Warshaw v. Concentra Health Services

Citations: 719 F. Supp. 2d 484; 23 Am. Disabilities Cas. (BNA) 1356; 2010 U.S. Dist. LEXIS 59081; 2010 WL 2470881Docket: Civil Action No. 07-1994

Court: District Court, E.D. Pennsylvania; June 14, 2010; Federal District Court

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Brian Warshaw, the plaintiff, alleges discrimination and retaliation by his former employer, TEKsystems, Inc. (a subsidiary of Allegis Group, Inc.), in violation of the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). His claims are partly based on a drug test conducted by Concentra Health Services, which he argues was negligent in processing and reporting the results. The court held a hearing on April 6, 2010, regarding summary judgment motions from TEK, Allegis, and Concentra, as well as a motion from Warshaw to use an economic damages expert, which was granted.

Warshaw, diagnosed with attention deficit hyperactivity disorder (ADHD), applied for a position at TEK in fall 2004. He was incorrectly asked to take a drug test before starting a project with Drexel College of Medicine, as there was no request from Drexel for such a test. On December 3, 2004, Warshaw tested positive for methamphetamine due to his legal prescription for Desoxyn. Despite this positive result, TEK was informed that Drexel had not requested a drug test, and Warshaw was allowed to begin the assignment.

However, after just three days of work, Warshaw was terminated. TEK claimed the reason for his termination was a complaint about his comments regarding smoke breaks, which Warshaw disputes as false. Following his termination, TEK did not assign him to any further roles.

Warshaw had limited contact with TEK following his termination, which included a few contested phone calls to DuVall and a subsequent charge filed with the PHRA on June 3, 2005. A lawsuit was initiated in April 2007. In August 2007, TEK recruiter Emily Ciliberto reached out to Warshaw as part of a campaign to reconnect with former employees. Although Warshaw requested a position, Ciliberto never placed him in a job; she later learned of Warshaw's lawsuit from DuVall. Warshaw's discrimination claims under the ADA and PHRA stem from his termination from the Drexel assignment and TEK's failure to re-employ him. Specific counts assert that Warshaw was actually disabled or regarded as disabled, while other counts allege retaliation based on Ciliberto's inaction. Additionally, a negligence claim against Concentra for mishandling Warshaw's drug test is included. TEK and Allegis seek summary judgment on the discrimination and retaliation claims, while Warshaw seeks summary judgment on his retaliation claims. Concentra requests summary judgment on the negligence claim. Summary judgment is appropriate when no genuine issue of material fact exists, meaning a jury could not reasonably favor the non-moving party, and the court must draw inferences against the moving party. The case follows the McDonnell Douglas burden-shifting framework, requiring Warshaw to establish a prima facie case for discrimination, demonstrating his disability status, qualifications, and adverse employment action. For failure to hire, he must show he applied for a position that remained open after his rejection.

In Taylor v. Cherry Hill Bd. of Educ., the court discusses the procedural framework for establishing employment discrimination claims under the ADA and PHRA. If a plaintiff, such as Warshaw, did not formally apply for a position, they can substantiate their claim by showing that they either took reasonable steps to express their interest, were deterred from applying due to discriminatory practices, or believed that applying would be futile. To defeat a motion for summary judgment, the plaintiff must provide adequate evidence to support all elements of a prima facie case, which then shifts the burden to the employer to present legitimate, non-discriminatory reasons for any adverse employment action. If the employer meets this burden, the plaintiff must prove that these reasons are a pretext for discrimination, potentially by discrediting the employer's rationale or suggesting that discrimination was a motivating factor.

The defendants, TEK and Allegis, seek summary judgment based on several arguments: Warshaw is not considered disabled under the ADA or PHRA; he was discharged for a legitimate reason related to complaints about his conduct; and he cannot maintain a failure-to-rehire claim as the hiring decisions were made without knowledge of his ADHD or drug test, and there was no adverse action for positions he did not formally apply for. Additionally, the definition of disability under the ADA includes having a physical or mental impairment that substantially limits major life activities, having a record of such an impairment, or being regarded as having such an impairment. The EEOC regulations clarify that a substantial limitation is determined by the inability to perform a major life activity compared to the general population or being significantly restricted in performing such activities. Factors influencing this determination include the impairment's nature, severity, duration, and long-term impact.

Courts must evaluate ADA claims on an individual basis, with the Third Circuit indicating that only significantly limiting disabilities qualify for protection under the ADA. A key consideration is whether a condition is disabling when treated with medication. The plaintiff asserts he is disabled due to ADHD, which he claims substantially limits his abilities in working, thinking, and concentrating. Testimony from the plaintiff details how ADHD affects his attention, focus, and multitasking abilities. His treating physician corroborates that ADHD impacts his concentration, particularly on complex tasks. 

For an individual to be considered substantially limited in the activity of working, they must be significantly restricted in performing a class or broad range of jobs. Evidence suggests that when treated, the plaintiff is not precluded from performing a wide variety of jobs, as he has successfully held multiple positions since his ADHD diagnosis, including roles in unloading trucks, operating machinery, and computer work. Although the plaintiff claims he struggles in corporate environments and with fast-paced jobs, the record indicates numerous job opportunities remain available to him, leading to the conclusion that there are no material facts disputing his ability to work in different types of jobs.

Warshaw is not significantly limited in his ability to work or in major life activities such as concentrating and thinking. The evidence shows that he can perform a wide range of IT jobs, including work on the Drexel project and other roles at TEK, especially when medicated. His past employment history in the IT field further supports this. Although Dr. Herman noted that Warshaw's ADHD could present challenges in certain jobs, this assertion does not create a material issue of fact regarding his overall capabilities. The record indicates that Warshaw has not suffered substantial impairment in his cognitive functions, as common issues like occasional forgetfulness do not constitute a significant limitation. His difficulties with multitasking and focus are not severe enough to suggest substantial impairment, especially as he testified that his ADHD did not adversely affect his daily activities as of late 2004. Consequently, there is insufficient evidence to demonstrate that Warshaw is substantially limited in his ability to think or concentrate.

Summary judgment has been granted to TEK and Allegis on Counts I and IV of the amended complaint, which assert that the plaintiff is actually disabled. Under the ADA, an individual may be 'regarded as' disabled if they have a physical or mental impairment that is not substantially limiting but is treated as such by the employer, or if the impairment substantially limits major life activities due to others' attitudes, or if the individual is perceived by the employer as having a substantially limiting impairment without having one. The ADA aims to eliminate misconceptions about disabled individuals' abilities, and employers must accurately assess an employee's capacity to perform essential job functions to avoid liability. The plaintiff claims that TEK and Allegis regarded him as disabled due to his ADHD or a mistaken perception of illegal drug use. However, mere knowledge of the plaintiff's conditions is insufficient to prove that he was regarded as disabled. The plaintiff argues that the timing between when DuVall learned of his ADHD and drug test results, and his subsequent firing and lack of rehire, suggests that TEK regarded him as disabled. This inference, supported by similar cases, indicates that adverse actions taken shortly after an employer becomes aware of a disability may be based on the employer's belief about the employee's limitations. In this case, the timing of Warshaw's drug test and the actions taken by defendants after the test further support this inference.

Defendants argue that Warshaw's work on the Drexel project commenced after a positive drug test and prior to DuVall's knowledge of Warshaw's ADHD, suggesting that TEK had no valid reason to terminate him before the project. Despite this, a material fact issue exists regarding whether defendants perceived Warshaw as disabled. Defendants claim entitlement to summary judgment on Warshaw's discrimination claims due to his termination being based on a complaint by his supervisor, Patricia Pastras, regarding his comments about cigarette breaks. To counter this, Warshaw must provide evidence indicating that the reasons given by defendants are pretextual. 

Warshaw points to Pastras's deposition, which reveals she lacked memory of the incident and did not consider the comment sufficient for discipline. She clarified that only her supervisor had authority to recommend termination, and she was unlikely to request removal based on such a comment. This testimony introduces a genuine factual issue concerning whether Pastras indeed recommended Warshaw's termination, affecting the credibility of defendants' stated reasons. Consequently, the assertion of a nondiscriminatory reason does not warrant summary judgment, leading to the denial of defendants' motion regarding Counts II and V related to Warshaw's termination.

Additionally, TEK and Allegis argue Warshaw's discrimination claim regarding failure to rehire is unfounded since decision-makers were unaware of his disability. Warshaw counters by demonstrating TEK’s hiring practices, which involve recruiters checking the company's systems for applicant history and forwarding applications, indicating that his subsequent applications would have reached DuVall, who was aware of his disability and drug test results.

Defendants argue that evidence presented is mere 'speculation,' but Federal Rule of Evidence 406 allows for the use of evidence regarding an organization’s routine practices to demonstrate that actions taken were consistent with those practices. Testimony about TEK's general practices raises a genuine issue regarding whether DuVall received all applications from Warshaw. Evidence indicates any TEK recruiter could place applicants in available positions, suggesting a material fact issue about DuVall’s ability to place Warshaw in desired roles, countering defendants' arguments.

Regarding positions for which Warshaw did not formally apply, defendants assert he has not shown he took sufficient steps to express his interest, was deterred by discrimination, or believed applying would be futile. Warshaw claims to have made several unreturned calls to DuVall to indicate his interest; however, his deposition reveals these calls were related to a drug test, not job inquiries. While he applied for various positions at TEK, he did not communicate interest beyond those specific applications. Consequently, there is no evidence suggesting he did everything possible to convey his interest in other roles.

Regarding claims of being deterred from applying due to discrimination, there is no evidence showing he would have applied for additional positions had it not been for alleged discriminatory practices, effectively closing this avenue for his claims. Warshaw also argues he believed formal applications would be futile, but even if such a belief existed, it does not justify a claim of discrimination across all positions available through TEKsystems.

Plaintiff's ability to challenge positions is limited to those for which he has a "real and genuine interest," as established by precedent. A review of the record indicates no evidence of such interest in positions beyond those formally applied for, leading to the conclusion that plaintiff cannot leverage the third prong of the Newark Branch test. Consequently, defendants' motion for summary judgment is granted regarding Counts II and V, which will only pertain to his removal from the Drexel position and TEK's failure to hire him for positions he applied for. 

Plaintiff aims to pursue ADA and PHRA retaliation claims based on TEK's failure to rehire him following discussions with a recruiter, using both the McDonnell Douglas framework and a mixed-motives theory. TEK and Allegis seek summary judgment on both fronts, while plaintiff seeks it under the mixed-motives analysis. Under the McDonnell Douglas framework, to establish a prima facie case of retaliation, the plaintiff must demonstrate protected activity, an adverse employer action, and a causal connection between them. TEK and Allegis contend that there was no adverse action since Warshaw did not apply for new placements and did not communicate interest or believe that applications would be futile. They also argue no causal link exists between the lawsuit and the lack of placement, as the recruiter was unaware of the lawsuit's specifics and had already decided not to seek placements for Warshaw prior to learning of the lawsuit. 

Failure to rehire can constitute an adverse employment action, particularly if it dissuades a reasonable employee from making discrimination charges. However, such a failure is not actionable if the plaintiff did not apply for the position and the defendant was unaware of the plaintiff's interest. The ongoing debate centers on whether Warshaw meets any Newark Branch prong regarding the alleged adverse actions, and the applicability of this analysis within the context of retaliation claims remains unresolved following the Burlington Northern decision.

Plaintiff has established a genuine issue of material fact regarding whether he applied for job placements with TEK through Ciliberto, based on testimonies from DuVall and Cossitor. DuVall indicated that potential employees could express interest via a recruiter, leading to meetings and placements after reference checks. Cossitor confirmed that "cold calling" could result in recruitment, while Warshaw's past experience suggests direct resume submissions could yield placements. The evidence shows that Ciliberto contacted Warshaw for reengagement and that Warshaw sent her his resume, allowing a jury to reasonably conclude he applied for a job with TEK in 2007. 

Defendants argue that causation is not established since Ciliberto was unaware of Warshaw's lawsuit when she chose not to rehire him. Although knowledge of protected activity is crucial for establishing retaliation claims, it is undisputed that Ciliberto learned of the lawsuit later. The timeline is unclear, as Ciliberto spoke to Warshaw in August and September 2007, with no indication she discussed job placement during their exchanges. Ciliberto admitted to discussing Warshaw's lawsuit with DuVall before October 2007, suggesting a possible connection to her refusal to consider Warshaw for a position. 

Defendants contend that Ciliberto's knowledge of the lawsuit's existence, without knowledge of its specifics, is insufficient for causation. They reference a district court decision asserting that a decision-maker's awareness of a lawsuit does not meet the causation requirement if they lack knowledge of the claim's content. However, this decision was later reversed by the Sixth Circuit, indicating that such knowledge may still be relevant in establishing a causal link.

The Sixth Circuit expressed concern that supporting the district court's decision would encourage employers to intentionally ignore lawsuits against them and implement neutral policies that could deter individuals from suing. The court found it reasonable to infer that a corporate decision-maker, upon learning of a lawsuit, would seek to understand its content, especially given that the nature of the lawsuit was narrowed by the plaintiff's acknowledgment of its connection to a failed drug test. As a result, the defendants' motion for summary judgment was denied because the plaintiff, Warshaw, could demonstrate a causal link between his lawsuit and TEK's hiring decision. 

Additionally, the defendants could not claim summary judgment based on the assertion that other candidates were more qualified, as the plaintiff's evidence suggested that the lawsuit influenced hiring decisions. This evidence permitted a jury to question the legitimacy of the employer's stated reasons. 

While the plaintiff met the requirements of the McDonnell Douglas framework for retaliation claims, the court needed to evaluate the possibility of proceeding under a mixed motives theory related to the ADA and the PHRA. The Supreme Court's decision in Gross v. FBL Financial Services, which restricted mixed-motives claims under the ADEA, raised questions about whether similar limitations apply to the ADA. The Third Circuit indicated that Gross does not necessarily negate mixed-motives analysis for all non-Title VII statutes, but it remains uncertain whether this applies to the ADA. The court must carefully assess whether principles from one statute can be applied to another without thorough analysis.

Discrimination against individuals opposing unlawful acts or participating in investigations under the ADA is prohibited. The statute emphasizes that retaliation claims require "but-for" causation, meaning the protected characteristic must be a direct cause of the adverse action, as established in Gross v. FBL Financial Services. The term "because" in the ADA aligns with this requirement and is interpreted similarly in the Pennsylvania Human Relations Act (PHRA), which is generally aligned with federal anti-discrimination law. The PHRA's anti-retaliation provisions closely mirror those of the ADA, reinforcing the need for "but-for" causation in retaliation claims, despite the PHRA's broader language regarding discrimination. Thus, claims under the PHRA would not deviate from the causation standard set by the ADA, leading to the denial of the plaintiff's motion for summary judgment regarding mixed-motive retaliation claims.

The Pennsylvania Human Relations Act (PHRA) is to be interpreted consistently with federal statutes, specifically the Americans with Disabilities Act (ADA), as there is no provision in the PHRA mandating a differential interpretation. Consequently, the court denied the plaintiff's motion for partial summary judgment regarding Count VI of the complaint. Allegis argued it was not a proper defendant, but evidence presented by the plaintiff suggested significant operational intermingling with TEK, potentially sufficient to survive a summary judgment motion based on tests from labor law and Title VII precedents. However, the critical issue focused on whether Allegis played a role in the termination and non-rehire of Warshaw. The plaintiff conceded that only TEK employees were involved in these decisions, which undermined the claim against Allegis, leading to the conclusion that Allegis is not a proper defendant, resulting in granted summary judgment for Allegis.

In a separate matter, Warshaw alleged that Concentra breached its duty of care by improperly processing his urine sample and the drug test results. Concentra countered by asserting it owed no duty of care, that the plaintiff could not prove causation related to damages, and that the claim was governed by contract law, invoking the gist of the action doctrine. The court noted that Concentra's argument regarding the lack of a duty of care was contradicted by the Pennsylvania Supreme Court’s ruling in Sharpe v. St. Luke's Hospital, which establishes that such a duty is recognized.

The Sharpe court determined that a hospital, upon an employer's request, is obligated to exercise reasonable care in the collection and handling of an employee's urine specimen for drug testing. This duty is grounded in an analysis of five factors from Althaus v. Cohen: the relationship between the parties, the social utility of the defendant's actions, the nature of the risk and foreseeability of harm, the consequences of imposing a duty, and the overall public interest. In this case, the plaintiff approached the defendant with the awareness of the urine screening's purpose, indicating potential harm to the plaintiff's employment if negligence occurred. 

The court found that while the defendant's participation in drug testing is socially beneficial, any negligence could foreseeably impact the plaintiff's employment. Concentra, as the entity responsible for the collection and handling of the specimen, is uniquely positioned to minimize liability through reasonable actions. The increasing prevalence of employment-related drug testing underscores the public interest in ensuring that testing facilities act with due care to prevent errors resulting from negligence. 

Although Concentra claimed that its test result was accurate, the public interest rationale from Sharpe applies to situations where a drug test may incorrectly suggest illegal drug use. Thus, Concentra has a duty of care regarding the processing and reporting of the drug test results. Additionally, Concentra argued that Warshaw could not prove causation in his negligence claim related to his ADHD and employment decisions made by TEKsystems. However, the court found that a genuine issue of material fact exists regarding the connection between Warshaw's ADHD, the drug test result, and TEK's employment decisions. Consequently, Concentra's argument was dismissed as it did not add specificity related to its relationship with the plaintiff.

Concentra argues that Warshaw’s negligence claim is effectively a breach of contract claim, which is barred by the gist of the action doctrine. This doctrine precludes tort claims arising from a contractual relationship when the breached duties are contractual, liability is contract-based, and the tort claim duplicates the breach of contract claim. However, the documents cited by Concentra do not constitute contracts that obligate them to perform drug testing or report results accurately. The signed documents only authorize testing and disclosure of information but do not establish any promise or duty from Concentra regarding the testing process.

Additionally, Pennsylvania law maintains that negligence determinations are typically jury matters, unless the case is unequivocally free from doubt. In this instance, a reasonable jury could find Concentra negligent for reporting a positive test result while denying Warshaw the opportunity to explain the prescription drug that caused the result. There is also testimony indicating that Concentra failed to follow proper procedures for further testing, which supports the negligence claim. Consequently, the matter of negligence must be resolved at trial, leading to the denial of Concentra's motion for summary judgment.

Ultimately, TEK’s motion for summary judgment on certain counts is granted, while Allegis's motion for summary judgment is also granted.

The court's order from June 14, 2010, includes the following rulings: 

1. TEKsystems, Inc.'s Motion for Summary Judgment (Docket No. 60) is granted in part and denied in part. It is granted concerning Counts I and IV of the First Amended Complaint, and Counts II and V to the extent that they relate to TEKsystems' failure to rehire the plaintiff for positions he did not formally apply for. The motion is otherwise denied.

2. Allegis Group Inc.'s Motion for Summary Judgment (Docket No. 60) is granted in full.

3. The plaintiff's Motion for Partial Summary Judgment (Docket No. 58) is denied.

4. Concentra Health Services's Motion for Summary Judgment (Docket No. 57) is denied.

Additionally, it is noted that Qualisys was initially a defendant but was withdrawn from the case by the plaintiff on January 7, 2009. The court recognizes that the 2008 amendments to the ADA do not apply retroactively to the plaintiff's claims, which occurred before the amendments became effective. Therefore, pre-amendment standards are applicable. There is a note regarding the level of deference to EEOC regulations interpreting the ADA, with acknowledgment that both parties referenced provisions from 29 C.F.R. 1630.2. The amended complaint alleges that the plaintiff is substantially impaired in his ability to interact with others, but this argument is not advanced in the current motion. The plaintiff has not linked his numerous job changes directly to his ADHD, nor has he provided a compelling argument to support his claims of substantial limitation in work ability. The court finds that Pastras's testimony alone is adequate to preclude summary judgment for TEK and Allegis, and additional evidence from the plaintiff is not necessary at this stage. Defendants' argument regarding the knowledge of Warshaw's ADHD in the context of his firing is deemed to misinterpret witness depositions, as DuVall could not confirm whether he informed Kaniewski about the plaintiff's ADHD.

Kaniewski's deposition reveals uncertainty regarding prior communications, admitting it was "possible" such discussions occurred, and acknowledging DuVall indicated a reason for the plaintiff's failed drug test, suggesting Kaniewski might have known about Warshaw's ADHD. The deposition also shows that Warshaw became increasingly discouraged over time about applying for IT jobs, although there is no indication this discouragement was present immediately after losing his job in early 2005. Pennsylvania's public policy promotes employment rights without discrimination based on various factors, including disability. The document references the case Anderson v. Upper Bucks County Area Vocational Tech. Sch., which diverged from federal precedent on pregnancy discrimination, and notes no Pennsylvania Supreme Court decision supports mixed-motive retaliation claims under the Pennsylvania Human Relations Act (PHRA). While the parties dispute the relevance of federal drug testing guidelines, it is determined that Concentra has a duty of care regarding Warshaw's drug test, negating the need to establish the federal standards' role at this stage. Concentra claimed it was authorized to release documents to TEK, but did not argue that any forms constituted a release from liability, leaving that issue unaddressed.