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Home My WebLink About94-06747 ~ .2 V] i1 3 . -T . J3 i tIJ ~ 3 j J r- :r c- " . , '. WEST SHORE EDUCATION . IN THE COURT OF COMMON PLEAS OF . ASSOCIATION and CUMBERLAND COUNTY, PENNSYLVANIA KENTON D. HOLMES, Plaintirrs : v. No. . . WEST SHORE SCHOOL DISTRICT, CIVIL ACTION - LAW Derendant . . COMPLAINT AND NOW come the Plaintirfs, Kenton D. Holmes and the West Shore Education Association, by and through their attorneys, Killian & Gephart, and do bring this civil action pursuant to 42 Pa.C.S.A. 57531 ~ ~. and 29 USCS 52601 ~ ~. 1. This complaint seeks a declaratory judgment concerning: a. The right of Kenton D. Holmes, a member of the West Shore Education Association, to return to work from a Family Medical Leave Act leave once his doctor has stated that "he is now ready to return to teaChing." b. The right or the School District to require one of its professional employees to furnish the District with all of his confidential pSYChiatric records as a pre-condition to return to work. 2. This Complaint also seeks damages from the Defendant as provided for in the Family Medical Leave Act, 29 USCS 52601 ~ ~. and other relief as the Court deems appropriate. . , . . '. I. The Partie. 3. Plaintiff Kenton Holmes is an adult individual who is a professional employee of the West Shore School District and a member of the West Shore Education Association who currently resides at 312 Tenth street, New Cumberland, Cumberland County, pennsylvania. 4. Plaintiff the West Shore Education Association (hereinafter referred to as the "Association") is an employee organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. 111101.101-1101.203. Its principle office is located at 400 North Third street, Harrisburg, Dauphin County, Pennsylvania 17101. 5. Defendant the West Shore School District (hereinafter referred to as the "District") is a public employer wi":hin the meaning of PERA. Its principle office is located at P.O. Box 803, New Cumberland, CUmberland county, Pennsylvania 17070. II. raotual Baokaround 6. Hr. Holmes was hired by the District in or about August of 1986 as a sixth grade Hath teacher. 7. Hr. Holmes assumed responsibilities as a professional employee of the District at the beginning of the 1986-87 school year. -2- . , , , '. 8. As a result of his satisfactory performance, Mr. Holmes subsequently became a "tenured professional employee" as that term is contemplated by 24 P.S. 5511-1121 ~ ~. 9. Mr. Holmes missed the last 44 days of the 1993-94 school year as a result of a medical condition for which he was being treated by Dr. John F. Mira, a psychiatrist. 10. Effective August 29, 1994, Mr. Holmes was assigned to "FMLA status" by the District as a result of his continuing medical disability. (A true and correct copy of the letter from superintendent sayre dated September 16, 1994, placing Mr. Holmes on ".'MLA status" is attached hereto and marked as Exhibit "A".) 11. On September 6, 1994, Dr. Mira wrote the West Shore School District and informed it that: Mr. Kent Holmes has continued to participate regularly in his therapy and has made such progress that he is now ready to return to teaching. He medically should return teaching three days a week for one week followed by four days a week and then the regular five days a week schedule, continuing with his planned four classes a day load. There will be no restrictions on his activities once he is on the full time schedule. If there are any other questions pertinent to his capabilities and return to school, please feel free to contact me at the above number. (A true and correct copy of Dr. Mira's september 6, 1994, letter to the District is attached hereto and marked as Exhibit "B.") 12. Rather than making the necessary arrangements to have Mr. Holmes return to work, the School District engaged in "threatening and rude behavior" towards Dr. Mira's office staff in an attempt to -3- , , , . .. obtain all of Dr. Mira's confidential psychiatric records regarding Mr. Holmes. 13. On September 12, 1994, Dr. Mira wrote Dr. Sheetz and stated: I have been informed of your threatening and rude behavior towards our office staff. As our seoretary informed you, unless we have written questions to address, we will not be able to help you. For example: If you want to know what is Kent's diagnosis, ask it in question form. It is not our policy to have free form discussions of our patient's personal treatment history with non-clinitions [sic]. We acknowledge receipt of the fax of the Release of Information Form. When you can provide us with written questions regarding Kent's status we will be happy to respond ASAP. These questions may be faxed since our machine is secured. Again we can only respond to written questions and any further abusive or threatening behavior with our staff will not be tolerated. (A true and correct copy of Dr. Mira's September 12, 1994, correspondence to Dr. Sheetz is attached hereto and marked as Exhibit "C.") 14. On September 14, 1994, Dr. Dyszel, Director of Personnel for the West Shore School District, wrote Dr. Mira. In this correspondence Dr. Dyszel reiterated the District's request for medical documentation and ignored Dr. Mira's request that the District provide him with written questions. In her letter, Dr. Dyszel stt\tes: Our efforts to contact you by telephone have been non-productive. In addition, Mr. Holmes has advised us -4- , . . . " that he has called your office on at least two (2) occasions to urge you to call the District. It is unfortunate for your client that you have chosen not to respond. The records you provide will be reviewed and evaluated by District-appointed medical consultants, which includes a psyohiatrist. (A true and oorrect copy of Dr. Dyszel's september 14, 1994, letter is attaohed hereto and marked Exhibit "D.") 15. On september 28, 1994, Kent Holmes wrote superintendent sayre and reminded him of his physician's september 6, 1994, letter indicating that he was ready to return to work. concluded his correspondenoe by asking: May I please have a date when I may return to teaching at the Crossroads Middle School? Mr. Holmes (A true and correct copy of Mr. Holmes' september 28, 1994, correspondence is attached hereto and marked Exhibit "E.") 16. On November 14, 1994, Mr. Holmes' counsel contacted counsel for the West Shore School District and attempted to resolve the ongoing dispute by offering to provide Mr. Holmes' pSYChiatric records to a pSYChiatrist of the District's choice, rather than providing the District with all of Mr. Holmes' psychiatric records. 17. Counsel for Mr. Holmes was subsequently informed in correspondence dated November 15, 1994, from the District's counsel, Nancy A. McCann, that: . .. the West Shore School District is not willing to appoint a pSYChiatrist to contact Dr. Mira in order to obtain the medical records of Kent Holmes. -5- , , .. The District then renewed its request for Mr. Holmes' medical records and indicated that Mr. Holmes would not be permitted to return to work until Mr. Holmes' confidential psychiatric records were provided directly to the Distriot. (A true and correct copy of correspondence from Nancy A. McCann, Esq., dated November 15, 1994, is attached hereto and marked Exhibit "F.") 18. On February 5, 1993, the Family and Medical Leave Act was enacted, 29 USCS 82601 ~~. The Family and Medical Leave Act (hereinafter referred to as "FMLA") entitles employees to a total of twelve workweeks of leave during any twelve-month period "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee," 82612 (a) (1) (D) . 19. Section 2614 of the FHLA states that: Except as provided in subseotion (b), [which refers to 'highly compensated employees'] any eligible employee who takes leave under section 102 [29 USCS 82612] for the intended purpose of the leave shall be entitled, on return from such leave-- (A) to be restored by the employer to the position of employment held by the employee when the leave commenced 1 or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. 29 USCS 82614(a) (1) 20. section 2614 of the FHLA also states as follows: (4) Certification. As a condition of restoration under paragraph (1) for an employee who has taken le~ve under -6- , , , , .. section 102(a) (1) (D) [29 uses 52612(a)(1)(D)], the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid state or local law or a collective bargaining agreement that governs the return to work of such employees. 29 uses 52614(a)(4) 21. The collective bargaining agreement entered into between the West Shore School District and the West Shore Education Association contains no provisions which would entitle the District to complete access to one of its employee's medical records as a precondition to allowing that employee to return from leave. 22. Section 2615 of the FMLA states as follows: (a) Interference with rights. (1) Exercise of rights. It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title [29 uses 552611 ~ ~.]. (2) Discrimination. It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for cpposing any practice made unlawful by this title [29 uses 552611 ~ ~.]. 29 uses 52615 23. section 2617 of the FMLA states as follows: (a) civil action by employees. (1) Liability. Any employer who violates section 105 [29 uses 52615] shall be liable to any eligible employee affected-- (A) for damages equal to-- (i) the amount of-- -7- , , ., (I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation I or (II) in a case in which wages, salary and employmont benefits or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as IS direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee I (ii) the interest on the amount described in clause (i) calculated at the prevailing ratel and (Hi) an additional amount as liquidated damages equal to the sum of the amount described in clause (i), and the interest described in clause (H), except that if an employer who has violated section 105 [29 uses 52615] proves to the satisfaction of the court that the act or omission which violated section 105 [29 uses 52615] was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 105 [29 uses 52615], such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively I and (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. (2) .... (3) Fees and costs. The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. 24, Mr. lIo1mes believes and therefore avers that the District's actions in refusing to return him to work in spite of the fact that it has received a written certification from his physician indicating that he is able to resume work, constitutes an intentional violation of the Family Medical Leave Act and an -8- , , .. unlawful attempt to interfere with, restrain, and deny the exercise of the rights set forth in the FMLA. 1fBJIRlI'OU, Mr. Holmes respectfully requests this Honorable Court to: 1. Enter a declaratory judgment: (a) declaring that Mr. Holmes was entitled to return to work as of september 6, 1994, the date he provided the District with a doctor's note indicating that he was medically capable of returning; (b) declaring that a school district employer does not have the right to require one of its employees to furnish the district with all of his or her confidential psychiatric records as a precondition to return to work; and 2. Order the District to: (a) return Mr. Holmes to his employment as a classroom teaoher; (b) pay Mr. Holmes back pay from September 6, 1994, until such time as the District allows Mr. Holmes to return to employment I (c) reimburse Mr. Holmes for any monetary losses sustained by him as a result of the District's violation of the Family Medical Loave Actl and -9- 1/1D/g~' 'rHt Uil02 FAX 111 gab 21'~ ( West Shore School District 6/J'I RlhlnQ C,.~k ROad . ~wfI"'fIY. "."",ylvanla l1Up..p., r 1 - -- . ttol",AI , . - .. Exc,U,nuln Education. . . .A W,,, Shor, TraJIlVtfl September 14,1 eV4 Ct. John F, Mila Buk. 204 t.lodloal Art. Building eGO Poplar Church Road CIn1I HiD, PA 17011 Ower. Mire: Ae per our meaaage faxed 10 you on Seplemb" 12, 1&&4 which contained II modAl "I.... (IncIoMd) Ilgnod by Mr. Kenton 0, Holm.., w. are making II sscond roquI.' for Iny Ind aUlnlormatlon and/or opInlone which you may hllvlI rendered CI.lnoernlng hie condition ancllrpalmenl, You may fIX the requeated recorde andlor cIooumonll 10 my 1"lnlion: w..t Short 8chool Oll\lId, Pll'IOf'lI'\IlOfflct, li38095n). We lire .eek!ng thl.lnformatlon In order Ihal Mr, Holmet may be reinstated to hla 'eachlng po.itlon wllhln Ihe W.al Shore School Olelllol al Oronroada Mlddl. School, Mt, HoI''''I' r.IIIIIIII"lIInl I. contlngenl upon rloeipl II1Il evaluation ul thon record.. Any dilly III thlt Dltlrlclt reoelvlng thl rlqUlllld male rial may Impaol nellllllvely cn Mr, Holmel' liming capeollv, Ow "'or\110 conllet yOU by tlllphone hav. bllell lIun'prorJucllvo, In Iddltlon, Mr, Holmel h.. advllld UI that he hal caUld your 0"108 on III ISllt Iwo (2) ccca,lollllo urge you to OlIl1 'he DlItrlot, I'll unlortuno'e for your cUenl thai you have chosen not to reepond, The rlOOrd. you providl will be reviewed and evaluated by Dlalrict. &pP'Jlnlld mtd\cal 001'111.11111'1'1, which Includ.. a ptyOhIalrllt, Flllurllo rec,lvl th.l. rlcords illllllrn.ly mannor wln obvloUlly plIO' thllachoOl dial1iot In a poeltlon thlt may rllllUllln 1"lgallon, IfJwhen th.t OCQUII, yOU and your recorde wlll "II wllbpoenaed, It II preferred thlt WI dill with thlI mailer In I collllllial' rether than In lIdv"..riel. INIM.r, I look lorw.rd 10 IIc.lvlng IU 01 Mr, Holm..' recorda as soon .s poll1blt. If the COlt ~ reproducIng \he.. """,nal. II an '&lUll, pleeae leellree to bllllhe Well ShOll SehoOl OI.llIot, Slnc.rety yoUlt, ~~ Jaan ,0 lul (D or or Plltonnl -~ ---.... Enclo.ure pc: Or, S.yre P.r.onnel Office Exhibit 0 u1U\Y A, SA YIlE SUPlrl/l"IkIM11 . F1NKELSTON Direct all correspondence to: 507 Plshlng Creek Road · P. O. Box 803 New Cumberland, PA. 17070-0803 IWlRY L, MESSIClC Pm/d,n, o/IM 'tHIrd GA.'RY A. SMITH .fIU"_" I. In' BOII1d .~.- , _t.. ." ...~ ~ . TIIK LAW,,''''' 0' ,KILLIAN _OEP!-lART I"'" "PST .. O. .~. ... PI!NN8VLVANIA 17108.0880 ~ ., .. CIRTI'IID COpy , ';>' t<<.'" NOY: 2'91",' ;'~',:~~{;. " r~ ~\k , 1"''' ._\~ , " """{Cf';:~~llf ,., ,.... <' r,...'.,~. . ~' H':;.;::':;:~:'(i'~~{"~1 . ..,,<.._,..._,..,,",,,,,,,,-._,~_..4-""'" ....'"'._-"~ .....".......,...'u. n_ , " I ,t ( ., , " -- WEST SHORE EDUCATION ASSOCIATION and KENTON D. HOLMES, Movants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . I . . v. I No. I I CIVIL ACTION - LAW I WEST SHORE SCHOOL DISTRICT, Respondent KOTION .OR HEARING 1. Movant Kenton Holmes is an adult individual who is a professional employee of the West Shore School District and a member of the West Shore Education Association who currently resides at 312 Tenth street, New CUmberland, Cumberland County, Pennsylvania. 2. Movant the West Shore Education Association (hereinafter referred to as the "Association") is an employee organization within the meaning of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563 as amended, 43 P.S. 111101.101-1101.203. Its principle office is located at 400 North Third street, Harrisburg, Dauphin County, Pennsylvania 17101. 3. Respondent the West Shore School District (hereinafter referred to as the "District") is a public employer within the meaning of PERA. Its principle office is located at P.o. Box 803, New CUmberland, Cumberland County, Pennsylvania 17070. 4. Concurrent with the filing of this Motion, Mr. Holmes and the West Shore Education Association are filing a Complaint requesting various relief from this Honorable Court, including relief under the Declaratory Judgments Act, 42 Pa.C.S.A. 17531 ~ ~ ~ and reliet under the Family Medical Leave Aot, 29 USCS 52601 At ug,.. 5. The Movants believe and there tore aver that there will not be a signitioant dispute regarding the facts alleged in plaintitts' Complaint. 6. The Movants believe and theretore aver that it will not be necessary for either party to conduot extensive discovery in order to adequately present their oase to the Court. 7. Mr. Holmes believes and theretore avers that it is in all ot the parties' best interests that a hearing be scheduled in the above-captioned aotion at the Court's earliest convenience. B. Mr. Holmes believes and there tore avers that the students that he would now be teaching on a full-time basis if the District had returned him to work will continue to be adversely impaoted by the Distriot's refusal to return Mr. Holmes to the classroom. WBBRJlI'ORJI, Mr. Holmes and the West Shore Education Assooiation respectfully request the Honorable Court to sohedule a hearing regarding the Complaint filed in the above-oaptioned aotion at its earliest convenienoe. . Paul Helvy illian & Ge art 218 pine street, P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney 1.0. *53148 Dated: November 29, 1994 Attorneys for Movants - 2 -