Carroll v. Comprehensive Women's Health Services

Filing 44

MEMORANDUM (Order to follow as separate docket entry) re 34 MOTION for Summary Judgment Signed by Honorable James M. Munley on 9/27/. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KATHRYN CARROLL,
Plaintiff

:
No. 3:16cv1509
:
:
(Judge Munley)
v.
:
:
COMPREHENSIVE WOMEN’S :
HEALTH SERVICES;
:
DAVID KREWSON; and
:
ROBERT ZIMMERMAN,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is defendants’ motion for summary judgment pursuant to
Rule 56(a) of the Federal Rules of Civil Procedure. The parties have briefed their
positions and the motion is ripe for disposition.
Background
This employment discrimination matter arises from the decision of
Defendants, Comprehensive Women’s Health Services, Dr. David Krewson, and
Dr. Robert Zimmerman (hereinafter “defendants,” collectively, or “CWHS,”
“Defendant Krewson,” or “Defendant Zimmerman”) to terminate Plaintiff Kathryn
Carroll’s (hereinafter “plaintiff”) employment one day after she requested medical
leave for genetic cancer testing and after previously taking leave for cancer
treatment. Plaintiff claims defendant terminated her employment in contravention
of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (hereinafter

“ADA”), Pennsylvania’s Human Relations Act, 43 PA. CONS. STAT. ANN. § 951, et
seq. (hereinafter “PHRA”), and the Genetic Information Non-Discrimination Act,
42 U.S.C. § 2000ff, et seq. (hereinafter “GINA”).
Plaintiff worked in defendants’ medical records department from November
2000 until her termination on February 6, 2013. (Doc. 35 ¶ 3). She claims to
have had no disciplinary issues for thirteen years. (Doc. 34 ¶¶ 11-12). While
employed with defendants in November 2011, plaintiff received a breast cancer
diagnosis. (Doc. 35 ¶ 12). She informed her office manager, Judy Nagle
(hereinafter “Nagle”), and was granted time off work for cancer treatment. (Id. ¶
9, 11). Plaintiff received pervasive and protracted cancer treatment: a right
breast mastectomy, 2011, requiring three weeks off work and resulting in lifting
restrictions (Id. ¶¶ 13, 16); a left breast mastectomy, February 2012, requiring
three weeks off work (Id. ¶¶ 18, 19); fitment for breast implants over a three-week
period requiring no time off work; a procedure to place the breast implants,
August 2012, requiring three weeks off work; and genetic testing to determine
whether she has a cancer gene, February 5, 2013, requiring one day off work.
Thus, plaintiff’s cancer treatments required more than nine weeks off work.
Plaintiff was candid about defendants providing all the leave she requested for
cancer treatment and procedures. (Id. ¶ 27).

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Upon plaintiff’s return to work the day after her genetic testing, a patient’s
chart was missing. (Id. ¶ 34). Plaintiff responded by looking for the chart after
she received a phone call from the clinical staff advising the medical records
department that a patient was there to see Defendant Krewson and that patient’s
chart was missing. (Id. ¶ 35). It was common at CWHS to find missing charts in
one of the doctors’ offices. (Id. ¶ 39). Plaintiff searched Dr. Timothy Grube’s
(Defendants Krewson and Zimmerman’s former partner) office but did not find
the missing chart. (Id. ¶ 40-42). Plaintiff’s co-workers assisted in the search but
did not search Dr. Grube’s office. (Id. ¶ 44).
Nagle joined the search and located the missing chart in Dr. Grube’s office
“fairly quickly” among other patient charts on his credenza (Id. ¶ 47). Nagle then
summoned plaintiff to Grube’s office. Nagle testified that she wanted to show
plaintiff exactly where the chart was found. Plaintiff replied that she had looked
for the file in the place where it was found and did not notice it there. Nagle
further testified that she was frustrated because the chart was “right there” in the
first place she looked, which was where plaintiff should have expected it to be.
(Id. ¶¶ 40-50). Nagle also testified that this problem [of Nagle having to become
involved in searching for missing charts] was specifically occurring with regard to
plaintiff. (Id. ¶ 50-52). Plaintiff denies this allegation. (Doc. 38 ¶ 52) (See Doc.
35 ¶ 39).
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Nagle told plaintiff she was tired of having to do her job, that patient files
were not supposed to “go missing” and that knowing where the physical files
were located was important because the files were not digitalized or
computerized at that time (Doc. 35 ¶ 53, 55). Nagle testified that plaintiff
responded by saying “find someone else to do the job” and then walked away.1
Nagle claims to have called out plaintiff’s name but plaintiff continued to walk
away from her. Nagle further claims plaintiff displayed a poor attitude and body
language. (Id. ¶¶ 55-58). Plaintiff disputes Nagle’s testimony. (See Doc. 38 ¶¶
56-58).
At the end of the work day plaintiff was called into a conference room.
Present were Nagle and Defendants Krewson and Zimmerman. (Doc. 35 ¶ 64).
Nagle was still upset when plaintiff entered the conference room. (Id. ¶ 66). She
did not, however, possess authority to terminate employee. Only Defendants
Krewson and Zimmerman could do that. (Id. ¶ 75). Plaintiff was told she was
being terminated due to insubordination that occurred earlier that day. (Id. ¶ 76)
(See Doc. 38 ¶ 76). Allegedly, Nagle immediately escorted plaintiff out of the
building and directed her not to say anything to the staff. (Doc 26 ¶ 29).

1

This is the core of the defense in this case: whether plaintiff was fired for acting
insubordinately through her words, attitude, and body language. This also
constitutes the principal among several genuine issues of material fact for the
jury to decide.
4

In response to her termination, plaintiff filed a complaint (Doc. 1) and later a
first amended complaint (Doc. 9). The first amended complaint asserts three
claims. Count I avers defendant discriminated against the plaintiff because of
her disability in violation of the ADA. (Id. ¶¶ 36-44). Count II states a disability
discrimination claim against the defendant under the PHRA (Id. ¶¶ 45-48). Count
III asserts a claim under GINA, 42 U.S.C. § 2000ff, et seq.
On November 21, 2016, plaintiff filed a motion (Doc. 15) for leave to file a
second amended complaint, seeking to name Drs. Krewson and Zimmerman as
individual defendants under Count II – plaintiff’s PHRA claim. We granted the
motion in part and denied it in part. (See Doc. 19).2 Plaintiff’s second amended
complaint (Doc. 26) was filed on January 20, 2017. Two counts were added to
the second amended complaint. Count IV alleges violation of the aiding and
abetting provision of the PHRA by Defendant Krewson. Count V alleges violation
of the aiding and abetting provision of the PHRA by Defendant Zimmerman.
All defendants filed the instant motion for summary judgment (Doc. 34) on
June 1, 2017 regarding all four counts, bringing the case to its current posture.
The parties have briefed their positions and the motion is ripe for disposition.
2

See FED. R. CIV. P. 15(a)(1)(B) (providing that “a party may amend its pleading
once as a matter of course within . . . 21 days after service of a motion under
Rule 12(b) . . . .”); see also FED. R. CIV. P. 6(d) (stating that where service is
made by electronic means under FED. R. CIV. P. 5(b)(2)(E), 3 (three) days are
added onto the computation of time).
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Jurisdiction
As this case is brought pursuant to the ADA and GINA for unlawful
employment discrimination, we have jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”). The court has
supplemental jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. §
1367(a).
Standard of review
Granting summary judgment is proper “‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’” See Knabe v. Boury,
114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R. CIV. P. 56(c)). “[T]his
standard provides that the 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original).
In considering a motion for summary judgment, the court must examine
the facts in the light most favorable to the party opposing the motion. Int’l Raw
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Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the
suit under the governing law. Id. Where the non-moving party will bear the
burden of proof at trial, the party moving for summary judgment may meet its
burden by showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving
party satisfies its burden, the burden then shifts to the nonmoving party, who
must go beyond its pleadings, and designate specific facts by the use of
affidavits, depositions, admissions, or answers to interrogatories showing that
there is a genuine issue for trial. Id. at 324.
“In employment discrimination cases, the summary judgment standard ‘is
applied with added rigor’ because ‘intent and credibility are crucial issues.’”
Walden v. St. Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) quoting
Stewart v. Rutgers Univ., 120 F.3d 426, 431 (3d Cir. 1997). “Employment
discrimination cases center around a single question: why did the employer take
an adverse employment action against plaintiff? Because this ‘is clearly a factual
question,’ Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987),
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summary judgment is in fact rarely appropriate in this type of case. Simply ‘by
pointing to evidence which calls into question the defendant’s intent, the plaintiff
raises an issue of material fact which, if genuine, is sufficient to preclude
summary judgment.’ Id. See Sempier v. Johnson & Higgins, 45 F.3d 724, 73233 (3d Cir. 1995) (cases in which plaintiff attacks employer’s stated reasons for
adverse employment action ‘must be resolved by a jury and cannot be resolved
on summary judgment’).” Marzano v. Comp. Sci. Corp., 91 F.3d 497, 509-510
(3d Cir. 1996).
Pennsylvania courts interpret the PHRA in the same manner as its federal
counterparts such as Title VII. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d
Cir. 1996) (“Pennsylvania courts...generally interpret the PHRA in accord with its
federal counterparts...”).
Discussion
Count I- ADA
As noted above, Count I of the second amended complaint alleges an ADA
cause of action. Employers cannot discriminate against qualified people with a
disability, because of the disability. 42 U.S.C. § 12112(a). The elements of a
discrimination case under the ADA are: (1) plaintiff is disabled within the meaning
of the ADA; (2) plaintiff is otherwise qualified to perform the essential functions of
the job, with or without reasonable accommodations by the employer; and (3)
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plaintiff has suffered an otherwise adverse employment decision as a result of
discrimination. Wilmore v. American Atelier, Inc., 72 F. Supp. 526, 528 (E.D. Pa.
1999), citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999);
Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998). Defendants
attack the first and third elements of the ADA claim. We will discuss them
separately.3
A. Disability
Defendants argue against the first element by asserting that plaintiff’s
cancer does not constitute a disability without a showing of significant limitation
on her major life activities because her cancer is in remission. (Doc. 36 at 8).
Prior to the enactment of the Americans with Disabilities Act Amendments
Act (hereinafter “ADA amendments”) of 2008, defendants might have had an
argument, but not anymore. Effective January 1, 2009, the ADA amendments
define major life activities to include “normal cell growth.” 42 U.S.C. § 12102
(2)(A). It is axiomatic that cancer literally is abnormal cell growth. Further, the
ADA amendments clarified that an episodic impairment or one that is in
remission is a disability if, when active, it would substantially limit a major life
activity. 42 U.S.C. § 12102(4)(D). Cancer qualifies as a disability. See Showers
3

Defendants do not challenge the second element of the ADA claim, that plaintiff
was qualified to do her job and could perform the essential functions of her
position as medical records clerk. Notably, she had been at her job for thirteen
years.
9

v. Endoscopy Center of Central Pa., 58 F. Supp. 3d 446, 460 (M.D. Pa. 2014).
Thus, plaintiff has direct evidence on the first element of her ADA claim.
B. Adverse employment decision resulting from discrimination
Defendants attack the third element of the ADA claim by arguing that when
Defendants Zimmerman and Krewson decided to terminate plaintiff, the two did
not know of plaintiff’s cancer treatment, genetic testing, or accommodations she
required, and therefore in defendants’ view, it is not possible for them to have
fired her because of her disability. (Doc. 36 at 4). It is undisputed that plaintiff
never personally told Defendants Zimmerman or Krewson about her cancer while
she was in their employ. (Id.)
Plaintiff argues Defendants Zimmerman and Krewson’s testimony that they
did not know plaintiff had cancer at the time they fired her is neither undisputed
nor established as a matter of law. Instead, it is a question for the jury to decide
and therefore a genuine issue of material fact exists regarding the first element of
a claim under the ADA. We agree this case is simply plaintiff’s word against
Nagle’s – a matter of witness credibility.
A reasonable jury could find a profusion of undisputed facts calling into
question the truthfulness of Defendants Zimmerman and Krewson’s contention
that they didn’t know of plaintiff’s cancer. Plaintiff informed thirteen employees
and Dr. Grube that she had cancer. (Doc. 38 ¶ 1). Nagle told “Arlene,” another
10

employee, that plaintiff had cancer. (Doc. 38 ¶ 2). During the time frame of the
relevant events CWHS had only 40-50 employees. Other than Defendants
Zimmerman and Krewson, all employees were female except one. (Doc. 38 ¶¶
3, 4). Defendant Zimmerman knew by name everyone who worked at CWHS.
(Doc. 38 ¶ 5). Statistically one in eight women will develop breast cancer. (Doc.
35 ¶ 19). Plaintiff took more than twelve weeks medical leave from work within
one year. (Doc. 35 ¶¶ 14, 19, 21, 24, 28). Thus, cogent arguments can be
made, under the totality of the circumstances, that Defendants Zimmerman and
Krewson would have known plaintiff was absent from work due to cancer
treatment.
Hypothetically, a reasonable jury could believe that Nagle, having “had it”
with plaintiff taking time off for medical reasons, wanted to terminate plaintiff
because of her disability but knew that doing so would subject CWHS to civil
liability for discrimination. Plaintiff’s inability to find a patient chart that had gone
missing, followed by a verbal spat with Nagle, could have provided Nagle with a
convenient pretext for terminating plaintiff for poor work performance, and
insubordination for “talking back.” When combined with plaintiff’s thirteen years
of employment, CWHC’s progressive discipline protocol where counseling is the
first step (see Doc. 37 at 7), which was not used in plaintiff’s case, that plaintiff
had not been disciplined for insubordination previously, and plaintiff’s testimony
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that she did look in the same place Nagle found the patient chart, multiple
genuine issues of material fact present themselves in this simple hypothetical
scenario.
Defendants further argue that plaintiff is just speculating that Defendants
Zimmerman and Krewson knew of her cancer. We disagree. We find plaintiff
has raised a genuine issue of material fact whether the third element of
discrimination under her ADA claim has been satisfied. Thus we will not find
defendants’ contradicted witness deposition testimony as an established matter
of law, for to do so would constitute a credibility determination on our part.
For the foregoing reasons summary judgment on Count I will be denied.
Count II- PHRA
Pennsylvania courts interpret the PHRA in the same manner as its federal
counterparts such as Title VII. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d
Cir.1996) (“Pennsylvania courts...generally interpret the PHRA in accord with its
federal counterparts...”). Thus, PHRA violations are subject to the same analysis
as ADA and Title VII claims, and no separate analysis is required. Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); Gomez v. Allegheny
Health Servs., Inc., 71 F.3d 1079, 1083-84.
While the PHRA's definition of disability largely
tracked the ADA's prior to the [ADA amendments],
Pennsylvania has not similarly expanded the meaning of
disability under the PHRA. Rubano v. Farrell Area Sch.
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Dist., 991 F. Supp.2d 678, 689 n. 7 (W.D. Pa. 2014). In
disability discrimination cases predicated on conduct that
occurred after January 1, 2009 where disability status is
at issue, therefore, courts in this circuit have applied the
pre-ADAAA standard to PHRA claims. Id. (internal
citations omitted); Rocco v. Gordon Food Serv., 998 F.
Supp.2d 422, 428 (W.D. Pa. 2014).
Showers at 461-462.
The ADA amendment’s construction rule regarding episodic impairments or
those in remission has no counterpart in the PHRA. Id. at 462, citing 43 PA.
CONS. STAT. § 954 (p.1). Thus, defendants are correct in arguing that “cancer
does not, in and of itself, entitle [plaintiff] to protection under the PHRA…” (Doc.
36 at 21). The question then boils down to whether plaintiff has evidence of a
disability that a reasonable jury could conclude substantially limited any major life
activity at the time she was fired.
Therefore, the elements of plaintiff’s claim under the PHRA are: 1) plaintiff
is a disabled person within the meaning of the ADA prior to the 2008 ADA
amendments; 2) plaintiff is otherwise qualified to perform the essential functions
of the job, with or without reasonable accommodations by the employer; and 3)
plaintiff has suffered an otherwise adverse employment decision as a result of
discrimination. Wilmore, 72 F. Supp. at 528, citing Taylor, 184 F.3d at 306; Gaul
134 F.3d at 580. Prior to the ADA amendments, the Supreme Court interpreted
the definition of a disability as set forth in Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184 (2002) (superseded by statute, 42 U.S.C. § 12102 in 2009), holding
13

that in order for an individual to be disabled, the individual must have an
impairment that prevents or severely restricts the individual from doing activities
that are of central importance to most people’s daily lives.
Plaintiff testified that her doctor diagnosed her with anxiety and depression,
and prescribed medication. (Doc. 38-1 at 54). Plaintiff claims profound
symptoms accompany her anxiety including “loss of interest in everything,
including sex, and being with family and friends.” (Id. at 55). She claims to be
withdrawn and worried constantly that her cancer will reoccur. (Id.) Her parents
both had cancer, causing her to focus on what they went through including
financial devastation. (Id.) She doesn’t want her children and grandchildren to
see her go through the same thing. (Id.) Whether she will be capable of working
worries her; her family relies on her to pay bills and her inability to work would
burden her husband. Id. Side-effects of Alprazolam, the anti-anxiety medication,
when she takes it as prescribed, include headaches and nausea. Id. As a result,
sometimes she does not take it. Id.
The record, however, contains no evidence that plaintiff was fired because
of her anxiety and depression. Thus, even though a jury might find that these
conditions substantially limit her major life activities, plaintiff has not established a
prima facie case under the PHRA.

14

In view of the foregoing, summary judgment on Count II will be granted.4
Count III- GINA
Next defendants move for summary judgment on plaintiff’s GINA claim.
Under GINA's provision against “[d]iscrimination based on genetic information,”
42 U.S.C. § 2000ff-1(a), “[i]t shall be an unlawful employment practice for an
employer—”
(1) to fail or refuse to hire, or to discharge, any
employee, or otherwise to discriminate against any
employee with respect to the compensation, terms,
conditions, or privileges of employment of the employee,
because of genetic information with respect to the
employee; or
(2) to limit, segregate, or classify the employees of
the employer in any way that would deprive or tend to
deprive any employee of employment opportunities or
otherwise adversely affect the status of the employee as
an employee, because of genetic information with respect
to the employee.
Section 2000ff (4) (A) defines “genetic information” as “information about—
(i) such individual's genetic tests, (ii) the genetic tests of family members of such
individual, and (iii) the manifestation of a disease or disorder in family members
of such individual.” We therefore “review the complaint to determine whether
Plaintiff has pleaded and plausibly supported, at least, (1) that she was an
employee; (2) who was discharged or deprived of employment opportunities; (3)
4

Because we find plaintiff has no PHRA claim, summary judgment on Counts IV
and V- “Aiding and Abetting” PHRA provision against Defendants Krewson and
Zimmerman, will be granted, as well.
15

because of information from Plaintiff's genetic tests.” Leone v. North Jersey
Ortho Specialists, P.A., Civil Action No. 11–3957 (ES) 2012 WL 1535198 *5 (D.
New Jersey Apr. 27, 2012).
The first element is undisputed – plaintiff was an employee. Defendants
contend plaintiff cannot satisfy the second element simply because of the
timeline involved: plaintiff requested leave for February 5, 2013 to undergo
genetic testing to see if she had “a cancer gene.”5 Doc. (35 ¶ 28). She was fired
on February 6, 2013. She did not receive her genetic testing results until
February 19, 2013 (Doc. 35 ¶ 31). Those results revealed that plaintiff does not
have a “cancer gene.” (Doc. 35 ¶ 32).
We agree with defendants and conclude that plaintiff could not have been
fired because of information from her genetic tests because the results of those
tests were not yet known at the time she was fired. Therefore, we will grant
summary judgment in favor of defendants on Count III, plaintiff’s GINA claim.

5

Genetic testing looks for specific inherited changes (mutations) in a person’s
chromosomes, genes, or proteins. Genetic mutations can have harmful,
beneficial, neutral (no effect), or uncertain effects on health. Mutations that are
harmful may increase a person’s chance, or risk, of developing a disease such
as cancer. Overall, inherited mutations are thought to play a role in about 5 to 10
percent of all cancers. https://www.cancer.gov/about-cancer/causes-[continued]
prevention/genetics/genetic-testing-fact-sheet#q1 (Accessed September 27,
2017).
16

Conclusion
After a careful review, we will grant in part and deny in part defendants’
motion for summary judgment. An appropriate order follows.
Date: September 27, 2017

s/ James M. Munley______
JUDGE JAMES M. MUNLEY
United States District Court

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