PENNSYLVANIA RECORD

PHILADELPHIA – The U.S. District Court for the Eastern District of Pennsylvania dismissed a racial discrimination lawsuit filed against the Children’s Hospital of Philadelphia on June 3.

April McBride and Wilhelmina Saddler claimed that their employer and various subsidiaries and employees, jointly CHOP, refused to let them, two African-American employees, work from home while recovering from surgery, while at the same time allowing a white employee, Nancy Ash-Heriegel, to work from home while she recovered from surgery.

In response to McBride and Saddler’s lawsuit, CHOP moved for summary judgment, arguing that the plaintiffs failed to show that CHOP’s legitimate, non-discriminatory reason for treating its employees differently was mere pretext.

After listening to oral arguments in the case on May 22, Judge Gene E.K. Pratter opted to grant CHOP’s motion for summary judgment in its entirety.

McBride and Saddler were employed by CHOP as medical abstractionists, or billing coders. More specifically, McBride worked for Children’s Health Care Associates (CHCA), and Saddler worked for Radiology Associates of CHOP (RACH), both subsidiaries of CHOP.

McBride began with CHCA as a medical abstractionist on Sept. 26, 2009. After completing approximately one year of service with CHCA, McBride was permitted to work from home three days per week, like other members of her department.

In late March 2011, CHCA notified employees that, effective May 2 of that year, changes in federal regulations would end the work-from-home policy. Throughout May and June 2011, a combination of unresolved childcare issues and recovering from abdominal surgery led her to seek continuous Family and Medical Leave Act (FMLA) time to be at home through mid-June.

Per CHOP policy, when an employee is approved for continuous FMLA leave, it means that both Unum, CHOP’s third-party insurance provide and the employee’s doctor agree that the employee is unable to work at all for that time period, and, consequently, CHOP does not permit employees on continuous FMLA leave to work at all, even from home.

Originally, McBride was cleared to return to work on June 14, 2011 for “light duty.” Eleanor Sclocchini, McBride’s immediate supervisor and a defendant in the lawsuit, told her she could not work from home with this restriction, as working from home required carrying a laptop and documents weighing more than five pounds between the office and home.

When McBride was informed that she could not work from home, she told Sclocchini that she was actually not cleared to work at all – but possessed no medical documentation to support this statement, and therefore was told to return to work.

McBride called out for several days in late June due to pain, but was given an oral warning by Sclocchini on July 28, 2011, for violating the policy of not permitting more than six unscheduled paid personal leave days within a 12-month period. McBride complained about the warning and a subsequent Human Resources investigation revoked it. McBride was later terminated on Feb. 27 of this year, due to a reduction in employees at CHCA.

Saddler began working at CHOP as a medical abstractionist on April 23, 2007, and was occasionally permitted to work from home for non-medical reasons, such as to wait for deliveries or prepare for church functions, according to court records.

On April 18, 2011, Saddler applied for continuous FMLA leave and short-term disability for foot surgery, which Unum granted from April 13-26, 2011. Before her leave, Saddler asked to work from home during her recuperation, and she did so again by email during her leave – but Sclocchini replied that allowing her to work at all during continuous FMLA leave would be “an HR issue.” Saddler continues to work at CHOP.

Both plaintiffs base their claims on their allegation that Ash-Heriegel, a fellow medical abstractionist and a Caucasian female, was permitted to work from home during her recovery from foot surgery from February 2012 through May 2012. When Ash-Heriegel’s leave took place, Sclocchini had resigned and Ellen Coffee, Sclocchini’s supervisor, was handling leave issues.

Prior to formally requesting FMLA leave from Unum, Ash-Heriegel had a meeting with Coffee to discuss leave options and the possibility of working from home.

“Although plaintiffs insist Ms. Ash-Heriegel received approval to work from home during her recuperation, the record does not support that inference. Based on the record, at most she received at that time tacit approval, pending a decision from Unum and her doctor on what type of leave was appropriate. Ms. Ash-Heriegel then submitted medical documentation to Unum requesting continuous FMLA leave for a short period and intermittent FMLA leave thereafter, during which her doctor specifically recommended that she work from home,” Pratter said.

“Ms. Ash-Heriegel testified at her deposition that she would have needed continuous leave if she had not been permitted to work from home. Ms. Coffee testified that she approved Ms. Ash-Heriegel’s request to work from home based on Unum’s approval of intermittent leave and Ms. Ash-Heriegel’s doctor’s express request.”

During her intermittent leave that allowed her to work from home, Ash-Heriegel accumulated benefits such as vacation days and like Saddler, is also still employed at CHOP.

In late 2012, the work-from-home policy was reinstated, allowing all medical abstractionists to work from home on a regular basis, which led the plaintiffs to file complaints with the Pennsylvania Human Rights Commission (PHRC) and Equal Employment Opportunity Commission (EEOC) in May 2012, alleging discriminatory treatment based on race and violations of Title VII of the Civil Rights Act of 1964.

After receiving right to sue letters, they filed the lawsuit on April 21, 2014. In response, CHOP filed a motion for summary judgment against all claims on March 31, which brought the matter before Pratter.

Pratter commented, “There are questions raised here about whether Ms. Ash-Heriegel was counseled by defendants in such a way that she was able to secure doctor’s recommendations that allowed her to work from home, while plaintiffs were not expressly presented with that option. However, the approval of plaintiffs’ doctors for working from home is simply speculative.”

Pratter pointed out CHOP’s argument that the three-year length of time between McBride’s complaint of discrimination and her termination suggests that the termination was not an example of retaliation and did not result from the complaint.

“In opposition, Ms. McBride fails to address this argument. At oral argument, her counsel conceded that the only possible retaliatory action at issue was Ms. McBride’s termination, and that the only evidence that could link it to this lawsuit is the fact that of the three people laid off in February 2015, two were plaintiffs in this suit at the time of the termination,” Pratter said. “Even accepting as true this evidence, which does not appear in the summary judgment record filed in this matter, Ms. McBride has not forged a connection between the termination and her protected activity to create a causal link, given the extreme gap in time.”

Pratter concluded by granting CHOP’s summary judgment motion and dismissing the plaintiffs’ case.

The plaintiffs were seeking recovery of benefits, compensatory and punitive damages, attorney’s fees, court costs, pre-judgment and post-judgment interest, plus any other relief the Court were to deem proper in this case. The plaintiffs also sought a jury trial.

The plaintiffs were represented by Daniel J. Hetznecker of Giosa & Hetznecker, in Philadelphia.

The defendants were represented by Neil J. Hamburg and Curtis M. Roberts of Hamburg & Golden and Jodi S. Wilenzik, all in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-02301

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com