2014 ("Pagliaro Dep."), 25:3-15; Ex. E, Deposition of Patti Dollase, Mar. 14, 2014 ("Dollase Dep."), 18:7-15; Ex. R, Deposition of Amy Heivly, Mar. 19, 2014 ("Heivly Dep."), 10:8-14.) In the event of dangerous weather conditions, Defendants expect their employees to "either stay at work, come in early, sleep over . . . [m]ake whatever contingency plans [they] have to make" in order to work their shifts. (Dollase Dep. 18:7-15.)

2. Events of 2011-2012

As of 2011, Plaintiff was a nursing supervisor on the night shift at Hillcrest, usually working from 11:00 p.m. to 7:00 a.m. on weekdays and 7:00 p.m. to 7:00 a.m. on weekends. (Plaintiff Dep. 20:6-21:17.) In her position as nursing supervisor for the night shift, Plaintiff was responsible for the operations of an eighteen-bed dementia unit and charged with supervising the other thirteen-to-fourteen employees working during the night shift. (Id. at21:1-23.) Plaintiff reported to Susan Pagliaro ("Pagliaro"), the director of nursing, and Patti Dollase ("Dollase"), the assistant director of nursing. (Id. at 27:23-28:3, 29:16-30:20.) In the period between March 5, 2011 and March 5, 2012, Plaintiff used the sick time allotted to her. (Id. at 130:13-17.) At some point in or around 2011, Pagliaro mentioned that Plaintiff "may want to consider retiring." (Id. at 165:5-166:3.) Plaintiff responded by saying that she could not retire. (Id. at 166:16-19.) On March 5, 2012, Pagliaro issued Plaintiff her annual performance review, rating her "exceptional" in six categories out of seven. (Pl.'s Mot. Summ. J., Ex. J, Plaintiff Performance Review.) In the "Performance Objectives" section of the review, Pagliaro instructed Plaintiff to "decrease call-outs" and "work on care of self." (Id.)

On January 21, 2012, Katelyn Kirchoff, a registered nurse at Hillcrest, called out of work during a snowstorm. (Pl.'s Resp. Opp'n Mot. Summ. J., Ex N, Kirchoff Individual Performance Improvement Plan.) Despite Kirchoff's representation that she was sick and "wasn't aware of the weather forecast," Kirchoff received a written reprimand for missing work because "Genesis policy does not permit call-outs during snow or forecast of snow." (Id.)

Sometime in early 2012, Plaintiff asked Defendants if they would provide her a chair with greater lumbar support due to herniated and bulging discs in her lumbar and cervical spine. (Id. at 65:24-68:21.) Defendants did not provide Plaintiff such a chair. (Id.)

3. Plaintiff's Surgery and Recovery

In late March or early April 2012, Plaintiff requested a leave of absence from Pagliaro under the Family Medical Leave Act ("FMLA"). (Id. at 75:15-76:10.) Specifically, Plaintiff required time off to undergo and recover from kidney surgery due to chronic kidney disease and the need to remove a kidney stone. (Id. at 41:3-42:1, 76:10-76:20.) Defendants granted Plaintiff FMLA leave from April 13, 2012 through May 31, 2012. (Def.'s Mot. Summ. J., Ex.N, Designation Notice.) Plaintiff could not return to work on May 31, 2012 because her condition required a second kidney surgery. (Plaintiff Dep. 75:23-76:6; Pl.'s Resp. Opp'n Mot. Summ. J., Exs. O-Q, Disability Medical Updates.) Plaintiff underwent a second kidney surgery on July 12, 2012. (Plaintiff Dep. 97:9-17.) Plaintiff took nearly four more months of FMLA leave as a result of her surgeries. (Id. at 75:23-76:6.) In September 2012, Plaintiff had a phone conversation with Pagliaro in which Pagliaro brought up the subject of Plaintiff's possible retirement. (Id. at 166:6-19.) Plaintiff told Pagliaro that she could not retire. (Id.) Plaintiff returned to work from her FMLA leave on September 28, 2012. (Id. at 100:8-10.)

4. Hurricane Sandy and Plaintiff's Termination

On October 28, 2012 through the morning of October 29, 2012, Plaintiff worked the night shift from 7:00 p.m. to 7:00 a.m. as the on-duty registered nurse supervisor at Hillcrest. (Plaintiff Dep. 136:4-21.) That evening, eastern Pennsylvania experienced high winds and torrential rain due to Hurricane Sandy. (Pl.'s Resp. Opp'n Mot. Summ. J., Ex. K, News Report of Oct. 28, 2012.) Over the course of her shift, Plaintiff received multiple phone calls from employees attempting to call out on account of the hurricane. (Plaintiff Dep. 136:4—138:15.) Plaintiff had received instructions "not to accept call-outs" consistent with her prior experience of refusing call-outs during snowstorms. (Id. at 139:4-140:8.) Pursuant to Plaintiff's understanding of Defendants' practices regarding inclement weather, she told employees calling out due to Hurricane Sandy that "we were not accepting call-outs." (Id. at 139:4-8.)

After her shift ended at 7:00 a.m., Plaintiff drove home, arriving at around 7:30 a.m. (Id. at 140:15-19.) Plaintiff did not leave the house between 7:30 a.m. and 8:30 p.m. (Id.) At around 8:30 p.m., Plaintiff called Hillcrest and spoke with the nurse supervisor on duty, informing her that she would not be reporting for her scheduled night shift of October 29-30,2012. (Id. at 143:12-145:19.) Plaintiff explained that, in her view, driving to work in the storm "was not a prudent thing to do." (Id.) Plaintiff had not attempted to come to work prior to calling Hillcrest. (Id.)

Roughly ten minutes after her brief conversation with the on-duty nursing supervisor, Plaintiff received a phone call from Dollase. (Id. at 145:4-19.) Plaintiff reiterated to Dollase that she believed "it was too dangerous for [her] to come in" for her shift. (Id.) Dollase told Plaintiff that, due to the nature of Hillcrest's work as around-the-clock health care providers, "everyone has a personal responsibility to get in," and that this was especially true for Plaintiff who, as a supervisor, was held "to a higher standard." (Dollase Dep. 21:15-22:3.) After Plaintiff repeated her reason for staying home, Dollase told Plaintiff "there would be consequences." (Plaintiff Dep. 146:21-24; Dollase Dep. 23:2-8.)

For the next two days, Dollase conferred with Pagliaro about "how to handle" Plaintiff's failure to report for work on the night of October 29, 2012, "trying to weigh all our options" and "try[ing] to find some way that we could get around not terminating [Plaintiff] and still maintain credibility with our staff." (Dollase Dep. 27:23-29:10.) On November 1, 2012, Dollase and Pagliaro decided that Plaintiff's conduct constituted "job abandonment." (Def.'s Mot. Summ. J., Ex. T, Plaintiff's Performance Improvement Plan.) On November 1, 2012, consistent with the prescribed disciplinary measure for "job abandonment" in the employee handbook, Pagliaro and Dollase terminated Plaintiff. (Employee Handbook; Plaintiff's Performance Improvement Plan.)

5. Other Employees Who Missed Work During Hurricane Sandy

Including Plaintiff, sixteen of Defendants' employees from the nursing department at Hillcrest failed to report to work during Hurricane Sandy. (Pl.'s Resp. Mot. Summ. J., Ex. H, Defs.' Resps. to Pl.'s Sec. Set of Interrogs.) Of the other fifteen employees, thirteen werenursing assistants, one was a licensed practical nurse, and one was a clinical reimbursement coordinator. (Id.) None of the fifteen was a registered nurse and all were subordinate to Plaintiff. (Id.; Defs.' Mot. Summ. J., Ex. C, RN Supervisor Job Description.) Defendants disciplined seven employees for missing work during Hurricane Sandy, with five receiving written reprimands and two being terminated. (Pl.'s Resp. Opp'n Mot. Summ. J., Ex. I, Individual Performance Improvement Plans.) Jenee Evans, a nursing assistant, was terminated for being a "no show/no call" on October 26 and October 29, 2012. (Id.; Defs.' Resps. To Pl.'s Sec. Set of Interrogs.) Sharee Jefferson, a nursing assistant, was terminated after she called out during Hurricane Sandy on October 30, 2012, and had previously called out a total of eighteen times and was late twenty-six...