BARRASSO v. CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC et al

Filing 76

MEMORANDUM OPINION & ORDER GRANTING in part and DENYING in part 52 MOTION for Summary Judgment filed by Defendants. As set out in more detail in the attached document, it is hereby ORDERED that the Defendants Motion is GRANTED as to Counts I and V of the amended complaint. The motion is DENIED with respect to the remaining four Counts. Signed by Magistrate Judge Robert C. Mitchell on 1/28/2019. (lamc)

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

ASHLEY BARRASSO,
Plaintiff,
vs.
CHILDREN’S HOSPITAL OF PITTSBURGH
OF UPMC, et al.
Defendants.

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Civil Action No. 17-0267

OPINION
Presently pending before the Court is a motion for summary judgment (ECF No. 52), with
brief in support (ECF No. 53), filed by Children’s Hospital of Pittsburgh of UPMC (hereinafter
referred to as “CHP”), Kenneth Rudek (Rudek), and Heather Ambrose (Ambrose), collectively,
“Defendants”. Plaintiff Ashley Barrasso (Barrasso) has filed a brief in opposition (ECF No. 60).
Defendants have filed a reply brief (ECF No. 68) and Barrasso has filed a sur-reply brief (ECF No.
75). For the reasons that follow, the Court will grant in part and deny in part Defendants’ motion.

Factual History1
Barrasso, now an adult, is a survivor of childhood cancer. Barrasso was treated at CHP.
She has not been treated for cancer since 2000, although she continues to suffer from multiple
health issues stemming from her illness, including abdominal pain, digestive issues, heart
palpitations and fatigue.

1

The facts outlined herein are gleaned from Defendants’ Concise Statement of Material Facts
(ECF No. 54), Barasso’s response and statement of additional facts (ECF Nos. 58, 59), and
Defendants’ response (ECF No. 69), as well as the various exhibits attached thereto.

From September of 2009 until her discharge on August 5, 2016, Barrasso was employed
by CHP, first as a Child Life Assistant, and later as a Child Life Specialist.2 Barrasso was the only
Child Life Specialist in Unit 8B, CHP’s inpatient gastrointestinal and pulmonology unit. Ambrose,
the Director of Nursing, was Barrasso’s direct supervisor from July of 2013 until August 5, 2016.
Rudek, the Manager of Child Life Services, supervised Barrasso from December of 2014 until he
left CHP on July 22, 2016.3

Barrasso’s FMLA Leave
Due to her on-going health issues, WorkPartners, CHP’s third-party FMLA administrator,
approved Barrasso for annual intermittent FMLA leave. Barrasso sought and was approved for
intermittent leave each year, beginning in 2013. The amount of approved leave varied year to year.
The CHP FMLA Policy states that an employee seeking to use his or her intermittent FMLA leave
must follow the applicable department call-off procedures (ECF No. 55-2, Ex. 14, ¶ F).
At the time of Barrasso’s employment with CHP, the Child Life Department had a call-off
procedure which required each employee to notify his or her manager of an intended absence thirty
minutes before the start of his or her shift.

However, according to Barrasso, in order to

accommodate her FMLA requirements, she and management “had come up with a supplemental
call-off plan that was different than the department call-off plan,” (ECF No. 55-2, pg. 25, 27),
where she had the leniency to “call in all the way up until [her] scheduled start time and if it
happened to be a little after, just to call in as soon as possible and whether that was notifying [her]

According to Barasso, a Child Life Specialist “provide[s] psycho-social support for patients and
their families, prepare[s] them for [medical] procedures, engage[s] in play therapy, normalize[s]
the hospital experience and assist[s] with stress management” (ECF No. 53, pg. 1-2).
2

3

In the hospital hierarchy, Rudek reported to Ambrose.
2

coverage person and/or the manager” (Id. at pg. 53-54). Rudek and Ambrose dispute the existence
of this supplemental call-off policy (ECF No. 55-1, pg. 366; ECF No. 55-6, pg. 258-60).
At a staff meeting on January 14, 2016, all Child Life employees, including Barrasso, were
made aware of the Department’s general call-off policy (ECF No. 55-1, pg. 365). A copy of the
policy was made available online for employees to view (ECF No. 55-6, pg. 94, 96). In addition,
Ambrose and Rudek met with Barrasso to review the policy on January 14, 2016, due to her
repeated “unexcused tardiness episodes and absenteeism that violated the policy” (Id. at 367; ECF
No. 55-6, pg. 258-60). At that meeting, Rudek explained that Barrasso was subject to the
department-wide call-off policy and instructed her to comply with it going forward (ECF No. 556, pg. 260-61). Rudek provided her with a hard copy of the policy (Id.) The meeting between
Rudek, Ambrose, and Barrasso was memorialized in an email from Rudek to Jenelle Taylor
(Taylor), a senior human resources consultant with CHP (ECF No. 62-3, Ex. 132).
In March of 2016, Barrasso’s yearly FMLA leave allowance was increased. This led to an
email exchange between Ambrose and Rudek wherein both voiced concerns about how Barrasso’s
FMLA leave time was impacting the Department and affecting the patients in unit 8B (ECF No.
69, ¶¶ 79, 81-82).
On March 8, 2016, Barrasso sent an email at 9:10 a.m. informing Rudek and others that
she would be taking an FMLA leave day (ECF No. 55-6, pg. 265). Because her scheduled shift
was to begin at 9:00 a.m., Barrasso’s notice failed to conform with the call-off policy (Id. at 266).
In his response to her email, Rudek reminded Barrasso of the call-off policy (ECF No. 55-6, Ex.
G).
On March 31, 2016, Rudek issued Barrasso a verbal warning which was reduced to writing
as a “corrective action,” and stated, in relevant part, as follows.

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Current issue.
You have failed to follow proper call off on the following days: 2/23/16, 2/24/16,
2/25/16, 2/29/16, 3/17/16, 3/24/16, and 3/28/16.
In addition, you called off on 3/17/16, and 3/18/16 without PTO time available.
Corrective Action /Policy [V]iolation/Value Statement.
As a result you are receiving a verbal warning, your actions are in violation of CHP
Attendance and Corrective Action policy 140, in accordance with Child Life
Department scheduling guidelines.
Failure to adhere CHP Attendance and Correction Policy, and Child Life
Scheduling and Attendance guidelines or violation of any UPMC, Children’s or
department policy shall result in further corrective action, up to and including
termination of employment.
(ECF No., 55-2, Ex. 16).
Barrasso’s employment with the Department, her compensation, and her leave time were
not affected by this memorandum, and she continued to use her FMLA-leave after the memo was
issued.

Camp Inspire and Barrasso’s Termination
In July of 2016, CHP held its annual Camp Inspire, a summer camp experience for children
with respiratory issues. Three Child Life employees, Barrasso, Shannon Scalise, and Becky
Desmond, were assigned to the Camp and jointly planned and prepared camper activities for the
week. Barrasso was scheduled to work Sunday through Thursday of Camp week. According to
Ambrose, Child Life Specialists working at Camp were expected to “work with their department
leader to request … the days and hours to attend camp” which is then approved by a manager (ECF
No. 70-2, pg. 148). Actual worked hours are reported to supervisors and physically entered into
the payroll database by a supervisor at the end of Camp week before the Monday payroll deadline
(Id. at 148-49).

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On Sunday, July 17, 2016, Barrasso sent Scalise a text message at 11:08 A.M. informing
Scalise that she was taking a sick day. Barrasso did not inform her manager of the sick leave day,
nor did she designate this as an FMLA day. Later that evening, Barrasso texted Scalise to tell her
she would be late to Camp on Monday.
On Monday, July 18, 2016, Barrasso arrived at Camp before 11:00 a.m. and worked until
5:30 p.m.
On Tuesday, July 19, 2016, Barrasso arrived at Camp at 10:00 a.m.
On Wednesday, July 20, 2016, Barrasso worked at Camp until 12:00 or 12:30 p.m. when
she left, allegedly to go shopping for graduation supplies for a camper. Although Child Life
employees were permitted to shop for Camp, they were required to request permission before
doing so. Barrasso neither requested, nor was granted, permission. Barrasso did not return to
Camp that evening because of her commitment that week to teach in the afternoon at a skating
camp at Robert Morris University.
On Thursday, July 21, 2016, Barrasso arrived at Camp at 11:00 a.m. She missed the
scavenger hunt she was assigned to organize. Barrasso had sent a text message to Scalise that
morning that stated “Hey sorry my alarm never went off and I over slept” (ECF No. 55-8, pg. 102,
Ex. 67). However, during her deposition, Barrasso alleged that she spent the morning shopping for
graduation items and scavenger hunt prizes (ECF No. 55-2, pg. 72).
Barrasso was not scheduled to work on Friday, July 22, 2016, and did not attend Camp.
Barrasso indicated that she intended to use Friday as a “swap day” for Sunday (ECF No. 55-8, pg.
102).
On Friday, July 22, 2016, Scalise met with Rudek to discuss Barrasso’s absences, her rude
behavior toward staff and campers at Camp Inspire, and the statements that she made about not

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working on Friday (ECF No. 55-8, pgs. 76, 77-78, 107). Scalise also met with Ambrose (Id. at
pgs. 157-158, 214). Independently, Desmond, the other Child Life Specialist at Camp Inspire,
also met with Rudek and Ambrose on July 22, 2016 regarding Barrasso’s behavior during the
previous week (ECF No. 55-4, pg. 47-58).
As a result of these meetings, Rudek emailed Barrasso to ask her to confirm that she worked
at Camp Inspire Sunday through Thursday, with Friday as a swap day.4 Barrasso responded in the
affirmative (ECF No. 55-2, Ex. 19). Later that day, Ambrose likewise asked Barrasso to confirm
her hours for the week. In response, Barrasso emailed, “Sure thing. I know I received an email
earlier today from [Rudek] regarding this as well. I worked 8:30·4:30 pm most of those days, I
think one of two days was more like 8-4” (ECF No. 55-2, Ex. 18).
On July 26, 2016, at the request of CHP human resources, Ambrose met with Barrasso
regarding the discrepancies between Scalise’s and Desmond’s reports and Barrasso’s purported
hours worked (ECF No. 55-1, pg. 239-44). During that meeting, Ambrose compared the hours
Barrasso claimed she worked in emails with Rudek and Ambrose to the text messages provided
by Scalise and Desmond (Id.) In particular, Ambrose noted that Barrasso did not follow the
department’s call-off procedure, did not prepare for or attend her assigned Camp event, and
expressly told Rudek and Ambrose that she worked on Sunday, despite evidence to the contrary
(Id. at pg. 240). Ambrose also noted that Barrasso was unclear as to whether Sunday was supposed
to be an FMLA day (Id.) That afternoon, Barrasso sent an email to Ambrose blaming the
“oversight” in her hours on “a long week” and memory issues associated with her illness (ECF
No. 55-2, Ex. 20). However, following these discussions, Ambrose and human resources decided
to terminate Barrasso’s employment, effective July 29, 2016. The reason given for termination

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Rudek’s last day with CHP was July 22, 2016.
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was dishonesty, specifically repeated falsification of her worked hours at Camp. Barrasso was
informed of her discharge on August 5, 2016.

Exhaustion of Administrative Remedies
On August 8, 2016, Barrasso filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC).5 On August 11, 2016, Barrasso filed a grievance to challenge
her termination, which was denied on September 1, 2016 (ECF No. 55-2, Ex. 25). On October 17,
2016, she filed an amended charge adding a claim of retaliation and a claim of discharge in
violation of the Americans with Disabilities Act (Id. at Ex. 27). On April 7, 2017, the EEOC issued
a Right to Sue Notice.

Procedural History
Barrasso initiated this action by filing a complaint on March 3, 2017, raising claims
pursuant to the Rehabilitation Act, 29 U.S.C. § 701, et seq. and the Family Medical Leave Act
(FMLA), 29 U.S.C. § 2617 (ECF No. 1). Defendants filed an answer (ECF No. 6), after which
Barrasso filed an amended complaint, which added claims pursuant to the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (ECF No. 11). On June 6, 2017, Defendants
answered the amended complaint (ECF No. 14). Following discovery, on July 9, 2018, Defendants
filed a motion for summary judgment (ECF No. 52). The motion has been fully briefed and is ripe
for disposition. This Court has jurisdiction under 28 U.S.C. § 1331.

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The record indicates that Barrasso signed the form on August 3, 2016 and it was stamped as
received by the EEOC on August 8, 2016 (ECF No. 55-2, Ex. 26).
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Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that:
[a] party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. The court should state on the record the reasons for granting or denying the
motion.
Fed.R.Civ.P. 56(a).
The moving party bears the initial burden of identifying evidence which demonstrates the
absence of a genuine issue of material fact. Once that burden has been met, the non-moving party
must set forth “specific facts showing that there is a genuine issue for trial” or the factual record
will be taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). For the purposes
of summary judgment, “[a] material fact is ‘[a] fact[ ] that might affect the outcome of the suit
under the governing law.’” Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412
(3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). For an issue
to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute
be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
(Id.) (quoting Anderson, 477 U.S. at 248-49).
In resolving a motion for summary judgment, a court must take the facts in the light most
favorable to the non-moving party, and must draw all reasonable inferences and resolve all doubts
in that party’s favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005);
Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

Discussion

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1. Barrasso’s Claims of Disability Discrimination
In Count I of her amended complaint, Barrasso alleges that she was “subjected to adverse
employment actions, including daily harassment, limits to opportunities for professional growth
and development, negative performance evaluations, and termination” on the basis of her disability
in violation of Section 504 of the Rehabilitation Act (ECF No. 11 ¶¶ 57-64). Count V of her
amended complaint raises similar allegations, couched as violations of the ADA (Id. ¶¶ 99-105).
The Third Circuit has explained that “[w]hether suit is filed under the Rehabilitation Act
or under the [Americans with] Disabilities Act, the substantive standards for determining liability
are the same.” McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92, 95 (3d Cir. 1995); 29
U.S.C. § 794(d). Accordingly, the familiar framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 793-94 (1973), is applicable.
Under the McDonnell Douglas burden shifting paradigm, plaintiff has the initial
burden to make a prima facie showing of discrimination, but if s/he does so, the
burden shifts to the employer to articulate some legitimate, nondiscriminatory
reason for the employment action. If the defendant meets this burden, the
presumption of discriminatory action raised by the prima facie case is rebutted.
However, the plaintiff must then be afforded an opportunity to show that the
employer’s stated reason for the employment action, such as plaintiff’s rejection or
separation, was pretextual. In order to prove the employer’s explanation is
pretextual, the plaintiff must cast [ ] sufficient doubt upon each of the legitimate
reasons proffered by the defendant so that a factfinder could reasonably conclude
that each reason was a fabrication ... or ... allow[ ] the factfinder to infer that
discrimination was more likely than not a motivating or determinative cause of the
adverse employment action. A plaintiff who has made out a prima facie case may
defeat a motion for summary judgment by either (i) discrediting the employer’s
proffered reasons, either circumstantially or directly, or (ii) adducing evidence,
whether circumstantial or direct, that discrimination was more likely than not a
motivating or determinative cause of the adverse employment action.
Wishkin v. Potter, 476 F.3d 180, 184–85 (3d Cir. 2007) (citations and quotation marks omitted).
To state a prima facie case under either statute, Barrasso must establish the following:
1. she has a disability;

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2. she is otherwise qualified to perform the essential functions of the job, with or
without reasonable accommodations by the employer; and
3. she nonetheless suffered an adverse employment action as a result of
discrimination.
See Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000); Shiring v. Runyon, 90 F.3d
827, 831 (3d Cir. 1996).
Barrasso alleges that her disability is cancer and that she was qualified for her position as
a Child Life Specialist, points that Defendants concede. However, Defendants contend that she is
unable to meet the third prong of the above test because she was not subjected to an adverse
employment action as a result of her disability (ECF No. 53, pgs. 11-14).

a. Adverse Employment Action Under the ADA
Barrasso alleges that she suffered the following adverse employment actions that entitle
her to relief: (1) limitation to opportunities for professional growth and development, (2) negative
performance evaluations, (3) the March 2016 warning, and (4) termination (ECF No. 11, ¶¶ 6062; ECF No 60, pg. 5). The Third Circuit has described an adverse employment action “as an
action by an employer that is serious and tangible enough to alter an employee’s compensation,
terms, conditions, or privileges of employment.” Jones v. SE. Pa. Transp. Auth., 796 F.3d 323,
326 (3d Cir. 2015) (citations omitted).

1. Opportunities for Professional Growth and Development
Barrasso alleges that, as a result of her disability, she was passed over for a Child Life
Specialist position with CHP’s Cardiac and Thoracic Unit “despite the fact that she had more
experience with the particular population and unit within the Hospital than the successful

10

applicant” (ECF No. 55-2, pg. 31-34).6 However, Barrasso admits that this position was not a
promotion and did not result in a pay raise (Id. at 35). Accordingly, the record does not support a
finding that denying Barrasso the lateral move to a different unit was “serious and tangible enough
to alter an employee’s compensation, terms, conditions, or privileges of employment” such that it
would constitute an adverse employment action. See Remp v. Alcon Laboratories, Inc., 01
Fed.Appx 103 (3d Cir. 2017) (holding that a failure to grant an employee a lateral move that
involved neither a promotion nor a pay increase did not constitute an adverse employment action).

2. Negative Performance Evaluations
Barrasso’s work performance was evaluated on a yearly basis. From 2011 through 2015,
Barrasso was rated as a “solid, strong, good performer” (ECF No. 69, ¶¶ 8, 10, 15, 21, 43, 45).
However, Barrasso points out that her evaluations also included criticism of her absences. For
example, in 2014, Ambrose noted that Barrasso “voices flexibility and helpfulness within the
department but is often unable to follow through due to unplanned absence” (Id. at ¶ 26). In 2015,
Rudek ranked Barrasso as a marginal performer in three subsections of her evaluation due to her
“failure to call off in a timely manner” (Id. at ¶¶ 43, 45). In the “Responsibilities” section, Rudek
wrote that “[i]t was also noted by peers and staff that not calling off in a timely fashion often results
in her unit being uncovered” (Id. at ¶ 46). Nonetheless, the 2015 evaluation entitled Barrasso to a
merit-based pay increase, although the amount was less than it would have been if Barrasso had
received a higher ranking (Id. at ¶ 44).

6

According to Rudek, the Child Life Department, selected another Child Life Specialist to make
the lateral move who had previously worked on the Cardiac and Thoracic Unit, and who was
recommended by the out-going employee. (ECF No. 55-6, pgs. 85-86, 283-84).

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“As explained by another district court within the Third Circuit, [t]o constitute an adverse
employment action, the negative performance review must tangibly alter the terms and conditions
of employment. Thus, the mere allegation that a negative evaluation took the employee off track
for promotion and formed a basis for denying him opportunities is too conjectural to be
actionable.” (Rossiter v. Costello, No. CIV.A. 11-1183, 2012 WL 3235149, at *9 (E.D. Pa. Aug.
9, 2012) (citing Foster v. Ashcroft, 2006 WL 1995305, at *2 (D.N.J. July 14, 2006) (quoting Turner
v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005)); see also Cashman v. CNA Fin. Corp., 2012 WL
113667, at *12 (E.D. Pa. Jan.13, 2012) (“A negative performance review and being placed on a
performance improvement plan, without more, is not an adverse employment action.”). It is hard
to discern how the 2011-2014 performance evaluations could be deemed negative so as to
constitute adverse employment actions. Further, even if the 2015 evaluation could be considered
an adverse employment action, the criticism lodged against Barrasso stems from her inability to
adhere to the Department’s call-off policy, not her disability. Accordingly, even when viewed in
the light most favorable to Barrasso, the evidence fails to support a prima facie case of
discrimination. Donahue, 224 F.3d at 229.

3. The March 2016 Warning
On March 31, 2016, Rudek issued a memo to Barrasso memorializing the verbal warning
given regarding Barrasso’s failure to utilize proper call-off procedure in February and March of
2016 (ECF No. 55-2, Ex. 16). Although the memo provides that corrective action may be taken
for further violations, as Taylor explained in her deposition, a verbal warning does not result in
change of title, loss of benefits, pay reduction, demotion, suspension, or a limit an employee’s
ability transfer between units or apply for other positions at CHP (ECF No. 55-9, pg. 146-47).

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Moreover, as above, the violation at issue was related to Barrasso’s failure to comply with the calloff policy, not her disability. As such, even when viewed in the light most favorable to Barrasso,
the evidence fails to support that the memo constitutes an adverse employment action. See Weston
v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001), overruled in part on other grounds by,
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (written reprimands did not
constitute adverse employment action sufficient to support a retaliation claim).

4. Termination
The parties agree that termination, in and of itself is, an adverse employment action.
Accordingly, the Court agrees that Barrasso has made a prima facie case of discrimination on this
basis. The burden now shifts to the Defendants to articulate some legitimate, non-discriminatory
reason for Barrasso’s termination. Wishkin 476 F.3d at 184–85. In this regard, Defendants argue
that Barrasso was discharged for dishonesty, specifically for falsely reporting the hours she worked
during Camp Inspire, and repeating those falsehoods until confronted with contradicting evidence
(ECF No. 53, pg. 15-18).
Barrasso contends that this justification is pretextual, arguing that “a genuine dispute of
material fact exists because [the] evidence shows it was an inadvertent failure to properly report
time or report absence,” brought on by “the extreme exhaustion and fatigue she felt from a long
week at Camp” combined with “excruciating pain” from her illness (ECF No. 60, pg. 13). Further,
Barrasso alleges that Ambrose’s course of action when faced with inconsistencies about Barrasso’s
working hours was an attempt to “use [her] honest mistake as a pretext to discharge” by emailing
Barrasso while she was sick and forcing her to “confirm that she had worked a full week,
effectively trying to trap her into a failure to properly report time and absence” (Id.) She argues

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that Scalise and Desmond were subject to more relaxed work requirements with respect to their
own reporting dishonesty and contends that Ambrose could have adjusted Barrasso’s pay
retroactively to prevent overpayment and the fact that she was paid in full is evidence of pretext
(Id. at 16-17). Finally, Barrasso alleges that comments made by Rudek at the March 31, 2016
meeting and in an April 7, 2018 email demonstrate a causal connection between her disability and
her termination (Id. at 12-13).
The parties agree that, under the corrective action policy for CHP, dishonesty is a basis for
immediate termination (ECF No. 70-2, pg. 386). Additionally, although Barrasso alleges that
Camp week 2016 was the first time she had been asked to account for her hours, the record
demonstrates that she had received counseling with respect to the Department’s call-off procedure
for months prior to her termination. Moreover, other Child Life Specialists testified that they had
been expected to report their Camp hours to management in past years (ECF No. 55-8, pg. 55-56).
Further, Ambrose sent the exact same email to Barrasso, Scalise, and Desmond, asking them to
clarify their hours (ECF No. 55-1, pg. 284).
In her deposition, Barrasso admits that she made “oversights” with regard to her hours, and
failed to report to Ambrose or Rudek that there were days of Camp week she missed entirely and
days she came late and/or left early (ECF No. 55-2, pgs. 75-77, 78-80). Although she disputes the
weight given to her dishonesty (and whether that dishonesty was intentional), in order discredit
the employer’s proffered reason, “the plaintiff 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 v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (citations omitted). Thus, the fact that Ambrose
chose to disbelieve Barrasso’s statements regarding the misrepresentation of her worked hours

14

does not demonstrate that CHP acted out of discriminatory animus in terminating Barrasso’s
employment.
Moreover, the record does not bear out Barrasso’s claims that Scalise and Desmond were
dishonest. Barrasso claims that Scalise must have been dishonest in reporting that she arrived at
Camp by 10:30 a.m. because she lives approximately 20 minutes from Camp Inspire and sent a
text at 10:19 a.m. in which she said that she was leaving her house (ECF No. 60, pg. 16). In her
deposition, Scalise could not recall what time she sent the text message at issue and indicated that
she sometimes forgot to send messages until she was halfway to her destination (ECF No 55-8,
pg. 150). Based on these facts, any dishonesty alleged is pure speculation. The issue involving
Desmond, whether she was paid for eight hours when she actually worked six, involves no
allegation that Desmond misreported her hours, but instead whether those hours were recorded
correctly. Again, any allegation of dishonesty on the part of Desmond is purely speculative.
Further, Barrasso’s retroactive pay argument involves payroll, not dishonesty and seemingly,
impacted Desmond in the exact same way it did Barrasso: both were knowingly overpaid. Neither
situation suggests that Ambrose’s stated reason for discharge was pretextual.
Finally, the facts fail to support Barrasso’s argument regarding an alleged causal
connection between Rudek’s statements and her discharge. As discussed in more detail below,
even in the light most favorable to Barrasso, the alleged frustrations of management were unrelated
to her disability, but rather focused on her use of leave time and failure to utilize the proper
procedure to call off. Additionally, this Court notes that Rudek did not play a role in Barrasso’s
termination as he had resigned by the time that decision was made.

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Accordingly, Barrasso has failed to establish that that discrimination on the basis of her
disability was more likely than not a motivating or determinative cause of any adverse employment
action and this claim fails.

b. Hostile Work Environment
In addition to the claims outlined above, Barrasso maintains that she was subjected to
“daily harassment” on the basis of her disability. Assuming, arguendo, that Barrasso is claiming
that she was subjected to a hostile work environment7, she must prove the following: (1) she is a
qualified individual with a disability under the ADA; (2) she was subject to unwelcome
harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently
severe or pervasive to alter the conditions of her employment and to create an abusive working
environment; and (5) that the Defendants knew or should have known of the harassment and failed
to take prompt effective remedial action. Walton v. Mental Health Ass’n. of Southeastern
Pennsylvania, 168 F.3d 661, 667 (3d Cir.1999)). To establish a prima facie case, Barrasso bears
the burden of proving that these actions were “sufficiently severe or pervasive to alter the
conditions of [her] employment and to create an abusive working environment.” Walton, 168 F.3d
at 667. “To judge whether such an environment is hostile or abusive, we must consider all the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Id. (citations omitted).

7

The Court is mindful that the Third Circuit has not recognized a cause of action for hostile work
environment under the ADA. See Barclay v. Amtrak, 240 F. App’x 505, 508 (3d Cir. 2007) (citing
Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 667 (3d Cir.1999)).
16

In her amended complaint, Barrasso claims that Rudek harassed her by issuing a verbal
warning on March 31, 2016, by using her accommodation “against her in the terms and conditions
of her employment;” and by “interfering with her work performance” (ECF No. 11, ¶¶ 32-35, 41,
44). In her brief in opposition to Defendants’ motion for summary judgment, Barrasso asserts that
she “suffered antagonism” and that her disability was blamed for staffing issues in the Child Life
Department (ECF No. 60, pgs. 24-25).
As outlined above, written reprimands did not constitute adverse employment action
sufficient to support a retaliation claim. Weston, 251 F.3d at 431. Again, with respect to the other
allegations about Rudek, even viewing the record in the light most favorable to Barasso, this Court
cannot agree that the alleged harassment was related to her disability. Further, Barrasso’s vague
claim of “antagonism” is unsupported by evidence of record. See Taylor v. Cherry Hill Bd. of
Educ., 85 Fed. Appx. 836, 839 (3d Cir. 2004) (holding that, in the context of employment
discrimination claims, “conclusory allegations of discrimination, in the absence of particulars, are
insufficient to defeat summary judgment”); Fed. R. Civ. P. 56(c) (explaining that this Court is only
bound to consider facts that are supported by citation to “particular parts of materials in the
record”). Finally, the evidence is clear that the alleged staffing complaints were based on
Barrasso’s leave time and inability to call off per the Department’s guidelines. Accordingly, the
Court cannot agree that the alleged harassment was sufficiently severe or pervasive to alter the
conditions of her work environment such that it would support Barrasso’s claim of a hostile work
environment.

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2. Barrasso’s Claims of Retaliation Under the Rehabilitation Act and the ADA
In Counts II and VI of her amended complaint, Barrasso alleges that Defendants retaliated
against her in violation of the Rehabilitation Act and the ADA. As with claims of discrimination,
Section 504 of the Rehabilitation Act incorporates the substantive standards of ADA with respect
to retaliation.8 “To establish a prima facie case of retaliation under the [Rehabilitation Act], 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. Am.
Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997).
Here, Barrasso alleges that her protected activities are (1) her “requested accommodation
for her disability in the form of leave from work” and (2) the formal charge she filed with the
EEOC (ECF No. 11, ¶¶ 73-74). She alleges that she was subjected to adverse employment actions,
“including daily harassment, limits to opportunities for professional growth and development,
negative performance evaluations, and termination” (Id. at 75).
With respect to the latter allegation, the evidence of record belies any causal connection
between Barrasso’s formal charge of disability discrimination and her discharge, particularly in
light of the fact that the charge was not received by the EEOC until August 8, 2016, after her
termination. Barrasso admitted in her deposition that she did not tell anyone at CHP that she had
filed a charge and had no reason to believe that her employer knew she intended to make a filing
(ECF No. 55-2, pg. 85).

Section 503(a) of the ADA provides that: “No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
8

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With respect to her first allegation, it is well-settled that requesting an accommodation is a
protected employee activity under the ADA. Shellenberger v. Summit Bancorp, Inc., 318 F.3d
183, 191 (3d Cir. 2003). Additionally, the record demonstrates that Barrasso suffered an adverse
employment action, termination, after her accommodation was granted and her leave time
increased in March of 2016.

Accordingly, Barrasso bears the burden of proving a causal

connection between the employee’s protected activity and the employer’s adverse action.
“[I]n the ADA retaliation context … temporal proximity between the protected activity and
the termination [can be itself] sufficient to establish a causal link. However, the timing of the
alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link
will be inferred.” Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir.
2004) (citations omitted).
The record indicates that over 5 months passed between the increase in Barasso’s FMLA
leave and her termination. This Court cannot agree that the temporal proximity here is unduly
suggestive. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding two days unduly
suggestive); Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012) (three weeks);
Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (four days); cf. McCann v.
Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (five days in Title VII retaliation case)). However,
“in cases like this one, where the temporal proximity is not so close as to be unduly suggestive,
[the Third Circuit has] recognized that timing plus other evidence may be an appropriate test....”
Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (quoting Estate of Smith v.
Marasco, 318 F.3d 497, 513 (3d Cir. 2003) (internal quotation marks omitted)).
In this case, Barrasso has set forth enough evidence to support her contention that a
reasonable trier of fact could conclude that she was terminated based on her exercise of her right

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to her allotted, increased FMLA leave. To reiterate: in March of 2016, Barrasso’s FMLA leave
allotment was increased. On March 15, 2016, Rudek forwarded the FMLA approval notice to
Ambrose, and suggested that, due to the increase in leave, he would need to “find another option
for [Barrasso] than a unit assignment. Missing two days per week on the unit has resulted in
inadequate child life service to the patients on 8B” (ECF No. 69, ¶ 79). Ambrose agreed, noting
in her response to Rudek’s email that “[t]his is not a role that cannot continue to support her call
offs” and, acknowledging that Departmental downsizing had resulted in coverage issues which
were exacerbated by Barrasso’s absences, suggested creating a part-time position for Barrasso and
hiring another Child Life Specialist for unit 8B (Id. at ¶¶ 81, 82). Neither alternative was ever
enacted.
On March 31, 2016, Rudek issued the corrective action memo to Barrasso. On April 7,
2018, Rudek made a comment to Ambrose questioning the propriety of Barrasso’s home situation
vis-à-vis her health (ECF No. 55-1, pg. 424). On April 10, 2016, in her email to Rudek, Barrasso
disputed her discipline and asked that the corrective action memo be removed from her file (ECF
No. 69, ¶¶ 113-14). Rudek indicated that he was unable to do so (Id. at ¶ 113).
From April until her discharge in August of 2016, Barrasso took at least 7 FMLA leave
days (ECF No. 55-6, pg. 138). The week leading up to Camp, Barrasso missed several days of
work on intermittent FMLA leave including the Friday before the start of Camp. (ECF No 55-2,
pg. 64). The only FMLA-related day off that Barrasso took during Camp week was Sunday July
17, 2016 (ECF No. 69, ¶ 153). After meeting with Barrasso, Ambrose decided to terminate her
employment. Rudek was no longer working for CHP at the time. On Wednesday, July 27, 2016,
in an email exchange, two representatives from HR handling the termination paperwork,
commented that Ambrose “indicated that she has struggled with attendance issues with [Ms.

20

Barrasso] for years,” and Ms. Barrasso “does have 2 approved intermittent FMLA leaves” (Id. at
¶ 161). On August 5, 2016, Ms. Barrasso was informed of her termination in a meeting with Paula
Eiker, a Senior Director at CHP (Id. at ¶ 168).
In particular, the emails between Rudek, Ambrose, and, later, human resources in the
months leading up to her termination, when construed in Barrasso’s favor, are sufficient to create
an inference that the decision to terminate Barrasso was influenced by her FMLA-related absences.
See Farrell, supra. Because she has set forth a prima facie case, this Court must consider the
legitimate non-discriminatory reason proffered by Defendants for Barrasso’s termination. “To
defeat summary judgment when the defendant answers the plaintiff’s prima facie case with
legitimate, non-discriminatory reasons for its action, 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.” Fuentes,
32 F.3d at 764. To do so, she “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [CHP’s] proffered legitimate reasons for its
actions that a reasonable factfinder could rationally find them ‘unworthy of credence.’” (Id. at
765).
Here, there is enough contradictory evidence that could lead a reasonable factfinder to
conclude that Ambrose’s stated reason for Barrasso’s termination was pretextual. Accordingly,
Barrasso has met her burden at this stage of the litigation, and her claims of retaliation Under the
ADA and the Rehabilitation Act will survive summary judgment.

3. Barrasso’s FMLA Claims

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a. Interference
In Count III of her amended complaint, Barrasso argues that Defendants interfered with
her rights under the FMLA by “subjecting her to adverse employment action, including, but not
limited to, a negative performance review and her ultimate termination” (ECF No. 11, ¶ 87).
The FMLA provides that “it shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right provided” under the Act. 29 U.S.C.A.
§ 2615(a)(1).
To make a claim of interference under the FMLA, a plaintiff must establish:
(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, 191–92 (3d Cir. 2014) (citation omitted). “Under an interference
claim, the employee need not show that he was treated differently than others[, and] the employer
cannot justify its actions by establishing a legitimate business purpose for its decision. Also,
[b]ecause the FMLA [interference claim] is not about discrimination, a McDonnell Douglas
burden-shifting analysis is not required.” (Id.) (citations omitted).
There is no dispute that Barrasso meets the first three requirements of the test outlined in
Ross. Defendants argue that her claim fails because she cannot establish the fifth prong, citing to
Barrasso’s deposition testimony wherein she admitted that she was approved by WorkPartners
each time she applied for FMLA leave, that she actually took the leave allotted to her, and that she
was never refused an FMLA request (ECF No. 53, pg. 20-21). Barrasso counters by arguing that
Ambrose and Rudek discouraged her from taking smaller leave increments in violation of 29
C.F.R. § 825.205(a)(1) (ECF No. 60, pg. 9). The Regulation provides, in relevant part, as follows

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(1) When an employee takes FMLA leave on an intermittent or reduced leave
schedule basis, the employer must account for the leave using an increment no
greater than the shortest period of time that the employer uses to account for
use of other forms of leave provided that it is not greater than one hour and
provided further that an employee’s FMLA leave entitlement may not be
reduced by more than the amount of leave actually taken. An employer may not
require an employee to take more leave than is necessary to address the
circumstances that precipitated the need for the leave, provided that the leave is
counted using the shortest increment of leave used to account for any other type
of leave.
29 C.F.R. § 825.205(a)(1).
The parties agree that “[e]mployees on intermittent leave … are allowed to take FMLA
leave in increments as small as one hour up to a full day, and if the employee is feeling sick in the
morning and feels better he or she is allowed to come to work later in the day” (ECF No. 69, ¶ 65).
In an email chain after the January 15, 2016 meeting with Barrasso, Rudek informed Taylor, inter
alia, that
[Barrasso] was told that if she was unable to be present for the start of her shifts she
should notify her manager prior to the scheduled start time that she would not be in
and explain why she was calling off – whether it was related to her disability or due
to illness or some other reason. [Barrasso] contemplated this and verbally agreed
to comply with this policy. She remarked that if she felt better later in the day she
would come to work and asked to be assigned work duties.
(ECF No. 62-3, Ex. 132, pg. 4).
Taylor asked “how was the thought ended when she said she wanted to come in late?” (Id.
at pg. 3). Rudek responded
I reminded her that on the occasions that she has said she would be in late, she
seldom if ever, made it in. We told her that the expectation was to be at her shift
start; she agreed to call off if unable to report for her start. If she did come in later
in the day, the time missed would be coded to FMLA and if coverage was needed
in the department she would be assigned to cover it. The expectation is that she be
there for her assigned unit and there isn’t a guarantee that if she came in later there
would be a need.

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(Id. at pg. 2). Taylor then questioned whether Rudek “even wanted her to come in late after she
mentioned she needs to come in late due to her medical condition given her past behavior of not
coming in at all” (Id.) Rudek replied
Tough call. I guess the thinking is trying to be understanding of her medical
condition and giving her opportunity. Really would be surprised if she ever comes
in late. She was essentially trying to say that her condition can change. I’ve not
seen evidence. Other staff either call off or come in. The policy really doesn’t
address this, (the opportunity for staff to come in late if feeling better)[.]
(Id.)
Barrasso was not a recipient of these emails. However, when viewed in the light most
favorable to her, this exchange supports her contention that she was discouraged from coming in
to work later in the day if she was feeling better. In fact, a reasonable jury could find that she was
specifically encouraged to take her FMLA time in full day allotments in violation of 29 C.F.R.
§ 825.205(a)(1), particularly because the Department’s call-off policy was directly opposed to the
Regulation. Accordingly, because she has supported with competent evidence her allegation that
she was discouraged from taking a minimal amount of FMLA leave, her interference claim
survives summary judgment. See F.R.C.P. 56(c), (e).

a. Retaliation
Finally, Count IV of the amended complaint raises a claim of retaliation under the FMLA.
Similar to her retaliation claims brought pursuant to the Rehabilitation Act and the ADA,
[t]o prevail on a retaliation claim under the FMLA, the plaintiff must prove 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. Because FMLA retaliation claims require proof of the
employer’s retaliatory intent, courts have assessed these claims through the lens of
employment discrimination law. Accordingly, claims based on circumstantial
evidence have been assessed under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

24

(1973), while claims based on direct evidence have been assessed under the mixedmotive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 276–
77, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring).
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012) (some citations
omitted).
Because the analysis for this claim is the same as that for Counts II and VI above, it will
not be restated here. For the reasons previously discussed, Barasso has met her burden with regard
to this claim and Defendants’ motion will be denied with regard to Count IV.

Conclusion
Here, as set forth above, there is no genuine dispute as to any material fact with respect to
Counts I and V of the amended complaint. Accordingly, this Court will grant Defendants’ motion
for summary judgment (ECF No. 52), as to those two counts. See Fed.R.Civ.P. 56(a).
Further, as there is a genuine dispute of material fact with respect to Barrasso’s claim of
retaliation under the Rehabilitation Act, Count II; FMLA interference, Count III; FMLA
retaliation, Count IV; and ADA retaliation, Count VI; Defendants’ motion is denied with respect
to those Counts.
An appropriate order follows.
DATED this 28th day of January, 2019.
BY THE COURT:

s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

25

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

ASHLEY BARRASSO,
Plaintiff,

)
)
)
)
)
)
)
)

vs.
CHILDREN’S HOSPITAL OF PITTSBURGH
OF UPMC, et al.
Defendants.

Civil Action No. 17-0267

ORDER
AND NOW, this 28th day of January, 2019, for the reasons stated in the Opinion filed
contemporaneously herewith, it is hereby ORDERED that the Defendants’ Motion for Summary
Judgment (ECF No. 52) be and the same hereby is GRANTED as to Count I, Disability
Discrimination pursuant to the Rehabilitation Act, and Count V, Disability Discrimination
pursuant to the ADA, of the amended complaint (ECF No. 11).
The motion is DENIED with respect to the remaining four Counts.
/s/ Robert C. Mitchell
ROBERT C. MITCHELL
United States Magistrate Judge

Cc: record counsel via CM-ECF

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