ALLENTOWN – The former director of dining services at a Lancaster retirement home community has prevailed in her wrongful termination-related disability lawsuit, winning a judgment of $812,036.
JoBeth Kissinger first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 22, 2020 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.
The defendants filed an answer to Kissinger’s complaint on Sept. 3, 2020, 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.”
UPDATE
After a three-day bench trial in early August, U.S. District Court for the Eastern District of Pennsylvania Judge Berle M. Schiller found in the plaintiff’s favor and awarded her $812,036. This total value is comprised of back pay of $296,514, liquidated damages in the amount of $296,514 and front pay of $219,008.
“The parties do not dispute that Kissinger was an ‘eligible employee’ under the FMLA or that Mennonite Home is an ‘employer’ subject to the Act. The parties dispute, however, whether Kissinger was entitled to FMLA leave and whether she provided Mennonite Home with sufficient notice of her intention to take FMLA leave. The Court finds for Kissinger on both of these issues, and also finds that Mennonite Home denied Kissinger benefits to which she was entitled under the FMLA. Kissinger has thus successfully established that Mennonite Home interfered with Kissinger’s rights under the FMLA,” Schiller said.
“Mennonite Home knew of Kissinger’s anxiety and depression. Further, Kissinger requested a reasonable accommodation on June 8, 2017, when she emailed Blessing and Sauder asking them to ‘Please help’ and ‘PLEASE advise what’s best,’ including potentially ‘[intermittent] FMLA.’ Finally, although Mennonite Home never offered evidence on whether an accommodation would place an undue hardship on their business, the fact that Mortensen was willing to modify Kissinger’s schedule following her late arrival on July 31, 2017 demonstrated that flexible work hours would not have been difficult to implement whatsoever. The Court thus finds that Mennonite Home discriminated against Kissinger on the basis of her disability by failing to provide her with a reasonable accommodation as required by the ADA.”
The Court ruled in favor of Kissinger on her FMLA interference, ADA discrimination and PHRA discrimination claims against Mennonite Home, and did not find in her favor on her FMLA retaliation claims against Mennonite Home, Blessing and Mortensen, and ADA retaliation and PHRA retaliation claims against Mennonite Home.
The plaintiff was represented by Andrea C. Farney and Sharon R. Lopez of Triquetra Law, in Lancaster.
The defendants were represented by Glenn R. Davis and Andrew P. Dollman 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