ALLENTOWN – A Lancaster retirement home community says its former director of dining services’ wrongful termination-related disability lawsuit should be barred by the applicable statute of limitations, among other defenses.
JoBeth Kissinger first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 22 versus The Mennonite Home (doing business as “Mennonite Home Communities”), Dan Mortensen and Kimberly Blessing. All parties are based in Lancaster County.
Kissinger said she was hired on July 17, 2000 as the facility’s Dining Service Supervisor. A decade later, she was promoted to the role of Director of Dining Services.
Mortensen served as the defendant’s Vice-President of Operations, while Blessing served as the Director of Human Resources. Both individuals acted as supervisors to the plaintiff, per the suit, though her direct supervisor was John Sauder.
“Plaintiff Kissinger told John Sauder, her then supervisor that she suffered from depression and anxiety in August 2016. Kissinger met with Sauder on a bi-weekly basis on Thursdays and discussed her supervision of Dining Services. Plaintiff and Sauder also discussed plaintiff’s depression and anxiety on a regular basis. During this time, plaintiff did not request any extended time off,” the suit said.
After Sauder was promoted in December 2016, defendant Blessing assumed both his former role and temporary supervision of Kissinger. The litigation notes Blessing was aware of Kissinger’s mental health condition surrounding anxiety and depression, and possessed a list of the medications she was taking.
“On June 5, 2017, plaintiff called via telephone and spoke with defendant Blessing at 7:30 a.m. and she stated that she had something personal going on with one of her children and told defendant Blessing, ‘I don’t know if I need to take FMLA, I don’t know what to do. This is too much. I need to take leave. Now with everything that’s been going on, I just need to take leave.’ Defendant Blessing stated, ‘Don’t worry I will put you on personal leave.’ She never explained the options plaintiff had or her rights under federal law,” the suit stated.
Kissinger maintains she was aware the facility provided only 30 days of personal leave and asked for Family Medical Leave, a request which was denied and Blessing told Kissinger to return to work on July 18, 2017.
Immediately upon returning, defendants Blessing and Mortensen are said to have placed Kissinger on a six month-long Performance Improvement Plan, requiring her to attend the defendant’s Employee Assistance Program and notify supervisors of any changes to her work schedule, policies she said were not in place prior to hear leave and ones which other employees were allegedly not subject to.
When Kissinger reported to work late on July 31, 2017 due to issues with a prior-arranged appointment to move furniture from her office and called out of work on Aug. 2, 2017 due to side effects from her medication, she said she was terminated the following day.
“Defendant Mennonite Home gave as the rationale for termination that plaintiff did not call in and inform the defendant of her absences on July 31, 2017 and Aug. 2, 2017. Defendant Mennonite Home characterized plaintiff’s call offs as ‘no-call/no-shows.’ Defendant Mennonite Home accused plaintiff of violating the Performance Improvement Plan signed by plaintiff on July 18, 2017,” the suit claimed.
UPDATE
The defendants filed an answer to Kissinger’s complaint on Sept. 3, denying its assertions and declaring five affirmative defenses.
“Plaintiff’s claims are or may be barred by the applicable statute of limitations as may be determined by further discovery. Plaintiff did or may have failed to exhaust her administrative remedies as may be determined by further discovery, and any non-exhausted claims may be barred,” the answer stated, in part.
“At all times, the decision maker, Mennonite Home’s actions were based on legitimate, non-discriminatory business reasons and no unlawful factor motivated its decision regarding plaintiff’s employment. Neither defendants Mortensen nor Blessing is or may be individually liable to plaintiff based on the applicable statutes and the case law interpreting them. Defendants reserve the right to assert any and all defenses uncovered through discovery.”
For multiple counts of retaliation under and willful violation of the Family Medical Leave Act, discrimination and retaliation under the Americans with Disabilities Act of 1990 and discrimination and retaliation under the Pennsylvania Human Relations Act, the plaintiff is seeking a long list of reliefs including:
• A declaratory judgment that defendant’s actions complained of herein violate the FMLA, ADA and the PHRA;
• Injunctive and equitable relief prohibiting defendant from engaging in discriminatory practices;
• Monetary damages, including back pay and benefits and front pay and benefits, compensatory damages for the violations of the FMLA, ADA and the PHRA, plus punitive damages for violations of the ADA;
• Pre-judgment interest, reasonable attorneys’ fees, expert witness fees, and the costs and expenses of this litigation, and
• Such other legal and equitable relief as the Court may deem just and proper.
The plaintiff is represented by Sharon R. Lopez of Triquetra Law, in Lancaster.
The defendants are represented by Glenn R. Davis of Latsha Davis Yohe & McKenna, in Mechanicsburg.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-03000
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com