Engle v. Physician Landing Zone

BRIEF in Opposition re Motion for Summary Judgment

W.D. Pa.February 27, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA KRISTEN ENGLE, Civil Action Plaintiff, No. 14-1192 v. Judge Kearney PHYSICIAN LANDING ZONE, a non-profit corporation, Defendant. JURY TRIAL DEMANDED PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Samuel J. Cordes John E. Black, III Pa.I.D. #54874 (Cordes) Pa.I.D. #83727 (Black) Samuel J. Cordes & Associates 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Plaintiff Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 1 of 30 TABLE OF CONTENTS I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. A Reasonable Jury Could Conclude That Defendant Discriminated Against Engle by Refusing to Allow Her to Return to Work as a Surgeon . . . . . . . . . . . . 2 1. Engle establishes an ADA prima facie case of discrimination . . . . . . . . . 2 a. Engle was a qualified individual with a disability . . . . . . . . . . . . . 3 i. Defendant failed to conduct an individualized assessment 4 ii. Defendant was plainly wrong about Engle’s ability to do the job and treatment it claimed she needed to return to work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 b. Defendant bears the burden of proving that Engle was not qualified because she was a “Direct Threat.” . . . . . . . . . . . . . . . . 8 2. Engle can prove pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 a. A jury could believe Defendant did not return Engle to work because it perceived her as having PTSD . . . . . . . . . . . . . . . . . . 11 b. Defendant has repeatedly changed its decisionmaker . . . . . . . . . 12 C. A Reasonable Jury Could Conclude Defendant Retaliated Against Engle by refusing to allow her to return to work as a Surgeon . . . . . . . . . . . . . . . . . . . . . . 15 1. Engle also establishes a prima facie case of retaliation . . . . . . . . . . . . . . 15 a. Engle can establish a causal link between her protected activity and Defendant’s refusal to reinstate her . . . . . . . . . . . . . . . . . . . 16 b. The same evidence that establishes the causal connection also is evidence of pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 D. A Reasonable Jury Could Conclude Defendant Subsequently Fired Engle Because of Her Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. A reasonable jury could conclude Defendant fired Engle . . . . . . . . . . . . 17 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 2 of 30 a. Engle denies she was offered an opportunity to remain employed at a reduced salary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Mercadante’s notes and post-meeting memorandum do not mention any contract extension offer . . . . . . . . . . . . . . . . . . . . . 18 c. Dr. Edington admits he had no written offer for Dr. Engle . . . . . 18 2. Engle can offer sufficient evidence of pretext that Defendant fired her because of her disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3. Material disputes of fact exist on whether Dr. Engle was offered the chance to keep working for Defendant . . . . . . . . . . . . . . . . . . . . . . . . . 20 4. A jury could disbelieve Defendant terminated Dr. Engle for not generating enough money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 a. Defendant was aware not all of Dr. Engle’s work was billed and still used it against her . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 b. A reasonable jury could find that Defendant included the months Dr. Engle was on leave when calculating her productivity level 22 E. Engle Survives Summary Judgment on Her Claim That Defendant Retaliated Against Her by Refusing to Renew Her Contract and Firing Her Because of Her ADA Lawsuit and Charge of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 F. Material Disputes of Fact Preclude Summary Judgment on Defendant’s After-Acquired Evidence Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. An after acquired evidence defense is not even applicable because any alleged misconduct occurred after the employment decision was made . . . . . . . 23 2. Defendant relies on insufficient evidence for summary judgment to be appropriate on an affirmative defense . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 3. Engle had her supervisor’s permission to retain the records . . . . . . . . . . 25 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 3 of 30 I. Introduction Kristen Engle worked for Defendant, Physician Landing Zone (“Defendant”) as a surgeon. In April 2013, Engle’s son was critically injured in a bicycle accident. Engle had difficulty coping with the situation and went on Short Term Disability leave. During that time Defendant sent her to Dr. Lawson Bernstein for what it called an “Independent” Medical Examination. Unbeknownst to Engle Dr. Bernstein incorrectly diagnosed her with Post Traumatic Stress Disorder (“PTSD”). When Engle was ready to return to work, she following Defendant’s instructions and was cleared to safely perform as a surgeon by her own psychiatrist. Defendant, however, refused to reinstate her and has repeatedly changed its mind about who actually decided to keep her from working. Engle was finally reinstated to work five months after her doctor released her, when a third party psychiatrist provided Defendant with information regarding multiple errors in Dr. Bernstein’s diagnosis and treatment plan. When Engle returned in April 2014, Defendant made little attempt to support her practice. Indeed, she was not placed with the other surgeons or promoted like them. Defendant then failed to renew Engle’s contract claiming she did not generate enough revenue given her compensation. At the same time, however, Defendant did not even bill for all of Engle’s work and made no attempt to return Engle at all. Defendant has now moved for summary judgment on all counts. Defendant is not entitled to summary judgment. Engle files this brief explaining why. II. Argument. A. Legal Standard. On a summary judgment record, evidence of the non-movant is to be believed, while evidence supporting the moving party is given credence only when uncontradicted, unimpeached 1 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 4 of 30 and from disinterested witnesses. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000); Hill v. City of Scranton, 411 F.3d 118, 129 n. 16 (3d Cir. 2005). When deciding a motion for summary judgment, the Court’s function is not to weigh the evidence to determine the truth of the matter, or to evaluate credibility. See Montone v. City of New Jersey, et. al., 709 F.3d 181, 191 (3d Cir. 2013). Summary judgment is precluded if a fact issue exists that might affect the outcome of the suit under substantive, controlling law. Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013).Lichtenstein v. UPMC., 691 F.3d 294, 296 (3d Cir. 2012). B. A Reasonable Jury Could Conclude Defendant Discriminated Against Engle by Refusing to Allow Her to Return to Work as a Surgeon. 1. Engle establishes an ADA prima facie case of discrimination.1 The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . [her] discharge . . . [or] other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discriminating against an individual because of her disability includes, “denying employment opportunities to . . . [an] employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.” 42 U.S.C. § 12112(b)(5)(B). To establish an ADA discrimination claim, a plaintiff need only show she: (1) has a “disability;” (2) is a “qualified individual;” and (3) suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006); Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998)(en banc). 1Plaintiff also has a disability discrimination claim (Count III) pursuant to the Pennsylvania Human Relations Act. This claim is evaluated under the same standard as her ADA Claim. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). 2 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 5 of 30 Here, Defendant does not contest Engle has satisfied the 1st and 3rd elements.2 a. Engle was a qualified individual with a disability. To show she is a qualified individual with a disability Engle must only establish she can, with or without reasonable accommodations, perform the essential functions of the job. EEOC v. Hussey Copper, Inc., 696 F.Supp.2d 505, 517 (W.D. Pa. 2010) citing Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998). Under the ADA it is the employer’s burden to educate itself about the varying nature of an impairment and to make individualized determinations about affected employees before determining whether the employee can perform the essential functions of a position. Taylor v. Pathmark Stores, Inc. 177 F.3d 180, 193 (3d Cir. 1999). An employer who fails to recognize how a particular disability affects the individual employee acts at its own peril. As the Third Circuit explained: A belief that anyone with bipolar disorder or HIV infection is substantially limited in a major life activity is a conclusion about the effects of the impairment and only secondarily about the particular employee. An employer with such a belief is failing to make an individualized determination, as the ADA requires, and thus acts at its peril. If an employer believes that a perceived disability inherently precludes successful performance of the essential functions of a job, with or without accommodation, the employer must be correct about the affected employee's ability to perform the job in order to avoid liability; there is no defense of reasonable mistake. Any other outcome would defeat the ADA's attempt to eradicate what may be deeply rooted and seemingly rational presumptions about the abilities of the disabled. Taylor, 177 F.3d at 193. (emphasis added). Here, as described below Defendant failed to conduct an adequate individualized assessment 2Further, record evidence shows Engle satisfied these prongs of her prima facie case. Defendant’s repeated contention that it believed Engle was so mentally impaired for 6 to 12 months that she could not perform her job would allow a jury to conclude she was disabled. See Def’s Brf at 7; Moreover a forced medical leave and refusing to return an individual to work, as here is an adverse action that alters the terms and conditions ofr employment. Gaus v. Norfolk Southern Railway Corp., 2011 WL4527359 *12 (W.D. Pa. Sept. 28, 2011); Lanxon v. Crete Carrier, 2001 WL 1589627, *5 (D. Neb. 2001); Snyder v. Norfolk Southern Railway Corp., 463 F.Supp.2d 528, 534 (E.D.Pa. 2006)(Assuming employee’s medical disqualification from working an adverse action). 3 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 6 of 30 of Engle’s ability to perform the essential functions of the surgeon position and was also plainly wrong about the extent and nature of her disability. Accordingly, summary judgment is not appropriate. i. Defendant failed to conduct an individualized assessment. Defendant failed to conduct the necessary individual assessment of Engle’s ability to perform as surgeon. Rather than considering subsequent information it was provided from Engle’s treating psychiatrist, Defendant apparently chose to put stock in an earlier evaluation its contracted “Independent Medical Examiner” (IME) conducted related to Engle’s claim for STD benefits. (PSMF ¶¶11-12, 33). In determining that Engle was unable to perform the essential functions of her positions Defendant claims it relied on the August 23, 2013, Report that Dr. Bernstein wrote following his August 9th examination of Engle. (PSMF ¶33). That report was generated because Dr. Bernstein had been contracted by Defendant to perform an examination related to Dr. Engle’s claim for STD benefits. (PSMF ¶12). In that report, Dr. Bernstein claimed Engle suffered from PTSD and was disabled from performing as a surgeon, and that it would be impossible for to tolerate a hospital practice setting. (PSMF ¶¶14, 18). However, following Dr. Bernstein’s August 23rd report, Engle informed Defendant she was able to return to work and asked what she needed to do to return. (PSMF ¶¶21-23). Engle was informed she needed to be cleared by a psychiatrist to return to work. (PSMF ¶24). Engle then received permission from Defendant to see her long time psychiatrist, Dr. Tom Lewis, in California. (PSMF ¶26). Engle had been seeing Dr. Lewis weekly via Skype since her son’s accident and her medication was managed by her primary care physician Dr. Grumet.(PSMF ¶16). 4 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 7 of 30 Engle saw Dr. Lewis in California on September 16, 2013, more than a month after Bernstein saw her for the Short Term Disability IME. (PSMF ¶¶27-28). Dr. Lewis cleared Engle to return to work as a surgeon and completed the Return To Work checklist Defendant had specifically provided him. (PSMF ¶¶28-29). However, Defendant refused to return Engle to work even although it told her she could return if cleared by a psychiatrist and specifically approved Dr. Lewis to do so. (PSMF ¶32). In an October 23, 2013 letter, Defendant refused to return Engle to work even though she had provided exactly what Defendant required. (PSMF ¶31). The October 23 letter said the decision not to allow her to work was based on Dr. Bernstein’s August 9, 2013 Report even though it preceded Dr. Lewis’ release. (PSMF ¶33). Engle was given an opportunity to appeal the decision and provide all medical information she wished to be considered. (PSMF ¶34). In response to Defendant’s offer to allowt Engle to appeal the decision, Dr. Lewis provided a letter to Defendant stating Engle had fully recovered from the stressful event of her son’s accident; Engle was not disabled; and Engle was fully competent to resume her former duties as a surgeon. (PSMF ¶¶35-36). Dr. Lewis told Defendant to contact him for additional information. (PSMF ¶37). Defendant never contacted Dr. Lewis for additional information or requested his treatment notes. (PSMF ¶38). Instead, Defendant provided Dr. Lewis’s Return to Work Checklist and November 3, 2013 clearance letter to Dr. Bernstein. (PSMF ¶40). Dr. Bernstein then opined, again, that Engle suffered from PTSD and was unable to return to work and that Engle would need aggressive therapy to ever return to work again. Dr. Bernstein also opined at that time Engle was a safety risk because of her high dosage levels of her medication. (PSMF ¶69). However, Engle had been on the same dosage of the medication at the time of her hire with Defendant and had informed Defendant of such when she was hired. (PSMF ¶¶71-72). 5 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 8 of 30 In December of 2013, Defendant then insisted that in order for Engle to return to work at some point she would either need to treat with Dr. Bernstein himself or undergo the treatment plan Dr. Bernstein had recommended for PTSD. (PSMF ¶55). Defendant did so even though Engle had not been provided Dr. Bernstein’s Treatment Plan and Dr. Bernstein had specifically told Engle previously that he was not to treat her or provide treatment suggestions. (PSMF ¶58)(emphasis added). Maria Hare, head of Defendant’s Leave Management, even told Engle there was no mechanism for Engle to return to work. (PSMF ¶47). Engle, however, argued that she did not need additional treatment based on Dr. Lewis’s recommendation that had occurred after Dr. Bernstein 2013 IME, and that she did not even know what treatment Dr. Bernstein believed was necessary. (PSMF ¶¶58, 62). Engle also told Defendant she did not have PTSD. (PSMF ¶68). Engle continued to press both Hare and Defendant’s Human Resources Representative, Benson, for a return to work throughout the month of January. (PSMF ¶¶57, 61, 64, 73, 77). Finally, in February 2014, Defendant abandoned its requirement that Dr. Engle treat with Dr. Bernstein or undergo the treatment plan he recommended and instead allowed Engle to see a third party psychiatrist, Dr. Christine Martone, to conduct an examination of her fitness return to work and deal with the competing opinions of Dr. Lewis and Dr. Bernstein.3 (PSMF ¶¶79-80). 3A reasonable jury also could conclude that Defendant failed to make an individual assessment because Defendant has repeatedly changed who made the decision not to return Engle to work. In its brief Defendant places that decision and the individualized determination of when Engle was able to return to work on its Leave Management official Maria Hare. (Def’s Brf at 10). However, Defendant did not even identify Hare as the person who made the employment decision until after the other individuals Defendant had identified as decisionmakers repudiated their purported role in the decision. Given that Hare was not initially identified as the person who made the decision to not return Engle to work a reasonable jury certainly could conclude she did not conduct an individual assessment as she now claims. See Brief Section II.B.2.b. 6 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 9 of 30 ii. Defendant was plainly wrong about Engle’s ability to do the job and treatment it claimed she needed to return to work. Defendant’s purported reliance on Dr. Bernstein’s one time examination of Engle in the context of a STD claim and refusal to consider the subsequent opinion and release by her treating psychiatrist, Dr. Lewis proved costly as Dr. Bernstein was plainly wrong about Dr. Engle’s mental impairment; her need for a treatment plan and the safety risk because of medication usage. Engle met with Dr. Martone on February 18, 2014 for the examination regarding her fitness to return to work. (PSMF ¶81). Dr. Martone then issued a report. (PSMF ¶82). Like Lewis, Dr. Martone found Engle fully competent to safely return to work as surgeon. (PSMF ¶85). Dr. Martone also found that Dr. Bernstein’s diagnosis of PTSD was inaccurate. (PSMF ¶88). Indeed, Martone noted that Engle could not have had PTSD because Engle had not been the victim of the accident or witnessed her son’s accident. (PSMF ¶89). Martone instead found that the accident likely exacerbated Engle’s previous mood disorder. (PSMF ¶91). Dr. Martone also noted that the therapy plan Dr. Bernstein had recommended, and that Defendant insisted upon for Engle to return, was inappropriate because Engle did not have PTSD. (PSMF ¶92). Dr. Martone recommended no additional medical or psychiatric treatment for Engle. (PSMF ¶92). Instead, Dr. Martone suggested that Dr. Engle continue her practice of skyping weekly with Dr. Lewis and having her medication managed by Dr. Grumet. (PSMF ¶93). Dr. Martone did suggest that Dr. Engle should have her medication prescribed and managed by a local psychiatrist rather than Dr. Grumet. (PSMF ¶94). Finally, Dr. Martone also noted that while Engle’s dosage of Klonopin was high, she been on that dosage for years and functioned quite well. (PSMF ¶85). 7 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 10 of 30 b. Defendant bears the burden of proving that Engle was not qualified because she was a “Direct Threat.” In arguing that Engle can not satisfy the second prong of her prima facie case, Defendant claims Engle was “unqualified” because she was not capable of safely performing the essential functions of her surgeon position. (Def’s Brf at 6-7). Indeed, Defendant explicitly claims Engle was unqualified because she posed a “direct threat.” (Def’s Brf at 6-7). The ADA includes the defense that employers may set qualification standards that do not “pose a direct threat to the health or safety of others in the workplace.” 42 U.S.C. § 12113(b). However, courts in this Circuit repeatedly have held that when an employer asserts an employee is not “qualified” because she poses a direct threat, the employer has the burden of proof. See Gaus, 2011 WL 4527359 at *20-*21; Hussey, 696 F. Supp. 2d at 520; Clark v. SEPTA, 06-4497, 2008 WL 219223 at *10 (E.D. Pa. Jan. 25, 2008).4 When a defendant bears the burden of proof, it cannot obtain summary judgment unless it proves its defense so clearly that no rational jury could find to the contrary. See Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). Here, Defendant makes little effort to meet its burden. A reasonable jury could certainly conclude that Engle did not pose a “direct threat.” First, the direct threat defense “can only be invoked where a risk is significant. [B]ecause few, if any, activities in life are risk free, the [ADA] does not ask whether a risk exists, but whether it is significant.” Doe v. County of Center, 242 F.3d 437, 447 (3d Cir. 2001)(quoting Bragdon v. Abbott, 524 U.S. 624, 649 (1998)). “A slightly increased risk, a mere speculative or remote risk is insufficient; there must be a high probability of substantial harm.” Hussey, 696 F. Supp. 2d at 520. 4The Third Circuit has not yet decided this issue. See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 306 n.9 (3d Cir. 2007). This Court should follow the other district courts in this Circuit imposing the burden of proof on Defendant, particularly because “direct threat” is categorized as a “defense” under the statute. See42 U.S.C. § 12113(b). Nonetheless, even if Engle bears the burden of proof on the direct threat issue, summary judgment is still inappropriate. 8 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 11 of 30 Moreover, “a health care professional has the duty to assess the risk ... based on the objective, scientific information available to him and others in his profession. His belief that a significant risk existed, even if maintained in good faith, will not relieve him of liability.” Id. (quoting Bragdon, 524 U.S. at 649). The applicable regulations provide: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. 29 C.F.R. § 1630.2(r). Despite bearing the burden of proof Defendant makes little effort to apply any of the direct threat factors. Rather, Defendant simply states, The nature of the risk posed by Plaintiff (a general surgeon operating on patients) involved the health and safety of patients on whom Plaintiff would be operating, and the severity of risk was very high as the surgical patients could have experienced severe injuries or death. Dr. Bernstein also opined the duration of the risk was within the range of 6-12 months. (Def’s Brf at 7). When a treating physician opines that an employee is able to perform his job without great risk, this creates a factual issue precluding summary judgment on the direct threat defense. See Branham v. Snow, 392 F.3d 896, 908 (7th Cir. 2004)(criminal investigator’s doctor testified his risk of suffering a severe episode was 0.2% per year); Echazabal v. Chevron, U .S.A., 336 F.3d 1023, 1031 (9th Cir. 2003)(plaintiff’s treating physician testified he was not a direct threat); Gaus, 2011 9 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 12 of 30 WL 4527359 at *25 (multiple doctors opined that plaintiff could safely perform his job duties). Here, Engle’s treating psychiatrist, Dr. Lewis, opined that Engle could competently and safely perform the functions of the surgeon position after Dr. Bernstein’s August 9, 2013 examination of Engle. (PSMF ¶36). Moreover, when Defendant finally allowed Engle to undergo an fitness for duty examination by a neutral third party psychiatrist, Dr. Martone opined that not only could Engle safely perform as a surgeon, but, further, that Defendant’s very basis for concluding Engle could not safely perform as surgeon-namely Dr. Bernstein’s opinion Engle suffered from PTSD-was wrong. (PSMF ¶83, 88). Similarly, Dr. Martone further concluded that Engle did not need the 6-12 months of the treatment Dr. Bernstein recommended before she could perform her job safely. (PSMF ¶92). Under these facts a rationale jury certainly could conclude that there was no likelihood that potential harm could occur much less that there was potential for immanent harm. Further, given the 6-12 months of treatment that Dr. Bernstein recommended was not needed at all a jury could conclude there was no risk at all. See (PSMF ¶92)(noting Engle did not need the treatment Dr. Bernstein recommended). With respect to the second factor–the nature and severity of the potential harm–the potential harm, while highly unlikely, could, under certain circumstances, be severe. However, the potential severity of the harm is just one factor to be considered, and is not dispositive. Lewis v. Pa. State Police, 06-1162, 2010 WL 5287419 at *2 (W.D. Pa. Dec. 1, 2010)(Cercone, J.). In Lewis, The Court noted: “[t]he issue of severity of harm, while relevant, is not an independent avenue to summary judgment and does not, without more, warrant a finding that plaintiff was not ‘otherwise qualified’ for the state trooper position.” Id. at *2. Here, Defendant has only speculated that Engle could have caused death or severe injury to 10 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 13 of 30 a patient. See Def’s Brf at 7(not citing any record evidence that patients would suffer severe injury or death if Engle returned to work as a surgeon when released by Dr. Lewis). Further, since the likelihood of a harm was so remote, the potential for severe harm is even more remote. Thus, Defendant cannot prevail on a motion for summary judgment based solely on the mere possibility of severe harm, particularly when Defendant bears the burden of proof on this defense. 2. Engle can prove pretext. Defendant claims even if Engle has set forth a prima facie case, she cannot point to any genuine issues of material fact on whether its proffered reasons for her removal are pretextual or were otherwise motivated by discriminatory motive. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003); (Def’s Brf at 10). Engle may establish pretext by pointing to “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the proffered reasons” such that a “reasonable fact finder could rationally disbelieve the reasons and infer the employer did not act for [the asserted] non-discriminatory reasons.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Here the record shows both. a. A jury could believe Defendant did not return Engle to work because it perceived her as having PTSD. A plethora of evidence would allow a jury to conclude Engle’s disability motivated Defendant’s decision not to return her to work as a surgeon. Indeed, Defendant admits as much. Defendant has repeatedly argued it believed Engle was so impaired by PTSD that it could not return her to work because she was a safety risk. (Def’s Brf at 7-10). However, Engle did not suffer from PTSD and Defendant acted at its own peril even more so given that it had contradictory evidence of Engle’s ability to work from her own psychiatrist. The Third Circuit has held a plaintiff need not be the victim of negligence or malice; rather an employer’s innocent mistake (“which may be 11 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 14 of 30 the function of ‘goofs’ or miscommunications”) is sufficient to subject it to ADA liability. Taylor 177 F.3d at 182; Deane, 142 F.3d at 143, n. 4(whether employer was motivated by myth, fear or prejudice is not determinative of employee’s ADA claim).5 Given that Defendant repeatedly argued it did not return Engle to work because of its belief as to the extent of her mental impairment, a reasonable jury could certainly conclude that Defendant’s perceptions of Engle’s disability did in fact motivate defendant’s decision not to return her to work. Indeed, Defendant’s perceptions of Engle’s disability may even constitute direct evidence. See, Gaus, 2011 WL 4527359, at *12 (evaluating Defendant’s disqualifications of Plaintiff under direct evidence standard). b. Defendant has repeatedly changed its decisionmaker. There is also evidence from which a jury could disbelieve Defendant’s reasons for its actions. While Defendant now claims Hare made the decision not to return Engle to work, Defendant has presented oddly evolving answers to who actually decided she could not safely return to work after her disability leave until April 15, 2014 and who ultimately decided to return Dr. Engle to her position. These shifting alone explanations cast doubt on the veracity of each one. First, in its initial response to these questions, Defendant identified Dr. Goldfarb as the ultimate decision maker, and Dr. Mihok and Melissa Ferraro as people who participated in or assisted with the decision. (Def’s Response to Pl’s 1st Set of Interrogatories, A-273-309). This response was served April 20, 2016.6 The truth of this response was verified by Ferraro. 5However, a jury could find malice in Defendant’s actions as it told Engle she could see and be released by Dr. Lewis after she had seen Dr. Bernstein. (PSMF ¶26). However, Defendant then failed to follow that release. (PSMF ¶¶26, 32). 6When a party, like this Defendant, amends its Interrogatory Answers by changing its answers, both the original answer and amended answers to the Interrogatory are admissible. Nye v. Ingersoll Rand Co., 2011 WL 5513190 *7 (Nov. 9, 2011 DNJ); Alexander v. Del Monte Corp., 2011 WL 103560 *1 (E.D. Mich. January 12, 2011); A-J Marine v. Corfu Contractors, Inc., 810 F.Supp.2d 168, 183 (D.DC 2011)(recognizing even when pleadings are amended previous pleadings are admissible.) 12 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 15 of 30 On July 20, 2016, Defendant then provided amended responses to these questions. (Def’s Amended Response to Pl’s First Set of Interrogatories, A-308-314). For both questions, Defendant again named Dr. Goldfarb as ultimate decision maker, and Dr. Mihok as a participant. However, this time it replaced Ferraro’s name with Maria Hare. Nonetheless, Ferraro again verified the truth of this response. Although named twice as ultimate decision maker, Dr. Goldfarb repeatedly denied that he had any involvement in deciding when Dr. Engle could return to work. (PSMF ¶204). Goldfarb’s deposition occurred only one week after Defendant’s amended responses. Indeed, after reviewing the interrogatory responses and amendments, Dr. Goldfarb directly called them inaccurate. (PSMF ¶205). He further claimed had no authority to return Dr. Engle to work nor to keep her off work. (PSMF ¶206). Similarly, just one week after the service of amended responses which reiterated his participation in these decisions, Dr. Mihok denied any involvement. (PSMF ¶217). Specifically, he stated he was never asked to make a determination of whether Dr. Engle was fit to return to duty, and made no recommendation to that effect. (PSMF ¶218). He explained that his role was merely to decide whether or not to certify Dr. Engle’s short term disability leave. (PSMF ¶220). Like Dr. Goldfarb, he stated that Defendant’s responses to these interrogatories were inaccurate. (PSMF ¶221). On September 16, 2016, after being removed as a decision participant by Defendant’s amended responses, Ferraro was deposed. At that time she testified that despite Defendant initially naming her as a decision participant, she in truth had no role in determining how long Dr. Engle would be out of work. (PSMF ¶237). In fact, she stated, she did not even have an understanding of why Dr. Engle was not returning to work, and did not recall ever being told Dr. Engle was out for post-traumatic stress disorder. (PSMF ¶239. She also admitted that she had reviewed 13 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 16 of 30 Defendant’s first set of responses before verifying them as true, and that she had personal knowledge at that time that she had made no recommendations regarding Dr. Engle’s return to work despite being listed as doing so. (PSMF ¶246-247). Following these depositions, Defendant served a further amended response to these interrogatories on October 12, 2016. (Def’s Further Amended Response to Pl’s First Set of Interrogatories, A-315-322). These responses named only Maria Hare as decision maker. There was no longer any mention of Dr. Goldfarb or Ferraro, and Dr. Mihok was named only insomuch as he prepared reports approving Dr. Engle’s disability leave absence. It is evidence of pretext that the people Defendant claims to have made the decisions regarding Dr. Engle’s return to work do not own up to participating in the decision. In Sabbrese v. Lowe’s, 320 F. Supp.2d 311, 326 (W.D. Pa. 2004), a former employee brought retaliation claims under the ADA, the FMLA and the PHRA. Lowe’s store manager claimed the area resources manager instructed him to fire Sabbrese., while the area resources manager claimed he didn’t know of the termination until the day Sabbrese was fired. The district manager also claimed he was unaware of who made the ultimate decision to fire plaintiff. Chief Judge Conti of this Court held that the fact no one at Lowe’s acknowledged making the ultimate decision to fire plaintiff constituted a weakness, implausibility, inconsistency, incoherency, or contradiction that a reasonable fact finder could determine unworthy of credence, thus precluding summary judgment for the defendant employer. Id. Likewise, in Roney v. Allegheny Intermediate Unit, 568 Fed. Appx. 172, 174 (3d Cir. June 11, 2014), all the decision makers “disclaimed any responsibility or involvement in the decision not to rehire [the plaintiff].” The Third Circuit found this attempt to hide the decisionmaker, inter alia, created a genuine issue of material fact that precluded summary judgment. Id. 14 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 17 of 30 Likewise, in Roehrig v. W.G. Tomko, Inc., 2016 WL 2755177, at *3 (W.D. Pa. May 12, 2016), a defendant’s inability to identify who exactly fired a plaintiff supported denial of its motion for summary judgment. In Roehrig, this Court found summary judgment inappropriate where the employer attempted to explain the chain of events leading to Roehrig’s discharge but never precisely identified who fired him, and tried to “hide the ball” with respect to the decision maker. Id. Since Defendant repeatedly tried to hide the decisionmaker here and a reasonable jury could conclude not only that Defendant lied about who made the decision and why Engle was not returned from leave, but also calls into question the entire process. Moreover, based on Dr. Lewis’s release of Engle to work after Dr. Bernstein’s report a jury could conclude Defendant knew Engle was capable of safely returning to work, but still chose to refuse to return her and now the people who made the decision will not take responsibility for that action. Summary Judgment should be denied. C. A Reasonable Jury Could Conclude Defendant Retaliated Against Engle by refusing to allow her to return to work as a Surgeon. 1. Engle also establishes a prima facie case of retaliation. Engle also alleges Defendants retaliated against her for requesting a reasonable accommodation, in violation of 42 U.S.C. § 12203(a) by refusing to return her to her position as surgeon. To survive summary judgment on this claim Engle need only show: (1) she engaged in a protected activity; (2) Defendants took an adverse action after or contemporaneous with her protected activity; and (3) a causal link exists between her protected activity and the adverse action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006). Defendant concedes Engle engaged in a protected activity suffered an adverse action when Defendant refused to return her to work. (Def’s Brf at 11). Defendant only claims Engle can not establish a causal link between her protected activity and any adverse action. See (Def’s Brf at 11). 15 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 18 of 30 However, a reasonable jury could easily find otherwise. a. Engle can establish a causal link between her protected activity and Defendant’s refusal to reinstate her. Engle may rely on a broad array of evidence to establish causation. Marra, 497 F.3d at 302. She can rely on evidence of “unusually suggestive” temporal proximity to establish causation. Marra, 497 F.3d at 300. Other circumstantial evidence, including a “pattern of antagonism,” is also evidence of causation. Id.; Woodson v. Scott Paper Co., 109 F.3d 913, 922 (3d Cir. 1997). Moreover, although timing and ongoing antagonism have often been the basis for the causal link, a plaintiff may establish a causal connection for purposes of the prima facie case through other types of circumstantial evidence that support the inference. For example, a plaintiff may establish the connection by showing the employer gave inconsistent reasons for the employment action. Farrell, 206 F.3d at 281; see also Merkel v. Upper Dublin School Dist., 211 F.3d 782, 793-95 (3d Cir. 2000). Here, the timing of Defendant’s decision suggests causation. Further, as discussed above Defendant’s repeated change of the decisionmaker calls Defendant’s motivation into question. See (Plt’s Brf Section II.B.2.b.). b. The same evidence that establishes the causal connection also is evidence of pretext. Moreover, the same evidence of inconsistences and contradictions that establishes the causal link between Engle’s request and use of a reasonable accommodation in the form of time off and Defendant’s refusal to reinstate her also establishes pretext for her retaliation case. Farrell, 206 F.3d at 285-286. Accordingly, summary judgment should be denied on Engle’s claim that Defendant retaliated against her by refusing to reinstate her from leave. 16 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 19 of 30 D. A Reasonable Jury Could Conclude Defendant Subsequently Fired Engle Because of Her Disability. In Count IV Engle also contends Defendant refused to renew her contract and fired her because of her disability. (Second Amd Comp ¶¶18, 36, 40). While Defendant concedes Engle states a prima facie case it mischaracterizes Engle’s claim contending only that she alleges her contract was not renewed because of her disability and not addressing that in addition to not renewing the contract Engle alleges Defendant fired her. (Def’s Brf at 12-13). 1. A reasonable jury could conclude Defendant fired Engle. a. Engle denies she was offered an opportunity to remain employed at a reduced salary. Defendant contends Dr. Engle could have continued her employment had she accepted a pay cut, and it was prepared to allow her to stay. (PSMF¶¶138, 141). It further contends it was open to allow Dr. Engle to work at another hospital as a sort of “leased employee.” (PSMF ¶¶ 153, 156). Dr. Engle contests she was ever offered the chance to continue to work for Defendant at lower pay. (PSMF ¶106, 135). Indeed, she even told Defendant that while she expected a pay cut, she did not expect to be let go. (PSMF ¶136). She further contests that she was told she could work at another hospital as an employee of Defendant. (PSMF ¶¶148, 169). Indeed, it was made clear to her that she would have to pursue other opportunities on her own. Id. Thus, a genuine dispute of material fact exists over whether Dr. Engle was offered the chance to continue working for Defendant. Dr. Engle spoke to Dr. Edington prior to receiving her Notice of Non-Renewal letter. (PSMF ¶105). During this conversation, Dr. Edington never mentioned that her salary was too high or in need of reduction. (PSMF ¶105). Dr. Engle was also never offered the opportunity to stay on with the Allegheny Clinic if she would accept a lower salary during this call, and never told Dr. Edington 17 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 20 of 30 that she would not accept a lower salary if given the chance to continue working there. (PSMF ¶¶105-106). Similarly, during the Sept. 26 meeting with Dr. Edington, Dr. Engle was again never told that her job could be kept if she accepted a pay cut. (PSMF ¶135). Notably, Dr. Engle even said during that meeting she had expected to receive a pay cut, but had not expected to be eliminated. (PSMF ¶136). Dr. Edington responded by telling her that the decision to terminate her was “just business.” (PSMF ¶137). While Dr. Edington did bring up the possibility of Dr. Engle going to work elsewhere, it was made clear to her that she would have to pursue these opportunities on her own rather than as an employee of Defendant. (PSMF ¶148). Mercadante even told her that they felt it was not successful having an “inside physician” working at an “outside facility.” (PSMF ¶150). b. Mercadante’s notes and post-meeting memorandum do not mention any contract extension offer. Mercadante attended the September 26 meeting between Dr. Engle and Dr. Edington. Afterwards, she prepared a memorandum using notes she took during the meeting. (PSMF ¶144). Mercadante admits that her memo does not mention anything about Dr. Engle being offered a pay cut. (PSMF ¶144). She also admits nothing in the memo mentions Dr. Engle being able to stay with Allegheny Clinic at all. (PSMF ¶145). The only thing mentioned in the memo about employment referred to an employment opportunity at another hospital. (PSMF ¶144). c. Dr. Edington admits he had no written offer for Dr. Engle. Defendant’s claim that it planned to extend Dr. Engle’s employment if she would accept a salary reduction directly clashes with Dr. Edington’s admission that there was never any new contract or formal offer terms prepared for Dr. Engle. (PSMF ¶139). According to Dr. Edington, he and Dr. Engle discussed the possibility of a new contract 18 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 21 of 30 during the September 26 meeting. (PSMF ¶138). He further asserts that he communicated to her at that time that her salary would not be the same as what she had. Id. Yet, Dr. Edington admits he does not think he and Dr. Engle ever discussed specifics of any contract. (PSMF ¶139). He also admits no written contract or offer for Dr. Engle surfaced in that meeting. (PSMF ¶139). Further, no formal offer of contract extension or new contract was ever made to Dr. Engle at a later date. Dr. Edington concedes that during the October 11 meeting, there was no discussion about Dr. Engle being able to continue to work for Defendant if she took a pay cut. (PSMF ¶172). Thus, a jury could conclude Defendant fired Engle. 2. Engle can offer sufficient evidence of pretext that Defendant fired her because of her disability. Defendant argues Engle cannot show pretext on her termination claim. (Def’s Brf at 9). But the Third Circuit has long held that a plaintiff who has stated a prima facie case and offers evidence that would reasonably allow a factfinder to disbelieve the Defendant’s reason bears no additional burden of showing evidence of discriminatory animus. Burton, 707 F.3d at 430-31; citing Fuentes, 32 F.3d at 764. In Burton, the Third Circuit made clear a plaintiff contesting summary judgment may meet its burden of showing pretext in two alternative ways. Id. at 430. First, the Plaintiff may point to evidence that would allow the fact finder to disbelieve the employer’s proffered reason thus creating a genuine dispute of fact as to the credibility of the asserted reason. Id. In the alternative the plaintiff may point to evidence that indicates the employer acted with discriminatory animus. Id. The Plaintiff need not offer both to survive summary judgment. Id. Here, Dr. Engle can cast doubt on Defendant’s contention that she was told she could remain employed with Defendant if she took a pay cut. 19 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 22 of 30 3. Material disputes of fact exist on whether Dr. Engle was offered the chance to keep working for Defendant. As previously discussed, there are disputed of fact whether Defendant tried to retain at a reduced salary or terminated her. Since there are material disputes of fact as to whether Engle refused to take a pay cut or remain an employee of Defendant or was simply terminated, Summary Judgment should be denied. See, Burton, 707 F.3d at 430-431. In Burton, the Defendant claimed she resigned and it accepted her resignation. Id., at 428. In contrast, Burton denied she resigned and no one from the employer accepted her resignation. Id. In her deposition, Burton denied she told anyone she was resigning. Likewise, the decision maker admitted Burton never told him she resigned before he sent a letter accepting her resignation. Id. at 428. Rather, the decision maker testified he was told by two other employees that the plaintiff was resigning. Id. The district court accepted testimony of the employees who claimed that Burton told them she was resigning. Id. The Third Circuit reversed holding that the district court improperly made a credibility determination regarding the conflicting testimony as to whether Burton resigned. Id. at 428-29. The Third Circuit also held summary judgment was inappropriate on the discrimination claim because the conflicting testimony on whether Burton resigned called into question the employer’s proffered reason on why the plaintiff was separated. Id. at 430-31. Indeed, Burton’s testimony that she never told anyone she resigned, if accepted by the fact-finder, could allow a fact-finder to doubt the employer’s representation that the plaintiff had resigned. Id. at 431 citing Fuentes, 32 F.3d at 765; see also Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 320 & n. 2 (3d Cir. 2014) (A single non-conclusory witness’s testimony, when based on personal knowledge and directed at a material issue, is sufficient to defeat summary judgment. This remains true, even if testimony is 20 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 23 of 30 “self-serving.”). This case is factually similar to Burton and factual disputes between whether Engle refused to take a pay cut or was fired precludes summary judgment. 4. A jury could disbelieve Defendant terminated Dr. Engle for not generating enough money. Defendant argues that Dr. Engle’s contract was not renewed because her productivity level was not high enough to justify its financial investment. (Def’s Brf at 13). Dr. Engle can cast doubt on this reason. a. Defendant was aware that not all of Dr. Engle’s work was billed and still used it against her. When told her RVUs were not high enough, Engle informed Defendant she did not believe her RVUs were being counted appropriately. (PSMF ¶114). In support, she offered Dr. Edington her binder of un-billed RVUs. (PSMF ¶115). She also told Dr. Edington that they were failing to consider her RVUs from her work in Connellsville. (PSMF ¶116). In response, Dr. Edington told Engle he knew they had not billed for the charts and documentation she mentioned, and that he was not interested in her binder of un-billed materials. (PSMF ¶¶117-118). Dr. Edington was very aware of issues with Engle’s RVUs not being billed. He admits Engle told him not all of her services had been billed during the Sept. 26 meeting. (PSMF ¶125). He also admits an earlier conversation about it, because of a lot of billing confusion at that time resulting in unbilled items. (PSMF ¶¶129-131). William Sharpless, practice manager for the department of surgery, also recalls Dr. Engle telling him she thought not all of her work had been billed. (PSMF ¶134). Thus, Defendant was aware not all of Dr. Engle’s work had been counted in her favor when it claims to have terminated her for low productivity. On this factual record, a reasonable jury could easily determine that the given reason for Dr. Engle’s termination was pretextual. Indeed, a jury 21 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 24 of 30 could conclude Defendant did not even care about the revenue Engle generated given Defendant failed to even bill for it. b. A reasonably jury could find that Defendant included the months Dr. Engle was on leave when calculating her productivity level. Defendant claims that it calculated Dr. Engle’s anticipated productivity level by looking at her billing and RVUs prior to her disability leave. A reasonable jury could find otherwise. Dr. Edington testified that during the September 26 meeting he told Dr. Engle they looked at all the times she had been actively working to calculate her productivity. (PSMF ¶111). However, Dr. Engle was also told Defendant was concerned about its financial investment in her over the entire course of her employment, and that Defendant was thus interested in the RVUs for that period. (PSMF ¶112). Specifically, Defendant told her it had employed her for two years, and that during those two years they had spent nearly three-quarters of a million dollars on setting up her practice, including her salary, and that her RVUs were not high enough to pay her salary. (PSMF ¶113). Thus, a reasonable jury could find that Defendant looked at the entire period of Dr. Engle’s employment, including the six month period that Defendant forced her on leave and not allowed to return to work, in determining her productivity level.7 E. Engle Survives Summary Judgment on Her Claim That Defendant Retaliated Against Her by Refusing to Renew Her Contract and Firing Her Because of Her ADA Lawsuit and Charge of Discrimination. Defendant also has moved for summary judgment on Engle’s claim that Defendant retaliated 7Engle also offered evidence that Defendant did not support her when she returned from the leave. Indeed, Defendant did not advertise her or give her signage like the other physicians. (PSMF ¶98). Nor was she given networking opportunities like Dr. Tomsic who was hired after her. (PSMF ¶100). Indeed, Engle was not even put in the same clinical area as the other general surgeons. (PSMF ¶99). A jury could reasonably conclude that Defendant did this to harm Engle’s revenue. Further, a jury could also conclude when Defendant was forced to take Engle back after Dr. Martone cleared her to work that Defendant simply warehoused her in an out of the way place until her contract expired and it could dispose of her. 22 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 25 of 30 against her for having filed an EEOC Charge and lawsuit under the ADA regarding its earlier refusal to return her to work earlier (Count V). (Def’s Brf at 14). Again, Defendant says the adverse action is that it did not renew her employment contract. As discussed above significant evidence casts doubt on why Engle was terminated, including Defendant’s false claim she could have stayed if she took a pay cut; that Defendant failed to bill for all her hours; and that Engle’s practice was not supported by Defendant when she returned from leave. See (Plaintiff’s Brief Section D.2), and summary judgment is precluded on Count V. F. Material Disputes of Fact Preclude Summary Judgment on Defendant’s After- Acquired Evidence Defense. In addressing why Summary Judgment should be granted on Counts IV and V of Engle’s Complaint, Defendant claims that evidence acquired during discovery establishes conduct by Engle that would constitute a “separate and distinct reason” not to renew her employment agreement. (Def’s Brf at 14). In a remarkable lack of candor, Defendant fails to acknowledge that such an argument is an affirmative defense for which Defendant bears the burden of proof. See McKennon v. Nashville Banner Publ. Co., 513 U.S. 352 (1995); Ryder v. Westinghouse Electric Corp., 879 F. Supp. 534 (W.D. Pa. 1995) (Ambrose, J.). Moreover, Defendant also fails to mention that this after- acquired evidence doctrine cannot operate to bar all relief available to Engle, but can only limit her damages. McKennon, 513 U.S. 352. Generally, after-acquired evidence may bar reinstatement and limit back pay to the period prior to the discovery of the evidence. Id. at 352-353. Here, by Defendant’s own admission it did not learn of the misconduct until discovery in this case. (DSMF ¶70). 1. An after acquired evidence defense is not even applicable because any alleged misconduct occurred after the employment decision was made. Defendant’s After-Acquired Evidence claim fails here because the conduct at issue did not 23 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 26 of 30 occur until after termination decision was made, and could not be considered misconduct until after Engle was already terminated. However, in order to rely upon after-acquired evidence of wrongful conduct, a defendant employer must show that the conduct at issue was severe enough that the employee could have been terminated on those grounds alone if the employer had known of it at the time of discharge. McKennon, 513 U.S. at 362-63 (emphasis added). If the conduct at issue occurs after the termination decision is made, the after-acquired evidence doctrine is simply inapplicable. Nesselrotte v. Allegheny Energy, Inc., 2007 WL 3147038 at *7 (W.D. Pa. 2007). See also Ryder, 879 F. Supp. at 537. Here, Defendant argues if it had known Engle took patient records with her after termination, it would not have renewed her agreement. Thus, Defendant’s argument fails because it relies on conduct it could not have known about at the time it decided not to renew Engle’s contract to justify its decision, because that conduct had not yet occurred. Further, the alleged misconduct did not become misconduct until after Dr. Engle was terminated, and thus could not provided a basis for termination. Dr. Engle’s employment agreement required her to acquire patient authorization to remove Patient Records after her termination, and Mercadante’s affidavit refers to this rule. See (DSMF ¶¶66,71). Therefore, the alleged misconduct could not have occurred until after her termination and subsequent failure to obtain patient authorizations. 2. Defendant relies on insufficient evidence for summary judgment to be appropriate on an affirmative defense. Defendant also submits insufficient evidence to support its affirmative defense. On a summary judgment record, Defendant bears the burden of coming forward with evidence which would prove that claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1073, n. 2 (3d Cir. 1995). In Welch v. Liberty Machine Works, Inc., 23 24 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 27 of 30 F.3d 1403, 1405-06 (8th Cir. 1994) the court found an affidavit saying it “would have” terminated the employee for certain conduct was not enough to satisfy this burden absent policies or evidence to establish this was true. See also Massey v. Trump's Castle Hotel & Casino, 828 F. Supp. 314, 326- 27 (D.N.J. 1993) Here, Defendant offers no evidence of set procedures and practices. Instead, it offers only an affidavit from Mercadante and a section of an employment agreement. It offers no records of enforcement of the cited agreement section. See Monell v. Department of Human Services, 436 U.S. 658, 691 n. 56 (1978). Such evidence is insufficient to show that misconduct occurred prior to termination, or that Defendant had set procedures and practices of enforcing this section. 3. Engle had her supervisor’s permission to retain the records. Most importantly, Defendant is not entitled to Summary Judgment on its Affirmative Defense because the record shows Dr. Engle had permission to keep the patient records following her termination. Dr. Engle brought the records to her September 26 meeting with Dr. Edington to support her contention that not all of her work was being billed, and attempted to give them to him. (PSMF ¶186-189). In response, Dr. Edington told Dr. Engle he was not interested in the records, instructed her to keep them, and authorized her to take them with her when she left Defendant. (PSMF ¶190-191). Indeed, Dr. Edington admits he knew Dr. Engle had these records, as he remembers her bringing them to the meeting. (PSMF 192). He also agrees that Dr. Engle offered to give him the records, and claims he does not recall his response to that offer. (PSMF ¶197). Given this evidence, a reasonable jury could certainly doubt that Defendant would have fired Dr. Engle for doing something she was authorized to do by her supervisor. Accordingly, for all the above stated reasons, Summary Judgment on Engle’s termination claims based on the after-acquired evidence claim raised by Defendant is inappropriate. 25 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 28 of 30 Respectfully submitted, Samuel J. Cordes & Associates /S/ John E. Black, III Samuel J. Cordes John E. Black, III Pa.I.D. #54874 (Cordes) Pa.I.D. #83727 (Black) 245 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 281-7991 Attorneys for Plaintiff 26 Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 29 of 30 CERTIFICATE OF SERVICE I hereby certify on this 27th day of February, 2017, I served a copy of Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment via electronic mail upon the following: Martha Hartle Munsch Reed Smith Reed Smith Centre 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 mmunsch@reedsmith.com /S/ John E. Black, III John E. Black, III Case 2:14-cv-01192-MAK Document 62 Filed 02/27/17 Page 30 of 30