CUTURILO v. JEFFERSON REGIONAL MEDICAL CENTER
Filing
25
MEMORANDUM AND OPINION re 16 MOTION to Dismiss Amended Complaint filed by JEFFERSON REGIONAL MEDICAL CENTER. Signed by Magistrate Judge Robert C. Mitchell on 07/20/2011. (cms)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHERIE CUTURILO,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JEFFERSON REGIONAL MEDICAL
CENTER,
Defendant.
Civil No. 10-1723
MEMORANDUM OPINION
Mitchell, J.
Presently before the Court is Defendant’s, Jefferson
Regional Medical Center’s (“Jefferson”), motion to dismiss the
amended
complaint
(Doc.
Cuturilo (“Cuturilo”).
#
16)
filed
by
Plaintiff,
Sherie
For the reasons that follow, the motion
will be denied.
A.
Factual and Procedural History
Cuturilo
nurse.
was
employed
by
Jefferson
as
a
registered
She suffers from an unspecified health condition that
requires ongoing medical treatment. During the acute phase of
this ailment, Cuturilo cannot work for intermittent periods of
time.
Cuturilo informed Jefferson management about her medical
situation and requested leave under the Family and Medical Leave
1
Act of 1993, 29 U.S.C. § 2601-54(“FMLA”).
Jefferson approved
FMLA leave on an intermittent basis for Cuturilo to treat her
condition as needed.
Sometime
in
2009,
Jefferson
permitted
FMLA
intermittent leave for Cuturilo when she experienced an acute
episode
of
her
disorder.
On
or
about
Cuturilo was cleared to return to work.
September
3,
2009,
A flair up of her
condition occurred on or about February 18, 2010, necessitating
a three-day absence from work.
Cuturilo’s physician reinstated
intermittent FMLA leave as of February 18, 2010, allowing her to
be
excused
Jefferson
from
work
approved
for
one
to
reinstatement
three
days
the
leave.
of
per
episode.
Subsequent
thereto, Cuturilo took intermittent leave on two more occasions.
Cuturilo
workers
alleges
and
that
she
supervisors
received
that
her
complaints
FMLA
leave
from
was
her
co-
having
a
detrimental effect upon them.
Cuturilo
Jefferson
violated
provisions
informed
the
was
her
medical
of
the
fired
that
on
she
facility’s
Health
or
was
about
April
29,
2010.
terminated
because
she
confidentiality
policy
and
Insurance
Portability
and
Accountability Act of 1996 (“HIPAA”) when she reviewed medical
records of a relative being treated at Jefferson.
Curturilo
counters that the stated reason for her discharge was false
because Jefferson was aware that she had been given permission
2
by the patient to review his records.
On March 29, 2011, Cuturilo filed an amended complaint
alleging that she was terminated in retaliation for exercising
her FMLA rights.
She also advances a state law slander action,
claiming that several of Jefferson’s agents knowingly made false
statements to other Jefferson employees concerning the reason
for her discharge.
On April 20, 2011, Jefferson filed a motion
to
Fed.R.Civ.P.
dismiss
under
12(b)(6),
claiming
that
the
amended complaint’s allegations do not include facts from which
it can be concluded that Cuturilo’s termination was related to
her FMLA leave.
B.
Standard of Review
The
United
States
Supreme
Court
opinions
in
Bell
Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and, more
recently
in
Ashcroft
v.
Iqbal,
129
S.Ct.
1937
(2009),
have
shifted pleading standards from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more
than the possibility of relief to survive a motion to dismiss.
The
Supreme
Court
outlined
a
two-part
analysis
that
courts
should utilize when deciding a motion to dismiss for failure to
state a claim.
Cir. 2009).
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
First, the factual and legal elements of a claim
should be separated.
In other words, while courts must accept
all of the complaint's well-pleaded facts as true, they may
3
disregard any legal conclusions.
Second, courts then decide
whether the facts alleged in the complaint are sufficient to
demonstrate
relief."
that
the
plaintiff
has
a
Iqbal, 129 S. Ct. at 1950.
"plausible
claim
for
A claim is facially
plausible when the plaintiff pleads facts that permit a court to
draw a reasonable inference that the defendant could be liable
for the malfeasance alleged.
Id. at 1949.
In determining if
the standard has been met, courts should consider the specific
nature of the claim presented and the facts pled to substantiate
that claim.
In re Insurance Brokerage Antitrust Litigation, 618
F. 3d 300, 320, n.18 (3d Cir. 2010).
C.
Discussion
1.
FMLA Retaliation
FMLA was enacted in 1993 to balance the demands of the
employer’s workplace with the needs of families and to “entitle
employees to take reasonable leave for medical reasons.”
29
U.S.C. § 2601(b)(1-2); Sommer v. The Vanguard Group, 461 F.3d
397, 398-99 (3d Cir. 2006).
Section 2615(a)(1) of the Act makes
it unlawful for an employer to interfere with, restrain, or deny
an
employee’s
exercise
or
attempt
to
exercise
FMLA
rights.
Additionally, the Court of Appeals for the Third Circuit has
recognized
that
employees
who
have
been
discharged
or
discriminated against in retaliation for taking FMLA leave have
a claim under section 2615(a)(1) and 29 C.F.R. § 852.220(c).
4
Conoshenti v. Public Service Electric & Gas Company, 364 F.3d
135, 146 (3d Cir. 2004).
To
prove
FMLA
retaliation,
an
employee
must
demonstrate that she took FMLA leave, and suffered an adverse
employment decision that was causally related to the exercise of
FMLA rights.
elements
Conoshenti, 364 F.3d at 146.
and
burden
shifting
framework
in
The prima facie
McDonnell-Douglas
Corporation v. Green, 411 U.S. 792 (1972) are used to analyze an
FMLA retaliation case.
Conoshenti, id. at 146-47.
However, as
the Supreme Court has explained, a McDonnell-Douglas prima facie
case is an evidentiary standard and not a pleading requirement.
Swierkiewicz
v.
Accordingly,
the
Conoshenti,
a
inappropriate
complaint.
Sorena
534
burden-shifting
review
to
N.A.,
an
of
a
summary
initial
U.S.
506,
510
analysis
utilized
of
in
decision,
judgment
evaluation
(2002).
is
a
plaintiff’s
See Cupps v. Pittsburgh Care Partnership Inc., Civil
Action No. 10-1380, 2011 WL 284468, at *3 (W.D.Pa. January 26,
2011) (McDonnell-Douglas burden shifting framework not applied
when motion to dismiss is filed).
The Third Circuit has articulated two primary factors
relevant to establishing the requisite causal connection in a
retaliation case:
“timing and evidence of ongoing antagonism.”
Abramson v. William Patterson College of New Jersey, 260 F.3d
265,
288
(3d
Cir.
2001).
However,
5
the
appeals
court
has
expressed reluctance to infer a causal connection based solely
on
temporal
proximity.
Unless
the
timing
is
“unusually
suggestive of a retaliatory motive,” other evidence of a causal
connection
is
required.
Williams
v.
Philadelphia
Housing
Authority Police Department, 380 F.3d 751, 760 (3d Cir. 2004).
Jefferson
argues
that
the
pleaded
information
contraindicates a causal connection between Cuturilo’s dismissal
and the exercise of her FMLA rights.
that
it
approved
FMLA
leave
adverse
for
First, Jefferson recalls
Cuturilo
two
more
with
no
contends
that
the
plaintiff’s
discharge
from
employment,
occurring
more
than
two
after
her
FMLA
leave,
occasioned
by
review
of
months
impermissible
Second,
or
occasions
her
consequences.
on
Jefferson
medical
was
records.
Jefferson stresses that the passage of time between Cuturilo’s
exercise of FMLA rights and her termination is not the type of
temporal proximity that raises her retaliation claim beyond the
speculative level.
Jefferson’s
incomplete.
First,
parsing
of
Cuturilo
the
claims
complaint,
that
she
however,
took
is
FMLA
intermittent leave on two occasions after February 18, 2009.
Am. Compl. ¶ 21.
leave,
this
While she did not specify the dates of the
factual
assertion
diminishes
the
forcefulness
of
Jefferson’s argument that the time span between Cuturilo’s FMLA
6
leave and her termination is not indicative of a retaliatory
action.
Second,
Cuturilo
has
purported
that
she
received
complaints that her FMLA was negatively affecting her co-workers
and
supervisors.
because
of
Jefferson’s
its
While
lack
of
antagonistic
Jefferson
discounts
specificity,
attitude
this
this
other
concerning
allegation
evidence
plaintiff’s
of
FMLA
leave suffices, at this stage, to permit the court to draw a
reasonable inference that the Jefferson could be liable for the
malfeasance alleged.
2.
In
against
Slander
count
II,
Jefferson.
Cuturilo’s
To
sustain
alleges
a
slander/defamation
defamation
claim
Pennsylvania law, the burden is on the plaintiff to show:
(1)
The
defamatory
communication.
character
of
the
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its
defamatory meaning.
(5) The understanding by the recipient of it
as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff
from its publication.
(7) Abuse
occasion.
of
a
conditionally
7
privileged
under
42 Pa.C.S. § 8343(a); Joseph v. Scranton Times, 959 A.2d 322,
335 (Pa. Super. 2008).
Cuturilo
alleges
that
the
stated
reason
for
her
dismissal, violations of Jefferson’s confidentiality policy and
HIPAA, was fabricated because the defendant was aware that she
had the patient’s permission to review his medical records.
She
further contends that several of Jefferson’s agents nonetheless
knowingly made false statements concerning the cause for her
termination
to
other
Jefferson
employees
on
occasions between April 2010 and June 28, 2010.
that
Jefferson
dismissal
with
had
no
valid
employees
business
who
had
reason
no
reason
one
or
more
Cuturilo avers
to
discuss
to
know
her
the
circumstances of her discharge.
Jefferson maintains that Cuturilo’s slander claim is
deficient in several respects. It first argues that Cuturilo has
failed
to
identify
communication
published.
and
both
to
the
whom
content
the
of
defamatory
the
slanderous
statement
was
Jefferson also contends that it enjoys an absolute
privilege to publish defamatory matter in notices of termination
communicated to the employee, see Miketic v. Baron, 675 A.2d
324,
328-29
(Pa.Super.
1996)
(Pennsylvania
law
recognizes
absolute privilege of employers to publish defamatory statements
in notices of termination sent to employee), and a conditional
privilege that is present when the speaker and recipient share a
8
common interest in the subject matter and both are entitled to
know the information.
See Foster v. UPMC South Side Hospital, 2
A.3d 655, 664 (Pa.Super. 2010).
Jefferson is mistaken when it advocates application of
Pennsylvania’s
plaintiff
to
stringent
identify
pleading
the
what,
standard
who,
by
that
whom,
requires
and
to
a
whom
details of the defamatory statements and when it cites Ersek v.
Township
of
Springfield,
Delaware
County,
822
F.Supp.
218
(E.D.Pa. 1993), in support.
In Rapid Circuits, Inc. v. Sun National Bank, Civil
Action No. 10-6401, 2011 WL 1666919 (E.D.Pa. May 3, 2011), a
case filed after Supreme Court opinions in Twombly and Iqbal,
the court analyzed a motion to dismiss a defamation claim and
held that:
A federal court sitting in diversity
applies
the
federal
rules
of
civil
procedure, even when enforcing the federal
rule alters the mode of enforcing statecreated rights. Therefore, Federal Rule of
Civil Procedure 8(a), and not Pennsylvania
law, provides the standard of specificity
applicable
to
plaintiff's
defamation
claim. (Citations omitted). This standard
of specificity requires a plaintiff to
“allege facts which sufficiently set forth
the substance of the alleged defamatory
statements
to
give
proper
notice
of
plaintiff's claim to defendants.” Turk v.
Salisbury Behavioral Health, Inc., No. 09–
6181, 2010 WL 1718268, at *4 (E.D.Pa.
April 27, 2010).
9
Id. at *11.
See also Tuman v. Genesis Associates, 935 F. Supp.
1375, 1391 (E.D.Pa. 1996)(defamation plaintiff not required to
plead precise defamatory statements, nor name person who made
statements
so
long
as
count
provides
sufficient
notice
to
defendants); James v. Morgan, D.C. Civ.App.No. 2002/123, 2008 WL
5211408, at *2 (D.Virgin Islands 2008) (rejecting Pennsylvania’s
heightened pleading standards for defamation cases and noting
abrogation of Ersek by Joyce v. Alti America, Inc., No. CIV.A.
00-5420, 2001 WL 1251489, at *2 (E.D.Pa. September 27, 2001).
Cuturilo has alleged that named agents of Jefferson
repeated knowingly false statements concerning the reason for
her termination to other Jefferson employees on at least one
occasion.
these
Am. Comp.
false
¶¶ 33, 39–41.
statements
have
caused
She further contends that
irreparable
harm
to
her
reputation and her ability to make a living in her profession.
Id. at ¶ 67.
These allegations set forth the elements of a
defamation claim with sufficient detail to survive a motion to
dismiss.1
1
It is noted that even Pennsylvania’s stricter
pleading standard does not require the plaintiff to
specifically
name
the
individuals
to
whom
the
defamatory statements were uttered to survive a motion
to dismiss. See Petula v. Mellody, 588 A.2d 103, 107
(Pa. Cmwlth. 1991)(complaint identifying third parties
to
whom
defamatory
statements
were
allegedly
communicated as “representatives and board members”
sufficient to overrule preliminary objection in nature
of demurrer).
10
The Court likewise rejects defendant's argument that
plaintiff's defamation claim should be dismissed on the basis of
privilege.
First, Cuturilo does not complain that defamation
occurred
when
employment.
she
told
why
she
was
dismissed
from
Therefore, a discussion of absolute privilege is
unwarranted.
Cuturilo’s
was
Second,
alleged
the
violation
amended
of
complaint
Jefferson’s
states
that
confidentiality
policy and the HIPAA statute was the defendant's stated reason
for her termination.
If that reason had been communicated only
to authorized parties entitled to know the information, then the
statement would be privileged.
Cuturilo asserts, however, that
Jefferson published the statement to unauthorized parties which,
if proven, would overcome the privilege and meet the publication
element.
Thus, for purposes a motion to dismiss, the claim that
Jefferson
uttered
individuals
with
defamatory
no
need
to
statements
know
is
about
sufficient
Cuturilo
to
state
to
a
slander claim upon which relief may plausibly be granted.
For the reasons stated, Jefferson’s motion to dismiss
the amended complaint (Doc. # 16) will be denied.
An appropriate order follows.
Dated: July 20, 2011
s/Robert C. Mitchell
Robert C. Mitchell
U.S. Magistrate Judge
11
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?