Warshaw v. Concentra Health Serv.

719 F.Supp.2d 484

Brian WARSHAW, Plaintiff,

v.CONCENTRA HEALTH SERVICES, et al., Defendants.

Civil Action No. 07-1994.

United States District Court,E.D. Pennsylvania.

June 14, 2010.

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Michael J. Salmanson, Katie R. Eyer, Salmanson Goldshaw, P.C., Philadelphia, PA, for Plaintiff.

John P. Shusted, German Gallagher & Murtagh, Michael J. Eagles, Tara G. Lafiura, Blank Rome LLP, Courtney Anne Wirth, Morgan Lewis & Bockius LLP, Ryan Allen Hancock, Pennsylvania Human Relations Commission, Philadelphia, PA, Michael Hardiman, PA Human Relations Commission, Harrisburg, PA, for Defendants.

OPINION

POLLAK, District Judge.

Plaintiff Brian Warshaw alleges that his former employer, defendant TEKsystems, Inc. (“TEK”), a subsidiary of defendant Allegis Group, Inc. (“Allegis”), discriminated and retaliated against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. § 951 et seq. Plaintiff's allegations against TEK and Allegis stem in part from a drug test administered at TEK's request by defendant Concentra Health Services (“Concentra”), which plaintiff claims was negligent in processing the test and reporting the results to TEK. On April 6, 2010, this court held a hearing to consider (1) the motion for summary judgment filed by TEK and Allegis, (2) plaintiff's motion for partial summary judgment, (3) Concentra's motion for summary judgment, and (4) plaintiff's motion for leave to rely on an economic damages expert. By an order dated April 6, 2010, this court granted plaintiff's motion for leave. This opinion addresses the summary judgment motions.

I.

In fall 2004, plaintiff, who has attention deficit hyperactivity disorder (“ADHD”), applied for a job with TEK, a company that places employees in information technology (“IT”) jobs. TEK Mem. at 3; PL's TEK Opp'n at 3. When applying, Warshaw spoke with Shelton DuVall, a TEK recruiter, who decided to place Warshaw in a short-term assignment with the Drexel College of Medicine (“Drexel”). TEK Mem. at 6; PL's TEK Opp'n at 4.

Before Warshaw began working on the Drexel project, DuVall asked Warshaw to take a drug test. TEK Mem. at 6; PL's TEK Opp'n at 4. This was an error: TEK only requires that its employees take drug tests when its client so requests, and Drexel had not made any such request. TEK Mem. at 6. On December 3, 2004, Warshaw took an instant drug screen, which was administered by Concentra. TEK Mem. at 6; PL's TEK Opp'n at 4; Concentra Stmt. Facts ¶ 9; Pl.'s Concentra Opp'n at 5. Warshaw's urine sample tested positive for methamphetamine. TEK Mem. at 6. It is undisputed that the positive result was due to Warshaw's legal use of the prescription drug Desoxyn, which was prescribed to treat his ADHD. PL's TEK Opp'n at 5; Warshaw dep. 33. Concentra reported the positive result to DuVall at TEK, TEK Mem. at 6; Pl.'s TEK Opp'n at 5, and DuVall, in turn, reported the result to Richard Kaniewski, the TEK account manager in charge of the Drexel project, TEK Mem. at 6-7; Pl.'s TEK Opp'n at 5. In response, Kaniewski told DuVall that Drexel had not requested a drug test and that Warshaw could still begin working on the assignment, and DuVall relayed both the test result and Kaniewski's response to Warshaw. TEK Mem. at 7; Pl.'s TEK Opp'n at 6. Warshaw's urine sample, meanwhile, was sent to Qualisys, Inc. ¹ for further testing. TEK Mem. at 9. Warshaw informed Qualisys of his Desoxyn prescription, and Qualisys then sent TEK a verified negative drug test result. Id.

Warshaw did begin work on the Drexel project. TEK Mem. at 7-8; Pl.'s TEK Opp'n at 6. Warshaw only worked on the project for three days, however, before he was terminated. TEK Mem. at 8; PL's TEK Opp'n at 6. The reason for his termination is disputed; TEK asserts that Warshaw was terminated from the position because Patricia Pastras, the Drexel team leader on the project, complained to Kaniewski that Warshaw had “commented to [Pastras] that the project would get done a lot faster if there were fewer smoke breaks.” TEK Mem. at 8. Plaintiff calls this explanation “demonstrably false.” Pl.'s TEK Opp'n at 7.

Following this incident, Warshaw was not placed in any further jobs by TEK. Pl.'s TEK Opp'n at 7. In fact, aside from a few telephone calls placed to DuVall (whose response to those calls is contested), id., Warshaw had no immediate further contact with TEK. On June 3, 2005, however, Warshaw filed a PHRA charge against TEK and Allegis, Pl.'s Ex. Pl, and this suit followed in April 2007, PL's TEK Opp'n at 8.

In August 2007, Warshaw received a telephone call from Emily Ciliberto, another TEK recruiter. TEK Mem. at 10; PL's TEK Opp'n at 8. Ciliberto called Warshaw “as part of a company-wide effort to reconnect with individuals who had worked for [TEK] in the past, but who were not currently placed.” TEK Mem. at 10; accord PL's TEK Opp'n at 8. Warshaw was unable to speak to Ciliberto at the time she called, but she requested his resume, which he subsequently forwarded to her. TEK Mem. at 10-11; Pl.'s TEK Opp'n at 9. The two had one further conversation, but Ciliberto never placed Warshaw in a job. Id. At some point, Ciliberto spoke to DuVall, who told her that Warshaw had filed a lawsuit against TEK. TEK Mem. at 11.

Warshaw's discrimination claims under the ADA and PHRA (Counts I, II, IV, and V) arise from (1) his termination from the Drexel assignment, and (2) TEK's failure to place him in any further positions at that time. Counts I and IV allege that Warshaw was actually disabled within the meaning of the statutes, while Counts II and V allege in the alternative that TEK and Allegis regarded him as disabled. Counts III and VI, meanwhile, allege retaliation in violation of the ADA and PHRA, respectively, based on Ciliberto's failure to place Warshaw in any jobs. Finally, Count VII alleges that Concentra was negligent in its handling of Warshaw's drag test. TEK and Allegis have moved for summary judgment on the discrimination and retaliation claims, plaintiff has moved for summary judgment on his retaliation claims only, and Concentra seeks summary judgment on the negligence claim.

II.

Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists where the jury could reasonably find for the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute over facts is material where it could affect the outcome of the case, Belitskus v. Pizzingrilli, 343 F.3d 632, 639 (3d Cir.2003). “In considering the evidence, the court should draw all reasonable inferences against the moving party.” El v. SEPTA, 479 F.3d 232, 238 (3d Cir.2007).

III.

The parties agree that Warshaw's discrimination claims are governed by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to that framework, plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do so with regard to his removal from the Drexel project, Warshaw “must ... show (1) he is a disabled person 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.” Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir.2004). With regard to his failure to hire claim, Warshaw must show that he is disabled with the meaning of the statute and that “(i) he applied for and (ii) was qualified for an available position, (iii) was rejected, and (iv) after he was rejected the position remained open and the employer continued to seek applications from persons of plaintiff's qualifications.” Taylor v. Cherry Hill Bd. of Educ., 85 Fed.Appx. 836, 839 (3d Cir.2004). If Warshaw did not formally apply for a position, he may alternatively demonstrate that he either (1) “did everything reasonably possible to make [his interest] known,” (2) “was deterred from applying ... by ... discriminatory practices and would have applied for the position but for those practices,” or (3) “had a real and genuine interest in” employment with TEK “but reasonably believed that a formal application would be futile.” Newark Branch, NAACP v. Town of Harrison, 907 F.2d 1408, 1415 (3d Cir.1990).

To survive a summary judgment motion, the plaintiff's evidence must be “sufficient to convince a reasonable fact finder to find all of the elements of the prima facie case.” Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.2001) (applying McDonnell Douglas in the context of the Age Discrimination in Employment Act). If the plaintiff establishes a prima facie case, “the burden shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason for the [adverse employment decision].’ ” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the employer proffers such a reason, “[t]he plaintiff must then establish by a preponderance of the evidence that the employer's proffered reasons were merely a pretext for discrimination.” Id. To do so, “the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.”...