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Allison Skidmore v. Virtua Health Inc

June 20, 2012


The opinion of the court was delivered by: Hillman, District Judge


This matter has come before the Court on defendant's motion for summary judgment on plaintiff's claims that defendant violated her rights when she was terminated from employment because of her disability. For the reasons set forth below, defendant's motion will be granted in part and denied in part.


Plaintiff, Allison Skidmore, is a registered nurse who had worked for defendant Virtua Health Inc. since 1981 in various capacities. In 2003, plaintiff began working as an RN at Summit Surgical Center, and by June 2008, she was working part-time, two or three shifts a week. Plaintiff's job duties included assessing, diagnosing, planning, implementing, and evaluating care for patients, who included adults and children. Her direct supervisors were Edie Galasso, Assistant Manager of Peri-Op, and Diane Fahey, Director of Nursing.

Plaintiff was a skilled and well-liked nurse who was popular with patients and staff. Unfortunately, plaintiff suffers from alcoholism, anxiety, depression, and has a volatile relationship with her husband. Throughout the time they worked together, plaintiff confided in Galasso about these problems, both at work and in personal phone calls outside of work. Galasso was very supportive of plaintiff, and she often suggested that plaintiff seek help through Virtua's employee assistance program. Plaintiff, however, never sought assistance through that program.

As of February 2009, plaintiff had received several written warnings, in accordance with defendant's progressive discipline policy, regarding plaintiff's mishandling of drugs and specimens. Plaintiff's attendance had also become an issue through the first half of 2009. By the end of June 2009, Galasso noted on plaintiff's performance evaluation that plaintiff "has shown considerable improvement in attendance and is consistently more focused, [decreased] errors and irratic (sic) behavior." In mid-August 2009, however, Galasso issued plaintiff a written "performance appraisal action plan," which was to "identify the behavior . . . that must be improved . . . to meet position expectations," regarding her attendance problems, her erratic and inappropriate behavior, and the proper labeling of specimens.

On December 3, 2009, on her way to work, plaintiff struck a neighbor's car as she backed out of her driveway. Shaken and extremely upset, plaintiff called to say she would not be at work. Galasso learned that plaintiff was going to be absent, and she called plaintiff to inquire about whether she could come into work because two other nurses had called out as well, the unit was short-staffed, and it would not "look good" if plaintiff did not come to work due to her prior attendance issues. Plaintiff told Galasso she would come in if she could. Plaintiff never came to work that day because she believed it was not safe for her to work in her extremely anxious state.

According to defendant, Galasso had been under the impression that plaintiff was going to report to work that day. When she did not show up, Galasso informed Fahey about what had happened, and they consulted with Tracy Sola, the human resources manager. They calculated that plaintiff's December 3, 2009 absence brought the total number of call-outs for that year to six, along with 31 days that plaintiff was late.*fn1 According to defendant, it was decided that plaintiff's employment was to be terminated as the next step under the progressive discipline policy. Fahey requested that plaintiff be granted the option of resigning in lieu of termination so that she could collect payment for her accrued, unused paid time off benefits. Sola approved that request.

When plaintiff arrived for work on December 7, 2009 for her next scheduled shift, Galasso and Fahey told plaintiff that she was being terminated for her attendance violations. Plaintiff became hysterical, started to cry, and said that her husband was "going to kill" her. The remainder of the meeting was very emotional, with Galasso and Fahey hugging and sobbing with plaintiff, as they discussed plaintiff's personal problems and alcohol dependency issues. At the end of the meeting, plaintiff signed the prepared resignation letter, and left the facility. The next day, on the advice of her union, she rescinded her resignation.

In her complaint, plaintiff claims that her termination was not actually motivated by her attendance issues, but because of her disability--alcoholism. Plaintiff argues that several pieces of direct evidence prove her claims:

(1) plaintiffs' supervisors expressly told her that they had concerns about her problems with alcohol;

(2) plaintiff was given--and passed--alcohol testing at work prior to her termination;

(3) management expressed concerns less than a week from plaintiff's termination regarding a "bad" weekend due to alcohol problems;

(4) a week before her termination, plaintiff was approached by Fahey to determine whether she smelled of alcohol based on Galasso's concerns (Fahey concluded that she did not smell ...

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