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Skibitcky v. Healthbridge Management, LLC

United States District Court, D. Connecticut

September 18, 2017




         This is an employment discrimination case filed by Plaintiff Angela Skibitcky against Defendant Healthbridge Management, LLC (“Healthbridge”). The Complaint raises both interference and retaliation claims in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. Healthbridge has moved for summary judgment on both counts, and in consideration of the arguments Skibitcky challenges only the FMLA retaliation claim. For the foregoing reasons, the Court GRANTS summary judgment in favor of Healthbridge.


         The following undisputed facts, unless otherwise noted, are drawn from the parties’ D. Conn. L. R. 56(a) statements. Healthbridge provides management services, including human resources expertise, to health care centers in Connecticut, Pennsylvania, Maryland, and New Jersey. [Dkt. 36 (D. Conn. L. R. 56(a)(1) Stmt.) ¶ 93; Dkt. 43-3 (D. Conn. L. R. 56(a)(2) Stmt.) ¶ 93]. 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care (“West River” or the “Center”) is a provider of sub-acute and long-term care services and rehabilitative programs in Milford, Connecticut. See [Dkt. 36 ¶ 1; Dkt. 43-3 ¶ 1; Dkt. 34 (Mot. Summ. J.) at 1]. On January 5, 2009, West River’s Recreation Program Director, Nathalie Mihalchick, hired Skibitcky as a part-time Recreational Therapist. [Dkt. 36 ¶ 6; Dkt. 43-3 ¶ 6; Dkt. 37-6 (Mot. Summ. J. Ex. 6, Mihalchick Aff.) ¶ 3]. Skibitcky reported directly to Mihalchick, who reported to the Administrator of the Center, Joanne Wallak. [Dkt. 36 ¶ 9; Dkt. 43-3 ¶ 9; Dkt. 36-1 (Mot. Summ. J. Ex. 1, Wallak Aff.) ¶ 2]. Wallak held the highest position at West River. [Dkt. 36 ¶ 9; Dkt. 43-3 ¶ 9]. West River kept Skibitcky’s employment records and her W-2s from 2009 through 2014 and indicate “245 Orange Avenue Operating Company” is her employer, which she understood to be West River. [Dkt. 36 ¶¶ 98, 100; Dkt. 43-3 ¶¶ 98, 100].

         West River has a Code of Conduct, which requires its employees to maintain accurate records. [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. The Code of Conduct specifically requires staff “to help maintain the Center’s integrity by ensuring that all records and documents, particularly those at issue in governmental investigations and inquiries are thorough, complete and accurate and that they are never altered, edited or amended except as may be permitted in strict accordance with applicable Center policies.” [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. The Code of Conduct also states that “[d]isregard for this principle will be grounds for serious disciplinary action up to and including termination.” [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. Reliability of the claims is essential because the Center’s ability to get paid depends on the “thoroughness, accuracy and integrity of the medical, financial or other documentation.” [Dkt. 36 ¶ 4; Dkt. 43-3 ¶ 4]. The Center requires staff to “know or reasonably believe” the information in claims and reports are “thorough, accurate, and correct.” [Dkt. 36 ¶ 4; Dkt. 43-3 ¶ 4]. West River also maintains an Equal Opportunity policy, enabling employees to contact a telephone number when they believe they are unfairly treated. [Dkt. 36 ¶ 5; Dkt. 43-3 ¶ 5].

         Skibitcky’s duties as a Recreational Therapist included organizing and leading recreational activities for residents and patients. [Dkt. 36 ¶ 13; Dkt. 43-3 ¶ 13]. Her responsibilities included the following found in her Job Description: (1) “Perform administrative requirements, such as completing necessary forms, reports, etc., and submitting such to the Activity Director as required”; (2) “Ensure that all charted activity progress notes are informative and descriptive of the services provided and of the resident’s response to the service.” [Dkt. 36 ¶ 15; Dkt. 43-3 ¶ 15]. Skibitcky understood the importance of accuracy in her documentation for both West River and regulatory purposes. [Dkt. 36 ¶ 16; Dkt. 43-3 ¶ 16].

         Around March or April of 2013, Skibitcky was tasked with “implementing and spearheading the men’s group, building its attendance and providing a focus oriented program.” [Dkt. 36 ¶ 17; Dkt. 43-3 ¶ 17]. She failed to timely complete invitations and communicate the agenda, and as a result she received a Documented Verbal Notice on June 3, 2013. [Dkt. 36 ¶¶ 18-19; Dkt. 43-3 ¶¶ 18-19]. The Notice stated in bold italics, “Further problems of any kind may lead to further disciplinary action up to and including termination of employment.” [Dkt. 37-8 (Mot. Summ. J. Ex. 8, 6/3/13 Notice)]. In August 2013, Skibitcky expressed her lack of confidence in leading the men’s group to Wallak and Director of Nursing Staff, Dwayne Silva, and thereafter she received an “Education” on how to successfully lead the men’s group. [Dkt. 36 ¶¶ 20-21; Dkt. 43-3 ¶¶ 20-21].

         Mihalchick disciplined Skibitcky for insubordination that same month. [Dkt. 36 ¶ 22; Dkt. 43-3 ¶ 22]. The reason for this second disciplinary action was because Mihalchick scheduled Skibitcky to work on a Sunday due to an employment shortage, and in response to Mihalchick telling Skibitcky, “[W]e all have to help out and I am helping out too,” Skibitcky said, “You worked one Sunday.” [Dkt. 36 ¶¶ 22-24; Dkt. 43-3 ¶¶ 22-24; Dkt. 37-2 (Mot. Summ. J. Ex. 2, Pl. Dep.) at 139:14-140:8]. Skibitcky testified that, after one of the meetings she had with Mihalchick and Grabell, Grabell told her, “I would go on FLMA, if I were you, before you lose your job.” [Dkt. 37-2 at 123:3-24].

         Also in August 2013, Skibitcky had two physicians complete FMLA certifications for her in August 2013. Dr. Eric Liben, Skibitcky’s primary care physician, indicated Skibitcky had “relatively well controlled” high blood pressure but that it could flare up if she became stressed at work and in these circumstances she should be able to leave work. [Dkt. 36 ¶¶ 34-37; Dkt. 43-3 ¶¶ 34-37]. Dr. Enrique Tello, Skibitcky’s psychiatrist, opined she experienced “anxiety, episodic increases, which limit [her] ability to work,” and that she may experience flare ups twice a month requiring her to be out of work for one day. [Dkt. 36 ¶¶ 38-40; Dkt. 43-3 ¶¶ 38-40]. Skibitcky thereafter submitted the certifications to Human Resources Employee, Debbie Grabell. [Dkt. 36 ¶ 40; Dkt. 43-3 ¶ 40].

         On October 15, 2013, Skibitcky spoke with Grabell about taking intermittent FMLA leave for a four to six week psychiatric therapy program. [Dkt. 36 ¶ 43; Dkt. 43-3 ¶ 43]. Grabell documented this meeting in an email sent to Healthbridge’s Regional Human Resources Director, Edmund Remillard, wherein she stated Skibitcky complained Mihalchick was the “trigger” for her high blood pressure. [Dkt. 36 ¶ 44; Dkt. 43-3 ¶ 44]. West River approved this request. [Dkt. 36 ¶ 45; Dkt. 43-3 ¶ 45]. Skibitcky began the program on October 21, 2013, and finished the program on December 5, 2013. [Dkt. 36 ¶¶ 45-46; Dkt. 43-3 ¶¶ 45-46]. West River accommodated Skibitcky by changing her schedule so that it did not conflict with the program’s schedule. See [Dkt. 36 ¶ 47; Dkt. 43-3 ¶ 47]. Skibitcky returned to her prior schedule upon completing the program. [Dkt. 36 ¶ 48; Dkt. 43-3 ¶ 48].

         On December 31, 2013, Skibitcky had an argument in the recreation room with another employee, P.J., over a topic Skibitcky does not remember. [Dkt. 36 ¶¶ 50-51; Dkt. 43-3 ¶¶ 50-51]. Skibitcky admits to raising her voice. [Dkt. 36 ¶ 51; Dkt. 43-3 ¶ 51]. Both Skibitcky and P.J. were suspended pending the investigation. [Dkt. 36 ¶ 53; Dkt. 43-3 ¶ 53]. Wallak asked Skibitcky to write a statement about this event, but she did not do so. [Dkt. 36 ¶¶ 54-55; Dkt. 43-3 ¶¶ 54-55].

         On January 10, 2014, Skibitcky went to a meeting with Wallak, Mihalchick, and a coworker who was there to support her. [Dkt. 36 ¶ 56; Dkt. 43-3 ¶ 56]. During the meeting Skibitcky complained that P.J. had called her a liar and that “Bob” and “Natalie” had heard this. [Dkt. 36 ¶ 57; Dkt. 43-3 ¶ 57]. Wallak informed her these individuals reported that they did not hear P.J. call her a liar or point at her, and she responded then they did not hear it. [Dkt. 36 ¶ 57; Dkt. 43-3 ¶ 57]. They reviewed her unpaid suspension and Wallak informed her “that another incident with anything or anyone else could lead to termination.” [Dkt. 36 ¶ 57; Dkt. 43-3 ¶ 57]. Wallak reviewed with Skibitcky a Notice of Disciplinary Action about this event, which included the following language: “Further problems of any kind may lead to further disciplinary action up to and including termination of employment.” [Dkt. 37-15 (Mot. Summ. J. Ex. 15, 1/10/14 Notice)]. Both Wallak and Skibitcky signed the Notice. Id. The Notice indicates that the disciplinary action was to constitute a Final Warning. Id.

         On or about March 18, 2014, Mihalchick visited a resident who asked for her to provide a person to read to him. [Dkt. 36 ¶¶ 62-63; Dkt. 43-3 ¶¶ 62-63]. Skibitcky's duties including reading to this resident and she completed an Activities Attendance One to One Program report representing that she read to him the day before, but the resident insisted, “I am absolutely positive I was not read to yesterday.” [Dkt. 36 ¶ 65; Dkt. 43-3 ¶ 65]. He declared Skibitcky “reads to me ‘when she feels like it.’” [Dkt. 36 ¶ 65; Dkt. 43-3 ¶ 65].

         Mihalchick then reviewed other Activities Attendance reports for that month and discovered Skibitcky filed a report claiming she met with five patients who had in fact already been discharged. [Dkt. 36 ¶ 68; Dkt. 43-3 ¶ 68]. Mihalchick reported this information to Wallak, and they met with Skibitcky the same day. [Dkt. 36 ¶¶ 71-72; Dkt. 43-3 ¶¶ 71-72]. During the meeting, they discussed this issue as well as the resident’s complaint about her not reading to him. [Dkt. 36 ¶ 73; Dkt. 43-3 ¶ 73]. With respect to the discharged patients, Wallak noted that “Angela became very nervous.” [Dkt. 36 ¶ 73; Dkt. 43-3 ¶ 73]. Skibitcky later testified that the information in Wallak’s notes was correct except that Wallak only discussed three discharged patients. [Dkt. 36 ¶ 74; Dkt. 43-3 ¶ 74]. Skibitkcy was immediately suspended pending investigation. [Dkt. 36 ¶ 75; Dkt. 43-3 ¶ 75].

         Upon Wallak’s request, Skibitcky faxed a response about the incident on March 24, 2014. [Dkt. 37-22 (Mot. Summ. J. Ex. 22, Skibitcky Fax)]. She stated,

On tues, March 18, 2014, I was accused of “falsifying reports”. [sic] Knowing my character, you would know that I would never purposely falsify any document. I do not personally know every patient and having to look on the door to see their name. While doing my visits first opportunity in the morning, I made contact with each patient in a room that I noted. I was told that one woman was with her aide and found out when I returned days later that she had been in the hospital. I also overheard another woman I had visited with tell a fellow patient that she was being discharged. Ironically the patients I had supposedly not visited were all ...

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