A leading cancer surgeon claims he was fired by his hospital for coming to the defense of his secretary after she was diagnosed with breast cancer then allegedly treated shabbily by the hospital.
Dr. Kevin Staveley-O'Carroll now is suing his former employer, the Milton S. Hershey Medical Center in Hershey, Pa. According to his complaint, the doctor worked 12 years at Hershey, where he served as a tenured professor of surgery, medicine, microbiology and immunology. He was chief of the section of surgical oncology at Penn State University, and director of the Penn State Cancer Institute's Program for Liver, Pancreas & Foregut Tumors.
He was, as well, according to the complaint, past president of the Association for Academic Surgery--the largest organization of academic surgeons in the world.
In March 2012, the doctor's secretary, identified only as "Ms. Doe" in the complaint (to protect her identity), was diagnosed with breast cancer. On December 14, 2012, Staveley-O'Carroll was told he was being terminated.
In between those dates, he alleges, he earned his bosses' ire by coming to the defense of Ms. Doe, who he claims was being harassed by Hershey in relation to her illness. He was fired, he asserts, in direct retaliation for that defense.
Ms. Doe, according to the complaint, had informed Hershey of her diagnoses. She requested and was given leave to undergo her surgery, as required by the Family Medical Leave Act (FMLA).
Her surgery, however, was not scheduled until summer of 2012. So, until then, she continued working, although suffering what the complaint calls "difficulty concentrating." Such difficulty, says the filing, was understood by Staveley-O'Carroll and the other doctors she served to be a natural consequence of her illness, since, according to the lawsuit, "intrusive thoughts of death and disfigurement can disabling."
Ms. Doe expressed, for example, a need to take more frequent breaks.
Though Staveley-O'Carroll and his team "were eager to make any reasonable accommodation for Ms. Doe's disability," senior management was not, the suit claims. Ms. Doe's supervisors told her she either had to take her breaks or do her job like everyone else. She was further told, according to the complaint, that she was being "watched."
Staveley-O'Carroll says he complained to management on Ms. Doe's behalf, both verbally and in writing. In an email quoted in the filing, he accuses Hershey of discriminating against her because of her disability and of harassing her by telling her she was being watched. Such behavior, says the quoted email, was inconsistent with Hershey's values.
For his trouble, says the doctor in his complaint, he became the subject of retaliation, which took various forms, including his being denied a raise, being excluded from meetings and being questioned for 45 minutes about a medical assistant's use of an iPad.
Ms. Doe, according to the complaint, was disciplined after she returned from her surgery, and was forced to transfer to a different position in a different department.
Staveley-O'Carroll's dismissal, says the complaint, came about as the result of his having opposed Hershey's attempt to interfere with and deny Ms. Doe's exercise of her rights under FMLA. The suit seeks money damages and asks that he be restored to his position.
Lisa Matukaitis, the doctor's attorney, says the hospital has yet to respond to the complaint, which was filed just last week. "We would expect their response sometime in the next 60 days," she tells ABC News.
Hershey Medical Center, in an email to ABC News, says:
"The allegations falsely portray the circumstances of Dr. Staveley-O'Carroll's separation from Penn State Hershey. We look forward to the opportunity to provide an accurate account of his employment and departure in the appropriate legal forum. When the facts are presented, the truth will emerge."
Greg Randall Lee, a professor at Widener Law School specializing in disability issues, says the case has implications for the American workplace, since it has the potential to expand the scope of who's protected under the Family and Medical Leave Act.
The Supreme Court, he tells ABC News, has already decided that Act protects not just the person requesting (in this case) medical leave, but also third parties who defend that person in the exercise of to their FMLA rights. In one case, it decided protection extended to a woman's fiancée; in another, to a sibling.
The court has not, however, decided whether or not the protection extends to a boss, an assistant or to some other co-worker.
That's one issue raised by Staveley-O'Carroll, Lee explains. Hershey, he expects, will argue it does not. If the judge sides with Hershey, he says, then "the whole case will go away." If the judge decides, however, that the doctor is protected under FMLA, then the next question becomes: "What was the center's motivation for doing what it did? What were the facts?"
If, for example, Ms. Doe's cancer was not the reason that Hershey allegedly retaliated against her—if, instead, her socializing with co-workers had prevented them from getting work done, then that, says Lee, would have been justifiable cause for Hershey punishing or terminating her. So, also, Lee says, would have been Doe's behaving abusively toward patients or otherwise engaging in inappropriate behavior.
At the moment, cautions Lee, all we have is the plaintiff's side of the story. Still, he says, referring to the hospital's alleged behavior toward the secretary: "If the facts are as they are presented in the complaint, it's an incredibly curious position for the center to have taken: You're running a cancer wing? The last thing you want is region-wide publicity that you abuse cancer patients."