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Lopreato v. Select Specialty Hospital-Northern Kentucky, LLC

United States District Court, E.D. Kentucky, Northern Division, Covington

December 3, 2014

ELLEY A. LOPREATO, ET AL. Plaintiffs
v.
SELECT SPECIALTY HOSPITAL-NORTHERN KENTUCKY, LLC d/b/a SELECT SPECIALTY HOSPITAL, ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

Defendants Select Specialty Hospital-Northern Kentucky, LLC d/b/a Select Specialty Hospital and Select Medical Corporation[1] (collectively, "Select") move for summary judgment as to the instant claim of disability discrimination brought pursuant to the ADA by Elley A. Lopreato and Susan M. Taylor (collectively, "Plaintiffs"). Applying the McDonnell Douglas framework, Select argues that Plaintiffs are unable to satisfy certain required elements of their prima facie case, particularly, the existence of a disability and Select's knowledge thereof. In the alternative, Select argues that its adverse employment decision was based on a neutral hiring policy, which Plaintiffs have failed to prove (or even allege) was a pretext for unlawful discrimination. The Court has federal question subject matter jurisdiction over this action pursuant to 28 U.S.C. ยง 1331.

I. Factual and Procedural Background

This case revolves around Select's decision not to hire Lopreato or Taylor as nurses at its facility in northern Kentucky. When Select made this decision, Plaintiffs allege they were disabled within in the meaning of the ADA based on chemical dependency issues, discussed more fully below. Plaintiffs contend that Select's decision was motivated, at least in part, by their respective disabilities.

1. Elley Lopreato

Lopreato was licensed by the Kentucky Board of Nursing ("KBN") as a registered nurse in June 1999, and began her career working in the ICU at St. Elizabeth Hospital ("St. Elizabeth") (Doc. #52 at 6). In 2005, Lopreato transferred to the radiography unit, where she worked for approximately two years before St. Elizabeth discovered that she was stealing controlled substances for personal use. ( Id. ) Specifically, Lopreato was abusing a narcotic called fentanyl, which she had been diverting from her patients for several months. As a result, St. Elizabeth fired Lopreato in June 2007. ( Id. at 7).

Shortly thereafter, Lopreato entered the Kentucky Alternative Recovery Effort for Nurses program ("KARE"), which is administered by the KBN. ( Id. ) KARE aims to rehabilitate nurses with chemical dependency issues, enabling them to return to competent and safe practice. (Doc #1 at 4-5). Nurses who wish to participate must expressly admit to "being a chemically dependent individual." (Doc. # 37-2 at 9). Additionally, participants must voluntarily enter into an agreement with KARE, which mandates absolute and continuing sobriety, in addition to a host of other evaluation, treatment, and drug testing requirements. (Doc. #1 at 5). In order to graduate, participants must adhere to the KARE program for no less than five (5) years. ( Id. )

Lopreato enrolled in KARE to prevent more severe disciplinary action after the incident with St. Elizabeth. (Doc. # 52 at 14). Nevertheless, in connection with her program agreement, Lopreato's nursing license became subject to certain restrictions. ( Id. ) For an initial period, she was prohibited from working as a nurse in any manner. (Doc. # 37-2 at 9). This restriction was curtailed over time, and Lopreato was eventually permitted to work under limited circumstances, so long as her employer agreed to provide some level of supervision or monitoring. For instance, Lopreato could only administer narcotics if a doctor or nurse was available to assist. (Doc. # 37-2 at 20)

In November 2008, Lopreato began working for Cardinal Hill Specialty Hospital ("Cardinal Hill"), which operated a long-term acute care hospital ("LTACH") on the campus of the St. Elizabeth Medical Center in northern Kentucky. (Doc. # 52 at 7). Lopreato was still participating in KARE at this time, so her performance at Cardinal Hill was monitored by the KARE coordinators and she remained subject to the conditions of her program agreement. ( Id. at 8). Lopreato was supervised by Cardinal Hill's Clinical Director, Theresa Schneider-Eubank, who knew of Lopreato's involvement with KARE and assisted whenever necessary to ensure her program requirements were satisfied. ( Id. at 7). Lopreato remained at Cardinal Hill until the facility was taken over by Select in December 2011. ( Id. at 7-8).

2. Susan Taylor

Taylor was licensed by the KBN as a registered nurse in March 1993 and also began her career at St. Elizabeth. (Doc. # 52 at 8). Taylor worked on the surgical floor until approximately 1998, and then transferred to the Hospice unit, where she remained for several years. ( Id. ) Beginning in 2006, Taylor, who suffered from depression, began stealing morphine, methadone and vicodin. ( Id. ) In May 2007, she failed a drug test and admitted to diverting her patients' "wasted" medications for personal use. ( Id. ) As a result, St. Elizabeth immediately terminated her employment. ( Id. )

Like Lopreato, in order to avoid losing her nursing license, Taylor enrolled in the KARE program. ( Id. ) She too admitted to being chemically dependent and entered into an agreement with KARE that involved similar evaluation, treatment, and drug testing requirements. (Doc. 38-1 at 24, 30). Based on her participation in KARE, Taylor also had various restrictions imposed upon her license, which were lessened over time as she progressed within the program. ( Id. )

In March 2011, Taylor was hired by Cardinal Hill based on Lopreato's recommendation. (Doc. # 52 at 10). Taylor was still participating in KARE at this time, so her performance at Cardinal Hill was monitored by the KARE coordinators and she remained subject to the conditions of her program agreement. ( See Doc. 38-1 at 30). Taylor was supervised at Cardinal Hill by Schneider-Eubank, who knew of Taylor's obligations to KARE and assisted whenever necessary to ensure her program requirements were satisfied. (Doc. # 52 at 16). Taylor remained at Cardinal Hill until around December 2011, when Select took over the facility. ( Id. at 17),

3. Cardinal Hill Closes and Select Takes Over the LTACH

In August 2011, Cardinal Hill decided to close its St. Elizabeth location. (Doc. #1 at 5). Around the same time, Select announced that it would take over the Cardinal Hill facility, which would continue to function as an LTACH under Select's ownership. ( Id. ) Over the following months, Cardinal Hill began winding down operations, and therefore made significant reductions to its workforce. ( Id. ) However, until the transition was complete, Select asked Cardinal Hill to keep enough employees on staff to support a limited patient population. (Doc. # 52 at 16). Schneider-Eubank handled those staffing decisions, and Lopreato and Taylor were among the employees that she chose to retain. ( Id. at 17).

By the end of the year, Select had finished its due diligence and was nearly ready to take over the LTACH. ( Id. ) As part of the final transition, Select considered several of the remaining Cardinal Hill nurses for continued employment. ( Id. ) When human resources personnel at Select inquired about Lopreato and Taylor, Schneider-Eubank opined that both women had an outstanding work history and were among her top performing nurses. Lopreato and Taylor submitted an application with Select, and both were given an opportunity to interview in December 2011.

Select's employment application included the following question: "Have you ever had your professional license restricted, suspended or terminated, or is your professional license currently under an investigation or review that could result in one of these actions? If yes, please explain." ( Id. at 18). Lopreato and Taylor provided the same response, answering "yes" to the question, and writing in the provided explanation space "2007-no current restrictions." ( Id. ) Yet, at the time Lopreato and Taylor completed their applications, both were restricted by their program agreements from working more than 88 hours in two weeks or ...


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