Weisel v. Stericycle Communications Solutions
Filing
38
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we conclude that Defendants Motion for Summary Judgment (Doc. 21) is properly granted. An appropriate Order is filed simultaneously with this Memorandum. re 21 MOTION for Summary Judgment filed by Stericycle Communications Solutions Signed by Honorable Richard P. Conaboy on 1/28/15. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHARON WEISEL,
:
:CIVIL ACTION NO. 3:13-CV-3003
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
STERICYCLE COMMUNICATIONS
:
SOLUTIONS t/a Stericycle
:
and/or Notify MD,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Defendant’s Motion for Summary Judgment (Doc.
21) filed on October 29, 2014, and accompanied by Defendant’s
Statement of Undisputed Material Facts (Doc. 22).
With this
motion, Defendant seeks summary judgment in its favor on
Plaintiff’s disability discrimination claim which is based on her
allegation that Defendant’s perception that she was disabled
resulted in the loss of her employment (Doc. 1 ¶ 42).
Defendant
filed Defendant’s Brief in Support of Motion for Summary Judgment
(Doc. 24) on November 12, 2014.
On December 17, 2014, Plaintiff
filed her answer to Defendant’s Statement of Material Facts and
Plaintiff’s Counter-Statement of Facts (Doc. 30) and Plaintiff’s
Brief in Opposition to Defendant’s Motion for Summary Judgment
(Doc. 31).
With the filing of Defendant’s reply brief (Doc. 35) on
January 12, 2015, this motion became ripe for disposition.
For the
reasons discussed below, we conclude Defendant’s motion is properly
granted.
I. Background
Defendant Stericycle, Inc., (“Defendant” “Stericycle”)
operates a call center business in Dunmore, Pennsylvania.1
22 ¶ 1; Doc. 30 ¶ 1.)
(Doc.
Defendant hired Plaintiff Sharon Weisel
(“Plaintiff”) in October 2012 as a part-time call center operator
at the Dunmore facility.
(Doc. 22 ¶ 2; Doc. 30 ¶ 2.)
When she was hired, Plaintiff received Defendant’s Handbook
and a Code of Conduct and acknowledged that she read both.
22 ¶¶ 3, 4; Doc. 30 ¶¶ 3, 4.)
(Doc.
The Handbook contained a Concern
Resolution Policy which set out three steps by which an employee
could resolve issues: the employee should have an open discussion
about her concern with her supervisor, she should then go to her
manager, and finally to Human Resources.
10.)
(Doc. 22 ¶ 10; Doc. 30 ¶
Plaintiff testified that she understood the policy.
(Doc. 22
¶ 11; Doc. 30 ¶ 11.)
The Code of Business Conduct contained a Communication
Channels Policy that provided multiple ways an employee could
report possibly unlawful or unethical situations, including calling
the Team Member Help Line, contacting a manager, or contacting a
member of senior management.
(Doc. 22 ¶ 12; Doc. 30 ¶ 12.)
Under Defendant’s attendance policy, employees could be
required to provide a doctor’s note upon return from absence.
1
Defendant states that Plaintiff incorrectly identified the
company as Stericycle Communications Solutions t/a Stericycle
and/or Notify MD. (Doc. 22 at 1.)
2
(Doc. 22 ¶ 17; Doc. 30 ¶ 17.)
do so.
Plaintiff knew she could be asked to
(Id.)
Plaintiff worked the day-shift and was supervised by call
center supervisor, Jennifer Walsh.
(Doc. 22 ¶ 20; Doc. 30 ¶ 20.)
Christopher Ulrich was the other center supervisor who generally
worked nights.
(Doc. 22 ¶ 21; Doc. 30 ¶ 21.)
At the relevant
time, Walsh and Ulrich were the only two supervisors at the Dunmore
facility.
(Doc. 22 ¶ 22; Doc. 30 ¶ 22.)
Matthew Spott performed Human Resources functions out of the
Dunmore facility, but Defendant’s Human Resources Department was
otherwise located at its corporate offices in Northbrook, Illinois.
(Doc. 22 ¶ 24; Doc. 30 ¶ 24.)
Spott reported to Dawn Johnson,
Human Resources Manager, and Lisa Torrez, Human Resources Director.
(Doc. 22 ¶ 25; Doc. 30 ¶ 25.)
Plaintiff took time off from work for gallbladder surgery and
recovery in February and March of 2013.
26.)
(Doc. 22 ¶ 26; Doc. 30 ¶
Plaintiff adds that she never disclosed her exact medical
condition to Defendant; the information was obtained in the course
of this litigation.
(Doc. 30 ¶ 26.)
On February 6, 2013,
Plaintiff submitted a doctor’s note about her upcoming surgery to
Defendant.
(Doc. 22 ¶ 27; Doc. 30 ¶ 27.)
Plaintiff’s supervisor,
Jennifer Walsh, received the note, and initialed and dated it as
was her standard practice.
(Doc. 22 ¶ 28; Doc. 30 ¶ 28.)
The note
stated that Plaintiff’s surgery was scheduled for February 22,
3
2013.
(Doc. 22 ¶ 29; Doc. 30 ¶ 29.)
long Plaintiff would be off work.
to be off work for her surgery.
The note did not indicate how
(Id.)
Walsh approved Plaintiff
(Doc. 22 ¶ 30; Doc. 30 ¶ 30.)
Plaintiff’s surgery took place on February 22, 2013.
(Doc. 22 ¶
32; Doc. 30 ¶ 32.)
On approximately March 2, 2013, Plaintiff called Walsh about
coming back to work and told Walsh the date of her follow-up
appointment with her doctor.
(Doc. 30 ¶ 162.)
Walsh told
Plaintiff to wait the two weeks she had been given for time off.
(Id.)
On March 6, 2013, Plaintiff went to her doctor for a follow-up
appointment and obtained a return to work note.
Doc. 30 ¶ 34.)
(Doc. 22 ¶ 34;
The note stated: “Sharon Weisel is currently under
my surgical care.
She may return to work on 03/11/2013.
is restricted as follows: none.”
Activity
(Doc. 22 ¶ 35; Doc. 30 ¶ 35.)
The same day Plaintiff called into the Dunmore facility and
spoke with her niece, Jacqueline Minutes, who also worked at
Defendant’s Dunmore location.
(Doc. 22 ¶ 36; Doc. 30 ¶ 36.)
Plaintiff adds that Minutes was authorized to accept such calls.
(Doc. 30 ¶ 36.)
37.)
Minutes was a Team Lead.
(Doc. 22 ¶ 37; Doc. 30 ¶
Defendant avers she was not a supervisor; Plaintiff avers her
duties as a Team Lead included supervisory roles.
testified that she considered Minutes a supervisor.
(Id.)
163.)
Plaintiff
(Doc. 30 ¶
Because of the familial relationship, Plaintiff always
4
reported to a different Team Lead.
(Doc. 22 ¶ 38; Doc. 30 ¶ 38.)
Minutes did not handle employee requests for time off for medical
reasons, nor did she handle employees returning to work from
medical leave.
(Doc. 22 ¶ 39; Doc. 30 ¶ 39.)
Plaintiff adds that
she denies that Minutes did not have the authority to accept and
submit a medical note from an employee to her supervisor, Jennifer
Walsh or Christopher Ulrich.
(Doc. 30 ¶ 39.)
During the call, Plaintiff informed Minutes that Plaintiff’s
doctor had released her to return to work on March 11, 2013,
without restrictions.
(Doc. 22 ¶ 40; Doc. 30 ¶ 40.)
reminded Plaintiff to submit a doctor’s note.
30 ¶ 41.)
Minutes
(Doc. 22 ¶ 41; Doc.
Plaintiff adds that Minutes did not bring up the
doctor’s note; Plaintiff specifically informed Minutes that
Plaintiff needed to fax over a medical excuse.
(Doc. 30 ¶ 41.)
During the call, Plaintiff did not ask to speak to Walsh, her
supervisor, or Spott in Human Resources.
(Doc. 22 ¶ 42; Doc. 30 ¶
42.)
Plaintiff adds that there was no reason to do so.
(Doc. 30 ¶
42.)
Plaintiff also testified that Minutes informed her that she
would let Walsh know about her release to return to work.
(Doc. 30
¶ 163.)
Plaintiff testified that she faxed Defendant the March 6,
2013, doctors note on March 6th.
(Doc. 22 ¶ 43; Doc. 30 ¶ 43.)
Minutes recalls seeing the note come through the facility’s
corporate e-fax software.
(Doc. 22 ¶ 44; Doc. 30 ¶ 44.)
5
Defendant
avers that Minutes testified she could not recall what she did with
the note next--she either printed the note to give it to Walsh or
she sent it by email to Walsh (Doc. 22 ¶ 45); Plaintiff avers that
Minutes testified she immediately forwarded Plaintiff’s fax to her
supervisor, Jennifer Walsh (Doc. 30 ¶ 45).
Minutes testified that
she did not know if Walsh actually received and read Plaintiff’s
March 6, 2013, return to work note.
(Doc. 22 ¶ 46; Doc. 30 ¶ 46.)
Plaintiff also testified that she had no personal knowledge as to
whether Walsh, Ulrich, or Spott actually received or read her
return to work note.
(Doc. 22 ¶ 47; Doc. 30 ¶ 47.)
Plaintiff adds
that the actions of Walsh, Ulrich, and Spott requesting additional
information coincided exactly with the submission of the note.
(Doc. 30 ¶ 47.)
Defendant avers that all three testified that they
never saw the March 6, 2013, note (Doc. 22 ¶ 48); Plaintiff denies
that they did not see the note, asserting that the timing of the
request for more information cannot just be coincidence (Doc. 30 ¶
48).
Defendant avers the note was not initialed or dated by Walsh
as received, which was her standard practice upon receiving an
employee’s doctor note (Doc. 22 ¶ 49); Plaintiff denies this as
stated, asserting this is an issue of fact (Doc. 30 ¶ 49).
Defendant asserts that Plaintiff testified she “would have ‘no
idea’ if someone from Stericycle lost her return to work note.”
(Doc. 22 ¶ 50.)
Plaintiff denies that she would have no idea if
someone lost her note.
(Doc. 30 ¶ 50.)
6
She claims this is an
improper averment and Plaintiff guessing whether someone could have
lost something is irrelevant to whether Defendant actually received
the note in that Minutes admitted that she received the note.
(Id.)
Regarding Defendant’s receipt of the return-to-work note,
Plaintiff also points to being told that Defendant was refusing the
note she faxed.
(Doc. 30 ¶ 172.)
The next day–-March 7, 2013–-Plaintiff testified that she
spoke with Walsh by telephone, and Walsh informed Plaintiff that
Spott needed Plaintiff to provide the exact medical reason for
which she was off work.
(Doc. 22 ¶ 52; Doc. 30 ¶ 52.)
Plaintiff
also testified that Walsh told her Spott would not accept the
medical release without an exact medical reason on it.
165.)
(Doc. 30 ¶
Plaintiff testified she asked why she needed to provide the
information, and Walsh said she did not know-–it was up to Human
Resources.
(Doc. 22 ¶ 53; Doc. 30 ¶ 53.)
Plaintiff testified that
Walsh said Plaintiff needed to provide the information to return to
work.
(Doc. 22 ¶ 54; Doc. 30 ¶ 54.)
Defendant avers Plaintiff
further testified that she thought this meant she was fired, though
she acknowledged that Walsh never told her she was fired and never
gave Plaintiff anything in writing stating that she was terminated.
(Doc. 22 ¶¶ 55-56); Plaintiff avers she testified that Walsh told
her she could not return to work without providing Defendant with
additional medical information and Ulrich used the word “fired”
(Doc. 30 ¶¶ 55-56).
7
Walsh testified that the first she knew of the request for the
medical reason for Plaintiff’s absence was several days later when
she was approached by Minutes and asked why Defendant would need to
know the medical reason for Plaintiff’s absence.
(Doc. 30 ¶ 196.)
Walsh testified that in response to Minutes question, she
approached Spott.
(Id.)
Plaintiff acknowledged that during a separate call with Walsh
on March 7, 2013, Walsh provided her with a work schedule for the
following week of March 11, 2013.
(Doc. 22 ¶ 57; Doc. 30 ¶ 57.)
Plaintiff testified that she asked Walsh, “So I am not fired then?”
and Walsh replied that it was up to Human Resources.
(Doc. 22 ¶
58; Doc. 30 ¶ 58.)
Walsh testified that she spoke with Plaintiff on the phone
about returning to work; she denied that Plaintiff told her about
faxing the medical release and denied seeing the release.
(Doc. 30
¶ 198.)
Plaintiff alleges that Walsh left Plaintiff a voicemail on
March 7, 2013, instructing Plaintiff to call the other supervisor,
Christopher Ulrich.
(Doc. 22 ¶ 59; Doc. 30 ¶ 59.)
Plaintiff spoke with Ulrich on March 7, 2013.
Doc. 30 ¶ 60.)
(Doc. 22 ¶ 60;
Ulrich informed Plaintiff that in order for her to
return to work, she had to provide the date her issue started, the
exact medical reason for her absence, the date she could return to
work, and whether she had any restrictions.
8
(Doc. 22 ¶ 61; Doc. 30
¶ 61.)
Ulrich testified that he asked Plaintiff for an exact
medical condition and testified that Walsh asked him to send an
email requesting the information.
(Doc. 30 ¶ 214.)
According to
Plaintiff, Ulrich told her she had to provide the information the
next day or she could not return.
(Doc. 22 ¶ 62; Doc. 30 ¶ 62.)
Defendant avers Plaintiff testified that she thought this meant she
was fired, though she admitted that Ulrich never told her she was
fired and never gave her anything in writing indicating she was
terminated (Doc. 22 ¶¶ 63-64); Plaintiff states she testified that
Walsh, Ulrich and Spott wanted to know the exact medical reason or
she could not return to work, and, although Ulrich never gave her
anything in writing saying she was terminated, he led her to
believe that she would be terminated if she did not provide the
exact medical reason for her absence (Doc.
¶¶ 63-64).
Defendant
avers that Ulrich testified that he never terminated Plaintiff
during the call; Plaintiff denies this.
(Doc. 22 ¶ 65; Doc. 30 ¶
65.)
The next day, Plaintiff called Ulrich and asked him to put the
request in an email and Ulrich did so.
66.)
(Doc. 22 ¶ 66; Doc. 30 ¶
On March 8, 2013, Ulrich sent Plaintiff an email that stated:
“Here is the information we would need prior to your return to
work.
We need date the issue started, exact medical reason why you
were out, exact or estimated date of return to work and any
restrictions.
We need specifics.”
9
(Doc. 22 ¶ 67; Doc. 30 ¶ 67.)
Ulrich testified that it was his understanding that Plaintiff had
not submitted a return to work note at the time he sent the email.
(Doc. 22 ¶ 68; Doc. 30 ¶ 68.)
Plaintiff testified that she did not
know why Ulrich was requesting the information.
Doc. 30 ¶ 69.)
(Doc. 22 ¶ 69;
Plaintiff testified that she was upset after
receiving this email and thereafter she never attempted to contact
anyone at Stericycle.2
(Doc. 22 ¶¶ 70-71; Doc. 30 ¶¶ 70-71.)
Plaintiff never called the Team Member Help Line.
(Doc. 22 ¶ 72;
Doc. 30 ¶ 72.)
Plaintiff went to the EEOC on March 10 or 11, 2013.
¶ 73; Doc. 30 ¶ 73.)
(Doc. 22
She testified that she did so because she
believed she had been fired.
(Doc. 30 ¶ 176.)
Walsh testified that she sent Spott an email on March 12,
2013, attaching doctor’s notes provided by Plaintiff.
202.)3
(Doc. 30 ¶
In the email, Walsh noted that she understood Plaintiff was
2
Plaintiff admits “she did not attempt to contact anyone at
Stericycle,” however, she immediately adds that “it is denied that
she didn’t attempt to contact anyone as she immediately filed a
complaint with the Equal Employment Opportunity Commission (EEOC)
to investigate her claim of discrimination. Further, she did have
a conversation with Matthew Spott after the email.” (Doc. 30 ¶
71.) The record also shows that Plaintiff sent an email to Spott
on March 13, 2013. (Doc. 22 ¶ 97; Doc. 30 ¶ 97.)
3
Plaintiff’s citation to the record is inaccurate: she cites
Walsh Dep. p. 39 and Exhibit CU#3 to Exhibit #6; Walsh’s reference
to the March 12th email begins on page 38 of her deposition and that
email is CU#5 to Exhibit #6. Walsh’s testimony indicates that she
testified she derived the information about Plaintiff’s return-towork date of Monday, March 11, 2013, from a phone conversation with
Plaintiff which she believed occurred the previous Thursday when
Walsh “reached out to her to make her aware of the return-to-work
10
to return to work on March 11, 2013.
(Id.)
Defendant’s employees testified that Defendant generally would
not need to ask for an employee’s exact medical condition; rather
the company would request the dates an employee was out, return to
work date, and if the employee has any restrictions.
(Doc. 22 ¶
74; Doc. 30 ¶ 74.)
Spott testified that he became involved after Ulrich sent the
email (March 8, 2013).
(Doc. 22 ¶ 76; Doc. 30 ¶ 76.)
He informed
Ulrich that the company did not need to know Plaintiff’s exact
condition–-it only needed the dates an employee was out, return to
work date, and if the employee has any restrictions.
(Doc. 22 ¶
75; Doc. 30 ¶ 75.)
Spott testified that he attempted to reach Plaintiff multiple
times after he became involved.
(Doc. 22 ¶ 77; Doc. 30 ¶ 77.)
Spott testified that he did so because he and his supervisor, Lisa
Torrez, wanted to let Plaintiff know and clarify that they did not
need to know her exact medical diagnosis and that she could return
to work upon providing a simple return to work note.
78.)
(Doc. 22 ¶
Plaintiff denies Spott’s testimony:
To the contrary, Stericycle was admittedly in
receipt of the return to work note (Jackie
Minutes admitted to the receipt and
forwarding to Walsh), and after Ulrich asked
for the Plaintiff’s exact medical condition,
information that we would needed [sic]. I believe I also gave her
a schedule at that time as well.” (Doc. 32-4 at 39 (Walsh Dep.
39:6-14).)
11
both Torrez and Spott tried to cover up the
mistake. By acting as though they never
received a return to work note, when they
actually did, they were able to keep asking
the Pliantiff for a note already submitted.
(Doc. 30 ¶ 78.)
Plaintiff adds “[t]he same confused the Plaintiff,
and lead [sic] her to believe they were being dishonest on top of
asking her for private medical information.”
(Id.)
Plaintiff also
avers that Spott refused to answer when asked if Plaintiff informed
him that she had submitted a return to work slip with full
clearance; Spott did not recall whether he had asked Ulrich whether
he was in receipt of a doctor’s note releasing Plaintiff to return
to work; and it would not have been his responsibility to ask Walsh
or Ulrich whether Plaintiff had submitted a return to work note.
(Doc. 30 ¶¶ 231-33.)
Spott reached Plaintiff by phone on March 10 or 11, 2013.
(Doc. 22 ¶ 80; Doc. 30 ¶ 80.)
Plaintiff testified that she said:
“Matt, I can’t talk right now.
appointment.
I’m on my way to my son’s doctor’s
I’m walking in the office. . . . [B]esides, I don’t
know what you want from me.
You know what you did was illegal,
what you’re asking is illegal.
(Doc. 22 ¶ 80; Doc. 30 ¶ 80.)
And now I filed with the EEOC.”
Spott testified that he did not have
a chance to go into details with Plaintiff during this
conversation.
(Doc. 22 ¶ 83; Doc. 30 ¶ 83.)
Plaintiff testified
that this was her only conversation with Spott and it took place
after she had filed with the EEOC.
12
(Doc. 22 ¶¶ 81, 82; Doc. 30 ¶¶
81-82.)
Plaintiff further testified that she was upset that “only
after Spott was told that she filed a complaint with EEOC did he
change everything around.”
(Doc. 30 ¶ 177.)
Spott sent Plaintiff a follow-up email on March 12, 2013,
clarifying that the company did not need to know her medical
condition.
(Doc. 22 ¶ 84; Doc. 30 ¶ 84.)
The email stated that
Plaintiff did not need to provide the details of her medical
condition and requested Plaintiff to provide a doctor’s note that
identified when Plaintiff became incapable of coming to work, when
she could return to work, and if she had any restrictions.
22 ¶¶ 85, 86; Doc. 30 ¶¶ 85, 86.)
(Doc.
The email also stated that
Plaintiff needed to call him by 3:00 p.m. the next day.
(Doc. 22 ¶
87; Doc. 30 ¶ 87.)
Spott testified that it was his understanding that Plaintiff
had not yet submitted a return to work note when he sent the email
on March 12, 2013 (Doc. 22 ¶ 88; Doc. 30 ¶ 88), though
Plaintiff
denies that he did not receive the return to work note (Doc. 30 ¶
88).
Plaintiff testified that she had no personal knowledge as to
why Spott sent the March 12, 2013, email.
89.)
(Doc. 22 ¶ 89; Doc. 30 ¶
She admitted that she received, read, and understood Spott’s
email.
(Doc. 22 ¶ 93; Doc. 30 ¶ 93.)
to contact Plaintiff through Walsh.
90-92.)
Spott made further attempts
(Doc. 22 ¶¶ 90-92; Doc. 30 ¶¶
Plaintiff admitted that she did not call Spott after
receiving the March 12th emails from Spott and Walsh and a separate
13
telephone message from Walsh, nor did she call Walsh or Ulrich.
(Doc. 22 ¶¶ 94, 95; Doc. 30 ¶¶ 94, 95.)
Plaintiff testified that she did not re-fax the doctor’s note,
deliver it to the Dunmore facility, or resubmit it to anyone.
(Doc. 22 ¶ 96; Doc. 30 ¶ 96.)
Plaintiff adds that she did not do
so because Defendant already had the note.
(Doc. 30 ¶ 96.)
On March 13, 2013, Plaintiff emailed Spott and stated:
Am I getting fired twice? I was told by
Chris Ulrich that if I did not hand in the
medical excuse with the demands as stated in
the email by 3/8/2013 I could not return. I
did not hand in the doctor’s note with the
demands as per your request according to Jenn
Walsh by 3/8/2013 so far as I know I was
already fired.
(Doc. 22 ¶ 97; Doc. 30 ¶ 97.)
Spott testified that Plaintiff had
not been fired at the time of this email (Doc. 22 ¶ 98); Plaintiff
denies that she was informed by Spott, Walsh, or Ulrich that she
was not fired (Doc. 30 ¶ 98).
Spott responded to Plaintiff’s email and stated: “I’ve cc’d my
director, Lisa Torrez on this email.
to you.
She wants to personally speak
As a company, we just want to make sure everything is in-
order [sic] for your return.
We need to make sure the doctors have
released you without restrictions, and that you are safe and able
to complete the duties and tasks of the working requirements.
Lisa
will be reaching out to you directly over sometime either today or
tomorrow.”
(Doc. 22 ¶ 99; Doc. 30 ¶ 99.)
Spott testified that he
sent the email so that Plaintiff would know she was not being
14
terminated and he did not know where Plaintiff got the idea she was
fired.
(Doc. 22 ¶¶ 100-01; Doc. 30 ¶¶ 100-01.)
that the testimony is accurate or true.
Plaintiff denies
(Doc. 30 ¶¶ 100-01.)
Defendant avers that Plaintiff admitted that Spott never told her
she was fired.
(Doc. 22 ¶ 102.)
Plaintiff admits she stated that
Spott never fired her, however she denies that she was not fired–Ulrich used the word “fired”; Walsh specifically told her she could
not return to work and when Plaintiff asked her if she was fired,
Walsh responded that the decision was up to Human Resources.
(Doc.
30 ¶ 102.)
Plaintiff received a letter from Lisa Torrez dated March 15,
2013, which stated:
“I have called and left messages for you on
March 14, 2013 and March 15, 2013 in an
attempt to discuss your leave. I have not
received a return call from you nor has
Matthew Spott the Human Resources Generalist
in the Dunmore location. I was hoping to
discuss the release to return to work with no
restrictions from your physician which we
need for our files in order to be able to
create your work schedule and return to
work.”
(Doc. 22 ¶ 106; Doc. 30 ¶ 106 (quoting Pl. Compl., Ex. I thereto).)
The letter also asked Plaintiff to provide a return to work note by
Friday, March 22, 2013, and to contact Torrez directly if she could
not meet that deadline.
(Doc. 22 ¶ 108; Doc. 30 ¶ 108.)
testified that she read and understood the letter.
Doc. 30 ¶ 110.)
Plaintiff
(Doc. 22 ¶ 110;
Plaintiff also received a voicemail from Torrez.
15
(Doc. 22 ¶ 111; Doc. 30 ¶ 111.)
Plaintiff testified that she never
returned Torrez’ voicemail, never talked to Torrez, never sent
Torrez her return to work note, and Torrez never told her she was
fired.
(Doc. 22 ¶¶ 112-13; Doc. 30 ¶¶ 112-13.)
Plaintiff further
testified that she thought the March 15th letter was an attempt by
Defendant to cover up its wrongdoing.
(Doc. 30 ¶ 179.)
Plaintiff also points to a log note authored by Spott which
states “Sharon’s supervisor actually asked for a medical diagnosis
in an email, so now Lisa and myself are working on some damage
control, but Sharon is still not cooperating.
difficult person.”
She is an extremely
(Doc. 30 ¶ 224 (citing CU #8 to Exhibit #6);
Doc. 30 ¶ 234.)
Defendant avers that Plaintiff told her niece, Minutes, about
the letter from Defendant’s Human Resources Department and that the
letter stated that Plaintiff was still an active employee and
needed to contact Defendant.
this.
(Doc. 30 ¶ 114.)
(Doc. 22 ¶ 114.)
Plaintiff denies
Defendant avers that Minutes advised
Plaintiff to call Defendant’s corporate office, but Plaintiff told
Minutes she was not going to do so.
(Doc. 22 ¶ 114.)
Plaintiff testified that she believed the EEOC was handling
the matter but no one at the EEOC had instructed her not to contact
Defendant.
(Doc. 22 ¶¶ 115-16; Doc. 30 ¶¶ 115-16.)
She further
testified that she would have contacted Defendant but what Ulrich
did was illegal.
(Doc. 32-3 at 27-28 (Pl. Dep. 108:24-109:2).)
16
Plaintiff adds that
if Matthew Spott, Lisa Torrez, or anyone
else, just said they know what he did was
wrong, that they were sorry, that they
admitted they were in possession of her
doctor’s note, she would have contacted them.
Instead they acted like they never received
anything, when they did, and were deceptive
about it, she could not trust them. She
decided that the EEOC could handle it at that
point.
(Doc. 30 ¶ 180.)
Walsh testified that a doctor’s note was for a “clearance,” to
let Defendant know there were no restrictions on the employee
returning to work.
(Doc. 30 ¶ 189.)
She also testified that it
would be a violation of HIPPA if Defendant were to require a
diagnosis.
(Doc. 30 ¶ 192.)
In September 2013, Plaintiff received another letter from
Human Resources Manager Dawn Johnson which was prompted by Ulrich’s
attempt to submit a termination form for Plaintiff in connection
with cleaning up the e-time program, the system employees use to
clock in and clock out.
19, 129.)
(Doc. 22 ¶¶ 118-19, 129; Doc. 30 ¶¶ 118-
Plaintiff adds that the averments are denied insofar as
they imply that she was not previously informed that she was
terminated.
(Doc. 30 ¶¶ 118-19.)
Johnson’s letter dated September
12, 2013, reviewed Torrez’ attempts to contact Plaintiff and
Torrez’ directives to Plaintiff, Plaintiff’s failure to contact
Torrez as requested, and the fact that Defendant’s records
indicated an active employment record with a last day worked as
17
February 20, 2013.
(Doc. 22 ¶¶ 129-31; Doc. 30 ¶¶ 129-31.)
The
letter also included a request for Plaintiff to call Johnson by
September 20, 2013, to discuss Plaintiff’s ability and intention to
return to work, and a directive that, if she failed to do so, an
administrative termination would be effective September 21, 2013.
(Doc. 22 ¶¶ 132-33; Doc. 30 ¶¶ 132-33.)
At the time Johnson sent
the letter, it was her understanding that Plaintiff had not
submitted a return to work note (Doc. 22 ¶ 134); Plaintiff
acknowledges only that this was Johnson’s testimony (Doc. 30 ¶
134).
Plaintiff testified that she read and understood the letter.
(Doc. 22 ¶ 135; Doc. 30 ¶ 135.)
Defendant avers she took no action
in response to the letter (Doc. 22 ¶ 136); Plaintiff states she
took no action because she had a complaint pending with the EEOC
(Doc. 30 ¶ 136).
Johnson submitted Plaintiff’s termination
paperwork on September 21, 2013, identifying the reason for
termination as “job abandonment.”
(Doc. 22 ¶ 137; Doc. 30 ¶ 137.)
Defendant avers that Plaintiff’s effective termination date was
September 21, 2013, and was based on Plaintiff’s failure to contact
Johnson in response to Johnson’s letter.
(Doc. 22 ¶ 138.)
Plaintiff asserts that this is a conclusion of law to which no
response is required.
(Doc. 30 ¶ 138.)
Plaintiff avers Johnson
testified she was led to believe that the termination form
contained a termination date of March 2013.
(Doc. 30 ¶ 242.)
Plaintiff’s counter-statement of facts identifies two
18
individuals previously employed by Defendant, Chance Rowe and his
sister Ashley Colon, who had medical problems and were terminated.
(Doc. 30 ¶¶ 243-48.)
Rowe testified that he suspected that the
terminations were related to the medical problems.
(Doc. 30 ¶¶
247, 248.)
Plaintiff’s Complaint alleges that Defendant perceived her as
having a disability.
(Doc. 22 ¶ 139; Doc. 30 ¶ 139.)
Plaintiff
testified she does not know what disability she was perceived as
having and no one at Stericycle said that Plaintiff had a
disability.
(Doc. 22 ¶¶ 141-43; Doc. 30 ¶¶ 141-43.)
Plaintiff
also testified that the basis of her lawsuit is her belief that
Defendant prevented her from returning to work.
(Doc. 22 ¶ 151;
Doc. 30 ¶ 151.)
Defendant avers that other than complaining about being passed
over for a full-time position, Plaintiff testified that she never
made any complaints related to her employment with Stericycle and
never called the Team Member Help Line.
(Doc. 22 ¶ 153.)
Plaintiff adds that before her surgery Matthew Spott said he was
going to offer her a full-time position but it fell through.
30 ¶ 155.)
(Doc.
She testified at her deposition that she thought Spott
may have tried to get rid of her after she went over his head.
(Id.)
Plaintiff denies that she never complained–-she specifically
complained to Defendant and the EEOC about being discriminated
against.
(Doc. 30 ¶ 153.)
19
As noted above, Plaintiff filed her Complaint on December 13,
2013.
(Doc. 1.)
The one-count Complaint alleges that Defendant
violated the Americans with Disabilities Act (“ADA”) and ADA
Amendments Act of 2008 (“ADAAA”), “by regarding her as having a
disability (i.e., perceived impairment) and refusing her return to
employment, and/or terminating her from employment, and/or
constructively discharging her from employment.”
(Doc. 1 ¶ 8.)
II. Discussion
A.
Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates
there is no “genuine issue as to any material fact.”
P. 56(a).
Fed. R. Civ.
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”
Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).
In determining whether a genuine issue of fact exists, a
court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.
20
Conoshenti v. Public
Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477
U.S. 317, 330 (1986) (citations omitted).
The moving party may
meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.
The non-moving party may not rest on the bare
allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.
Id. at 324.
Where underlying facts are in dispute, the facts are viewed in
the light most favorable to the plaintiff.
Abramson v. William
Patterson College of N.J., 260 F.3d 265, 267 (3d Cir. 2001) (citing
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 N.1 (3d Cir.
1990).
“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of evidence.”
Anderson, 477 U.S. at 255.
Therefore, when
evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
21
B. ADA Legal Framework
The burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), applies to claims under the ADA.
See
Shaner v. Synthes (USA), 204 F.3d 494, 500 (3d Cir. 2000)
(citations omitted); see also Reilly v. Lehigh Valley Hospital, 519
F. App’x 759, 762 (3d Cir. 2013) (not precedential).
First, the
court considers whether the plaintiff can establish a prima facie
case.
To make out a prima facie case of disability discrimination
under the ADA, a plaintiff must establish that she: “(1) has a
‘disability’ or is regarded as having a ‘disability’; (2) is
otherwise qualified to perform the essential functions of the job;
and (3) has suffered an adverse employment action because of [her]
disability.”
519 F. App’x at 762.
Once the plaintiff makes out a
prima facie case, the burden shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for the adverse
employment action.
U.S. at 802).
Id. at 762-63 (citing McDonnell Douglas, 411
If the defendant satisfies this burden, the
plaintiff is afforded an opportunity to show that the defendant’s
stated reason was pretext.
Id. at 763 (citing McDonnell Douglas,
411 U.S. at 804).
The “ADAAA” states that an individual is “regarded as”
disabled if she establishes that she “has been subjected to an
action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the
22
impairment limits or is perceived to limit a major life activity.”
42 U.S.C. § 12102(3)(A).
The “regarded as” analysis “focuses not
on [the plaintiff] and his actual abilities, but rather on the
reactions and perceptions of the persons interacting or working
with him.”
Kelly v. Drexel University, 94 F.3d 102, 108-09 (3d
Cir. 1996).
C. Prima Facie Case
Here Plaintiff proceeds under the “regarded as” prong of the
ADA.
Defendant presents several arguments in support of its
assertion that no evidence shows that Plaintiff can proceed under
this prong.
1.
We will address each in turn.
Plaintiff’s Condition was Transitory and Minor
Defendant first argues that Plaintiff cannot satisfy the first
prong of her prima facie case in that she is not covered by the ADA
because her condition was both transitory and minor: Plaintiff’s
release to return to work two weeks after surgery is evidence that
her condition was minor and of limited duration.
12.)
(Doc. 24 at 10-
We agree.
The statutory provision defining disability “curtails an
individual’s ability to state a ‘regarded as’ claim if the
impairment is ‘transitory and minor,’ which means it has an ‘actual
or expected duration of six months or less.’”
Budhun v. Reading
Hosp. and Medical Center, 765 F.3d 245, 259 (3d Cir. 2014) (citing
42 U.S.C. § 12102(3)(B)).
This is an objective determination,
23
“[t]hat is to say the relevant inquiry is whether the impairment
that the employer perceived is an impairment that is objectively
transitory and minor.”
Id. (citing 29 C.F.R. § 1630.15(f)).
The
regulations list being “transitory and minor” as a defense to an
ADA claim.
Id.
Plaintiff presents several arguments in response to
Defendant’s assertion that Plaintiff’s condition was both
transitory and minor, first asserting that Defendant regarded
Plaintiff “as having more than a ‘transitory and minor’ impairment
because it specifically refused to allow Plaintiff to return to
work unless she disclosed her exact medical condition.”
(Doc. 31
at 7.)
Here application of the “transitory and minor” provision is
not straightforward.
In the timeframe before the request for a
specific diagnosis (March 7, 2013), the record shows only the
following relevant information: Plaintiff submitted a doctor’s note
on February 6, 2013, that she was going to be off work for surgery
scheduled to be done on February 22, 2013 (Doc. 22 ¶¶ 27, 29); on
March 2, 2013, (approximately) Plaintiff called Walsh “to come back
to work” and during the course of the conversation “Walsh told her
to wait the two weeks she was given for time off” and “Plaintiff
told Walsh the date of her follow-up appointment with her doctor”
(Doc. 30 ¶ 162); Defendant only learned the specific reason for
Plaintiff’s absence in the course of this litigation (Doc. 30 ¶
24
26).
From this evidence we know that Defendant knew Plaintiff had
surgery from which she reportedly would be sufficiently recovered
in two weeks to return to work and Defendant knew no other details
about the absence.4
Based on this limited information we do not
find support for Plaintiff’s position that Defendant perceived
Plaintiff to have an impairment that would last more than six
months.
42 U.S.C. § 12102(3)(B).
As we will later discuss in
greater detail, our circuit court has approved the principle that
requiring a medical release before allowing an employee to return
to work following surgery is a “prudent requirement.”
Parker v.
Port Authority of Allegheny County, 90 F. App’x 600, 604 (3d Cir.
2004) (not precedential) (citing Somers v. City of Minneapolis, 245
F.3d 782, 788 (8th Cir. 2001)).
Nothing in the record allows us to
infer more in this case, particularly in that Defendant corrected
its initial error of requiring specific medical information in the
return-to-work note.
Plaintiff next argues that, although Defendant did not know
the nature of her surgery, the removal of her gallbladder “is
permanent, as she cannot have it put back into her body.
4
Thus, any
Although elsewhere in her brief Plaintiff infers that Walsh
only knew of the duration of Plaintiff’s absence because of the
March 6, 2013, medical release (Doc. 31 at 13), it can reasonably
be inferred that Walsh learned of Plaintiff’s proposed/tentative
return to work date through Plaintiff’s March 2, 2013, call which
included information that Plaintiff was ready to return to work and
the date for her scheduled follow-up doctor’s appointment (see Doc.
30 ¶ 162).
25
reference to a transitory or minor impairment is not applicable.”
(Doc. 31 at 7-8.)
This argument is without merit in that “the
impairment that the employer perceived,” Budhun, 765 F.3d at 259,
was surgery with a reported clearance to return to work two weeks
post-surgery.
See supra n.3.
The permanence of the removal of her
gallbladder and the potential side effects of such surgery are not
at issue.
Finally, Plaintiff asserts that Defendant waived the
“transitory and minor” defense because it was not asserted as an
affirmative defense.
(Doc. 31 at 8.)
Defendant responds that the
facts giving rise to the defense were not known until discovery was
conducted and it is properly asserted in the pending motion.
(Doc.
35 at 7 n.5.)
Under Rule 8(c) of the Federal Rules of Civil Procedure, an
affirmative defense should be asserted at the appropriate
responsive pleading.
Eddy v. Virgin Islands Water and Power
Authority, 256 F.3d 204, 209 (3d Cir. 2001). “But under established
circuit law, the failure to do so does not automatically result in
waiver.”
Id. (citing Charpentier v. Godsil, 937 F.2d 859, 863 (3d
Cir. 1991)). “‘[A] defendant does not waive an affirmative defense
if [h]e raised the issue at a pragmatically sufficient time, and
[the plaintiff] was not prejudiced in its ability to respond.’”
Id. (quoting Charpentier, 937 F.2d at 864).
“‘[A] motion for
summary judgment is not the most appropriate way to raise a
26
previously unpled defense’”
Id. (quoting Kleinknecht v. Gettysburg
College, 989 F.2d 1360, 1373 (3d Cir. 1993)).
However, “in cases
in which the plaintiff was not prejudiced, we have held that there
was no waiver.”
Id. (citing Kleinknecht, 989 F.2d at 1374;
Charpentier, 937 F.2d 863-64).
Here Plaintiff does not argue prejudice, nor do we find that
Plaintiff has been prejudiced by Defendant raising the transitory
and minor defense in the context of its summary judgment motion.
The parties agree that Defendant only became aware that Plaintiff’s
surgery was for the removal of her gallbladder during the course of
this litigation, and, as Defendant notes, it became clear during
discovery that Defendant’s only knowledge of Plaintiff’s condition
was that she needed to be out of work for two weeks for surgery.
Thus, Defendant’s summary judgment motion is a “pragmatically
sufficient time” to raise the transitory and minor defense.
2.
Evidence Supporting Application of Regarded-As Prong
Defendant next argues that no evidence suggests that it
regarded Plaintiff as having an ADA-covered impairment.
at 12.)
(Doc. 24
Plaintiff responds that Defendant did regard Plaintiff as
having an ADA-covered impairment, arguing that “[t]he evidence that
logically infers that the Defendant perceived Plaintiff’s unknown
condition as significantly restricting her work . . . is that it
flat out refused to permit her to return to work without disclosing
her exact medical condition despite its admitted knowledge that she
27
was released to work without any medical restrictions.”
(Doc. 31
at 10-11 (citing SOF #154-248).)
Plaintiff’s reference to a “flat out” refusal is apparently
based on Plaintiff’s email from Ulrich and her conversations with
him and Walsh.
isolation.
However, this evidence cannot be viewed in
A significant flaw in Plaintiff’s argument is that the
email from Ulrich and conversations requesting the exact nature of
Plaintiff’s condition were quickly corrected: through communication
from Spott and Torrez, Defendant clarified within days of Ulrich’s
email and phone calls that detailed information about Plaintiff’s
condition was not needed.
Thus, though we draw reasonable
inferences in Plaintiff’s favor, Plaintiff asks us to draw
inferences that are not reasonable.
Furthermore, our circuit court
has noted that an employer’s request for a medical excuse for an
employee’s absence does not indicate that the employer regarded the
employee as disabled.
245 F.3d at 788).
Parker, 90 F. App’x at 604 (citing Somers,
As noted previously, Somers stated that
requiring a medical release before allowing an employee to return
to work following surgery is a “prudent requirement.”
788.
245 F.3d at
Here, there is no argument that Defendant initially erred in
requiring too much information from Plaintiff, but that error does
not support an inference that Defendant regarded Plaintiff as
having an ADA-covered disability, particularly where Defendant
attempted to correct the error within a short period of time.
28
Similarly, Plaintiff’s claim that Defendant knew she had been
released to return to work with no restrictions, if true, would not
support her “regarded as” argument: at most it may show an error in
judgment in requesting Plaintiff to resubmit information but, given
Plaintiff’s refusal to communicate with Spott and Torrez, any
further inference would be improper.
Based on the preceding discussion, we do not find that
Plaintiff has satisfied the first prong of her prima facie case in
that she has not shown that her condition was not transitory and
minor nor has she presented sufficient evidence to support a
conclusion that Defendant regarded her as disabled.
However, in an
abundance of caution, we will proceed to the third prong of
Plaintiff’s prima facie case--whether Plaintiff has suffered an
adverse employment action because of her disability.
519 F. App’x
at 762.
3.
Adverse Employment Action
Defendant also argues that Plaintiff cannot satisfy the third
prong of the prima facie case in that she cannot show she suffered
an adverse employment action because of a perceived impairment:
whatever mistakes Ulrich made, it remains undisputed that Spott
took prompt steps to inform Plaintiff she did not need to provide
the exact medical reason for her absence.
(Doc. 24 at 14.)
Plaintiff maintains she was terminated because of a perceived
disability, specifically stating that it is not accurate that
29
“Spott promptly took steps to clarify and inform the Plaintiff that
she did not need to know the details of her medical condition.”
(Doc. 31 at 12-14.)
We conclude that Plaintiff has not met her
burden on this issue.
In support the assertion that she was fired, Plaintiff states
that she sent an email to Spott on March 13, 2013, asking if she
had been fired twice and neither “Spott, nor any other Stericycle
employee, ever responded to the Plaintiff to tell her that she was
not fired.”
(Doc. 31 at 13.)
This averment is contradicted by the
record: although no Stericycle respresentative specifically used
the words “you are not fired,” communication with Plaintiff made it
abundantly clear that she had not been terminated.
In a March 12,
2013, email to Plaintiff, Spott requested that Plaintiff contact
him about her return to work (see Doc. 2 at 5).
The email states
in full:
Good morning Sharon,
The supervisors and myself have made numerous
attempts to contact you via phone, and I will
continue that process today. I need you to
contact me no later than Wednesday March 13,
2013, by 3pmET. Your employment with the
company depends on this. In order for you to
return to work we need the following
information on a doctor’s note:
When you became ineligible and incapable
of coming to work
When you are able to return to work
When you return to work, what
restrictions you may have (in case
30
accommodation is necessary)
We do not need to know the details of your
condition, only the information that is
listed above is required.
Sincerely,
Matthew
(Doc. 2 at 5.)
Although Spott says that Defendant will need a
doctor’s note for Plaintiff to return to work, he does not say that
Plaintiff’s employment depends on submitting another doctor’s note
by 3:00 p.m. the next day; simply contacting him is the request
linked to her continued employemt.
Thus, to the extent Plaintiff
believed before she received the email that she had been fired for
not submitting a note with detailed medical information, Spott’s
email makes clear that she had not been fired for any reason and
the key to her continued employment was contacting her employer.
In correspondence dated March 15, 2013, Torrez stated the
following:
I have called and left messages for you on
March 14, 2013 and March 15, 2013 in an
attempt to discuss your leave. I have not
received a return call from you nor has
Matthew Spott the Human Resources Generalist
in the Dunmore location. I was hoping to
discuss the release to return to work with no
restrictions from your physician which we
need for our files in order to be able to
create your work schedule and return to work.
At this time you are an active Team Member
Communications Solutions, an operating
business segment of Stericycle, Inc.
Please be advised you will have until Friday,
31
March 22, 2013 to submit a return to work
note from your physician. However, if you
feel you will not be able to meet that
timeline, you need to contact me directly by
Monday, March 18, 2013.
Feel free to contact me if you have any
questions.
(Doc. 2 at 10.)
This correspondence shows that to the extent
Plaintiff believed before she received the letter from Torrez that
she had been fired for not contacting Spott by March 13th, Torrez’
letter made clear that she had not been fired for any reason and,
once again, the key to her continued employment was contacting her
employer (in that the timeline for submitting the note is presented
as flexible upon direct contact with Torrez).
While it may be
appropriate for Plaintiff to believe she had been terminated after
she did not contact Torrez on March 18th, did not submit the
physician’s note on March 22nd, and did not call Torrez with any
questions, the termination would have been for failure to follow
specific directives–-not because Defendant regarded Plaintiff as
disabled in violation of the ADA.5
Furthermore, if Spott or Torrez had seen or were aware of the
previously submitted note (although no evidence supports such an
assumption), the request for Plaintiff to resubmit it does not
equate with an adverse employment action supporting an ADA
5
Though the exact date of termination is not dispositive,
evidence of record indicates that Plaintiff was not officially
terminated until September 2013. (See Doc. 22 ¶¶ 118-138.)
32
violation.
As Defendant argues, the undisputed facts are that
several members of Defndant’s HR team reached out to Plaintiff
about her return to work, she made a conscious decision to ignore
them, and made no attempts to remedy any apparent confusion despite
being given multiple opportunities to do so.
(See Doc. 35 at 10.)
In this context, any mistake made on Defendant’s part in the
handling of Plaintiff’s return to work cannot reasonably be
construed as a violation of the ADA.6
The record shows that Plaintiff unilaterally decided she had
been fired following her communication with Ulrich and thereafter.
It is noteworthy that Plaintiff testified that when she asked Walsh
in a March 7, 2013, phone call whether she was fired, Walsh
responded that it was up to Human Resources.
30 ¶ 58.)
(Doc. 22 ¶ 58; Doc.
Yet, Plaintiff ignored assurances from HR
representatives that she had not been terminated.
She refused to
contact them to discuss her return to work, ostensibly because she
6
Walsh testified that for an employer to ask for a diagnosis
to be included in a return-to-work slip would be a HIPAA violation.
(Doc. 32-4 (Walsh Dep. 14:9-12).) “Neither the U.S. Supreme Court
nor the United States Court of Appeals for the Third Circuit has
specifically addressed the issue, however, other district courts,
including the Middle District, have all found that HIPAA does not
create a private right of action.”
Duganne v. Giroux, Civil
Action No. 3:13-1359, 2014 WL 4626692, at *7 (M.D. Pa. Sept. 15,
2014) (listing cases). In Polanco v. Omnicell, Inc., 988 F. Supp.
2d 451, 469 (D.N.J. 2013), the court noted that “[t]he ability to
bring an enforcement action to remedy HIPAA violations . . . lies
within the exclusive province of the Secretary of Heatlh and Human
Services.’” (citing Acara v. Banks, 470 F.3d 569, 571 (5th Cir.
2006)).
33
believed Spott to be deceptive.
24).)
(Doc. 32-3 at 28 (Pl. Dep. 109:22-
In defense of her decision not to contact Defendant as
requested, Plaintiff also maintains it was her understanding that
once she filed with the EEOC, she was “supposed to let them handle
it at that time.”
(Doc. 32-3 at 27 (Pl. Dep. 108:19-21).)
Plaintiff confirmed that no one from the EEOC told her not to
contact Defendant.
(Doc. 32-3 at 27 (Pl. Dep. 108:22-24).)
She
added that she
would have contacted Stericycle or Matt or
any of them, but it’s–-my problem is, we all
know what Chris Ulrich did was illegal.
You’re not supposed to ask that information.
We all know that. If Matt [Spott], Lisa
Torrez, anybody would have said, hey, we know
Chris did something wrong, we’re sorry, we
got our doctor’s excuse, anything, I would
have contacted them. But for them to sit
there and act like they never received
anything and more or less being very
deceptive because they’re not being honest in
it, how can I trust them to call them. Let
the EEOC handle it at that point.
(Doc. 32-3 at 27-28 (Pl. Dep. 108:24-109:12).)
Plaintiff then
confirmed that Spott’s email specifically stated Defendant did not
need to know the details of her condition.
Dep. 109:16-19).)
(Doc. 32-3 at 28 (Pl.
When asked if it mattered at that point that
Ulrich had previously asked for details, Plaintiff responded: “What
matters is that Matt [Spott] in here, to me, is being very
deceptive because he’s still not acknowledging that they had my
medical excuse.
I handed it in.
They received it.
or less, to me, covering up what Chris did.”
34
And he’s more
(Doc. 32-3 at 28 (Pl.
Dep. 109:20-110:2).)
Plaintiff’s acknowledgment that she “would have contacted”
Defendant if she had received what she considered an appropriate
apology shows that she did not believe that only the EEOC could
handle her employment issue.7
Her position is essentially that
despite representations that she had not been terminated and that
details of her medical condition were not required, Defendant’s
initial error of improperly asking for detailed medical information
(which was corrected) is sufficient to establish a violation of the
Americans with Disabilities Act.
This is not the law.
Plaintiff’s unsubstantiated perception that she was fired is
clearly not enough to meet her burden.
Any conflicting testimony
about who knew, did and/or said what when does not create a genuine
issue of material fact because the discrepancies relate to the time
period before Defendant’s Human Resources personnel became
involved.
The documentation of the steps taken by HR personnel to
clarify Plaintiff’s employment situation are matters of record
uncontradicted by competent evidence.
The previously reviewed
evidence shows that Plaintiff was not fired because Defendant
regarded her as disabled; no competent evidence contradicts
7
We note that Plaintiff acknowledged she read Defendant’s
Handbook and understood the policy contained therein which provided
that an employee would go to a manager then Human Resources with
her concern if she was not satisfied with her supervisor’s handling
of the problem. (Doc. 22 ¶¶ 10, 11; Doc. 30 ¶¶ 10, 11.) The
record shows that Plaintiff neither followed this policy nor
contacted the Team Member Help Line.
35
Defendant’s position that Plaintiff was eventually terminated
because she abandoned her position.8
Because we have concluded that Plaintiff cannot satisfy either
the first or third prong of her prima facie case, summary judgment
in Defendant’s favor is appropriate.
However, again in an
abundance of caution, we will review the parties’ arguments on the
issue of pretext.
D. Pretext for Discrimination
Finally, Defendant argues that Plaintiff lacks any evidence
showing that its legitimate and non-discriminatory actions were
pretext for unlawful discrimination.
(Doc. 24 at 20.)
For reasons
similar to those discussed above, we conclude Plaintiff has not
produced evidence from which a reasonable factfinder could conclude
Defendant’s proffered reasons for termination were a pretext for
discrimination.
If we were to assume arguendo that Plaintiff could satisfy her
initial burden of establishing a prima facie case, the burden of
production would shift to Defendant to articulate a legitimate
nondiscriminatory reason for its action.
U.S. at 802.
McDonnell Douglas, 411
Once an employer meets the “relatively light” burden
8
Plaintiff’s reference to Defendant’s alleged further error
of asking for a medical release which she had already sent does
nothing to further her claim, particularly in light of the
undisputed fact that she did not speak with either Spott or Torrez
about having previously sent a medical release and never called
them despite several requests to do so.
36
of production coming forward with a legitimate nondiscriminatory
reason for its action, the burden shifts to the plaintiff to
demonstrate pretext by a preponderance of the evidence.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
Fuentes v.
Here Defendant has met
its burden, asserting it terminated Plaintiff after she refused to
communicate with Defendant’s HR representatives and effectively
abandoned her position.
(See, e.g., Doc. 24 at 7, 20.)
Thus, we
turn to whether Plaintiff has produced evidence of pretext.
To demonstrate pretext under the summary
judgment standard, a plaintiff must either
(1) offer evidence that “casts sufficient
doubt upon each of the legitimate reasons
proffered by the defendant so that a
factfinder could reasonably conclude that
each reason was a fabrication,” or (2)
present evidence sufficient to support an
inference that “discrimination was more
likely than not a . . . determinative cause
of the adverse employment action.” Fuentes
v. Perske, 32 F.3d 759, 762 (3d Cir. 1994).
To meet that burden, a plaintiff “cannot
simply show that the employer’s decision was
wrong or mistaken.” Id. at 765. The fact
that an employer made a poor or unwise
decision does not make that decision
discriminatory. See Brewer v. Quaker State
Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir.
1995) (“[A]n employer may have any reason or
no reason for discharging an employee so long
as it is not a discriminatory reason.”).
Evidence undermining an employer’s proffered
legitimate reasons therefore must be
sufficient to “support an inference that the
employer did not act for its stated reasons.”
Sempier v. Johnson & Higgins, 45 F.3d 724,
731 (3d Cir. 1995). A non-moving plaintiff
can meet that burden at the summary judgment
stage by “demonstrat[ing] such weaknesses,
implausibilities, inconsistencies,
incoherencies, or contradictions in the
37
employer’s proffered legitimate reasons for
its action that a reasonable factfinder could
rationally find them ‘unworthy of credence,’”
and thus infer that nondiscriminatory reasons
were not the cause for the adverse employment
action. Fuentes, 32 F.3d at 765.
Ball v. Einstein Community Health Associates, Inc., 514 F. App’x
196, 199-200 (3d Cir. 2013) (not precedential).
Defendant points to its ongoing attempts to communicate with
Plaintiff and Plaintiff’s own admissions that she took no action in
response to these attempts in support of its argument that
Plaintiff cannot show pretext.
(Doc. 24 at 20.)
Plaintiff
responds that she did not unreasonably neglect to respond to
Defendant; she avers she was being deceived by Defendant’s
employees and no longer trusted any representations made by them.
(Doc. 31 at 14.)
Plaintiff adds that she was told “she would not
be allowed to return to work if she did not do something that she
knew was unlawful, i.e., disclose her medical condition.
She was
led to believe she was fired if she did not disclose it.”
at 14.)
(Doc. 31
Importantly, with this argument Plaintiff does not discuss
Defendant’s assurances to the contrary and her failure to
communicate with Defendant despite its multiple requests that she
do so. Other than her general perception that she was being
deceived, Plaintiff offers absolutely no evidence that the
assertions made by Spott and Torrez regarding her continued
employment were inaccurate.
By her own admission, Plaintiff was
told that detailed medical information was not needed and she did
38
nothing to clarify any confusion she may have had regarding the
medical release required and the doctor’s note she faxed to
Defendant on March 6, 2013.
As discussed in the context of her
prima facie case, here the record does not support Plaintiff’s
attempt to undermine Defendant’s proffered reason for termination
with her reliance on Defendant’s initial improper request for
detailed medical information and her distrust of the motives of
Defendant’s HR representatives.
Plaintiff also attempts to demonstrate pretext through the
testimony of Chanse Rowe, a former Stericycle employee.
at 15.)
(Doc. 31
Rowe “suspected that his medical condition was the cause
of his suspension and termination,” and also testified that his
sister who had medical problems had been terminated.
(Id.)
Rowe
testified that Spott had refused medical notes from himself and his
sister.
(Id.)
Plaintiff points to Rowe’s testimony in support of
an alleged pattern: “Stericycle wanted to know medical conditions
for its employees.”
(Id.)
Defendant responds that “Rowe’s testimony falls far short of
demonstrating any pretext”: having missed work for medical reasons,
Rowe returned to work after submitting a doctor’s note; Rowe
admitted in his deposition that Defendant suspended him pending
investigation when Rowe made sexual jokes over the call center’s
headsets and Defendant had recorded them; Defendant informed Rowe
that he violated the harassment policy and he subsequently received
39
a termination letter after his suspension.
(Doc. 35 at 13-14.)
We
agree with Defendant that “[m]ere speculation about Stericycle’s
motives by a former employee . . . is woefully insufficient for
Plaintiff to establish pretext.”
(Doc. 35 at 14.)
Though Rowe
testified he does not know specifically why he was terminated (the
termination letter did not mention anything about a policy (Doc.
32-10 (Rowe Dep. 22:15-17))), his testimony cannot be construed as
anything more than speculation.
Similarly, any reliance on Rowe’s
testimony about his sister’s experience is misplaced in that Rowe
testified that he did not know the circumstances of his sister’s
employment and termination.
(Doc. 35 at 14 n.10; Doc. 32-10 (Rowe
Dep. 18:11-19:21).)
This review of Plaintiff’s proffered evidence is not
sufficient to cast such doubt on Defendant’s proffered reason that
a factfinder could reasonably conclude that the reason was a
fabrication, nor is the evidence sufficient to support an inference
that “discrimination was more likely than not a . . . determinative
cause of the adverse employment action.”
Fuentes, 32 F.3d at 762.
Plaintiff’s proffered evidence cannot support an inference that
Defendant did not act for its stated reasons.
731.
Sempier, 45 F.3d at
Plaintiff has not demonstrated “such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions” in Defendant’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them
40
‘unworthy of credence,’” and thus infer that nondiscriminatory
reasons were not the cause for the adverse employment action.
Fuentes, 32 F.3d at 765.
Even assuming arguendo that Plaintiff
were able to satisfy her prima facies case, Plaintiff has not
satisfied her burden of showing pretext.
Therefore, Defendant is
entitled to judgment in its favor.
III. Conclusion
For the reasons discussed above, we conclude that Defendant’s
Motion for Summary Judgment (Doc. 21) is properly granted.
An
appropriate Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: January 28, 2015
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