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PRITCHARD v. MACNEAL HOSP.

April 21, 1997

ESTELLA PRITCHARD, Plaintiff,
v.
MACNEAL HOSPITAL, Defendant.



The opinion of the court was delivered by: ALESIA

 Plaintiff Estella Pritchard ("Pritchard") brought this action pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, alleging that she is disabled and that defendant, MacNeal Hospital ("MacNeal"), terminated her because of her disability. Before the court is MacNeal's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, and Pritchard's motion to strike MacNeal's summary judgment evidence. For the reasons that follow, the court denies the motion to strike and grants the motion for summary judgment.

 I. BACKGROUND1

 In October 1969, Pritchard was hired as a housekeeper by MacNeal Hospital, and remained in this position until she was fired on March 30, 1995. Pritchard's duties were those of general housekeeping, which included washing walls and furniture, making beds, mopping floors, cleaning bathrooms, and doing detail work, such as removing lint and dust that was not immediately visible, but which, if not properly removed from operating rooms, could compromise patient safety. Pritchard's position required constant standing and walking, the ability to lift and carry light weights, and the ability to push cleaning carts. Pritchard received training for her position when she was first hired and also received additional training when she was assigned to new areas in the hospital.

 A. Pritchard's injuries

 In October 1990, after she had completed her shift but before leaving the hospital, Pritchard slipped and fell, hurting her left knee and leg. Pritchard did not seek medical attention immediately, but went home. The following day she complained to her supervisor, John Wesolowski, that she was in pain. Wesolowski prepared an incident report and told Pritchard to go to Employee Health. Pritchard was diagnosed as having a sprained knee, but was told that she was still able to work and did not require any time off. Pritchard returned to her duties and worked the remainder of her shift.

 In the days and weeks following her injury, Pritchard found it difficult and painful to get down on her hands and knees to clean scuff marks off the floor and to wash baseboards. In order to avoid this pain, Pritchard adjusted her method of cleaning, finding ways to use a mop to accomplish these tasks. Pritchard recalls telling Wesolowski that she was in some pain on three separate occasions, but she did not tell him that she was unable to do her job. Pritchard's job responsibilities remained unchanged.

 Approximately seventeen months after her injury, Pritchard began seeing doctors for the pain she was experiencing in her left leg and knee. In March 1992, Pritchard was diagnosed by Dr. John Martell as having osteoarthritis, which is the loss of cartilage in the knee leading to progressive pain and deformity. Dr. Martell explained that the only "cure" available for osteoarthritis is total knee replacement; however, he did not recommended this procedure for Pritchard because of her young age and severe obesity and the heavy walking requirements of her job. Dr. Martell treated Pritchard with pain medications and cortisone shots, and continued to recommend that she lose weight to lessen her symptoms.

 In May 1993, Pritchard slipped and fell again, this time while she was in MacNeal's cafeteria. Pritchard was taken to the emergency room and diagnosed as having a sprained left knee. A few hours after the injury Pritchard was up and walking around; however, she was sent home and told to contact Employee Health the next day. For the next six days Pritchard reported to Employee Health and was sent home by the reviewing physician. Pritchard submitted papers on each of these days to her supervisor advising him that she was unable to work. At the end of the six days Pritchard's doctor told her she could return to work on light duty, but did not place specific restrictions on the duties she could perform. Pritchard returned to work and performed all the duties of her job as she had in the past.

 Initially, Pritchard limped and had some difficulty walking, but was able to walk better in a few weeks, once her sprain healed. While she required no further medical treatment for the sprain or the assistance of a cane or wheelchair, Pritchard still occasionally wraps her knee. Pritchard continued to see Dr. Martell and other doctors periodically for symptoms relating to her osteoarthritis.

 B. Pritchard's job performance between 1990 and 1995

 For the period from September 5, 1990, through September 5, 1991, Pritchard's supervisor, Ron Harrison, rated her overall performance as "satisfactory." Although the evaluation was generally positive, it recommended that Pritchard improve her detail work, including dusting and making sure equipment was free of streaks and chemical build-up. Almost a year later, in August 1992, Harrison sent an inter-office memorandum to Luis Castillo, manager of the Environmental Services Department, outlining a number of performance deficiencies he had recently addressed with Pritchard. The deficiencies included dust and blood left on overhead fixtures, dust behind mirrors and on window ledges, and improperly cleaned cabinet tops, trash cans, baseboards, and walls.

 Harrison rated Pritchard's performance for the period between September 5, 1991, and September 5, 1992, as "marginal." Pritchard was given 90 days to improve the quality of her work. Pritchard did improve, and Harrison rated her performance as "satisfactory" for the period between September 5, 1992, and September 5, 1993. While Harrison noted that Pritchard's performance had been good during the past year, he also noted that she still needed to be aware of dusting ledges and fixtures.

 On June 29, 1994, Pritchard received a written warning for poor performance. The warning included a list of deficiencies focusing on numerous incidents of blood and dust found in birthing rooms, and improperly cleaned equipment, walls, and counter tops in the nursery. Fabio Cenci, who replaced Harrison as Pritchard's supervisor in March 1994, rated her performance as "marginal" for the period between September 5, 1993, and September 5, 1994. Pritchard again was given 90 days to improve her performance to avoid being fired.

 Cenci wrote a memorandum on November 2, 1994, to Pritchard's file regarding her continued performance problems, referring specifically to the serious deficiencies he observed during an inspection on November 1, 1994. On November 4, 1994, Cenci wrote a memorandum directly to Pritchard discussing the areas of concern raised by his November 1 inspection, his attempts at coaching her though weak areas, and her repeated tardiness, which had just come to his attention. Cenci emphasized the seriousness of her probationary status and the potential for termination if she failed to improve.

 On November 11, 1994, Cenci wrote another memorandum to Pritchard regarding complaints he had received from Maureen Kosieniak, the manager of labor and delivery, and Dr. Santilli. Both complained of Pritchard's unacceptable work performance, referring to inadequate cleaning and dusting and the serious risk to patients that such improperly cleaned rooms presented. Cenci decided he could no longer allow Pritchard to work in labor and delivery; however, instead of terminating her, he reassigned her to a floating housekeeping position where she would have an opportunity to improve and meet the standards identified in his November 4, 1994, memorandum. On November 16, 1994, Cenci gave Pritchard her first written warning for attendance problems.

 On December 5, 1994, the end of Pritchard's 90-day probationary period, Cenci again rated her as "marginal." Instead of firing her, however, Cenci extended Pritchard's probationary period an additional 90 days, warning her that in order to avoid termination she would have to show dramatic improvement. Subsequent to this evaluation, Pritchard contacted Anthony Rea, the Director of Human Resources at MacNeal. Pritchard complained that Cenci was "harassing" her by changing her schedule, not giving her "holiday pay," looking for her during her lunch breaks, and "picking" on her for not doing her work. No issues regarding her work performance were raised at the meeting. Rea's subsequent investigation of Pritchard's complaint found that Cenci's evaluations of her performance were corroborated by staff members in labor and delivery.

 On February 12, 1995, following a restructuring of the housekeeping department, Pritchard was assigned to the psychiatry department, where she reported directly to the nurse manager of the department, Donna Leveque. While her job title and supervisor changed, Pritchard's duties remained essentially the same. At the end of Pritchard's second 90-day probationary period, Cenci and Leveque evaluated Pritchard's performance. Cenci noted that although Pritchard had made some improvements, her performance remained deficient in many respects. Leveque also found Pritchard's performance deficient, most notably in that Pritchard failed to follow critical procedures with respect to the disposal of sharp containers. Based on this evaluation, Leveque decided it was necessary to fire Pritchard. Rea supported Leveque's decision, and they both met with Pritchard on March 30, 1995, at which time they informed Pritchard that she was fired.

 II. DISCUSSION

 A. Motion to strike

 The court addresses Pritchard's motion to strike summary judgment evidence first because it is necessary to establish what materials are properly before the court in support of MacNeal's motion for summary judgment. Pritchard asks the court to strike most of the documents supporting MacNeal's motion as inadmissible evidence. *fn2" The court finds Pritchard's vague and unsupported accusations of evidentiary inadmissibility without merit. Therefore, Pritchard's motion to strike MacNeal's summary judgment evidence is denied.

 1. Employee evaluations, notices of warning, and supervisor memoranda

 Pritchard first seeks to strike the yearly and 90-day employee evaluations prepared by her supervisors during the last five years of her employment. She further seeks to strike the two notices of warning prepared by her supervisors. Last, Pritchard seeks to strike memoranda created by her supervisors articulating their perceptions of her performance problems. Pritchard bases her claims of inadmissibility on a variety of evidentiary rules, including authentication, hearsay, and relevancy rules. The court finds that Pritchard's employee evaluations, notices of warning, and performance memoranda are relevant, properly authenticated, and not barred as hearsay.

 Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Pritchard's periodic employee evaluations, official written warnings, and performance memoranda are clearly relevant to MacNeal's defense in this case -- that it terminated Pritchard not because she was disabled, but for poor ...


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