CCasaese2:20:50-8m-ccv--0021032558-GLDLo-cCuBmeDnto1c3u3m9ent 1FileFdile0d90/390/3/200/08 PPagaege11ofo6f 6

IN THE UNITED STATES DISTRICT COURT
 FOR TIlE WESTERN DISTRICT OF PENNSYLVANIA


EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v,

)

LIFECARE MANAGEMENT SERVICES, LLC )

and

)

LIFECARE HOSPITALS OF PITTSBURGH, )

INC.,

)

)

Defendants.

)

CIVIL ACTION NO. COM P L A I N T JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title I and Title V of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Diana Altieri-Hand (Ms. Hand) who was adversely affected by such practices. As alleged with greater particularity in paragraph 12 below, the Commission alleges that Defendant Employers discriminated against Ms. Hand, Defendant's Business Manager, because of her disability, colon cancer, by subjecting her to disparate treatment in the terms and conditions of employment, failing to provide her with a reasonable accommodation, subjecting her to a hostile work environment, subjecting her to unfair discipline, and discharging her because of her disability. As a result of the disability discrimination, Ms. Hand sustained back pay losses, and severe emotional distress damages.
JURISDICTION AND VENUE I. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§ 451,1331,1337,1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans

1

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with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(£)(1) and (3) ofTitle VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5(f)(I) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981 a.
2. The unlawful employment practices alleged below were committed within the jurisdiction of the United States District Court for the Western District of Pennsylvania.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(1)(1) and (3),42 U.S.c. § 2000e-5(£)(1) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991,42 U.S.c. § 1981a.
4. At all relevant times, Defendant, LifeCare Management Services, LLC has continuously been a Louisana limited liability company doing business in the State of Pennsylvania and the City of Pittsburgh, and has continuously had at least fifteen (15) employees.
5. At all relevant times, Defendant LifeCare Management Services has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U,S.c.§ 12111(5), and Section 101(7) of the ADA, 42 V.S.c. § 12111(7), which incorporates by reference Sections 701(g) and (h) ofTitle VII, 42 V.S.c. §§ 2000e(g) and (h).
6. At all relevant times, Defendant LifeCare Management Services has been a covered entity under Section 101(2) of the ADA, 42 V,S.c. § 12111(2).
2

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7. At all relevant times, Defendant, LifeCare Hospitals of Pittsburgh has continuously been a Nevada corporation doing business in the State of Pennsylvania and the City of Pittsburgh, and has continuously had at least fifteen employees.
8. At all relevant times, Defendant LifeCare Hospitals of Pittsburgh has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.c.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) ofTitle VII, 42 U.S.C. §§ 2000e(g) and (h).
9. At all relevant times, Defendant LifeCare Hospitals of Pittsburgh has been a covered entity under Section 101(2) of the ADA, 42 U.S.c. § 12111(2).
10. Defendants LifeCare Management Services, LLC and LifeCare Hospitals of Pittsburgh, Inc. shall be referred to hereafter as "Defendants."
STATEMENT OF CLAIMS II. More than thirty days prior to the institution of this lawsuit, Diana Altieri-Hand filed a charge with the Commission alleging violations of Title I of the ADA by Defendants, her employers. All conditions precedent to the institution of this lawsuit have been fulfilled. 12. Commencing on or about July I, 2007, Defendants have engaged in unlawful employment practices at its hospital in Pittsburgh, Pennsylvania, in violation of Section !02(a) of Title I of the ADA, 42 U.S.C. §§ 121 12(a), by discriminating against Ms. Hand because she is disabled. The unlawful employment practices include, but are not limited to, the following: (a) In or about mid-August 2007, Defendants ceased providing Ms. Hand with the reasonable accommodation it had provided in the form of part-time work or working at home, and demanded that she return to work full time, with no limitations. These accommodations had
3


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initially been granted to Ms. Hand by Defendants in March, 2007, after she underwent colon cancer surgery and chemotherapy.
(b) After her return to full-time work, Defendants subjected Ms. Hand to disparate terms and conditions of employment by substantially increasing her responsibilities, requiring that she perform extensive data entry duties, and removing her full-time staff assistant.
(c) Defendants subjected Ms. Hand to a hostile work environment because of her disability through the actions of Ms. Hand's new supervisor, Michael Murray, Defendant's Regional Director of Finance. The hostile work environment took the form of intense scrutiny and increased daily harassment and verbal criticism by Murray of Ms. Hand's performance.
(d) Defendants subjected Ms. Hand to unfair discipline, and thereafter discharged her because of her status as a disabled person.
13. The effect of the practices complained of in paragraph 12 above has been to deprive Ms. Hand of equal employment opportunities and otherwise adversely affect her status as an employee because of her disability.
14. The unlawful employment practices complained of in paragraph 12 above were intentional.
IS. The unlawful employment practices complained of in paragraph 12 above were done with malice or with reckless indifference to the federally protected rights of Ms. Hand.
PRAYER FOR RELIEF
 Wherefore, the Commission respectfully requests that this Court:
 A. Grant a permanent injunction enjoining Defendants LifeCare Management Services, LLC and LifeCare Hospitals of Pittsburgh, Inc., their officers, agents, servants,
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employees, attorneys, and all persons in active concert or participation with it, fro discriminating against employees with disabilities.
B. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendants to make whole Ms. Hand, by providing rightful place instatement to her previous position or one comparable thereto along with appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
D. Order Defendants to make whole Ms. Hand by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 12 above, including past and future out of pocket expenses, including medical expenses, in amounts to be determined at trial.
E. Order Defendants to make whole Ms. Hand by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 12 above, including losses due to emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant to pay Ms. Hand punitive damages for its malicious and reckless conduct, as described in paragraph 12 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.
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JURY TRIAL DEMAND The Commission requests a jury trial on all questions offact raised by its complaint.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION RONALD S. COOPER GENERAL COUNSEL JAMES L. LEE DEPUTY GENERAL COUNSEL GWENDOLYN YOUNG REAMS ASSOCIATE GE:-lERAL COUNSEL WASHINGTON, D.C.
~~P/ p(>~ [Q213) ACQU LINE H. McNAIR REGIONAL ATTORNEY
~~ (1. O)t%zk
UDITH A. O'BOYLE SUPERVISORY TRIAL Al'.TORNEY
J m, ~ Cbtd~c~r:5 M. JEAit'tUCKNER TRIAL ATTORNEY PA. J.D. No. 42738 Pittsburgh Area Office Liberty Center, Suite 300
1001 Liberty Avenue Pittsburgh, PA 15222 (412) 644-6439 (direct dial) (412) 644-4935 (facsimile)
6


 
 Case 2:08-cv-01358-GLL-CB Document 8 Filed 10/20/08 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

LIFECARE MANAGEMENT SERVICES, LLC )

and

)

LIFECARE HOSPITALS OF PITTSBURGH, )

INC.

)

)

Defendants.

)

)

CA 08-1358 Honorable Judge Terrence F. McVerry JURY TRIAL DEMANDED (Electronically filed)

INTERVENOR’S COMPLAINT

AND NOW, comes the above INTERVENOR/Plaintiff, (hereinafter “Plaintiff) by and

through her counsel, Helen R. Kotler, Esquire, and David F. Weiner, Esquire and files the following

Complaint:

PRELIMINARY STATEMENT

1. This is an action brought pursuant to the Americans with Disabilities Act, as amended,

hereinafter the “ADA” and the Age Discrimination in Employment Act of 1967, as amended,

hereinafter the “ADEA.” This action seeks declaratory, injunctive and equitable relief;

compensatory, and punitive damages; and costs, expenses, expert witness fees and attorneys’s fees

for the unlawful practices of discrimination based on her disability, perceived disability or history

of a disability, colon cancer, and retaliation under the ADA and ADEA for complaining of

harassment and filing a charge of discrimination. Plaintiff asserts that she was subjected to a hostile

environment and retaliation after complaining of said environment. This case is also brought

pursuant to §§ 502 and 510 of the Employment Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. §§ 1132 and 1140 of ERISA and pursuant to the Family and Medical Leave Act of 1993

Case 2:08-cv-01358-GLL-CB Document 8 Filed 10/20/08 Page 2 of 24
(29 U.S.C. § 2615.) Further, Plaintiff also brings this case pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951 et seq.
I. Parties 2. Plaintiff Diana Altieri Hand (“Altieri-Hand”) resides in Murrysville, Westmoreland County, Pennsylvania, located in the Western District of Pennsylvania. 3. At all relevant times, Defendants have continuously been an employer engaged in an industry affecting commerce within the meaning of §101(5) of the ADA, 42 U.S.C. . §12111(5) and Section 101(7) of the ADA, 42 U.S.C. §1211(7) which incorporated by reference sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 4. Defendants are engaged in an industry affecting commerce, as defined in Section 11(h) of the ADEA, 29 U.S.C. §630(h). Defendants employed twenty or more employees at all times relevant to this action. Defendant is “an employer” within the meaning of Section 11(b) of the ADEA, 29 U.S.C. §630(b).
II. Jurisdiction and Venue 5. Jurisdiction of this Court is invoked pursuant to the ADA and under 28 U.S.C. §§28 451, § 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990,42 U.S.C. 12117(a), which is incorporated by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964(“Title VII”) 42 U.S.C. §§20003-(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. It is invoked pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. which incorporates by reference Section 16(b), 29 U.S.C. §216(b), of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. Further,
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Plaintiff invokes §§ 502 and 510 of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132 and 1140 of ERISA and 29 U.S.C. § 2617 of the Family and Medical Leave Act. Plaintiff invokes the doctrine of pendent jurisdiction as to her claims asserted pursuant to the Pennsylvania Human Relations Act. 6. The Plaintiff worked for Defendants at a site located in Wilkinsburg, Pennsylvania in Allegheny County and all unlawful employment practices alleged below were committed within the jurisdiction of the United States District Court for the Western District of Pennsylvania.
Exhaustion of Administrative Remedies 7. Prior to filing this Complaint to intervene, Plaintiff timely filed a written charge alleging claims of discrimination based on disability, age, harassment and retaliation with the EEOC which was cross-filed timely at the PHRC. 8. The Plaintiff has filed this action subsequent to the expiration of sixty (60) days from the filing of a charge of age discrimination with the EEOC. 9. On July 18, 2008, the EEOC issued a Determination, finding a violation of the ADA with respect to harassment, terms and condition, failure to accommodate, discipline, and discharge. 10. On or around September 30, 2008, the EEOC, per its prerogative and right, filed a suit against Respondents for violations of the Americans with Disabilities Act which is pending in the Western District of Pennsylvania at CA-08-1358.
FACTS 11. Plaintiff, a female, was age 46 at the time of her termination. 12. Plaintiff was hired by Forbes Health Systems (Forbes) on or around June 17, 1978 and worked there for approximately 21 years when around August of 1999, Forbes Metropolitan
3

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Hospital was purchased by Defendant LifeCare Management Services. 13. While employed with Defendant until September 28, 2007, Plaintiff was the business office manager of one of its subsidiaries, LifeCare Hospitals of Pittsburgh. 14. For most of the almost twenty nine years of Plaintiff’s employment with Defendant or its predecessor, she was located at the same desk occupying the same position and performing the same or similar duties both before and during her employment with Defendant. 15. On or around November 10, 2006, while employed by Defendant, Plaintiff was diagnosed with a form of colon cancer which has a strong hereditary component, termed Nonpolyposis colorectal Cancer or Lynch Syndrome, all of which she disclosed to her employer. 16. Pursuant to the provisions of the Family and Medical Leave Act (“FMLA”), Plaintiff took a leave of absence from work and underwent surgery on December 7, 2006, resulting in the removal of her large intestines and a total hysterectomy. 17. Thereafter, on or around January 30, 2007, Plaintiff began a course of treatment, including chemotherapy. 18. While on FMLA, Plaintiff’s supervisor and others, including an employee who reported to her, handled her duties with Plaintiff’s help as she called in with assistance. 19. On or around February 28, 2007, Defendant’s Human Resources department notified Plaintiff that her FMLA benefits had ended On February 5, 2007 and she was terminated effective the same day of the letter although she had been in discussions with her former supervisor about returning to work on a part time basis. 20. At the beginning of March 2007, Plaintiff’s physician approved her to return to work on a part time basis and thereafter, her former supervisor was able to convince some managers to
4

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accommodate Plaintiff by permitting her to work at home and to come onto the office periodically as her health permitted, in that she was receiving chemotherapy and suffered from side effects and had a compromised immune system. 21. During the period that Plaintiff was off work, she received short term and long term disability benefits under Defendant’s ERISA plan. 22. In or around March 2008, Plaintiff told Rick Pletz, the newly named CEO of Lifecare in Pittsburgh about her condition, that she was on chemotherapy and that she had a predisposition for recurrent cancer due to the nature of the cancer which would require careful screening for the rest of her life. 23. Defendant replaced Plaintiff’s former supervisor with Michael Murray, an employee newly hired into their corporate offices in Plano, Texas on or around June 17, 2007 who worked in the Pittsburgh area a few days per week. 24. Plaintiff informed Murray, the Regional Director of Finance, that she was working twenty-four hours per week, some at home on her laptop, and informed him that she was in chemotherapy, and that her hands and feet were swollen. 25. On or around June 29, 2007, Murray removed one of Plaintiff’s direct reports in the Business Office to another position after which Plaintiff explained to Murray that this elimination would impact her ability to complete all of the work in the office. 26. In or around mid-July 2007, Murray told Plaintiff that he was eliminating the “part time Business Office Manager position” effective September 1, 2007 and if she wished to continue to work, she would have to work full time as of September 1, 2007 and then informed Plaintiff by e-mail of August 2, 2007, that not only was he requiring her to return to work full time but she
5

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would have to submit a “full-duty” release by August 17, 2007. 27. At that time, Plaintiff was still undergoing chemotherapy which caused her to suffer from severe fatigue, nausea, vomiting, severe diarrhea, body pains, anemia, and sleep deprivation particularly for the first forty-eight hours after the chemotherapy and then her symptoms diminished somewhat until the next treatment. 28. Informed of Murray’s ultimatum and his refusal to continue accommodating her, and of Plaintiff’s potential loss of health insurance benefits, Plaintiff’s physician reluctantly allowed Plaintiff to return to work on a full time basis which she did although she was still at risk for infection, had neuropathy, severe diarrhea, a lack of stamina, and was not sleeping well. 29. The doctor would not have released Plaintiff to return to work in September if he were aware that she would be required to work more than forty hours per week. 30. Plaintiff continued in chemotherapy until August 27, 2008, the last day of her treatment. 31. When Plaintiff returned to work, she still suffered pain, swelling of the wrists, hands, and feet, neuropathy which is an on-going condition, and her stamina was low. 32. Additionally, Plaintiff suffers from diarrhea and the need to use the rest room frequently due to the surgical intervention on her bowels. 33. From in or around July 2007, in addition to requiring her to return to work without restrictions by September 1, 2007 or be fired, Respondents began a harassing and onerous course of conduct against Plaintiff which included telling her in August 2007 that she could speak to no other employees for more than 10 seconds although her duties were service oriented. 34. Within a few days of her return, on September 7, 2007, Defendant issued a First Written Warning to Plaintiff, who had never received a written warning in her 29 years of employment,
6

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and threatened her with termination. 35. On or around September 10, 2008, Plaintiff approached Robin Arslanpay, the on-site Director of Human Resources since in or about February 2008 about Murray’s conduct toward her, the First Written Warning she received, and discussed some of the limitations that she had, including bathroom limitations, issues with swelling and numbness in hands, and total exhaustion. 36. Murray’s and Defendants’ discriminatory and harassing conduct was for the purpose of causing her to quit her position or to create a means to terminate her. 37. Murray’s and Defendants’ discriminatory conduct includes but is not limited to the
following: a. By assigning Plaintiff additional duties on her return to work. b. For instance, when Plaintiff returned to work on a full time basis she learned that
one of her direct reports was removed from her and moved to a different position and was permitted to support Plaintiff only 2-3 hours per week even though previously, in or around May 2007, another of Plaintiff’s direct reports who worked for her before she became sick was moved and thereafter Plaintiff was assigned about 30% of her duties when she returned to work. c. When she returned to full time work on or around September 1, 2007, Plaintiff was forced to work nine hour days without lunch in order to try and complete her assignments. d. Murray, although aware of Plaintiff’s condition, began to put more pressure on her and held her to a different standard from which other managers were held.
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e. Murray ignored Plaintiff’s complaints that he was putting too many demands on her, and that she needed help, seemed not to want to speak with her and told her to just do what he said to do.
f. Rather than assign a competent worker to Plaintiff or returning one of her former direct reports, around mid-September 2007, a temporary worker was assigned who was unable to do the work causing much of Plaintiff’s time to be spent monitoring and correcting errors.
g. Murray would shout and scream at Plaintiff in a threatening manner frequently, even coming around the front of the desk and throwing up his arms as if to strike her.
h. Murray would demean Plaintiff’s work as not good enough, treat her in a demeaning way, change due dates, left her out of meetings she normally would have attended, and generally through his actions made it appear that he wanted Plaintiff to leave her position.
i. Defendants subjected Plaintiff to unfair discipline and disparate terms and conditions of employment.
j. Although aware that Plaintiff was still suffering from the effects of chemotherapy, Murray directed Plaintiff to work weekends without additional pay which would have exceeded forty (40) hours a week
k. Initially unbeknown to her, Murray would closely scrutinize Plaintiff to see when she arrived in the parking lot and if she stopped to use the rest room when she arrived which she would often have to do, would criticize her although Plaintiff
8

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was listed as an exempt employee and routinely worked more than eight hours per day, often through her lunch hour. l. Defendants’ ignored not only Plaintiff’s complaints about Murray’s harassment of her but also ignored complaints of another employee who observed how Murray treated Plaintiff. 38. On or around August 29, 2007, Plaintiff complained to the Vice President of Operations regarding Murray’s demeaning treatment of her. 39. At a meeting on September 7, 2007, when Murray gave her a Final Written Warning and also accused her of being late, Plaintiff explained she needed to use the rest room and might stop on the way in and was still suffering from side effects from chemotherapy. When she asked Arslanpay if she was covered by the ADA, Arslanpay said she was. 40. On September 10, 2007, Plaintiff met with Arslanpay and asked for help in dealing with Murray, explaining she had “bathroom” issues. Arslanpay suggested she look for a job elsewhere since corporate sent Murray and he was not “going anywhere.” 41. At a September 26, 2007 meeting with Murray, he became loud, angry and physically aggressive toward Plaintiff, leaping up from her desk, coming toward her, raising his arms to the extent that Plaintiff thought he was going to strike her. 42. Plaintiff reported Murray’s harassing conduct to Robin Arslanpay, the Human Resources Director, and she informed Plaintiff that Murray was “the man”, was well liked by corporate and her choice was to either deal with Murray’s conduct or leave, never offering to accommodate her. 43. After Arslanpay told Plaintiff that she had not documented her complaints, Plaintiff wrote Arslanpay on September 27, 2007 reiterating how Murray behaved toward her, and she
9

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described his aggressive assaultive behavior and that she believed he was setting her up for failure and asked to meet with her and Rick Pletz. 44. On or around September 28, 2007, Arslanpay and Pletz called Plaintiff into a meeting where Plaintiff described Murray’s conduct toward her, including his physically threatening posture toward her and which was inconsistent with Defendants’ Code of Conduct. 45. Arslanpay and Pletz claimed that Murray was not aware of the meeting, that Murray was “not going anywhere”, and if Plaintiff remained, Murray would fire her in a matter of months. 46. Arslanpay and Pletz, asserted that because of her long years of service, they were offering Plaintiff a separation of twelve weeks and health insurance during that period. Alternatively, Arslanpay said Plaintiff risked being terminated in the next few months for cause and therefore she would receive no severance and health insurance benefits. 47. In order to receive the severance package, Arslanpay and Pletz told Plaintiff that she would be obligated to sign a Release of all potential legal actions. 48. Arslanpay and Pletz told Plaintiff that if she signed the Severance agreement and Release that they would not oppose her receiving unemployment compensation. 49. Pletz told Plaintiff that she would not need to report to work while she considered whether to agree to the severance package and release which was not presented to her in writing at the meeting. 50. At no time did Defendants enter into an interactive process with Plaintiff to provide her with a reasonable accommodation. 51. Thereafter, in a September 30, 2008 email, Plaintiff asked that she be provided a copy of the Agreement as “she was hesitant to make a decision by Monday without having the
10

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documents to review.” and she requested clarification on whether she was to “report to work as scheduled (8:30-5:00) until I have reviewed the documents and accept the package as offered. Should I come in and get the documents from you but not work?” 52. On Sunday, September 30, 2007 around 9:00 p.m., at Plaintiff’s request, Pletz mailed her a form entitled Separation Agreement, Release and Waiver which among other things, stated that Plaintiff had twenty one days to consider its terms, a copy of which is attached hereto as Exhibit 1. 53. As to returning to work, Pletz told Plaintiff in his September 30, 2007 email that “if you feel this is the direction you plan to take it is not necessary to come to work tomorrow. If this is not your intention and you wish to continue to work, you should report to work as normally scheduled. You are welcome to respond to this email with questions you may have.” 54. Thereafter on Tuesday, October 2, 2007, Pletz called Plaintiff at her home, and asked if she had questions. Plaintiff told him she was to consult with a lawyer on Wednesday, October 3, 2007 to review the agreement as suggested in the agreement and she would let him know what was decided. Pletz said nothing to Plaintiff about her being terminated and said she did not have to report to work as long as she was reviewing the agreement. 55. On Thursday, October 4, 2007, Plaintiff again requested clarification about her job and what she should do about reporting to work while considering the agreement and how she was being paid. At that time, Plaintiff had Paid Time Off available to her to use if she needed to be off. 56. On October 4, 2007, Pletz sent an email to Plaintiff stating that he assumed that Plaintiff was accepting the Agreement because she did not report to work and the “separation is
11

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where we stand are being paid as such.” 57. By e-mail dated October 5, 2007, Plaintiff responded to Pletz’s e-mail indicating that she misunderstood his response as she understood that as long as she was considering the offer within the twenty one day period indicated in the Separation Agreement and Release which she sent him, that she did not need to return to work and was confused how he reached that assumption. She asked if she should report to work until she reached a decision. 58. Thereafter, by email dated October 5, 2007, Pletz with copies to Robin Arslanpay and Stacey Ehle, an HR official in the Texas headquarters, told Plaintiff that when she did not report to work as instructed, they terminated her employment, effective Friday, September 28, 2007. 59. In November 2007, Plaintiff would again be eligible for FMLA should her medical condition require it. 60. After Plaintiff’s termination, upon information and belief, Defendants replaced her with a healthy female with no known disabilities who was younger than Plaintiff. 61. Thereafter the younger replacement female was assigned two full time reports and a casual worker and was assigned to report to a person other than Mike Murray. 62. Plaintiff applied for unemployment compensation which was granted and she received unemployment compensation benefits. 63. Thereafter, on or around December 20, 2007, Plaintiff filed a charge of discrimination with the EEOC based on the Americans with Disabilities Act, Title VII, and the ADEA alleging discrimination, harassment and retaliation. 64. Plaintiff dually filed the charge with the PHRC when she filed with the EEOC.
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65. On or around April 14, 2008, the Pennsylvania Department of UC Benefits and Allowances notified Plaintiff that they had determined that she was not entitled to the unemployment compensation benefits that she had received because she had voluntarily quit when she failed to report to work on Monday, October 1, 2007 and failed to exhaust alternatives before quitting. 66. Further, on April 29, 2008, the Pennsylvania Department of UC Benefits and Allowances notified Plaintiff that she was at fault in receiving benefits to which she was not entitled and she would have to repay $13,000 because she had allegedly made a false statement o the Department. 67. Plaintiff appealed this determination and a hearing was scheduled to determine her right to retain the benefits she had been paid. 68. Prior to the scheduled hearing before the Referee on May 8, 2008, in or around late April 2008, after a review of the file of the Referee, Plaintiff learned that on or around April 18, 2008, the Defendants’ representative, Ajah Anderson of Corporate Cost Control, Inc. with the complicity of Robin Arslanpay, Respondent’s local Human Resources Director and Stacey Ehle, Director of Human Resources, submitted an incomplete and thereby misleading document and misleading and information to the unemployment compensation authorities. 69. In a deliberate effort to adversely impact Plaintiff as to the unemployment compensation benefits that she had already received, Defendants knowingly and intentionally failed to submit the complete string of emails which included emails that showed that rather than quitting her job, Defendants had terminated her on October 5, 2007 and instead, Defendants told the authorities that Plaintiff abandoned her job, voluntarily quit, failed to appear or call off for
13

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scheduled shifts, and did not discuss the situation or make any other attempts to resolve the situation all of which was untrue. 70. At all times relevant hereto, Plaintiff was qualified for her position and was asked to assist other LifeCare facilities locally and around the country with patient accounting issues and received awards. 71. At all times relevant hereto, Plaintiff properly performed her duties. 72. Plaintiff, age 46 at her termination, was one of a number of other older long term exempt employees at the Pittsburgh facility who also had medical problems and who Defendants terminated. 73. Upon information and belief, said long term older employees would suddenly be accused of poor performance and then terminated. 74. Plaintiff has timely met the administrative requirements to bring this action.
Count I Disability discrimination Pursuant to the Americans with Disabilities Act 75. Plaintiff incorporates Paragraphs 1 through 74 as though fully set forth herein. 76. Plaintiff is a member of a class protected by the Americans with Disabilities Act as having a disability, perceived to have a disability, or has a history of a disability. 77. At all times relevant hereto, Defendants unlawfully and intentionally discriminated against Plaintiff because of her disability by allowing her to be harassed and subjected to a hostile environment based on her having a disability, perceived to have a disability and/or having a history of a disability. 78. At all times relevant hereto, Defendants unlawfully and intentionally discriminated
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against Plaintiff because of her disability by ceasing to accommodate her. 79. At all times relevant hereto, Defendants unlawfully and intentionally discriminated against Plaintiff because of her disability, their perception she had a disability, and/or her history of a disability by terminating her employment. 80. Defendants’ actions in intentionally, deliberately, willfully and maliciously harassing Plaintiff as set forth above, in ceasing to accommodate Plaintiff and in terminating Plaintiff were all in violation of the Americans With Disabilities Act. 81. The unlawful employment practices complained of herein were done with malice or with reckless indifference to the federally protected rights of Plaintiff. 82. As a result of the illegal actions of Defendants set forth above, Plaintiff has suffered substantial damages including lost pay, lost benefits, and front pay, and causing her to incur attorneys’ fees and costs. 83. As a result of the illegal actions of Defendants, Plaintiff suffered substantial damages including humiliation, embarrassment, feelings of helplessness, anxiety and depression some of which manifested themselves in physical symptoms. WHEREFORE, Plaintiff seeks damages as follows:
a. Back pay; b. Reinstatement to employment; c. Front pay; d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
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declaratory relief and punitive damages. Count II
Discrimination and Retaliation Pursuant to the ADA 84. Plaintiff incorporates Paragraphs 1 through 83 as though fully set forth herein 85. Plaintiff raised issues of discriminatory treatment with Human Resources based on her disability in her employment with Defendants prior to her termination beginning in or around late August 2007 and into late September 2007. 86. As a result of raising said issues, Plaintiff began to experience further harassment and discrimination and no action was taken to remedy the matters complained of by Plaintiff nor was any investigation conducted. 87. As a result of raising said issues, Plaintiff was unfairly scrutinized, disciplined and ultimately terminated. 88. Plaintiff is an individual covered by the ADEA and protections established by the Older Worker’s Benefits Protection Act, (“OWBPA”) 29 U.S.C. §626(f)(1), amending the ADEA and in effect since October 16, 1990. 89. OWBPA established safeguards to ensure that any waiver or release of ADEA rights is knowing and voluntary. 90. Defendants sought to have Plaintiff waive her rights as described orally to her on September 28, 2007 and as set forth in the Separation Agreement, Release and Waiver presented to her on September 30, 2007, Exhibit 1. 91. Defendants first asked Plaintiff to agree to the proposed separation without it being in writing with the protections of OWBPA and then when they did present the agreement to
16

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Plaintiff at her request, it did not have the safeguards required by OWBPA in that it did not contain a seven-day revocation period. 92. When Plaintiff tried to avail herself of the OWBPA protections contained within the agreement, namely she was advised in writing to consult with an attorney prior to executing the Separation Agreement and she was given at least 21 days within which to consider the agreement, which she mentioned to Defendants, Defendants terminated her. 93. Defendants retaliated against Plaintiff for not immediately waiving her rights to the protections of the ADA, the ADEA, OWBPA, ERISA, and the FMLA. 94. As a result of refusing to sign a separation agreement within four days of being presented with said agreement which required Plaintiff to waive her rights to bring a discrimination action and which provided for 21 days to consider it, Defendants terminated Plaintiff and attempted to prevent her from receiving the unemployment compensation benefits they said she would be eligible for once she signed the separation agreement. 95. In retaliation for Plaintiff’s raising issues of discrimination and failing to waive her rights, Defendants opposed Plaintiff’s receipt of unemployment compensation benefits which had been promised if she waived her rights by presenting false information to the authorities. 96. Within shortly more than three months after Plaintiff filed a complaint of discrimination with the EEOC and the PHRC, Defendants continued to deliberately try to interfere with Plaintiff’s unemployment compensation benefits by intentionally and knowingly filing false and incomplete information with the authorities. 97. The retaliatory actions of Defendants in providing false and incomplete information to the authorities caused Plaintiff to suffer damages even though she was successful in retaining the
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benefits that she received. 98. As a result of the retaliatory actions of Defendants in terminating Plaintiff and then providing false and incomplete information to the unemployment compensation authorities who accused Plaintiff of an overpayment, Plaintiff suffered mental anguish, undue stress and fear and embarrassment and incurred attorneys’ fees and costs. 99. The actions of Defendants were done in a willful and wanton manner with malice and disregard of the rights of Plaintiff and in violation of the Americans With Disabilities Act. WHEREFORE, Plaintiff seeks damages as follows:
a. Back pay; b. Reinstatement to employment; c. Front pay; d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
declaratory relief and punitive damages. Count III
Discrimination and Retaliation Pursuant to 29 U.S. C. § 1140 of ERISA 100. Plaintiff incorporates Paragraphs 1 through 99 as though fully set forth herein 101. At all times relevant to this action, Plaintiff was a “participant” in the Defendant’s employee benefits plans as defined by 29 U.S.C. §1002(7). 102. Defendants’ health insurance plan of which Plaintiff was a participant was self funded by Defendant and the costs incurred for medical care were allocated back to each facility so that
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Plaintiff’s cancer treatments could impact the bottom line of the Pittsburgh LifeCare facility where Plaintiff worked. 103. Because of the serious nature of her condition and the need to keep the cancer in check, Plaintiff had ongoing expensive medical costs and very high monthly prescription costs. 104. Additionally, Defendant’s long term disability plan of which Plaintiff was a participant was to become self funded as of January 2008. 105. Because of the serious nature of Plaintiff’s condition and the genetic component, the need for on-going surveillance, and the high prescription costs, Plaintiff and Defendants could anticipate very high medical bills in addition to the extraordinary medical expenses incurred by Plaintiff in 2007 all of which was self funded by Defendants. 106. Defendants, in an effort to reduce costs, purposely and intentionally/harassed Plaintiff in an effort to force her to quit and then terminated her and interfered with the Plaintiff’s right to continued health benefits under Defendants’ employee benefits plans, thereby causing Plaintiff to lose substantial health insurance benefits, life insurance benefits, deposits into her 401K, wages and other fringe benefits of employment including disability benefits should she again become ill. WHEREFORE, Plaintiff seeks damages as follows:
a. Full equitable relief under ERISA (29 U.S.C. § 1001 et seq.) including back pay, reinstatement to Plaintiff’s position as an employee of Defendant, restitution of Plaintiff’s lost employee benefits and pre-judgment interest.
b. Attorney’s fees and costs; and c. Such other relief as law and equity allows.
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Count IV Discrimination and Retaliation Pursuant to the FMLA 107. Plaintiff incorporates Paragraphs 1 through 106 as though fully set forth herein 108. Plaintiff availed herself of the FMLA benefits from in or around early December 2006 through on or around February 28, 2007 109. Based on Defendants’ FMLA plan, Plaintiff would again be eligible for FMLA leave in or around November 2007. 110. Based on the serious nature of Plaintiff’s medical condition, her genetic pre-disposition of further risks of colon cancer, and her need to seek medical treatment, Defendants knew that it was likely that Plaintiff would need to avail herself of FMLA leave beginning at some point in November 2007, 30 days after she was terminated. 111. Defendant terminated Plaintiff in order to not have to accommodate her further, to not be liable for high payments of medical bills and to avoid her again utilizing the FMLA and because she utilized her full FMLA leave. 112. Said termination was in violation of 29 U.S.C. § 2615(a)(2) WHEREFORE, Plaintiff prays for the following relief: a. Back pay; b. Reinstatement to employment; c. Front pay; d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
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and declaratory relief. Count V
Retaliation discrimination pursuant to the ADEA 113. Plaintiff incorporates paragraphs 1 through 112 by reference as though fully set forth herein. 114. Defendant’s conduct in regard to the harassment that Plaintiff suffered in a hostile environment, and her termination based on age and disability discrimination and retaliation constitutes unlawful discrimination on account of her age in violation of the ADEA. 115. As a result of the intentional violations of the ADEA, Plaintiff has suffered damages including lost present and future wages and lost benefits and other monetary losses. WHEREFORE, Plaintiff prays this honorable court for the following relief:
a. A declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 that Defendants have wilfully violated the rights of Plaintiff as secured by the ADEA;
b. A mandatory injunction enjoining defendants from continuing to violate the ADEA;
c. A court order that the Defendants reinstate the Plaintiff with full seniority, back pay plus interest, and other benefits, or, in the alternative front pay;
d. Compensatory and consequential damages of the loss of appropriate fringe benefits caused by Defendants’ violations of the ADEA;
e. Liquidated damages against the Defendants for willful violations of the ADEA; f. An award of reasonable attorneys’ fees and the costs and expenses related to the
litigation of the ADEA claim;
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g. Such other relief as is deemed appropriate. Count VI
Disability and Retaliation Discrimination pursuant to the Pennsylvania Human Relations Act 116. Plaintiff incorporates paragraphs 1 through 115 by reference as though fully set forth herein. 117. Defendants have discriminated against the Plaintiff in the terms and conditions of her employment, have permitted Plaintiff to be harassed and subjected to a hostile environment because of her disability, and have terminated her based on her disability all in violation of the Pennsylvania Human Relations Act, as amended. 118. Plaintiff has been damaged as a direct and proximate result of the Defendants’ acts and omissions in the form of lost pay and benefits, incurred attorneys’ fees and costs, and other expenses. 119. Plaintiff has suffered undue stress, mental anguish, and embarrassment as a result of the discriminatory actions of Defendants. WHEREFORE, Plaintiff prays for the following relief: a. That the Court declare Defendants’ conduct complained of herein to be in violation of Plaintiff’s rights as secured by the Pennsylvania Human Relations Act. b. That the Court permanently enjoin Defendants, its officers, management personnel, employees, agents, attorneys, successors, assigns and those acting in concert therewith from any conduct violating Plaintiff’s rights and the rights of
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others similarly situated as secured by the Pennsylvania Human Relations Act.

c. That the Court award Plaintiff compensatory damages.

d. That the Court order Plaintiff reinstated to her position

e. That the Court order Defendants to make Plaintiff whole by providing her

appropriate lost earnings and benefits with prejudgment interest, and other

affirmative relief.

f. That the Court award attorney's fees and costs incurred in prosecuting this action.

g. That the Court award Plaintiff such additional and further relief as it deems just

and proper.

A Jury Trial is Demanded on all counts where such a jury trial is permitted

Respectfully submitted,

S/David F. Weiner David F. Weiner, Esquire Attorney for Intervenor/Plaintiff PA ID# 18808 Carlin & Weiner Suite 660 U. S. Steel Tower 600 Grant Street Pittsburgh, PA 15219 Email: dfweiner@prosuites.com Telephone: (412) 391-2857 FAX: (412) 261-2760

S/Helen R. Kotler

Helen R. Kotler, Esquire

Attorney for Intervenor/Plaintiff

PA ID# 23572

Suite 1110 Centre City Tower

650 Smithfield Street

Pittsburgh, PA 15222

Email: hrkotler@yahoo.com

Telephone: (412) 281-6538

FAX:

(412) 281-7625

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CERTIFICATION OF SERVICE

I hereby certify that a true and correct copy of the ORDER of October 17, 2008 granting

Motion to Intervene and the INTERVENOR’S COMPLAINT above were mailed by first class

mail, postage prepaid on the 20th day of October, 2008 to the following parties:

LifeCare Management Services, LLC c/o CT Corporation System 116 Pine Street Suite 320 Harrisburg, PA 17101

LifeCare Hospitals of Pittsburgh, Inc. c/o CT Corporation System 116 Pine Street Suite 320 Harrisburg, PA 17101

S/Helen R. Kotler Attorney for Intervenor/Plaintiff

24

 
 Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

DIANA ALTIERI-HAND,

)

)

Intervenor Plaintiff,

)

)

v.

)

)

LIFECARE MANAGEMENT SERVICES, LLC )

and

)

LIFECARE HOSPITALS OF PITTSBURGH, )

INC.

)

)

Defendants.

)

)

CA 08-1358
Honorable Judge Terrence F. McVerry JURY TRIAL DEMANDED (Electronically filed)

AMENDED INTERVENOR’S COMPLAINT

AND NOW, comes the above INTERVENOR/Plaintiff, (hereinafter “Plaintiff) by and

through her counsel, Helen R. Kotler, Esquire, and David F. Weiner, Esquire and files the following

Amended Intervenor’s Complaint:

PRELIMINARY STATEMENT

1. This is an action brought pursuant to the Americans with Disabilities Act, as amended,

hereinafter the “ADA” and the Age Discrimination in Employment Act of 1967, as amended,

hereinafter the “ADEA.” This action seeks declaratory, injunctive and equitable relief;

compensatory, and punitive damages; and costs, expenses, expert witness fees and attorneys’s fees

for the unlawful practices of discrimination based on her disability, perceived disability or history

of a disability, colon cancer, and retaliation under the ADA and ADEA for complaining of

harassment and filing a charge of discrimination. Plaintiff asserts that she was subjected to a hostile

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environment and retaliation after complaining of said environment. This case is also brought pursuant to §§ 502 and 510 of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132 and 1140 of ERISA and pursuant to the Family and Medical Leave Act of 1993 (29 U.S.C. § 2615.) Further, Plaintiff also brings this case pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951 et seq.
I. Parties 2. Plaintiff Diana Altieri Hand (“Altieri-Hand”) resides in Murrysville, Westmoreland County, Pennsylvania, located in the Western District of Pennsylvania. 3. At all relevant times, Defendants have continuously been an employer engaged in an industry affecting commerce within the meaning of §101(5) of the ADA, 42 U.S.C. . §12111(5) and Section 101(7) of the ADA, 42 U.S.C. §1211(7) which incorporated by reference sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 4. Defendants are engaged in an industry affecting commerce, as defined in Section 11(h) of the ADEA, 29 U.S.C. §630(h). Defendants employed twenty or more employees at all times relevant to this action. Defendant is “an employer” within the meaning of Section 11(b) of the ADEA, 29 U.S.C. §630(b).
II. Jurisdiction and Venue 5. Jurisdiction of this Court is invoked pursuant to the ADA and under 28 U.S.C. §§28 451, § 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990,42 U.S.C. 12117(a), which is incorporated by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964(“Title VII”) 42 U.S.C. §§20003-(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42
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U.S.C. §1981a. It is invoked pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. which incorporates by reference Section 16(b), 29 U.S.C. §216(b), of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. Further, Plaintiff invokes §§ 502 and 510 of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132 and 1140 of ERISA and 29 U.S.C. § 2617 of the Family and Medical Leave Act. Plaintiff invokes the doctrine of pendent jurisdiction as to her claims asserted pursuant to the Pennsylvania Human Relations Act. 6. The Plaintiff worked for Defendants at a site located in Wilkinsburg, Pennsylvania in Allegheny County and all unlawful employment practices alleged below were committed within the jurisdiction of the United States District Court for the Western District of Pennsylvania.
Exhaustion of Administrative Remedies 7. Prior to filing this Complaint to intervene, Plaintiff timely filed a written charge alleging claims of discrimination based on disability, age, harassment and retaliation with the EEOC which was cross-filed timely at the PHRC. 8. The Plaintiff has filed this action subsequent to the expiration of sixty (60) days from the filing of a charge of age discrimination with the EEOC. 9. On July 18, 2008, the EEOC issued a Determination, finding a violation of the ADA with respect to harassment, terms and condition, failure to accommodate, discipline, and discharge. 10. On or around September 30, 2008, the EEOC, per its prerogative and right, filed a suit against Respondents for violations of the Americans with Disabilities Act which is pending in the Western District of Pennsylvania at CA-08-1358.
FACTS
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11. Plaintiff, a female, was age 46 at the time of her termination. 12. Plaintiff was hired by Forbes Health Systems (Forbes) on or around June 17, 1978 and worked there for approximately 21 years when around August of 1999, Forbes Metropolitan Hospital was purchased by Defendant LifeCare Management Services. 13. While employed with Defendant until September 28, 2007, Plaintiff was the business office manager of one of its subsidiaries, LifeCare Hospitals of Pittsburgh. 14. For most of the almost twenty nine years of Plaintiff’s employment with Defendant or its predecessor, she was located at the same desk occupying the same position and performing the same or similar duties both before and during her employment with Defendant. 15. On or around November 10, 2006, while employed by Defendant, Plaintiff was diagnosed with a form of colon cancer which has a strong hereditary component, termed Nonpolyposis colorectal Cancer or Lynch Syndrome, all of which she disclosed to her employer. 16. Pursuant to the provisions of the Family and Medical Leave Act (“FMLA”), Plaintiff took a leave of absence from work and underwent surgery on December 7, 2006, resulting in the removal of her large intestines and a total hysterectomy. 17. Thereafter, on or around January 30, 2007, Plaintiff began a course of treatment, including chemotherapy. 18. While on FMLA, Plaintiff’s supervisor and others, including an employee who reported to her, handled her duties with Plaintiff’s help as she called in with assistance. 19. On or around February 28, 2007, Defendant’s Human Resources department notified Plaintiff that her FMLA benefits had ended On February 5, 2007 and she was terminated effective the same day of the letter although she had been in discussions with her former
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supervisor about returning to work on a part time basis. 20. At the beginning of March 2007, Plaintiff’s physician approved her to return to work on a part time basis and thereafter, her former supervisor was able to convince some managers to accommodate Plaintiff by permitting her to work at home and to come onto the office periodically as her health permitted, in that she was receiving chemotherapy and suffered from side effects and had a compromised immune system. 21. During the period that Plaintiff was off work, she received short term and long term disability benefits under Defendant’s ERISA plan. 22. In or around March 2008, Plaintiff told Rick Pletz, the newly named CEO of Lifecare in Pittsburgh about her condition, that she was on chemotherapy and that she had a predisposition for recurrent cancer due to the nature of the cancer which would require careful screening for the rest of her life. 23. Defendant replaced Plaintiff’s former supervisor with Michael Murray, an employee newly hired into their corporate offices in Plano, Texas on or around June 17, 2007 who worked in the Pittsburgh area a few days per week. 24. Plaintiff informed Murray, the Regional Director of Finance, that she was working twenty-four hours per week, some at home on her laptop, and informed him that she was in chemotherapy, and that her hands and feet were swollen. 25. On or around June 29, 2007, Murray removed one of Plaintiff’s direct reports in the Business Office to another position after which Plaintiff explained to Murray that this elimination would impact her ability to complete all of the work in the office. 26. In or around mid-July 2007, Murray told Plaintiff that he was eliminating the “part time
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Business Office Manager position” effective September 1, 2007 and if she wished to continue to work, she would have to work full time as of September 1, 2007 and then informed Plaintiff by e-mail of August 2, 2007, that not only was he requiring her to return to work full time but she would have to submit a “full-duty” release by August 17, 2007. 27. At that time, Plaintiff was still undergoing chemotherapy which caused her to suffer from severe fatigue, nausea, vomiting, severe diarrhea, body pains, anemia, and sleep deprivation particularly for the first forty-eight hours after the chemotherapy and then her symptoms diminished somewhat until the next treatment. 28. Informed of Murray’s ultimatum and his refusal to continue accommodating her, and of Plaintiff’s potential loss of health insurance benefits, Plaintiff’s physician reluctantly allowed Plaintiff to return to work on a full time basis which she did although she was still at risk for infection, had neuropathy, severe diarrhea, a lack of stamina, and was not sleeping well. 29. The doctor would not have released Plaintiff to return to work in September if he were aware that she would be required to work more than forty hours per week. 30. Plaintiff continued in chemotherapy until August 27, 2008, the last day of her treatment. 31. When Plaintiff returned to work, she still suffered pain, swelling of the wrists, hands, and feet, neuropathy which is an on-going condition, and her stamina was low. 32. Additionally, Plaintiff suffers from diarrhea and the need to use the rest room frequently due to the surgical intervention on her bowels. 33. From in or around July 2007, in addition to requiring her to return to work without restrictions by September 1, 2007 or be fired, Respondents began a harassing and onerous course of conduct against Plaintiff which included telling her in August 2007 that she could speak to no
6

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other employees for more than 10 seconds although her duties were service oriented. 34. Within a few days of her return, on September 7, 2007, Defendant issued a First Written Warning to Plaintiff, who had never received a written warning in her 29 years of employment, and threatened her with termination. 35. On or around September 10, 2008, Plaintiff approached Robin Arslanpay, the on-site Director of Human Resources since in or about February 2008 about Murray’s conduct toward her, the First Written Warning she received, and discussed some of the limitations that she had, including bathroom limitations, issues with swelling and numbness in hands, and total exhaustion. 36. Murray’s and Defendants’ discriminatory and harassing conduct was for the purpose of causing her to quit her position or to create a means to terminate her. 37. Murray’s and Defendants’ discriminatory conduct includes but is not limited to the
following: a. By assigning Plaintiff additional duties on her return to work. b. For instance, when Plaintiff returned to work on a full time basis she learned that
one of her direct reports was removed from her and moved to a different position and was permitted to support Plaintiff only 2-3 hours per week even though previously, in or around May 2007, another of Plaintiff’s direct reports who worked for her before she became sick was moved and thereafter Plaintiff was assigned about 30% of her duties when she returned to work. c. When she returned to full time work on or around September 1, 2007, Plaintiff was forced to work nine hour days without lunch in order to try and complete her
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assignments. d. Murray, although aware of Plaintiff’s condition, began to put more pressure on her
and held her to a different standard from which other managers were held. e. Murray ignored Plaintiff’s complaints that he was putting too many demands on
her, and that she needed help, seemed not to want to speak with her and told her to just do what he said to do. f. Rather than assign a competent worker to Plaintiff or returning one of her former direct reports, around mid-September 2007, a temporary worker was assigned who was unable to do the work causing much of Plaintiff’s time to be spent monitoring and correcting errors. g. Murray would shout and scream at Plaintiff in a threatening manner frequently, even coming around the front of the desk and throwing up his arms as if to strike her. h. Murray would demean Plaintiff’s work as not good enough, treat her in a demeaning way, change due dates, left her out of meetings she normally would have attended, and generally through his actions made it appear that he wanted Plaintiff to leave her position. i. Defendants subjected Plaintiff to unfair discipline and disparate terms and conditions of employment. j. Although aware that Plaintiff was still suffering from the effects of chemotherapy, Murray directed Plaintiff to work weekends without additional pay which would have exceeded forty (40) hours a week
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k. Initially unbeknown to her, Murray would closely scrutinize Plaintiff to see when she arrived in the parking lot and if she stopped to use the rest room when she arrived which she would often have to do, would criticize her although Plaintiff was listed as an exempt employee and routinely worked more than eight hours per day, often through her lunch hour.
l. Defendants’ ignored not only Plaintiff’s complaints about Murray’s harassment of her but also ignored complaints of another employee who observed how Murray treated Plaintiff.
38. On or around August 29, 2007, Plaintiff complained to the Vice President of Operations regarding Murray’s demeaning treatment of her. 39. At a meeting on September 7, 2007, when Murray gave her a Final Written Warning and also accused her of being late, Plaintiff explained she needed to use the rest room and might stop on the way in and was still suffering from side effects from chemotherapy. When she asked Arslanpay if she was covered by the ADA, Arslanpay said she was. 40. On September 10, 2007, Plaintiff met with Arslanpay and asked for help in dealing with Murray, explaining she had “bathroom” issues. Arslanpay suggested she look for a job elsewhere since corporate sent Murray and he was not “going anywhere.” 41. At a September 26, 2007 meeting with Murray, he became loud, angry and physically aggressive toward Plaintiff, leaping up from her desk, coming toward her, raising his arms to the extent that Plaintiff thought he was going to strike her. 42. Plaintiff reported Murray’s harassing conduct to Robin Arslanpay, the Human Resources Director, and she informed Plaintiff that Murray was “the man”, was well liked by corporate and
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her choice was to either deal with Murray’s conduct or leave, never offering to accommodate her. 43. After Arslanpay told Plaintiff that she had not documented her complaints, Plaintiff wrote Arslanpay on September 27, 2007 reiterating how Murray behaved toward her, and she described his aggressive assaultive behavior and that she believed he was setting her up for failure and asked to meet with her and Rick Pletz. 44. On or around September 28, 2007, Arslanpay and Pletz called Plaintiff into a meeting where Plaintiff described Murray’s conduct toward her, including his physically threatening posture toward her and which was inconsistent with Defendants’ Code of Conduct. 45. Arslanpay and Pletz claimed that Murray was not aware of the meeting, that Murray was “not going anywhere”, and if Plaintiff remained, Murray would fire her in a matter of months. 46. Arslanpay and Pletz, asserted that because of her long years of service, they were offering Plaintiff a separation of twelve weeks and health insurance during that period. Alternatively, Arslanpay said Plaintiff risked being terminated in the next few months for cause and therefore she would receive no severance and health insurance benefits. 47. In order to receive the severance package, Arslanpay and Pletz told Plaintiff that she would be obligated to sign a Release of all potential legal actions. 48. Arslanpay and Pletz told Plaintiff that if she signed the Severance agreement and Release that they would not oppose her receiving unemployment compensation. 49. Pletz told Plaintiff that she would not need to report to work while she considered whether to agree to the severance package and release which was not presented to her in writing at the meeting. 50. At no time did Defendants enter into an interactive process with Plaintiff to provide her
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with a reasonable accommodation. 51. Thereafter, in a September 30, 2008 email, Plaintiff asked that she be provided a copy of the Agreement as “she was hesitant to make a decision by Monday without having the documents to review.” and she requested clarification on whether she was to “report to work as scheduled (8:30-5:00) until I have reviewed the documents and accept the package as offered. Should I come in and get the documents from you but not work?” 52. On Sunday, September 30, 2007 around 9:00 p.m., at Plaintiff’s request, Pletz mailed her a form entitled Separation Agreement, Release and Waiver which among other things, stated that Plaintiff had twenty one days to consider its terms, a copy of which is attached hereto as Exhibit 1. 53. As to returning to work, Pletz told Plaintiff in his September 30, 2007 email that “if you feel this is the direction you plan to take it is not necessary to come to work tomorrow. If this is not your intention and you wish to continue to work, you should report to work as normally scheduled. You are welcome to respond to this email with questions you may have.” 54. Thereafter on Tuesday, October 2, 2007, Pletz called Plaintiff at her home, and asked if she had questions. Plaintiff told him she was to consult with a lawyer on Wednesday, October 3, 2007 to review the agreement as suggested in the agreement and she would let him know what was decided. Pletz said nothing to Plaintiff about her being terminated and said she did not have to report to work as long as she was reviewing the agreement. 55. On Thursday, October 4, 2007, Plaintiff again requested clarification about her job and what she should do about reporting to work while considering the agreement and how she was being paid. At that time, Plaintiff had Paid Time Off available to her to use if she needed to
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be off. 56. On October 4, 2007, Pletz sent an email to Plaintiff stating that he assumed that Plaintiff was accepting the Agreement because she did not report to work and the “separation is where we stand are being paid as such.” 57. By e-mail dated October 5, 2007, Plaintiff responded to Pletz’s e-mail indicating that she misunderstood his response as she understood that as long as she was considering the offer within the twenty one day period indicated in the Separation Agreement and Release which she sent him, that she did not need to return to work and was confused how he reached that assumption. She asked if she should report to work until she reached a decision. 58. Thereafter, by email dated October 5, 2007, Pletz with copies to Robin Arslanpay and Stacey Ehle, an HR official in the Texas headquarters, told Plaintiff that when she did not report to work as instructed, they terminated her employment, effective Friday, September 28, 2007. 59. In November 2007, Plaintiff would again be eligible for FMLA should her medical condition require it. 60. After Plaintiff’s termination, upon information and belief, Defendants replaced her with a healthy female with no known disabilities who was younger than Plaintiff. 61. Thereafter the younger replacement female was assigned two full time reports and a casual worker and was assigned to report to a person other than Mike Murray. 62. Plaintiff applied for unemployment compensation which was granted and she received unemployment compensation benefits. 63. Thereafter, on or around December 20, 2007, Plaintiff filed a charge of discrimination
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with the EEOC based on the Americans with Disabilities Act, Title VII, and the ADEA alleging discrimination, harassment and retaliation. 64. Plaintiff dually filed the charge with the PHRC when she filed with the EEOC. 65. On or around April 14, 2008, the Pennsylvania Department of UC Benefits and Allowances notified Plaintiff that they had determined that she was not entitled to the unemployment compensation benefits that she had received because she had voluntarily quit when she failed to report to work on Monday, October 1, 2007 and failed to exhaust alternatives before quitting. 66. Further, on April 29, 2008, the Pennsylvania Department of UC Benefits and Allowances notified Plaintiff that she was at fault in receiving benefits to which she was not entitled and she would have to repay $13,000 because she had allegedly made a false statement o the Department. 67. Plaintiff appealed this determination and a hearing was scheduled to determine her right to retain the benefits she had been paid. 68. Prior to the scheduled hearing before the Referee on May 8, 2008, in or around late April 2008, after a review of the file of the Referee, Plaintiff learned that on or around April 18, 2008, the Defendants’ representative, Ajah Anderson of Corporate Cost Control, Inc. with the complicity of Robin Arslanpay, Respondent’s local Human Resources Director and Stacey Ehle, Director of Human Resources, submitted an incomplete and thereby misleading document and misleading and information to the unemployment compensation authorities. 69. In a deliberate effort to adversely impact Plaintiff as to the unemployment compensation benefits that she had already received, Defendants knowingly and intentionally
13

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 14 of 24
failed to submit the complete string of emails which included emails that showed that rather than quitting her job, Defendants had terminated her on October 5, 2007 and instead, Defendants told the authorities that Plaintiff abandoned her job, voluntarily quit, failed to appear or call off for scheduled shifts, and did not discuss the situation or make any other attempts to resolve the situation all of which was untrue. 70. At all times relevant hereto, Plaintiff was qualified for her position and was asked to assist other LifeCare facilities locally and around the country with patient accounting issues and received awards. 71. At all times relevant hereto, Plaintiff properly performed her duties. 72. Plaintiff, age 46 at her termination, was one of a number of other older long term exempt employees at the Pittsburgh facility who also had medical problems and who Defendants terminated. 73. Upon information and belief, said long term older employees would suddenly be accused of poor performance and then terminated. 74. Plaintiff has timely met the administrative requirements to bring this action.
Count I Disability discrimination Pursuant to the Americans with Disabilities Act 75. Plaintiff incorporates Paragraphs 1 through 74 as though fully set forth herein. 76. Plaintiff is a member of a class protected by the Americans with Disabilities Act as having a disability, perceived to have a disability, or has a history of a disability. 77. At all times relevant hereto, Defendants unlawfully and intentionally discriminated against Plaintiff because of her disability by allowing her to be harassed and subjected to a
14

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 15 of 24
hostile environment based on her having a disability, perceived to have a disability and/or having a history of a disability. 78. At all times relevant hereto, Defendants unlawfully and intentionally discriminated against Plaintiff because of her disability by ceasing to accommodate her. 79. At all times relevant hereto, Defendants unlawfully and intentionally discriminated against Plaintiff because of her disability, their perception she had a disability, and/or her history of a disability by terminating her employment. 80. Defendants’ actions in intentionally, deliberately, willfully and maliciously harassing Plaintiff as set forth above, in ceasing to accommodate Plaintiff and in terminating Plaintiff were all in violation of the Americans With Disabilities Act. 81. The unlawful employment practices complained of herein were done with malice or with reckless indifference to the federally protected rights of Plaintiff. 82. As a result of the illegal actions of Defendants set forth above, Plaintiff has suffered substantial damages including lost pay, lost benefits, and front pay, and causing her to incur attorneys’ fees and costs. 83. As a result of the illegal actions of Defendants, Plaintiff suffered substantial damages including humiliation, embarrassment, feelings of helplessness, anxiety and depression some of which manifested themselves in physical symptoms. WHEREFORE, Plaintiff seeks damages as follows:
a. Back pay; b. Reinstatement to employment; c. Front pay;
15

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 16 of 24
d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
declaratory relief and punitive damages. Count II
Discrimination and Retaliation Pursuant to the ADA 84. Plaintiff incorporates Paragraphs 1 through 83 as though fully set forth herein 85. Plaintiff raised issues of discriminatory treatment with Human Resources based on her disability in her employment with Defendants prior to her termination beginning in or around late August 2007 and into late September 2007. 86. As a result of raising said issues, Plaintiff began to experience further harassment and discrimination and no action was taken to remedy the matters complained of by Plaintiff nor was any investigation conducted. 87. As a result of raising said issues, Plaintiff was unfairly scrutinized, disciplined and ultimately terminated. 88. Plaintiff is an individual covered by the ADEA and protections established by the Older Worker’s Benefits Protection Act, (“OWBPA”) 29 U.S.C. §626(f)(1), amending the ADEA and in effect since October 16, 1990. 89. OWBPA established safeguards to ensure that any waiver or release of ADEA rights is knowing and voluntary. 90. Defendants sought to have Plaintiff waive her rights as described orally to her on September 28, 2007 and as set forth in the Separation Agreement, Release and Waiver presented
16

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 17 of 24
to her on September 30, 2007, Exhibit 1. 91. Defendants first asked Plaintiff to agree to the proposed separation without it being in writing with the protections of OWBPA and then when they did present the agreement to Plaintiff at her request, it did not have the safeguards required by OWBPA in that it did not contain a seven-day revocation period. 92. When Plaintiff tried to avail herself of the OWBPA protections contained within the agreement, namely she was advised in writing to consult with an attorney prior to executing the Separation Agreement and she was given at least 21 days within which to consider the agreement, which she mentioned to Defendants, Defendants terminated her. 93. Defendants retaliated against Plaintiff for not immediately waiving her rights to the protections of the ADA, the ADEA, OWBPA, ERISA, and the FMLA. 94. As a result of refusing to sign a separation agreement within four days of being presented with said agreement which required Plaintiff to waive her rights to bring a discrimination action and which provided for 21 days to consider it, Defendants terminated Plaintiff and attempted to prevent her from receiving the unemployment compensation benefits they said she would be eligible for once she signed the separation agreement. 95. In retaliation for Plaintiff’s raising issues of discrimination and failing to waive her rights, Defendants opposed Plaintiff’s receipt of unemployment compensation benefits which had been promised if she waived her rights by presenting false information to the authorities. 96. Within shortly more than three months after Plaintiff filed a complaint of discrimination with the EEOC and the PHRC, Defendants continued to deliberately try to interfere with Plaintiff’s unemployment compensation benefits by intentionally and knowingly filing false and
17

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 18 of 24
incomplete information with the authorities. 97. The retaliatory actions of Defendants in providing false and incomplete information to the authorities caused Plaintiff to suffer damages even though she was successful in retaining the benefits that she received. 98. As a result of the retaliatory actions of Defendants in terminating Plaintiff and then providing false and incomplete information to the unemployment compensation authorities who accused Plaintiff of an overpayment, Plaintiff suffered mental anguish, undue stress and fear and embarrassment and incurred attorneys’ fees and costs. 99. The actions of Defendants were done in a willful and wanton manner with malice and disregard of the rights of Plaintiff and in violation of the Americans With Disabilities Act. WHEREFORE, Plaintiff seeks damages as follows:
a. Back pay; b. Reinstatement to employment; c. Front pay; d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
declaratory relief and punitive damages. Count III
Discrimination and Retaliation Pursuant to 29 U.S. C. § 1140 of ERISA 100. Plaintiff incorporates Paragraphs 1 through 99 as though fully set forth herein 101. At all times relevant to this action, Plaintiff was a “participant” in the Defendant’s
18

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 19 of 24
employee benefits plans as defined by 29 U.S.C. §1002(7). 102. Defendants’ health insurance plan of which Plaintiff was a participant was self funded by Defendant and the costs incurred for medical care were allocated back to each facility so that Plaintiff’s cancer treatments could impact the bottom line of the Pittsburgh LifeCare facility where Plaintiff worked. 103. Because of the serious nature of her condition and the need to keep the cancer in check, Plaintiff had ongoing expensive medical costs and very high monthly prescription costs. 104. Additionally, Defendant’s long term disability plan of which Plaintiff was a participant was to become self funded as of January 2008. 105. Because of the serious nature of Plaintiff’s condition and the genetic component, the need for on-going surveillance, and the high prescription costs, Plaintiff and Defendants could anticipate very high medical bills in addition to the extraordinary medical expenses incurred by Plaintiff in 2007 all of which was self funded by Defendants. 106. Defendants, in an effort to reduce costs, purposely and intentionally/harassed Plaintiff in an effort to force her to quit and then terminated her and interfered with the Plaintiff’s right to continued health benefits under Defendants’ employee benefits plans, thereby causing Plaintiff to lose substantial health insurance benefits, life insurance benefits, deposits into her 401K, wages and other fringe benefits of employment including disability benefits should she again become ill. WHEREFORE, Plaintiff seeks damages as follows:
a. Full equitable relief under ERISA (29 U.S.C. § 1001 et seq.) including back pay, reinstatement to Plaintiff’s position as an employee of Defendant, restitution of
19

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 20 of 24
Plaintiff’s lost employee benefits and pre-judgment interest. b. Attorney’s fees and costs; and c. Such other relief as law and equity allows.
Count IV Discrimination and Retaliation Pursuant to the FMLA 107. Plaintiff incorporates Paragraphs 1 through 106 as though fully set forth herein 108. Plaintiff availed herself of the FMLA benefits from in or around early December 2006 through on or around February 28, 2007 109. Based on Defendants’ FMLA plan, Plaintiff would again be eligible for FMLA leave in or around November 2007. 110. Based on the serious nature of Plaintiff’s medical condition, her genetic pre-disposition of further risks of colon cancer, and her need to seek medical treatment, Defendants knew that it was likely that Plaintiff would need to avail herself of FMLA leave beginning at some point in November 2007, 30 days after she was terminated. 111. Defendant terminated Plaintiff in order to not have to accommodate her further, to not be liable for high payments of medical bills and to avoid her again utilizing the FMLA and because she utilized her full FMLA leave. 112. Said termination was in violation of 29 U.S.C. § 2615(a)(2) WHEREFORE, Plaintiff prays for the following relief: a. Back pay; b. Reinstatement to employment; c. Front pay;
20

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 21 of 24
d. Compensatory damages; e. Attorney fees and costs of litigation; f. Any other relief permitted by law, including but not limited to injunctive relief,
and declaratory relief. Count V
Retaliation discrimination pursuant to the ADEA 113. Plaintiff incorporates paragraphs 1 through 112 by reference as though fully set forth herein. 114. Defendant’s conduct in regard to the harassment that Plaintiff suffered in a hostile environment, and her termination based on age and disability discrimination and retaliation constitutes unlawful discrimination on account of her age in violation of the ADEA. 115. As a result of the intentional violations of the ADEA, Plaintiff has suffered damages including lost present and future wages and lost benefits and other monetary losses. WHEREFORE, Plaintiff prays this honorable court for the following relief:
a. A declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 that Defendants have wilfully violated the rights of Plaintiff as secured by the ADEA;
b. A mandatory injunction enjoining defendants from continuing to violate the ADEA;
c. A court order that the Defendants reinstate the Plaintiff with full seniority, back pay plus interest, and other benefits, or, in the alternative front pay;
d. Compensatory and consequential damages of the loss of appropriate fringe benefits caused by Defendants’ violations of the ADEA;
21

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 22 of 24
e. Liquidated damages against the Defendants for willful violations of the ADEA; f. An award of reasonable attorneys’ fees and the costs and expenses related to the
litigation of the ADEA claim; g. Such other relief as is deemed appropriate.
Count VI Disability and Retaliation Discrimination pursuant to the Pennsylvania Human Relations Act 116. Plaintiff incorporates paragraphs 1 through 115 by reference as though fully set forth herein. 117. Defendants have discriminated against the Plaintiff in the terms and conditions of her employment, have permitted Plaintiff to be harassed and subjected to a hostile environment because of her disability, and have terminated her based on her disability all in violation of the Pennsylvania Human Relations Act, as amended. 118. Plaintiff has been damaged as a direct and proximate result of the Defendants’ acts and omissions in the form of lost pay and benefits, incurred attorneys’ fees and costs, and other expenses. 119. Plaintiff has suffered undue stress, mental anguish, and embarrassment as a result of the discriminatory actions of Defendants. WHEREFORE, Plaintiff prays for the following relief: a. That the Court declare Defendants’ conduct complained of herein to be in violation of Plaintiff’s rights as secured by the Pennsylvania Human Relations Act.
22

Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 23 of 24
b. That the Court permanently enjoin Defendants, its officers, management personnel, employees, agents, attorneys, successors, assigns and those acting in concert therewith from any conduct violating Plaintiff’s rights and the rights of others similarly situated as secured by the Pennsylvania Human Relations Act.
c. That the Court award Plaintiff compensatory damages. d. That the Court order Plaintiff reinstated to her position e. That the Court order Defendants to make Plaintiff whole by providing her
appropriate lost earnings and benefits with prejudgment interest, and other affirmative relief. f. That the Court award attorney's fees and costs incurred in prosecuting this action. g. That the Court award Plaintiff such additional and further relief as it deems just and proper.
COUNT VII Retaliation Pursuant to the Americans with Disabilities Act 120. Plaintiff incorporates paragraphs 1-119 by reference as though fully set forth herein. 121. On October 27, 2008, the EEOC issued a Notice of Dismissal and Notice of Rights pursuant to a second retaliation charge filed by Plaintiff, alleging additional retaliation, EEOC Charge No. 533-2008-01029, informing Plaintiff that a lawsuit must be filed within 90 days of receipt of the Notice or her right to sue would be lost. 122. The underlying facts of Charge No. 533-2008-01029 are set forth in paragraphs 65-69 of this Complaint.
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Case 2:08-cv-01358-GLL-CB Document 16 Filed 11/12/08 Page 24 of 24

123. As a result of the retaliatory actions of Defendants knowingly providing false and incomplete information to the unemployment compensation authorities who accused Plaintiff of making a false statement to the Department, and sought to recoup monies paid, Plaintiff suffered mental anguish, undue stress and fear and embarrassment and incurred attorneys’ fees and costs.
124. The actions of Defendants were done in a willful and wanton manner with malice and disregard of the rights of Plaintiff and in violation of the Americans with Disabilities Act.
WHEREFORE, Plaintiff seeks damages as follows: a. Compensatory damages; b. Attorney fees and costs of litigation; c. Any other relief permitted by law, including but not limited to injunctive relief, declaratory relief and punitive damages.
A jury trial is demanded in all counts where such a jury trial is permitted.

S/David F. Weiner David F. Weiner, Esquire Attorney for Intervenor/Plaintiff PA ID# 18808 Carlin & Weiner Suite 660 U. S. Steel Tower 600 Grant Street Pittsburgh, PA 15219 Email: dfweiner@prosuites.com Telephone: (412) 391-2857 FAX: (412) 261-2760

Respectfully submitted,

S/Helen R. Kotler

Helen R. Kotler, Esquire

Attorney for Intervenor/Plaintiff

PA ID# 23572

Suite 1110 Centre City Tower

650 Smithfield Street

Pittsburgh, PA 15222

Email: hrkotler@yahoo.com

Telephone: (412) 281-6538

FAX:

(412) 281-7625

24

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

DIANA ALTIERI-HAND,

)

)

Intervenor Plaintiff,

)

)

v.

)

)

LIFECARE MANAGEMENT SERVICES, )

LLC and LIFECARE HOSPITALS OF

)

PITTSBURGH, INC.,

)

)

Defendants.

)

02: 08-cv-1358

MEMORANDUM ORDER

Presently before the Court are the following:

•

MOTION TO QUASH NOTICE OF RULE 30(b)(6) DEPOSITION, with

brief in support, filed by Plaintiff Equal Employment Opportunity Commission (Document

Nos. 32 and 33);

•

MOTION FOR PROTECTIVE ORDER, with brief in support, filed by

Plaintiff Equal Employment Opportunity Commission (Document Nos. 34 and 35);

•

The BRIEF IN OPPOSITION TO PLAINTIFF EEOCS MOTION TO

QUASH NOTICE OF RULE 30(b)(6) DEPOSITION AND MOTION FOR PROTECTIVE

ORDER, filed by Defendants, LifeCare Management Services, LLC and LifeCare Hospitals of

Pittsburgh, Inc. (Document No. 41); and

•

The MOTION TO STRIKE EXHIBITS AND FOR SANCTIONS filed by

Defendants, LifeCare Management Services, LLC and LifeCare Hospitals of Pittsburgh, Inc.

(Document No. 41) and the MEMORANDUM IN OPPOSITION filed by Plaintiff Equal

Employment Opportunity Commission (Document No. 42).

The Motions will be addressed seriatim.

A.

Motion to Quash / Motion for Protective Order

On February 19, 2009, Defendants served upon the EEOC a Notice of Rule 30(b)(6)

Deposition and noticed the deposition of Paul Southworth, the EEOC investigator who

investigated the December 2007 Charge of Discrimination filed by Diana Altieri-Hand. The

depositions are scheduled to begin on Tuesday, April 21, 2009.

On March 5, 2009, the EEOC filed the instant Motion to Quash Notice of Rule

30(b)(6) Deposition and Motion for Protective Order (collectively referred to as the “Motions”).1 The EEOC’s primary argument in support of its position to quash the Rule

30(b)(6) deposition is that Defendants are not entitled to conduct the depositions of a

representative of the EEOC because any information this undisclosed representative may have

is privileged. The EEOC argues that to the extent Defendants may obtain testimony about facts

which the EEOC discovered during its investigation of the Charge, “Defendants may do so

through at (sic) the deposition of EEOC Investigator Paul Southworth. Thus, . . . , Plaintiff

1

With minor, immaterial exceptions, the briefs in support of these Motions are

identical. In both, the EEOC argues that the Rule 30(b)(6) Notice of Deposition

should be quashed, that the EEOC is entitled to a protective order, and that no

discovery is permissible with respect to the EEOC’s good faith efforts to

conciliate this matter before the filing of this lawsuit.

2

EEOC respectfully requests that this Court grant its Motion to Quash the Notice of Rule 30(b)(6) Deposition of an EEOC designee.” (Doc. 33 at 16.)
In its Motion for a Protective Order, the EEOC requests that the Court “enter an Order that no EEOC employee shall be compelled to give deposition testimony regarding any matter other than facts which were gleaned by the EEOC during the investigation of the Charge.” (Doc. 35 at 15.) Additionally, the EEOC states that while it “prefers not to subject its investigators to the time imposition of litigation depositions, it will produce Mr. Southworth, but will limit his testimony to inquiries about facts which were discovered during the investigation of the Charge.” (Doc. 35 at 4.)
The EEOC contends that the information sought by the Rule 30(b)(6) Notice may be categorized into three areas of discovery: (i) facts obtained by the EEOC during its investigation of the Charge underlying this litigation; (ii) EEOC’s internal processing and/or analysis related to the cause determination; and (iii) the EEOC’s decision-making process surrounding its administrative conciliation of the Charge. (Doc. 33 at 3). The Notice of the Deposition of Paul Southworth did not specify the intended areas of inquiry; however, “the EEOC anticipates that the Defendant (sic) will attempt to question Mr. Southworth about the same matters listed in the Rule 30(b)(6) Notice.” Not surprisingly, Defendants strenuously object to the EEOC’s characterization of its intended areas of requested discovery, and argue that they are seeking only “discoverable facts relating to the EEOC’s underlying investigation . . . .” (Doc. 41 at 2.)
After reviewing the Notice of the Deposition, the Court agrees with Defendants and finds that Defendants are seeking facts obtained by the EEOC during its underlying
3

investigation, not any information related to the EEOC’s opinions, analysis, or legal theories with respect to the Charge. (See Defs’ Rule 30(b)(6) Notice of Deposition, Docket #33-2, Exh. A.)
Moreover, the Court finds and rules that the EEOC cannot seek protection from Defendants’ 30(b)(6) Notice of Deposition by unilaterally declaring all information known to the EEOC as privileged, specifically, the EEOC contends that the inquiries to the Rule 30(b)(6) representative will invade the “deliberative process privilege.” First, unless and until Defendants actually ask a question at the deposition that intrudes upon the deliberative process privilege or any other alleged applicable privilege, the Court finds that the EEOC’s objections are premature. Furthermore, it should be noted that the deliberative process privilege only protects the opinions, recommendations, and deliberations of the EEOC, not the underlying factual information. Branch v. Phillips Petroleum Co., 638 F.2d 873, 882 (5th Cir. 1981).2
The Court finds and rules that the EEOC, like all other litigants, should object to actual questions which it believes invade any applicable privilege during the deposition and cannot be granted unwarranted or overly broad protections prior to any questions being asked of the deponent.
The EEOC also appears to argue that because it has provided Defendants with its investigative file, the Rule 30(b)(6) deposition is not necessary. The Court finds this argument also to be without merit. Providing its investigative file simply does not relieve the EEOC of

2

Defendants also argue that, assuming that Defendants were seeking information

protected by the deliberative process privilege, the EEOC has failed to invoke the

proper procedure for asserting this privilege. Because the Court has ruled that any

assertion of a privilege is premature at this time, the Court will not address this

argument.

4

its obligation under Rule 30(b)(6) to provide a witness to answer questions about those documents for purposes of clarification and interpretation. See Tri-State Hosp. Supply Corp. v. United States of Am., 226 F.R.D. 118, 125-26 (D. D.C. 2005).
EEOC’s final argument is that Defendants’ request regarding “[t]he EEOC’s efforts to conciliate the Charge of Discrimination” is not proper because the EEOC is “entitled to be protected from producing testimony or protected documents regarding the administrative conciliation process.” (Doc. 35 at 10.) The EEOC argues that it has fulfilled its obligation to conciliate and, therefore, discovery of such information is not necessary and not relevant. In support of its Motions, the EEOC attached to its Motions a proposed Conciliation Agreement and an exchange of correspondence between it and the Defendants related to conciliation and offers of settlement. The EEOC contends that the “undisputed facts are sufficient for this Court to determine that the EEOC fulfilled its statutory duty to engage in the conciliation process. Any further information which Defendant (sic) might seek by way of deposition can only go to the EEOC’s decision making process or deliberations and, thus, is immune from disclosure by the agency’s Deliberative Process Privilege.” (Doc. 35 at 15.) 3
It is not disputed that Defendants have raised the affirmative defense that the EEOC failed to engage in conciliation in good faith. The Court finds and rules that, despite the EEOC’s belief that it fulfilled its statutory obligation to conciliate before filing this lawsuit, the Defendants are entitled to discovery on the issue before any dispositive ruling. The Court does

3

Defendants strongly object to the EEOC’s public disclosure of these documents

and have asked the Court to strike said documents and to sanction the EEOC for

its failure to abide by 42 U.S.C. § 2000e-5(b). Those issues will be addressed by

the Court in its ruling on Defendants’ Motion to Strike and for Sanctions, infra.

5

not interpret Defendants’ request to be delving into the substantive aspect of any conciliation negotiations, but rather simply requests information which pertains to the efforts and actions of the EEOC to conciliate the Charge. The deposition of the EEOC representative regarding its conciliation efforts will allow Defendants to explore and develop evidence of whether the EEOC actually made efforts and/or took actions to conciliate in good faith. See EEOC v. Mobil Oil Corp., No. 73cv139-W-2, 1973 WL 231, *1 (W.D. Mo. Sept. 17, 1973) (“the objective operative facts” of the conciliation process are relevant and subject to discovery.)
For all the aforementioned reasons, the Motion to Quash and the Motion for Protective Order are DENIED. Furthermore, to the extent that the EEOC is seeking a dispositive ruling on Defendants’ affirmative defense of the failure of the EEOC to conciliate in good faith, such request is DENIED without prejudice to the EEOC raising the issue at the appropriate time.

B.

Motion to Strike / Motion for Sanctions

As stated supra, on Thursday, March 5, 2009, the EEOC filed its Motions. In

support of these Motions, the EEOC attached a proposed Conciliation Agreement and an

exchange of correspondence between it and Defendants related to the EEOC’s conciliation

efforts. Because of the seeming emergent nature of the Motions, the Court immediately

reviewed the Motions and the attachments, which are the very subject of the Motion to Strike

and for Sanctions. The Court was not aware that any controversy was brewing over the filing of

the conciliation exhibits.

6

On Monday, March 9, 2009, counsel for the EEOC filed a Motion to Seal Appendices, in which it was reported that Defendants had agreed to the sealing of the conciliation exhibits. On March 10, 2009, in reliance upon the representation of the EEOC that the parties had agreed that the conciliation exhibits be sealed, the Court granted the Motion to Seal Appendices. Later that same day, Defendants filed the instant Motion to Strike Exhibits and for Sanctions.
In their Motion, Defendants portray a much different scenario of the situation surrounding the filing of the Motion to Seal Appendices. Defendants represent that on March 6, 2009, the day following their receipt of the EEOC’s Motions, counsel for Defendants contacted counsel for the EEOC and explained that the filing of the conciliatory exhibits was in error and requested that same be immediately addressed. On March 9, 2009, counsel for Defendants spoke again with counsel for the EEOC and requested that the conciliation documents be stricken from the docket; at no time did counsel for Defendants ever agree that sealing the documents was an acceptable solution. Accordingly, the Motion to Seal Appendices erroneously reported to the Court that Defendants had agreed to the sealing of the conciliation exhibits. Defendants contend that, even under seal, these documents inappropriately disclosed to the Court and its staff the confidential discussion related to resolution of this matter, which information it would normally not have had access.
Title 42, United States Code, section 2000e-5(b) instructs that any information exchanged during the conciliation process is confidential:
If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing
7

said or done during and as part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. 42 U.S.C. § 2000e-5(b) (emphasis added). In the case sub judice, the EEOC disclosed and used as evidence a proposed Conciliation Agreement and an exchange of correspondence during the conciliation process between Defendants and the EEOC, undeniably without the written consent of Defendants. The EEOC, without citing to any authority, defends its disclosures by arguing that “Defendants noticed the Rule 30(b)(6) deposition in an attempt to obtain information to support their defense. Thus, Defendants have de facto waived their right to the statutory limitation on use of the conciliation documents in the instant litigation.” (Doc. 42 at 3.) Further, the EEOC argues that “Defendants’ actions waived any obligation EEOC might have had to seek their written consent to allow use of the conciliation documents in this litigation. Alternatively, and put in terms of the statutory prohibition, it is clear that by signing their Answer and Notice, defendants provided sufficient ‘written consent’ to allow disclosure by the EEOC.” (Id.) The Court through its independent research has not found any support for the EEOC’s position that “by signing their Answer and Notice,” Defendants have provided any form of “written consent” to allow disclosure of the subject information by the EEOC. The plain language of the statute prohibits disclosure by the Commission of these documents, with no exceptions, and vests in the persons concerned the discretion to consent or not consent to such disclosure.
8

The Court finds that the disclosure of these documents by the EEOC is clearly forbidden by referenced statute and, therefore, these documents must be stricken from the record. Accordingly, the Motion to Strike is GRANTED and the Clerk is directed to strike Exhibits B-F of the EEOC’s appendices.
Defendants have also asked that the Court sanction the EEOC for its violation of 42 U.S.C. § 2000e-5(b). While the Court has ruled that the EEOC violated the disclosure prohibition of 42 U.S.C. § 2000e-5(b), the Court finds that, under the circumstances of this case, sanctions are an extreme remedy which is not warranted. Therefore, Defendants’ request for sanctions is DENIED.

C.

Sua Sponte Recusal - 28 U.S.C. § 455(a)

Defendants have expressed concern that one of the problems with the disclosure of

the conciliation exhibits, even under seal, is that “the Court and its staff” had access to

information which it “would normally not have access.” The concern of the Defendants is real,

as the Court reviewed the conciliation exhibits immediately upon being made aware of the

filing of the Plaintiffs’ Motions and the seemingly emergent nature of the Motions. It was not

until the filing of Defendants’ Motion to Strike that the Court was informed that Defendants

had not given written consent to this disclosure.

The issue of whether the EEOC attempted to conciliate the underlying charge in good

faith is a legal matter for the Court to determine, not the jury. EEOC v. Equicredit Corp. of

Am., NO. 02-cv-844, 2002 WL 3137198, *3-4 (E.D. Pa. 2002); EEOC v. Rhone-Poulenc, Inc.,

677 F. Supp. 264, 266 (D.N.J. 1988). However, a court should not scrutinize "the details of the

9

offers and counteroffers between the parties," or "impose its notions of what the agreement should provide, any more than it would if dealing with labor contract negotiations under the Labor Management Relations Act." EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). See also EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); EEOC v. Mitsubishi Motor Mfg. of Am., 990 F. Supp. 1059, 1091 (C.D. Ill.1 998); EEOC v. Pacific Maritime Ass'n, 188 F.R.D. 379, 381 (D. Or. 1999).
In its filings, Defendants represent that in asserting their affirmative defense that the EEOC did not engage in conciliation efforts in good faith they “have no intention of disclosing their monetary offer of settlement under any circumstances.” However, the Court now is fully aware of the specifics of both the EEOC’s settlement demand and the offer made in response by Defendants.
Neither party has moved for the recusal of this member of the Court. However, even if the parties do not move for recusal, title 28, United States Code, section 455, creates an independent duty which requires federal judges to evaluate in every case whether they should disqualify themselves. See 28 U.S.C. § 455(a) (stating that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”); Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993) (holding that section 455 “commands the judge to disqualify himself sua sponte” ).
After careful and deliberate consideration, the Court is concerned that its intimate knowledge of the details contained in the conciliation documents might reasonably result in one the parties questioning the impartiality of the Court. Accordingly, in accordance with title 28,
10

United States Code, section 455, the Court hereby recuses itself in connection with this action. The Clerk is directed to reassign this case to another member of the Court forthwith.

So ORDERED this 17th day of March, 2009.

BY THE COURT:
s/Terrence F. McVerry United States District Court Judge

cc:

M. Jean Clickner, Esquire

Equal Employment Opportunity Commission

Email: jean.clickner@eeoc.gov

David F. Weiner, Esquire Carlin & Weiner Email: officemanager@prosuites.com

Helen R. Kotler, Esquire Email: hrkotler@yahoo.com

Theodore A. Schroeder, Esquire Littler Mendelson Email: tschroeder@littler.com

Christopher Michalski, Esquire Littler Mendelson Email: cmichalski@littler.com

11

 
 Case: 2:08-cv-01358-GLL-CB As of: 06/10/2013 03:32 PM EDT 1 of 7
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:08−cv−01358−GLL−CB

CLOSED

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. LIFECARE MANAGEMENT SERVICES, LLC et al Assigned to: Chief Judge Gary L. Lancaster Referred to: Magistrate Judge Cathy Bissoon Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 09/30/2008 Date Terminated: 05/12/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

represented by M. Jean Clickner Equal Employment Opportunity Commission 1000 Liberty Avenue William S. Moorhead Federal Building, Suite 1112 Pittsburgh, PA 15222 (412) 395−5843 Fax: (412) 395−5749 Email: jean.clickner@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
DIANA ALTIERI−HAND TERMINATED: 05/08/2009

represented by David F. Weiner Carlin &Weiner 600 Grant Street USX Tower, Suite 660 Pittsburgh, PA 15219 (412) 391−2857 Email: officemanager@prosuites.com ATTORNEY TO BE NOTICED
Helen R. Kotler 650 Smithfield Street Centre City Tower, Suite 1110 Pittsburgh, PA 15222 (412) 281−6538 Fax: (412)281−7625 Email: hrkotler@yahoo.com ATTORNEY TO BE NOTICED

V.
Defendant
LIFECARE MANAGEMENT SERVICES, LLC

represented by Theodore A. Schroeder Littler Mendelson 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 (412) 201−7624 Fax: (412) 774−1959 Email: tschroeder@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Michalski

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Littler Mendelson 625 Liberty Avenue 26th Floor Pittsburgh, PA 15222 (412) 201−7634 Email: cmichalski@littler.com ATTORNEY TO BE NOTICED

Defendant
LIFECARE HOSPITALS OF PITTSBURGH, INC

represented by Theodore A. Schroeder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Michalski (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/30/2008
09/30/2008 10/01/2008
10/06/2008 10/15/2008 10/16/2008
10/16/2008 10/16/2008
10/16/2008 10/17/2008 10/20/2008

# Docket Text
1 COMPLAINT against LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC, filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Lifecare Hospitals of Pittsburgh, Inc, # 3 Summons for Lifecare Management Services, LLC) (ksa) (Entered: 09/30/2008)
Summons Issued as to LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (ksa) (Entered: 09/30/2008)
2 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (kly) (Entered: 10/01/2008)
Summons Reissued as to LIFECARE HOSPITALS OF PITTSBURGH, INC. (dgl) (Entered: 10/06/2008)
3 MOTION to Intervene by Diana Altieri−Hand. (Attachments: # 1 Exhibit 1 to Motion to Intervene, # 2 Proposed Order) (Kotler, Helen) Modified on 10/16/2008 to correct typo. (ksa) (Entered: 10/15/2008)
TEXT ORDER Response/Briefing Schedule re 3 Motion to Intervene. Response to Motion due by 10/22/2008. Signed by Judge Terrence F. McVerry on 10/16/2008. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kly) (Entered: 10/16/2008)
4 RESPONSE to Motion re 3 Motion to Intervene filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 10/16/2008)
5 SUMMONS/Return of Service Returned Executed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. LIFECARE HOSPITALS OF PITTSBURGH, INC served on 10/8/2008, answer due 10/28/2008. (Clickner, M.) (Entered: 10/16/2008)
6 NOTICE of Appearance by David F. Weiner on behalf of Diana Altieri−Hand (Attachments: # 1 Notice of Appearance) (Weiner, David) (Entered: 10/16/2008)
7 ORDER granting 3 Motion to Intervene. Signed by Judge Terrence F. McVerry on 10/17/2008. (kly) (Entered: 10/17/2008)
8 Intervenor COMPLAINT, filed by DIANA ALTIERI−HAND. (Attachments: # 1 Exhibit 1) (Kotler, Helen) (Entered: 10/20/2008)

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10/20/2008 10/21/2008
10/24/2008 10/24/2008
10/29/2008 11/11/2008 11/12/2008 11/12/2008 11/26/2008 11/26/2008 12/02/2008
12/03/2008 12/04/2008 12/04/2008 01/07/2009

9 NOTICE of Appearance by Theodore A. Schroeder on behalf of LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC (Schroeder, Theodore) (Entered: 10/20/2008)
10 Disclosure Statement identifying LifeCare Holdings, Inc.; LCI Holdco, LLC; LCI Intermediate Holdco, Inc.; LCI Holding Company, Inc. as corporate parent or other affiliate, by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Schroeder, Theodore) (Entered: 10/21/2008)
11 NOTICE of Appearance by Christopher Michalski on behalf of LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC (Michalski, Christopher) (Entered: 10/24/2008)
12 Stipulation for Extension of Time to Answer by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. Answer due from LIFECARE MANAGEMENT SERVICES, LLC on 11/26/2008; LIFECARE HOSPITALS OF PITTSBURGH, INC on 11/26/2008. (Michalski, Christopher) (Entered: 10/24/2008)
13 SUMMONS/Return of Service Returned Executed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. LIFECARE MANAGEMENT SERVICES, LLC served on 10/17/2008, answer due 11/26/2008. (Clickner, M.) (Entered: 10/29/2008)
14 MOTION to Amend/Correct 8 Intervenor Complaint Motion to Amend Caption and File Amended Intervenor Complaint by DIANA ALTIERI−HAND. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (Kotler, Helen) (Entered: 11/11/2008)
15 ORDER granting 14 Motion to Amend/Correct. Signed by Judge Terrence F. McVerry on 11/12/2008. (kly) (Entered: 11/12/2008)
16 AMENDED Intervenor COMPLAINT, filed by DIANA ALTIERI−HAND. Related document: 8 Intervenor Complaint filed by DIANA ALTIERI−HAND. (Attachments: # 1 Exhibit 1) (Kotler, Helen) (Entered: 11/12/2008)
17 Defendants' ANSWER to 1 Complaint, and Additional Defenses by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Michalski, Christopher) (Entered: 11/26/2008)
18 Defendants' ANSWER to Amended Intervenor's Complaint and Additional Defenses by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Michalski, Christopher) (Entered: 11/26/2008)
19 INITIAL LOCAL RULE 16.1 SCHEDULING CONFERENCE: Case Management Conference set for 1/30/2009 10:15 AM in Courtroom 6C before Terrence F. McVerry. Rule 26 disclosures due by 12/22/2008. Rule 26 Report due by 1/12/2009. Signed by Judge Terrence F. McVerry on 12/2/2008. (Attachments: # 1 Exhibit Stipulation Selecting ADR Process, # 2 Exhibit Rule 26(f) Report) (kly) Modified on 12/3/2008 to edit docket text. (ksa) (Entered: 12/02/2008)
20 Unopposed MOTION To Reschedule Initial Case Management Conference re 19 Initial Local Rule 16.1 Scheduling Conference, by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Attachments: # 1 Proposed Order) (Michalski, Christopher) (Entered: 12/03/2008)
21 ORDER granting 20 Unopposed Motion to Reschedule Initial Case Management Conference. The Initial Case Management Conference has been RESCHEDULED to 2/5/2009 at 8:30 a.m. Signed by Judge Terrence F. McVerry on 12/4/2008. (kly) (Entered: 12/04/2008)
Initial Conference set for 2/5/2009 08:30 AM in Courtroom 6C before Terrence F. McVerry. (kly) (Entered: 12/04/2008)
22 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at

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01/09/2009 01/12/2009 02/05/2009
02/05/2009
02/05/2009 02/11/2009
02/11/2009
02/12/2009
02/12/2009 02/24/2009 02/25/2009 03/05/2009 03/05/2009 03/05/2009

www.pawd.uscourts.gov and click on the ADR icon. Mediation Conference set for 2/11/2009 10:00 AM (Kushner, Louis) (Entered: 01/07/2009)
23 REPORT of Rule 26(f) Planning Meeting. (Michalski, Christopher) (Entered: 01/09/2009)
24 STIPULATION selecting ADR process by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Clickner, M.) (Entered: 01/12/2009)
TEXT Minute Entry for proceedings held before Judge Terrence F. McVerry: Case Management Conference held on 2/5/2009. Case Management Order to follow. Text only entry; no PDF document will issue. This text only entry constitutes the Court's order or notice on the matter. (Court Reporter: NONE) (kly) (Entered: 02/05/2009)
25 CASE MANAGEMENT/SCHEDULING ORDER: Amended Pleadings due by 5/21/2009. Joinder of Parties due by 5/21/2009. Willingness to proceed before Magistrate Judge due by 5/21/2009. Discovery due by 8/5/2009. Post Discovery Status Conference set for 8/14/2009 at 8:30 AM in Courtroom 6C before Terrence F. McVerry. Signed by Judge Terrence F. McVerry on 2/5/09. (cc) (Entered: 02/05/2009)
26 ORDER REFERRING CASE to Mediation. LOUIS B. KUSHNER, ESQUIRE, is appointed as mediator. Signed by Judge Terrence F. McVerry on 2/5/09. (cc) (Entered: 02/05/2009)
27 Joint MOTION to Modify 25 Case Management Order, by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC., DIANA ALTIERI−HAND, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachment: # 1 Proposed Order) (Michalski, Christopher) Modified on 2/12/2009. (jsp) (Entered: 02/11/2009)
28 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at www.pawd.uscourts.gov and click on the ADR icon. Mediation Conference set for 3/19/2009 10:00 AM (Kushner, Louis) (Entered: 02/11/2009)
29 ORDER granting 27 Motion to Modify Case Management Order. Discovery due by 9/9/2009. Post Discovery Status Conference has been RESCHEDULED to 9/11/2009 at 8:30 AM. All other dates in the 2/5/2009 Case Management Order remain in full force and effect. Signed by Judge Terrence F. McVerry on 2/12/2009. (kly) (Entered: 02/12/2009)
Update Deadlines: Discovery due by 9/9/2009. Post Discovery Status Conference RESCEDULED to 9/11/2009 at 8:30 AM in Courtroom 6C before Terrence F. McVerry. (kly) (Entered: 02/12/2009)
30 Consent MOTION for Protective Order by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Attachments: # 1 Proposed Order, # 2 Exhibit A − Declaration to Protective Order) (Michalski, Christopher) (Entered: 02/24/2009)
31 ORDER granting 30 Motion for Protective Order. Signed by Judge Terrence F. McVerry on 2/25/2009. (kly) (Entered: 02/25/2009)
32 MOTION to Quash Notice of Rule 30(b)(6) Deposition by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 03/05/2009)
33 BRIEF in Support re 32 Motion to Quash filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Appendix) (Clickner, M.) (Entered: 03/05/2009)
34 MOTION for Protective Order by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 03/05/2009)

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03/05/2009 03/06/2009 03/06/2009 03/09/2009 03/10/2009 03/10/2009
03/10/2009 03/11/2009 03/11/2009 03/12/2009 03/12/2009 03/17/2009
03/17/2009

35 BRIEF in Support re 34 Motion for Protective Order filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Appendix) (Clickner, M.) Appendix stricken by 43 Memorandum Order of March 17, 2008. (bsc) (Entered: 03/05/2009)
TEXT ORDER Response/Briefing Schedule re 32 Motion to Quash and 33 Brief in Support of Motion. Replies due by 3/12/2009. Signed by Judge Terrence F. McVerry on 3/6/2009. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kly) (Entered: 03/06/2009)
TEXT ORDER Response/Briefing Schedule re 34 Motion for Protective Order and 35 Brief in Support of Motion. Replies due by 3/12/2009. Signed by Judge Terrence F. McVerry on 3/6/2009. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kly) (Entered: 03/06/2009)
36 MOTION to Seal Appendices to Docket No. 33 and 35 by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 03/09/2009)
37 ORDER granting 36 Motion to Seal Appendices to Docket No. 33 and 35 . Signed by Judge Terrence F. McVerry on 3/10/2009. (kly) (Entered: 03/10/2009)
38 MOTION to Strike Exhibits to 35 Brief in Support of Motion, and 33 Brief in Support of Motion, MOTION for Sanctions by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Attachments: # 1 Exhibit 1 − Declaration of Theodore A. Schroeder, # 2 Exhibit 2 − 3/6/09 letter from Schroeder to Clickner, # 3 Exhibit 3 − 3/9/09 e−mail exchange between Schroeder and Clickner, # 4 Proposed Order) (Michalski, Christopher) Modified on 3/11/2009 to correctly title motion. (ksa) (Entered: 03/10/2009)
39 BRIEF in Support re 38 Motion to Strike, Motion for Sanctions, filed by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Michalski, Christopher) (Entered: 03/10/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 38 Motion to Strike, Motion for Sanctions. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate documents. This message is for informational purposes only. (ksa) (Entered: 03/11/2009)
40 ORDER Response/Briefing Schedule re 38 Motion to Strike Exhibits and For Sanctions. Plaintiff's Response to Motion due by 12:00PM on 3/13/2009. Signed by Judge Terrence F. McVerry on 3/11/2009. (kly) (Entered: 03/11/2009)
41 BRIEF in Opposition re 34 Motion for Protective Order, 32 Motion to Quash filed by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Michalski, Christopher) (Entered: 03/12/2009)
42 RESPONSE to Motion re 38 Motion to Strike, Motion for Sanctions, filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Affidavit Declaration of M. Jean Clickner) (Clickner, M.) (Entered: 03/12/2009)
43 MEMORANDUM ORDER denying 32 Motion to Quash Notice of Rule 30(b)(6) Deposition; denying 34 Motion for Protective Order; granting 38 −1 Motion to Strike; and denying 38 −2 Motion for Sanctions. Further, in accordance with 28 U.S.C. section 455, the Court hereby recuses itself in connection with this action. The clerk is directed to assign this case to another member of the Court forthwith. See Memorandum Order for details. Signed by Judge Terrence F. McVerry on 03/17/09. (bsc) (Entered: 03/17/2009)
TEXT ORDER OF RECUSAL. Judge Terrence F. McVerry recused. See 43 Memorandum Order of March 17, 2009. Signed by Judge Terrence F. McVerry on 03/17/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bsc ) (Entered: 03/17/2009)

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03/17/2009 03/18/2009 03/20/2009 03/20/2009 03/20/2009 03/20/2009 03/20/2009
03/24/2009
04/03/2009
04/21/2009
05/07/2009 05/08/2009 05/12/2009 05/12/2009
05/12/2009

Judge Cathy Bissoon added. (jls) (Entered: 03/17/2009)
TEXT NOTICE Cancelling Hearing: Post Discovery Status Conference scheduled for 9/11/2009 is cancelled. Text−only entry. No PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kly) (Entered: 03/18/2009)
44 DISTRICT JUDGE OPTION by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION to have this case randomly assigned to a U.S. District Judge. (Clickner, M.) (Entered: 03/20/2009)
Judge Cathy Bissoon no longer presiding. (jls) (Entered: 03/20/2009)
Judge Terrence F. McVerry and Cathy Bissoon added. (jls) (Entered: 03/20/2009)
Judge Gary L. Lancaster added. Judge Terrence F. McVerry no longer assigned to case. (jls) (Entered: 03/20/2009)
45 AMENDED CASE MANAGEMENT ORDER, more fully stated in said order: Joinder of Parties due by 4/21/2009; Amended Pleadings due by 4/21/2009; Parties to hold Mediation by 3/25/09; Discovery due by 9/9/2009; Settlement Conference set for 9/11/2009 09:30 AM before Cathy Bissoon. Signed by Judge Cathy Bissoon on 3/20/09. (jhi) Modified on 3/23/2009 to correct typos. (ksa) (Entered: 03/20/2009)
46 REPORT of Mediation: Settlement has not been reached. Case continued to 4/9/2009. The parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 3/19/2009. (Kushner, Louis) (Entered: 03/24/2009)
ORDER, Settlement Conference rescheduled for 9/17/2009 9:30 AM before Cathy Bissoon. All other deadlines remain in effect. Signed by Judge Cathy Bissoon on 4/3/09. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jhi) (Entered: 04/03/2009)
47 REPORT of Mediation: Case has not been resolved, but mediation continued. The parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 3/19/2008. (Kushner, Louis) (Entered: 04/21/2009)
48 STIPULATION of Dismissal by LIFECARE MANAGEMENT SERVICES, LLC, LIFECARE HOSPITALS OF PITTSBURGH, INC. (Michalski, Christopher) (Entered: 05/07/2009)
49 ORDER granting 48 Stipulation of Dismissal with prejudice of Intervenor−Plaintiff's claims against defendants; Court will retain jurisdiction for purposes of interpreting and enforcing settlement; Each party to bear its own costs. Signed by Judge Gary L. Lancaster on 5/8/09. (map) (Entered: 05/08/2009)
50 CONSENT DECREE by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 05/12/2009)
51 REPORT of Mediation: Case has been resolved. LOUIS B. KUSHNER terminated. Attorney Louis B. Kushner terminated. The parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 3/19/2009. (Kushner, Louis) (Entered: 05/12/2009)
52 ORDER granting 50 Consent Decree, resolving all claims raised by the Equal Employment Opportunity Commission, under terms stated more fully in order; Each party to bear their own expenses, costs and fees; Terms of this consent decree shall continue to be in effect for one (1) year; Court shall retain jurisdiction to enforce the terms of this consent decree. Signed by Judge Gary L. Lancaster on

Case: 2:08-cv-01358-GLL-CB As of: 06/10/2013 03:32 PM EDT 7 of 7 5/12/09. (map) (Entered: 05/12/2009)