# JANOVSKY v. UPMC PRESBYTERIAN

> District Court, W.D. Pennsylvania · August 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10419028

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419028

## How later opinions describe it (automated extraction)

- noting that ADA and PHRA disability claims are analyzed identically

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KIRSTAN JANOVSKY, )
)
Plaintiff, )
) Civil Action No. 21-615
v. )
)
UPMC PRESBYTERIAN, )
)
Defendant. )

MEMORANDUM OPINION

In this action, Plaintiff Kirstan Janovsky (“Plaintiff”) brings multiple claims against her
former employer, Defendant UPMC Presbyterian (“Defendant”), under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat.
Ann. § 951 et seq. Presently before the Court is the Motion for Summary Judgment and brief in
support filed by Defendant in this matter (Docket Nos. 36, 37), the brief in opposition filed by
Plaintiff (Docket No. 44), and Defendant’s reply (Docket No. 48). In addition to the motion and
briefs, the Court has considered the parties’ concise statements of material facts and responses, as
well as the appendices that were filed in connection with the briefs. (Docket Nos. 38-39, 42-43,
45, 49-50). On June 15, 2023, the Court held oral argument on the motion. (Docket No. 52).
For the reasons set forth herein, Defendant’s Motion for Summary Judgment is denied.
I. FACTUAL BACKGROUND
As the parties are well-acquainted with the factual background of this case, at this juncture
the Court will present an abbreviated version of the facts relevant to Defendant’s summary
judgment motion.1 Defendant is a non-profit research and academic hospital that has a
Neurotrauma ICU Unit (“Unit 4G”), which is a typically intense, 10-bed unit that focuses on the
care of critically injured trauma patients with head trauma, strokes, and spinal injuries. (Docket
Nos. 38, ¶¶ 1-3; 43, ¶¶ 1-3). In early November 2019, Plaintiff, a licensed Registered Nurse,
transferred from University of Pittsburgh Physicians, where she was a Surgical Nurse Coordinator,

to Defendant’s Unit 4G as a Senior Professional Staff Nurse, an at-will position that is subject to
Defendant’s various policies. (Docket Nos. 38, ¶¶ 6-8, 13; 43, ¶¶ 6-8, 13). The Unit Director,
Teresa Lucchetti (“Lucchetti”), interviewed Plaintiff and recommended that she be hired. (Docket
Nos. 38, ¶¶ 10-11; 43, ¶¶ 10-11).
From November 2019 until February 2, 2020, Plaintiff went through Unit 4G orientation.
(Docket Nos. 38, ¶ 28; 43, ¶ 28). According to Plaintiff, she spoke to Lucchetti in November and
December of 2019 about her medical condition, which includes depression, anxiety, and PTSD,
and asked at that time for an accommodation to manage her anxiety. (Docket Nos. 42, ¶¶ 13, 18;
49, ¶¶ 13, 18; 45-1 at 25). Plaintiff contends that she proposed using the phrase “I just need a

minute” to indicate that she needed to take a break for her medical condition, and that Lucchetti
agreed. (Docket Nos. 42, ¶ 19; 49, ¶ 19). During this time, Plaintiff also spoke with Melanie
Smith-Fortney, Defendant’s Director of Nursing, about orientation concerns, and Plaintiff shared
with Smith-Fortney that she suffers from PTSD. (Docket Nos. 42, ¶¶ 21-24; 49, ¶¶ 21-24).
Additionally, Plaintiff requested and received intermittent FMLA approval pursuant to her health
care provider’s certification, beginning December 31, 2019, through December 30, 2020. (Docket
Nos. 42, ¶ 60; 49, ¶ 60).

1 The relevant facts are derived from the undisputed evidence of record, and the disputed evidence of record
is read in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”).
On January 14, 2020, Plaintiff was placed on a Performance Expectations Plan (“PEP”) at
work, a non-disciplinary informal means utilized to identify employees’ performance issues.
(Docket Nos. 38, ¶¶ 46-56; 43, ¶¶ 46-56). The PEP reflected that Plaintiff’s orientation would be
extended an additional two weeks in order to give her time to be successful on Unit 4G. (Docket
Nos. 38, ¶¶ 47, 52; 43, ¶¶ 47, 52). The PEP identified areas for improvement, including

“administering medications per hospital policy,” and “listen[ing] and tak[ing] direction and
feedback from preceptor to improvements in time management, organization critical thinking, and
documentation.” (Docket Nos. 38, ¶ 53; 43, ¶ 53). Plaintiff disagreed with the comments in the
PEP and did not sign it, however, and she claims that she was experiencing an anxiety attack at
the time she was asked to sign it. (Docket Nos. 38, ¶ 54; 43, ¶ 54; 42, ¶ 27; 49, ¶ 27). Plaintiff
also states that she told Lucchetti during the PEP meeting that she was having an anxiety attack
and asked for a break to regroup, but Lucchetti did not stop the meeting. (Docket Nos. 42, ¶¶ 27-
28; 49, ¶¶ 27-28).
On January 30, 2020, Plaintiff was placed on a Performance Improvement Plan (“PIP”) at

work. (Docket Nos. 38, ¶¶ 57-80; 43, ¶¶ 57-80). The PIP Period is 45 days in length unless
otherwise extended, and during the PIP Period, employees are not eligible to transfer to another
position. (Docket Nos. 38, ¶¶ 63-66; 43, ¶¶ 63-66). The PIP identified “Goals and Objectives”
including: “Kirstan will display that she is effectively listen[ing] to feedback by adjusting her
behavior as to the specifics of the feedback,” “Timely completion of nursing activities,” and
“Independently administer[ing] medications, complet[ing] patient assessments, charts on all
assigned patients, prepar[ing] patients for surgery/off unit testing, participat[ing] in multi-
disciplinary rounds.” (Docket Nos. 38, ¶ 72; 43, ¶ 72).
On March 9, 2020, Lucchetti recommended a finding that Plaintiff had successfully
completed the PIP, and on March 12, 2020, Plaintiff was presented with a PIP Conclusion
Document that she signed, which stated, in part:
It is imperative that you maintain performance expectations going forward. If
you do not sustain acceptable performance for at least 12 months following
successful completion of this Performance Improvement Plan (PIP), you will
be subject to termination of employment.

(Docket Nos. 38, ¶ 79; 43, ¶ 79).
On April 24, 2020, Defendant’s pharmacy conducted a Routine Narcotics Audit on Unit
4G, and Plaintiff had the highest diversion score that month. (Docket Nos. 38, ¶¶ 81-86; 43, ¶¶ 81-
86). As a result, a 30-Day Audit was ordered to review Plaintiff’s “wasting” procedures. (Docket
Nos. 38, ¶¶ 87-88; 43, ¶¶ 87-88). “Wasting,” in layman’s terms, occurs when excess or unused
medicines are discarded. (See Oral Argument regarding Defendant’s Motion for Summary
Judgment, held on June 15, 2023 (“Oral Argument”).2 As part of Unit 4G orientation, Plaintiff
was required to complete Required Online Nursing Modules, which included a Safe Medication
Practices Module containing Controlled Substances Best Practices. (Docket Nos. 38, ¶¶ 32-36;
43, ¶¶ 32-36). The Controlled Substances Best Practices states, “Documentation and wasting
should both be performed immediately (preferred) or within 1 hour of administration,” and it
provides that narcotics should not be wasted in front of a Patient Care Technician (“PCT”), except
in specific circumstances. (Docket Nos. 38, ¶¶ 35, 90; 43, ¶¶ 35, 90).
The 30-Day Audit revealed a total of 5 unaccounted for quantities with no waste
documented, 1 transaction where the amount wasted was less than expected, and a total of 8 wastes
that were wasted at the end of the shift. (Docket Nos. 38, ¶ 88; 43, ¶ 88). The conclusion drawn

2 An official transcript of the hearing during which oral argument was held has not been produced as of this
date. Therefore, the Court discusses the testimony presented by reference to an unofficial draft of the transcript.
was that Plaintiff displayed sloppy narcotics practices. (Docket Nos. 38, ¶ 89; 43, ¶ 89). On April
25, 2020 and April 28, 2020, Lucchetti received reports of Plaintiff’s recent unsatisfactory
behavior, including being argumentative with the charge nurse, yelling at a physician who was
caring for her patient, and receiving a patient complaint. (Docket Nos. 38, ¶¶ 91-93; 43, ¶¶ 91-
93).

On August 28, 2020, Plaintiff was involved in a Narcotics Wasting Violation wherein she
improperly wasted a narcotic in front of a PCT in violation of policy, which was followed by an
encounter with Ms. Lucchetti (the “April 28th encounter”). (Docket No. 38, ¶¶ 94-98; 43, ¶¶ 94-
98). Plaintiff claims that, at the time of the wasting violation, she was tending to a combative
patient which aggravated her PTSD. (Docket No. 38, ¶ 116; 43, ¶ 116). When Lucchetti verbally
disciplined Plaintiff for the policy violation, Plaintiff stated, “Maybe I should use FMLA today.”
(Docket No. 38, ¶ 95; 43, ¶ 95; 42, ¶ 69; 49, ¶ 69). According to Plaintiff, Lucchetti loudly and
firmly replied, “That’s not what FMLA is for, Kirstan! You know what? GO HOME! JUST GO
HOME!” (Docket Nos. 42, ¶ 70; 49, ¶ 70). Plaintiff states that she then requested that Lucchetti

go with her to Human Resources, but Lucchetti replied that they weren’t in the office that day.
(Docket No. 43, ¶ 99). Notably, after the April 28th encounter, Plaintiff did not go home
immediately, nor did she attempt to use her intermittent FMLA leave in the following days.
(Docket No. 38, ¶¶ 99-100; 43, ¶¶ 99-100).
On April 29, 2020, Plaintiff was asked to write a written statement in response to her 30-
Day Audit, the Narcotics Waste Violation, and her April 25, 2020 interactions. (Docket Nos. 38,
¶¶ 101-04; 43, ¶¶ 101-04). Plaintiff’s comments were sent to Smith-Fortney and Melissa Miller,
Defendant’s Human Resources Consultant, and Plaintiff did not deny her Audit results and
apologized. (Docket Nos. 38, ¶¶ 101-04; 43, ¶¶ 101-04; 45-2 at 10-11). Miller contacted Smith-
Fortney and Sandy Rader, Defendant’s Chief Nursing Officer, to inform them of the encounter,
and also emailed Joyleene Maldonieri, Defendant’s Human Resources Manager about the
encounter. (Docket No. 42, ¶ 80; 45-2 at 42-44, 47-49).
On May 5, 2020, Defendant terminated Plaintiff’s employment. (Docket Nos. 38, ¶¶ 108-
12; 43, ¶¶ 108-12). Plaintiff’s Termination Letter indicated that her discharge was based on –

since the conclusion of her PIP – Plaintiff violating the Code of Conduct Policy when she was
observed yelling at a physician, and Plaintiff’s narcotics practices not following Defendant’s
Controlled Substance Policy (citing the specifics of the 30-Day Audit). (Docket No. 45-3 at 1).
On May 10, 2021, Plaintiff filed her Complaint in this matter. (Docket No. 2). Plaintiff
subsequently filed her Amended Complaint on September 29, 2021. (Docket No. 26). Plaintiff’s
Amended Complaint alleges five Counts against Defendant: (I) Interference under the FMLA;
(II) Retaliation under the FMLA; (III) Discrimination and Failure to Accommodate under the
ADA; (IV) Retaliation under the ADA; and (V) violation of the PHRA.3 (Id. at 5-11). The parties
have completed discovery. As explained, supra, Defendant filed its Motion for Summary

Judgment, which has been fully briefed by the parties, and the motion is now ripe for decision.
II. STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The parties must support their position by “citing
to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of

3 The Court need not differentiate between Plaintiff’s claims under the ADA and the PHRA because the same
analysis is used for both types of claims. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.4
(3d Cir. 1998). Therefore, Count V, under the PHRA, will be addressed together with Counts III and IV, under the
ADA, herein.
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original).
A disputed fact is material if it might affect the outcome under the substantive law. See Boyle v.

Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Anderson, 477 U.S. at 247-48).
Summary judgment is unwarranted where there is a genuine dispute about a material fact, that is,
one where a reasonable jury, based on the evidence presented, could return a verdict for the non-
moving party with regard to that issue. See Anderson, 477 U.S. at 248.
When deciding a motion for summary judgment, the Court must draw all inferences in a
light most favorable to the non-moving party without weighing the evidence or questioning the
witnesses’ credibility. See Boyle, 139 F.3d at 393. The movant has the burden of demonstrating
the absence of a genuine issue of material fact, while the non-movant must establish the existence
of each element for which it bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If the movant has pointed to sufficient evidence of record to demonstrate
that no genuine issues of fact remain, the burden is on the non-movant to search the record and
detail the material controverting the movant’s position. See Schulz v. Celotex Corp., 942 F.2d 204,
210 (3d Cir. 1991). Rule 56 requires the non-moving party to go beyond the pleadings and show,
through the evidence of record, that there is a genuine issue for trial. See Celotex v. Catrett, 477
U.S. at 324.
III. DISCUSSION
As previously stated, Plaintiff’s Amended Complaint contains claims against Defendant
under the FMLA, the ADA, and the PHRA. (Docket No. 26 at 5-11). In moving for summary
judgment, Defendant argues that all of Plaintiff’s claims fail as a matter of law based on the
undisputed material facts in this case. In response, Plaintiff argues that clear disputes do exist here
as to a number of material facts, and that such factual disputes cannot appropriately be resolved
by the Court on summary judgment, but they must instead be considered by a jury.
A. Count I: Interference Under the FMLA

Plaintiff alleges in Count I of the Amended Complaint that Defendant violated the FMLA
by interfering with her right to use approved leave time under that statute. Defendants move for
summary judgment as to that Count, arguing that Plaintiff has shown no evidence that she was
ever denied benefits to which she was entitled under the FMLA.
The FMLA “entitle[s] employees to take reasonable leave for medical reasons,” but they
must do so “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C.
§ 2601(b)(2), (b)(3). When an employee invokes rights granted under the FMLA, her employer
may not “interfere with, restrain, or deny the exercise of or attempt to exercise” those rights. Id.
§ 2615(a)(1). Additionally, the employer may not “discharge or in any other manner discriminate

against any individual for opposing any practice made unlawful.” Id. § 2615(a)(2). “The former
provision is generally . . . referred to as ‘interference’ whereas the latter is often referred to as
‘retaliation.’ ” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012)
(internal citation omitted).
To show interference under the FMLA, a plaintiff must establish that:
(1) he or she was an eligible employee under the FMLA; (2) the defendant was
an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled
to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her
intention to take FMLA leave; and (5) the plaintiff was denied benefits to which
he or she was entitled under the FMLA.

Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014) (internal citation and quotation marks omitted).
It is undisputed that Plaintiff requested and received intermittent FMLA approval pursuant
to her health care provider’s certification, beginning December 31, 2019, through December 30,
2020. Defendant also admits that, during the April 28th encounter when Plaintiff was verbally
disciplined regarding her Narcotics Wasting Violation, Plaintiff said to Lucchetti, “maybe I should
use FMLA today.” Nevertheless, Defendant emphasizes that Lucchetti expressly told Plaintiff at

that time, after Plaintiff had made the FMLA statement, to “go home.” Further, Defendant notes
that Plaintiff did not then leave work, nor is there any other evidence showing that she was denied
FMLA benefits before or after that time. In fact, Plaintiff agrees that the allegation of interference
with her FMLA benefits is limited to the April 28th encounter. (Oral Argument). Therefore,
Defendant concludes that because the evidence does not show that Plaintiff was denied FMLA
benefits as a result of the April 28th encounter, Defendant is entitled to summary judgment as to
Plaintiff’s interference claim.
In response, Plaintiff emphasizes that, during that April 28th encounter, Lucchetti raised
her voice at Plaintiff when stating, “That’s not what FMLA is for, Kirstan! You know what? GO

HOME! JUST GO HOME!” (Docket No. 42, ¶ 70). Plaintiff further notes that she asked
Lucchetti to go to Human Resources with her at that time, but Lucchetti refused. (Id. ¶ 71).
Plaintiff contends that, due to Lucchetti’s harsh reaction to her FMLA statement, Plaintiff feared
losing her job and did not go home that day. Plaintiff maintains that a reasonable jury could
conclude, from the entirety of the evidence regarding the April 28th encounter, that Lucchetti
prohibited and restrained Plaintiff from exercising her right to take FMLA leave, and that because
these facts are in dispute, Defendant is not entitled to summary judgment on this Count.
Upon consideration of the evidence presented and the parties’ arguments, the Court agrees
with Plaintiff that there are disputed issues of material fact that make summary judgment as to her
FMLA interference claim inappropriate on the current record alone. Specifically, Defendant
contends that Lucchetti’s actions did not operate to restrain Plaintiff from taking FMLA leave
since Lucchetti technically told Plaintiff to “go home.” In contrast, Plaintiff argues that, viewed
in full context, Lucchetti’s words and actions did, in effect, restrain Plaintiff from using or seeking
to use such leave. The Court agrees that, after Plaintiff made her FMLA statement, when Lucchetti

first told Plaintiff that FMLA does not work that way, then yelled at her to go home, and then
refused to go to Human Resources when Plaintiff asked her to do so, it is not clear that Lucchetti
was indicating the Plaintiff could pursue taking such leave. Rather, based upon these specific
facts, the Court concludes that a jury could infer that Plaintiff instead reasonably perceived
Lucchetti, through her alleged actions, as prohibiting or restraining Plaintiff from exercising her
right to take FMLA leave.4
Accordingly, to the extent Defendant’s motion seeks summary judgment as to Count I,
interference under the FMLA, the motion is denied.
B. Count II: Retaliation Under the FMLA

In Count II, Plaintiff alleges that Defendant terminated her employment in retaliation for
her requesting to take approved intermittent FMLA leave during the April 28th encounter. In
moving for summary judgment as to that Count, Defendant argues that the evidence clearly shows

4 The Court notes that United States Department of Labor (“DOL”) regulations address an employee’s
obligation to notify the employer of the need for FMLA leave “sufficient to make the employer aware that the
employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 C.F.R.
§ 825.302(c). According to these regulations, such notice must be provided “as soon as both possible and practical,
taking into account all of the facts and circumstances in the individual case.” 29 C.F.R. § 825.302 (b). Moreover,
according to these regulations, “[a]n employer may require an employee to comply with the employer’s usual and
customary notice and procedural requirements for requesting leave, absent unusual circumstances” and FMLA-
protected leave may be delayed or denied for failure to comply therewith. 29 C.F. R. § 825.302 (d). These regulations
also address intermittent leave. 29 C.F.R. § 825.302 (f). The parties do not address these notice-related regulations,
nor have they pointed to any of Defendant’s policies that address the expected or required timing of notice for taking
such leave.
that Plaintiff’s employment was instead terminated for legitimate, nondiscriminatory reasons, and
that Plaintiff has not shown such reasons to be pretext.
In order to prove an FMLA retaliation claim, a plaintiff must show that “‘(1) [she] invoked
her right to FMLA-qualifying leave, (2) [she] suffered an adverse employment decision, and (3)
the adverse action was causally related to [her] invocation of rights.’” Ross, 755 F.3d at 193

(quoting Lichtenstein, 691 F.3d at 302). Since FMLA retaliation claims require proof of the
employer’s retaliatory intent, “‘courts have assessed these claims through the lens of employment
discrimination law,” so “claims based on circumstantial evidence have been assessed under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).’” Id. (quoting Lichtenstein, 691 F.3d at 302). Under McDonnell Douglas, a plaintiff must
first establish a prima facie case of discrimination, and if the plaintiff succeeds, the defendant must
articulate a legitimate, nondiscriminatory reason for the adverse employment action. See id.
(citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997)). “The burden then
shifts back to the plaintiff to prove, by a preponderance of the evidence, that the articulated reason

was a mere pretext for discrimination.” Id.
In briefing here, Defendant argues that: first, Plaintiff has not and cannot establish a prima
facie case of FMLA retaliation because she cannot show a causal link between her FMLA
statement during the April 28th encounter with Lucchetti and her termination; and second, even if
Plaintiff has shown a causal link between the two, then Defendant has articulated a legitimate,
nondiscriminatory reason for the termination which Plaintiff has not shown to be pretext. During
oral argument, however, Defendant conceded that the issue presently before the Court on summary
judgment is limited to whether Plaintiff has shown that Defendant’s proffered reason for her
termination is pretext, and not whether she has established her prima facie case. (Oral Argument).
Plaintiff contends that she has provided ample evidence to show that Defendant’s proffered
reason for her discharge was pretext for discrimination and/or retaliation. Evidence that is offered
to undermine an employer’s proffered legitimate reasons must be sufficient to “support an
inference that the employer did not act for its stated reasons.” Sempier v. Johnson & Higgins, 45
F.3d 724, 731 (3d Cir. 1995). In Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994), the Court of

Appeals for the Third Circuit recognized two ways in which a plaintiff can demonstrate that the
employer’s legitimate, nondiscriminatory reasons are pretext. See also Willis v. UPMC Children’s
Hosp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015). The first way to show pretext under
Fuentes is for a plaintiff to adduce evidence that would allow a factfinder to disbelieve the
employer’s reason for the adverse employment action. Fuentes, 32 F.3d at 765. To establish such
disbelief, the evidence “cannot simply show that the employer’s decision was wrong or mistaken,
since the factual dispute at issue is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765. Instead,
“the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the proffered reasons “that a reasonable factfinder could
rationally find them unworthy of credence,” and thus infer that the employer did not, in fact, act
for the nondiscriminatory reasons that have been articulated. Id. (emphasis in original) (internal
citations and quotation marks omitted). Alternatively, a second way a plaintiff can show pretext
under Fuentes is by presenting “evidence with sufficient probative force that a factfinder could
conclude by a preponderance of the evidence that [the request for leave or the disability] was a
motivating or determinative factor in the employment decision.”5 Simpson v. Kay Jewelers, Div.
of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1988).

5 Under the second Fuentes prong, pretext can be shown with evidence that: (1) the employer has previously
discriminated against the plaintiff; (2) the employer has discriminated against others within the plaintiff’s protected
Here, Plaintiff contends that there are numerous inconsistencies in the proffered reasons
for her discharge that are sufficient to show pretext under the first prong of Fuentes. While the
Court does not agree that all of Plaintiff’s proffered examples necessarily demonstrate
inconsistencies sufficient to show pretext, the Court does agree that there are a number of instances
of inconsistency among the stated reasons for Plaintiff’s discharge which, when considered

together, are sufficient to call into question the legitimacy of Defendant’s articulated reasoning for
her discharge and thus show pretext.
First, a reasonable jury may conclude that Lucchetti harbored a discriminatory or
retaliatory motivation when seeking Human Resources Consultant Miller’s guidance on how to
terminate Plaintiff’s employment directly after receiving a text communication from Plaintiff
raising her disability. Specifically, following the January 14, 2020 PEP meeting, Plaintiff sent
Lucchetti a text message that stated:
Hey Teresa it’s Kirstan. I was hoping to talk to you on a personal level, outside
of work. I had made 2 of my preceptors and Thomas aware of my ‘disability’
– and yes it does get in the way of my life. I also made UPMC aware of that
whenever I was hired 3 years ago. I’m trying my best and I’m hoping that you
can see that.

(Docket Nos. 42, ¶ 37; 49, ¶ 37; 45-2 at 1-2). Lucchetti forwarded this text message to Miller via
email and asked, “What needs to be done to term her?” (Docket Nos. 42, ¶ 38; 49, ¶ 38; 45-2 at
2).
Plaintiff argues that Lucchetti’s expressed desire to terminate her upon Plaintiff discussing
her disability is indicative of Lucchetti’s discriminatory or retaliatory motivation, which is highly
relevant here. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1214-15 (3d Cir. 1995). Plaintiff
contends that a reasonable jury could conclude that, in light of these communications, Lucchetti

class or within another protected class; or (3) the employer has treated more favorably similarly situated employees
not within the plaintiff’s protected class. See Simpson, 142 F.3d at 645.
wanted Plaintiff to be fired because of her disability. While Defendant has proffered an alternative
explanation for that email’s content (by showing greater context and a timeline of surrounding
events indicating that this comment was part of a larger ongoing conversation), and a reasonable
jury may certainly accept Defendant’s view, the Court concludes that a jury could also infer from
that email that Plaintiff’s request for FMLA leave and/or her disability was the real reason for her

termination.
Second, the full nature of the April 28th encounter, as described in detail, supra, raises
questions about the actual reasons for Plaintiff’s termination since Lucchetti’s demeanor at the
time of the encounter, as described, could evince hostility to Plaintiff’s FMLA statement and
request for accommodation as well as her disability. Furthermore, when questioned about the
April 28th encounter during her deposition, Lucchetti provided testimony which, when viewed in
a light most favorable to Plaintiff, could be viewed as dismissive of Plaintiff’s request for leave
and her disability, as follows:
Q: You knew that she had anxiety, depression, and PTSD as of the date of
this meeting then, correct, the meeting of April?

A: People throw around the words that they have anxiety and depression
frequently without knowing that it’s an actual diagnosis or something
that they have a disability for. This was no way in relation saying that
this was her disability, those things that she had.

(Docket 45-1 at 19). Thus, in considering Lucchetti’s actions during the April 28th encounter in
conjunction with her deposition testimony, the Court concludes that a jury could reasonably infer
that Lucchetti did not take FMLA leave requests or disability-related concerns, like Plaintiff’s,
seriously and may have even been hostile to them.
Third, key email exchanges between Miller and others who had input into the decision to
terminate Plaintiff’s employment (Chief Nursing Officer Rader and Human Resources Manager
Balsonieri) call into question the real reasons for Plaintiff’s discharge. Specifically, Miller appears
to have, at least initially, failed to disclose to Rader and Balsonieri (as well as Lauren Lloyd, Vice
President of Human Resources) full and accurate information about the nature of Lucchetti’s
conduct during the April 28th encounter, by incorrectly reporting that Plaintiff had shouted at
Lucchetti, despite learning during her investigation that it was Lucchetti who had, in fact, raised

her voice during that encounter. (Docket Nos. 42, ¶¶ 82, 89; 45-2 at 9-10, 45-51). Additionally,
when asked whether Plaintiff had previously been warned and disciplined about “wasting,” Miller
told Rader that Plaintiff had already been disciplined and warned about her wasting problem in the
PIP, when, in fact, Plaintiff had not. (Docket No. 42, ¶¶ 83, 85; 45-2 at 47; 45-1 at 42). Although
the content and timing of these email exchanges are not entirely clear based upon the record
currently before the Court, these emails do support potentially divergent inferences. While it is
possible that these emails reflect simple mistakes, as Defendant claims, it is also possible that they
reflect material weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
concerning Defendant’s rationale for terminating Plaintiff’s employment.

On summary judgment, inferences must be drawn in favor of the non-movant, so the Court
cannot simply infer that such instances were only a series of innocent mistakes, when a reasonable
jury could consider the evidence and draw a different inference that Defendant’s proffered
rationale was a pretext for discrimination or retaliation. Accordingly, to the extent Defendant’s
motion seeks summary judgment as to Count II, FMLA retaliation, the motion is denied.
C. Count III: Plaintiff’s Claim of Discrimination and Failure to Accommodate
Under the ADA

In Count III, Plaintiff alleges that Defendant discriminated against her based on her
disabilities, and that Defendant refused to make reasonable accommodations for her known
disabilities, in violation of the ADA.
1. Discrimination
To establish a prima facie case of discrimination under the ADA, a plaintiff must allege
the following three elements: (1) she is a disabled person within the meaning of the ADA; (2) she
is otherwise qualified to perform the essential functions of the job, with or without the employer’s
reasonable accommodations; and (3) she has suffered an adverse employment decision as a result

of discrimination. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). An ADA
claim of discrimination is analyzed under the familiar burden shifting of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981), as set forth, supra. See Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 699-700
(W.D. Pa. 2014) (citing Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007)). As noted, supra,
under the McDonnell Douglas framework, the plaintiff bears the initial burden of establishing a
prima facie case of discrimination. See id. at 699 (citing Wishkin, 476 F.3d at 185; McDonnell
Douglas, 411 U.S. at 802). Then, if the plaintiff establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for taking the adverse

employment action. See id. at 699-700 (citing Wishkin, 476 F.3d at 185). If the employer carries
its burden, the burden shifts back to the plaintiff who must prove by a preponderance of the
evidence that the employer’s proffered legitimate reason was merely pretext for discrimination,
and not the actual motivation underlying the adverse employment action. See id. at 700 (citing
Wishkin, 476 F.3d at 185; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804).
Here, Plaintiff alleges that her discharge was an adverse employment action that she
suffered as a result of disability discrimination. (Docket No. 26, ¶¶ 44, 45). As explained, supra,
Defendant initially argues that Plaintiff has failed to plead the third element of her prima facie case
of disability discrimination under the ADA – that she suffered an adverse employment decision as
a result of discrimination – and that she cannot show that Defendant’s articulated reasons for her
discharge are pretext. As previously noted, during oral argument, however, Defendant indicated
that the issue presently before the Court is limited to whether Plaintiff has shown Defendant’s
articulated reasons for her discharge to be pretext.6 (Oral Argument).
Here in the context of Plaintiff’s ADA claims, as with her FMLA claims, supra, Defendant

argues that there are legitimate, nondiscriminatory reasons for Plaintiff’s termination that have
nothing to do with her disability. However, as indicated previously in the context of Plaintiff’s
FMLA claims, the Court finds here too, in the context of her ADA claims, that Plaintiff has shown
evidence that Defendant’s stated reasons for her termination were pretext for discrimination and/or
retaliation because of her disability. (See Section III.B, supra).
2. Failure to Accommodate
Plaintiff also alleges in Count III that Defendant discriminated against her by failing to
accommodate her disability when it did not honor her requests (1) to take a break when she was
having anxiety, and (2) to be transferred to a new unit. Defendant argues that Plaintiff has not and

cannot demonstrate that she had asked to take breaks when she was having anxiety, or that she
applied for a transfer to a different position, nor is there evidence that she could have been
reasonably accommodated with a transfer.
To prove a failure to accommodate claim, a plaintiff must establish that (1) the employer
knew she was disabled, (2) she requested an accommodation, (3) the employer failed to make a

6 Defendant notes in briefing that Plaintiff has not produced evidence that she has PTSD and that her claims
should also be dismissed on this basis. Since Plaintiff was given approval to take FMLA leave, and since there does
not appear to be any dispute as to whether she has depression or anxiety, however, the Court finds that this issue is
not an appropriate basis for granting summary judgment in Defendant’s favor on all Counts.
good faith effort to assist her, and (4) she could have been reasonably accommodated. See Capps
v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017).
With regard to Defendant failing to honor Plaintiff’s request to take a break on January 14,
2020, during the PEP meeting, Defendant argues that Plaintiff had not discussed her need to take
breaks with Lucchetti prior to requesting a break in the middle of the meeting. However, Plaintiff

testified in deposition that at the end of December 2019 she did, in fact, make an arrangement with
Lucchetti for a way in which she could request a break if she was experiencing anxiety. (Docket
No. 45-1 at 30, 31). Plaintiff also testified that, after having made such arrangement with
Lucchetti, she then asked to take a break during her PEP meeting when she was having an anxiety
attack, but Lucchetti refused. (Id. at 30, 31). Based on this evidence, the Court finds that a
reasonable jury could conclude that Defendant failed to make an accommodation for Plaintiff by
allowing her to take such a break.
Regarding Plaintiff’s request to transfer out of Unit 4G, Defendant asserts that, under
UPMC policy, Plaintiff would have had to apply for a transfer in order to be considered for one.

Defendant points out that Plaintiff knew how the transfer process worked, given that she had
obtained her then-current position through that process, yet she did not apply for any such transfer
out of Unit 4G. Second, Defendant indicates that Plaintiff has shown no evidence that she could
have been reasonably accommodated even if she had applied for a transfer. See Donahue v.
Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000); Rice v. Erie Indem. Co., No. 1:06-cv-176-
SJM, 2008 WL 11509304, at *17 (W.D. Pa. Sept. 30, 2008). Defendant argues that Plaintiff has
not and cannot identify any available positions, and that supervisors had determined that Plaintiff’s
behaviors and practices would be problematic anywhere in its facilities.
However, Plaintiff argues that she did inquire about or request a transfer. Specifically,
Plaintiff has shown evidence of at least two occasions on which she asked Lucchetti, Miller, and/or
Smith-Fortney whether it would be possible for her to transfer to another unit. (Docket Nos. 45-2
at 11; 45-3 at 4). Further, evidence of record indicates that discussion ensued regarding whether
Plaintiff could transfer and whether she could apply for a transfer. (Docket No. 45-3 at 4).

Additionally, although Defendant contends that employees in Plaintiff’s position were not able to
transfer (and that there may have been no other nursing positions available for Plaintiff), the Court
notes that Chief Nursing Officer Rader, when considering Plaintiff’s termination, asked Miller
whether Plaintiff had been disciplined “yet for the sloppy narc practice?” (to which Miller
incorrectly answered in the affirmative), and that Rader also stated, “Feel like we should pull back
on the term. What about moving her to another unit?” (Docket No. 45-2 at 47). Viewed in the
light most favorable to Plaintiff, since Rader herself was clearly considering whether a transfer for
Plaintiff was appropriate at that time, it appears that such a transfer could have been possible.
Based on the evidence presented, the Court finds that a reasonable jury could conclude that

Plaintiff did request a transfer, that such a transfer may have been possible, and thus that by
denying Plaintiff an opportunity to transfer, Defendant may have failed to grant Plaintiff a
reasonable accommodation for her disability.
Accordingly, to the extent Defendant’s motion seeks summary judgment as to Count III,
ADA discrimination, the motion is denied.
D. Count IV: Retaliation Under the ADA
Count IV of the Amended Complaint alleges that Defendant violated the ADA, 42 U.S.C.
§ 12203(a), when it terminated Plaintiff’s employment because, during the April 28th encounter,
Plaintiff requested a reasonable accommodation under the ADA. Defendant argues that, as with
Plaintiff’s FMLA claim, Defendant has articulated a legitimate, nondiscriminatory reason for her
discharge, which Plaintiff has not shown to be pretext for retaliation.
The ADA retaliation analysis is similar to the FMLA retaliation analysis set forth, supra.
Thus, a plaintiff must show “(1) protected employee activity; (2) adverse action by the employer
either after or contemporaneous with the employee’s protected activity; and (3) a causal connection

between the employee’s protected activity and the employer’s adverse action.” Krouse v.
American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Here again, the McDonnell Douglas
burden-shifting analysis is used in the ADA retaliation context. See Stouch v. Twp. of Irvington,
354 F. App’x 660, 667 (3d Cir. 2009).
As discussed in the context of Plaintiff’s FMLA retaliation claim, supra, Plaintiff has
provided evidence indicating that Defendant’s articulated reasons for her discharge were pretext
because she has shown evidence of a number of inconsistencies in the reasons provided for the
termination of her employment. Such inconsistencies may constitute evidence of pretext for
retaliation due to Plaintiff requesting a reasonable accommodation for her disability. (See Section

III.B, supra).
Accordingly, to the extent Defendant’s motion seeks summary judgment as to Count IV,
ADA retaliation, the motion is denied.
E. Count V: Plaintiff’s PHRA Claim
Because Defendant’s motion for summary judgment is denied as to Plaintiff’s claims under
the ADA at Counts III and IV of the Amended Complaint, Defendant’s motion is likewise denied
as to Plaintiff’s companion claim under the PHRA at Count V. See Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 761 n.6 (3d Cir. 2004) (noting that ADA and PHRA disability claims
are analyzed identically).
IV. CONCLUSION
Based on the foregoing, Defendant’s Motion for Summary Judgment is denied.
An order consistent with this Memorandum Opinion follows.

Dated: August 3, 2023 s/ W. Scott Hardy
W. Scott Hardy
United States District Judge
cc/ecf: All counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419028. Public record. Not legal advice.