Failure to Use Progressive Discipline Dooms Hospital’s Summary Judgment Motion

By Rosemarie Lally, J.D. May 24, 2022
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Takeaway: This case serves as a reminder to employers of the importance of progressive discipline. The defendants claimed that the plaintiff yelled in several meetings, and the defendants told the court that discipline for such behavior would start at a suspension at the very least. Yet no progressive discipline was exerted by the defendants as required by the collective bargaining agreement. Further, the defendants' argument that the plaintiff's workplace complaints "were actually insubordinate and disruptive conduct" clearly falling outside the bounds of protected activity wasn't introduced until replying to the plaintiff's arguments against summary judgment. The court refused to consider these arguments because they were not timely raised. If properly implemented in a timely fashion, progressive discipline of the plaintiff could have fended off the inference of retaliatory motivation.

​Procedural deviations during a hospital employee's suspension and disciplinary hearing, including the lack of progressive discipline required by a collective bargaining agreement, could support an inference of retaliatory motivation related to her ongoing treatment for cancer, the U.S. District Court for the Northern District of New York held.

The plaintiff was hired by the hospital as a patient access representative in October 2012 and became a patient account representative (PAR) float in 2013. She was diagnosed with cancer in 2016 and began chemotherapy. The hospital granted two Family and Medical Leave Act (FMLA) requests in 2016. She returned to her position, performing the same work at the same wage, on April 17, 2017.

A departmental reorganization was announced May 4 and the PAR float position was reclassified, according to the employer. The plaintiff asserted that the position was eliminated, and the floats were reassigned to other jobs with the exception of herself. The employer claimed that the plaintiff's position had not yet been determined and that she was given a list of posted positions that she could bid on.

A conversation that day with the director of human resources was recalled differently by the two parties. The plaintiff claimed the HR director told her she should leave the hospital due to her medical condition and her deficient immune system, suggesting that she apply for Social Security or retire and apply for Medicare. The HR director recalled asking the plaintiff whether she was aware of her available options, including disability, Social Security disability and FMLA. Both parties agreed that the HR director clarified she was not being terminated.

The plaintiff then asked the business office director what her new position would be. The business office director testified that she told the plaintiff she didn't yet have the information to tell her about her position placement. The plaintiff told her she would not bid on other jobs and would not leave her position.

Following a May 11 meeting informing employees of new office layout changes, the plaintiff again approached the business office director to ask what her position would be. The plaintiff testified that the business office director became furious, said her position was eliminated and that she wanted the plaintiff out of her office by the end of the day, and threatened to call security immediately. The business office director testified that she did not recall the meeting.

The plaintiff then approached the director of human resources to complain about the way she was being treated. According to the HR director's account, the plaintiff was speaking in a raised voice and waving a finger at him, refused to stop engaging in this behavior, refused to meet with management to discuss her position change, and told him to fire her. The plaintiff disputes this, claiming that she said he could either charge her with insubordination or fire her for just cause.

The manager of labor relations and the plaintiff's union representative then met with her to speak about her conduct toward the HR director. The plaintiff refused to talk about her conduct and walked away, according to the union representative. However, the plaintiff claimed that the union representative told her she was being sent home and that if she did not leave, he would call security. She went home early.

The plaintiff was suspended for three days, although she contends she was suspended for 4.5 days. Her vacation time was used to cover the suspension; the plaintiff said she objected because she needed her vacation time for medical treatment, but the defendants said they did not recall her objecting. At a May 17 disciplinary meeting, she was given a week to decide whether she would exercise bumping and bidding rights or a severance option.

The plaintiff ultimately accepted a patient access representative position but claimed she did so under duress. On June 5, her first day in the new position, the union representative explained that she might have difficulty getting approval for leave requests because she lacked seniority. Concerned that taking time off for medical reasons would result in termination under the union contract, the plaintiff resigned later that day. The plaintiff denied she resigned, contending that she was constructively discharged.

She applied for Social Security disability benefits soon thereafter. The defendants claimed that the plaintiff's documentation to the Social Security Administration (SSA) stated that she "became unable to work because of her disabling condition on June 5, 2017." The plaintiff argued that she did not apply for disability benefits and that the SSA representative completed the forms on her behalf. Further, she argued the statement that she was "unable to work because of her disabling condition" is accurate as she was forced out of her job due to her disability.

The plaintiff sued the employer, alleging violations of the Americans with Disabilities Act (ADA) and the New York State Human Rights Law. The district court granted the employer's motion to dismiss in part but allowed the discrimination claim under the ADA and state law to proceed. An amended complaint was filed, and the hospital requested summary judgment.

In arguing the ADA failure-to-accommodate claim, the plaintiff asserted she was denied a reasonable accommodation: leave to attend her medical appointments. The hospital argued the plaintiff never made a request for time off that was denied and that her claim is also precluded by her representations to the Social Security Administration.

The court cited a holding in Brady v. Walmart Stores (2nd Cir. 2008), which stated that "even if no request is made, an employer has a duty to reasonably accommodate an employee's disability ... if the employer knew or reasonably should have known that the employee was disabled." If Brady applies, the court said, the employer is obligated to engage in "an interactive process with their employees and in that way work together to assess whether an employee's disability can be reasonably accommodated." However, neither party discussed Brady in their filings. Saying it could not rule on summary judgment until both sides fully briefed Brady's impact on the failure-to-accommodate claim, the court ordered the plaintiff to file a 10-page submission setting forth the Brady analysis and the defendants to file a 10-page opposition.

With regard to plaintiff's representations to the SSA, the court noted the plaintiff had explained in a deposition that she interpreted the statements to mean that her disability was the reason she was forced out and that if this were not the case she would still be working. "All that plaintiff needs to do at the summary judgment stage is to proffer a sufficient explanation for the apparent contradiction, and the court finds that a reasonable juror could conclude that plaintiff could 'perform the essential functions' of her job, with or without a reasonable accommodation," the court said. However, the court added that the plaintiff's statements in her application for benefits are not irrelevant in the litigation. "This, along with other evidence adduced at trial, might persuade a jury that plaintiff was unable to perform the essential functions of her job at the time of her departure from the hospital."

Turning to the hostile work environment claim, the court remarked that the record didn't show that the actions alleged to create a hostile work environment—including discussion about the plaintiff's FMLA balance, defendants' statements to the plaintiff and a supervisor's alleged reluctance to give her assignments—were related to her protected characteristics. The plaintiff didn't offer evidence to show that these actions, which occurred over two months, were sufficiently severe or pervasive to create a hostile work environment.

"[T]he cumulative effect of these actions would not allow a reasonable jury to conclude that 'the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' " the court found, granting summary judgment on the claim.

A constructive discharge claim requires proof of harassment more severe and pervasive than that required to show a hostile work environment claim. Since the plaintiff failed to show severe or pervasive conduct sufficient to support a hostile work environment claim, her constructive discharge claim also fails, the court held.

Analyzing the state law claims, the court found the plaintiff had produced evidence from which a reasonable jury could find defendants' reasons for suspending and disciplining her were false and pretextual. Procedural deviations during her suspension and disciplinary hearing, including the lack of progressive discipline required by the collective bargaining agreement, could support an inference of retaliatory motivation.

Further, forcing the plaintiff to use vacation time during her suspension can also be evidence of pretext. The plaintiff claimed she told the HR director that she had been repeatedly threatened with termination since becoming ill. She also asserted that management was aware that she used her vacation time for medical treatment. A jury could reasonably find that this specific form of discipline—in combination with the "very short gap of time" between her complaints and her suspension as well as the procedural irregularities that preceded her discipline—was to punish her for her complaints about discriminatory treatment, the court found.

The three hospital managers are not entitled to summary judgment on the plaintiff's claims of individual liability because the evidence shows that they participated in her disciplinary determination, the court concluded, denying their motion for summary judgment on this claim.

Buczakowski v. Crouse Health Hospital Inc., N.D.N.Y., No. 5:18-CV-0330 (Feb 7, 2022).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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