Labor & Employment Law Daily Wrap Up, DISCRIMINATION—W.D. Pa.: African-American nurse, caregiver for grandmother, stated associational discrimination claim against health network, (Jan 3, 2025)

By Jason Albright, J.D.

Her supervisor allegedly said she “had been blacklisted because she was stupid, always asking to leave her shift early, and was a problem.”

An African-American traveling RN who worked Allegheny Health Network (AHN), was a caregiver for her grandmother, and did not extend her contract with the network due to alleged “harassment and bullying” from a supervisor, may proceed with her ADA associational disability discrimination and Title VII race discrimination claims, but not her retaliation claims, a federal district court found. The RN sufficiently alleged that AHN was her employer, that it was aware of her association with her grandmother, who had been diagnosed with ovarian cancer, and that the RN was discriminated against on the basis of that association. She failed, however, to allege a protected activity under the ADA for purposes of her retaliation claims (Sitter v. Allegheny Health Network, No. 2:24-CV-00815-CCW (W.D. Pa. Jan. 2, 2025)).

Traveling RN at West Penn Hospital. The plaintiff, an African-American woman, began working for AHN as a traveling RN on December 12, 2022. She obtained the employment through Maxim, a staffing agency, and her employment contract was to run through March 10, 2023. As part of her 13-week contract, she was assigned to work at AHN’s West Penn Hospital in the GI Lab Unit.

Caregiver with two call-off days. The RN is a caregiver for her grandmother, who had been diagnosed with ovarian cancer. During the contract period, she was allotted two call-off days. On February 13, 2023, the RN became ill with food poisoning and used the first of her two call-off days. Then, on February 27, she used her second call-off day to visit her grandmother in the hospital.

Supervisor’s scrutiny and alleged harassment. She alleges that during her employment with AHN, her direct supervisor, the GI Lab Manager, subjected her “to a higher level of scrutiny than her similarly situated white counterparts who did not have an association with a disabled individual.” The supervisor allegedly consistently called her “dumb and incompetent... insinuat[ing] that African American Registered Nurses were too incompetent to be Registered Nurses.” The supervisor allegedly “mock[ed] and laugh[ed] at” her while she was performing her job and allegedly permitted other similarly situated white counterparts to do so as well.

Questioning of use of time off. She further alleges that the supervisor treated her “with discriminatory animus by questioning her requests to use her allocated time off.” An allegedly similarly situated white counterpart allegedly used her call-off days without issue from the supervisor, and other similarly situated white counterparts were allegedly permitted to leave early, though the RN was not.

“[B]lacklisted.” On March 6, the supervisor held a meeting with all the GI Lab unit employees in which she allegedly stated that the RN “had been blacklisted because she was stupid, always asking to leave her shift early, and was a problem.”

Contract to be extended nonetheless. Despite the supervisor’s comments, on March 9, a Maxim recruiter told the RN that AHN was going to extend the RN’s contract.

Cannot call off again “unless she dies.” On March 10, however, the supervisor had a meeting with the RN in which she “began to interrogate [the RN] about her recent call offs.” When the RN explained the reasons for her call-offs, the supervisor allegedly stated “You [RN] call off more than the permeant [sic] staff in the last few months. It needs to stop, you cannot call off again unless she [[RN]’s grandmother] dies.” The supervisor then proceeded to raise allegations of the RN’s past violations, including being on her cell phone and continuously requesting to leave her shift early.

Report to recruiter. The RN then immediately contacted her Maxim recruiter to report the supervisor’s “harassment and bullying.” On March 13, the RN told the recruiter that she would not be extending her contract with AHN due to the “harassment, bullying, and discrimination.” The recruiter told her that there was nothing she could do, but she said she would escalate it to her manager, which never happened. The recruiter also failed to escalate the RN’s complaint to Maxim’s HR department or to that of AHN.

Lawsuit. On June 5, 2024, the RN filed her complaint against AHN, alleging employment discrimination and retaliation based on her race and her association with a disabled individual. AHN moved to dismiss the complaint in its entirety.

Employer status. The court first found that the RN sufficiently alleged that AHN was her employer. She alleged that she began her employment with AHN in December of 2022 and was assigned to AHN’s GI Lab in the West Penn Hospital, indicating that she worked at an AHN hospital and used their instrumentalities and tools. She alleged that her contract ran through March 10, 2023, and that AHN determined whether or not to extend her contract, showing the duration of her assignment and AHN’s authority to terminate her employment. AHN also allegedly controlled her day-to-day employment through the supervisor, her direct manager, and the AHN GI Lab Manager. Finally, she indicated that it was AHN, not Maxim, who paid her.

Adverse employment action. She also sufficiently alleged an adverse employment action, according to the court, specifically constructive discharge. She asserted that she was consistently called dumb and incompetent, that she was mocked and laughed at, and that she faced discrimination, harassment, and bullying throughout her employment. The supervisor allegedly threatened to blacklist her from future employment, and she allegedly altered the RN’s job responsibilities. At this stage of the case the court found that she thus pleaded “enough facts to raise a reasonable expectation that discovery will reveal evidence” of whether she was constructively discharged.

Associational disability discrimination. Finally, the RN sufficiently alleged an associational disability discrimination claim under the ADA. AHN asserted that she failed to allege that she made it aware of her association with a disabled individual, but the court was unpersuaded. The RN alleged, for instance, that during a meeting on March 10, 2023, the supervisor told her that she could not call off again unless her grandmother dies. This, the court said, “implies that [the supervisor], an AHN manager, was aware of [the RN’s] association with a disabled individual.

The RN also sufficiently alleged that she was discriminated against on the basis of her association with a disabled individual, according to the court. Again, the supervisor’s alleged interrogation concerning her call-offs and comment regarding her grandmother was probative, as was the supervisor’s alleged statement that she was “blacklisted” from employment at AHN. The RN alleged that AHN constructively discharged her because she used her second call-off day to care for her grandmother. Such allegations, the court observed, are “facially plausible and give fair notice to [AHN] of the basis of [[the RN’s]] claim.”

ADA protected activity. The court nonetheless dismissed the RN’s ADA retaliation claim for failure to allege a protected activity. Merely informing an employer of one’s association with a disabled individual is not protected under the ADA. Nor did the RN allege that she actually requested any accommodations under the ADA.

PHRA retaliation claim. Finally, the RN’s retaliation claim under the Pennsylvania Human Relations Act (PHRA) was likewise dismissed. The PHRA is “analyzed under the same standards as its federal counterparts,” and because the court dismissed her ADA and Title VII retaliation claims, her PHRA retaliation claim fared similarly. The ADA and PHRA retaliation claims, however, were dismissed with leave to amend.

The case is No 2:24-CV-00815-CCW.

Judge: Wiegand, C.

Attorneys: Justin Michael Bahorich (J.P. Ward & Associates) for Ariel Sitter. Joshua Sallmen (Reed Smith) for Allegheny Health Network.

Companies: Allegheny Health Network

Cases: DisabilityDiscrimination RaceDiscrimination Discrimination Retaliation PennsylvaniaNews