DEL TINTO v. CLUBCOM, LLC

Filing 69

MEMORANDUM ORDER upon Plaintiff's Motion for Reconsideration, Granting Summary Judgment on behalf of Defendant as to Count Two of Plaintiff's Amended Complaint. Signed by Judge Arthur J. Schwab on 12/7/12. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GINA N. DEL TINTO,
Plaintiff,

12cv0070
ELECTRONICALLY FILED

v.
CLUBCOM, LLC,
Defendant.
MEMORANDUM ORDER
Before the Court is the matter set forth by Plaintiff in her Motion for Reconsideration
(doc. no. 64), which this Court granted in part and denied in part. See Doc. Nos. 68. Plaintiff
requested that the Court reconsider its prior decision granting Defendant summary judgment.
Doc. Nos. 61-62. The Court agreed to specifically address the summary judgment argument
raised by Defendant (and countered by Plaintiff) as to Count Two of Plaintiff’s Amended
Complaint. Doc. Nos. 68-69.
Whether summary judgment should be granted as to Count Two of the Amended
Complaint was an issue which was fully briefed by the parties prior to Court’s issuance of its
prior Opinion and Order granting summary judgment (doc. nos. 61-62). See Defendant’s Brief
in Support of its Motion for Summary Judgment, doc. no. 39, pp. 12-15, Plaintiff’s Brief in
Opposition, doc. no. 44 at pp. 6-7, and Defendant’s Reply Brief, doc. no. 58, at pp. 3-5. Thus,
the matter is ripe for disposition by the Court.
I.

Standard of Review
As stated in the Court’s prior Opinion (doc. no. 61), a Court must grant summary

judgment, “if the movant shows that there is no genuine dispute as to any material fact and [if]
the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). This determination

requires that we view the facts in the light most favorable to the nonmovant and draw all
inferences in her favor. Stratechuck v. Bd. of Educ., S. Orange–Maplewood Sch. Dist., 587 F.3d
597, 603 (3d Cir. 2009).
A fact is material if it “might affect the outcome of the suit under the governing law,” and
the dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Olivieri v. County of Bucks, 2012 WL 5235684, *4 (3d Cir. 2012), citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue
for trial.’” Id., citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Once the moving party has properly supported its showing that there is no triable issue of
fact and demonstrated an entitlement to judgment as a matter of law, the non-moving party “must
do more than simply show that there is some metaphysical doubt as to material facts.”
Matsushita, 475 U.S. at 586. The non-moving party must go beyond the pleadings and by [its]
own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986).
In summary, the inquiry under a Rule 56 motion is whether the evidence of record
presents a genuine dispute over material facts so as to require submission of the matter to a jury
for resolution of that factual dispute or whether the evidence is so one-sided that the movant
must prevail as a matter of law. It is on this standard that the Court has reviewed the
Defendants’ Summary Judgment Motion and Plaintiff’s Response and Defendant’s Reply with
respect to Count Two of the Amended Complaint.

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II.

Factual Background
According to her Amended Complaint, Plaintiff was diagnosed at some unspecified point

in time with Major Depressive Disorder “as a result of the harassment she suffered[at work,]”
and was allegedly terminated by her employer upon learning that she had this mental disorder.
See Amended Complaint, Doc. No. 24, ¶¶ 54, 62. The Amended Complaint specifies that
Plaintiff was “scheduled to continue working until at least September 23, 2011[,]” but alleges
that Defendant listed Plaintiff’s separation from employment as September 15, 2011 and
cancelled her health insurance as of September 16, 2011. Id., ¶ 61. Finally, the Amended
Complaint suggests that Defendant terminated Plaintiff prior to September 23, 2011, because of
her Major Depressive Disorder, and thereby violated the ADA. Id., ¶¶ 62-63.
The parties’ Joint Statement of Material Facts provides additional, uncontested, and
relevant information concerning Plaintiff’s separation from her employment with Defendant and
it also provides a more thorough timeline of the events concerning Plaintiff’s separation from
employment1:


On September 13, 2011, Plaintiff tendered her resignation to her supervisor, John
Lapcevic, via an email, providing him with “two weeks notice.” Joint Statement of
Material Facts, doc. no. 60, pp. 2 and 16, ¶¶ 6, 59;



That same day (September 13, 2011), Lapcevic acknowledged receiving Plaintiff’s
resignation email. Id., p. 16, ¶ 60;



On September 14, 2011, Plaintiff met with Defendant’s Assistant Human Resources
Manager, Linh Quach, for an exit interview. Id., p. 17, ¶¶ 65-66;

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Each of the facts set forth below have been extracted from the parties Joint Concise Statements of Facts, and the
facts are uncontested and deemed to be material and relevant to the issue at bar.

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

During her September 14, 2011 meeting with Quach, Plaintiff requested that Friday,
September 16, 2011, be her last of work as opposed to September 23, 2011, and Quach
memorialized her desire that Plaintiff’s request be honored in this regard, making Friday,
September 16, 2011, her last day of employment with Defendant. Id., pp. 28-29, ¶ 10;



Following her September 14, 2011 meeting with Quach, Plaintiff also emailed Lapcevic,
requesting that Defendant move up her last day of work to Friday, September 16, 2011.
Id., p. 18, ¶ 70;



On September 16, 2011, Plaintiff failed to report for work. Id., p. 19, ¶ 75;



Plaintiff began to attempt to commit suicide after work hours on September 15, 2011.
Id., p. 19, ¶ 78;



No one was aware of Plaintiff’s suicidal actions until Plaintiff called her mother at
approximately 6:30 p.m. on September 16, 2011. Id., p. 19, ¶ 78;



During the September 16, 2011 call with Plaintiff, Plaintiff’s mother learned that Plaintiff
had quit her job, and her mother attempted to contact Lapcevic to get Plaintiff’s job back,
but could not reach Lapcevic. Id., p. 20, ¶ 80;



Lapcevic and Quach first became aware of Plaintiff’s suicide attempt on Monday,
September 19, 2011, through communications from Plaintiff’s mother. Id., p. 21, ¶¶ 85,
87;



At no point in time following her resignation, did Plaintiff instruct her mother to contact
Defendant in an attempt to get her job back. Id., p. 22, ¶ 91;



Plaintiff’s health insurance benefits were terminated effective September 15, 2011, the
last day Plaintiff reported to work for Defendant. Id, p. 42, ¶ 82[sic.]; and

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

Plaintiff received short term disability benefits from Defendant through November 24,
2011. Id., p. 42, ¶ 82.

III. Discussion
A plaintiff may prove wrongful termination under Title VII based upon theories of both
mixed-motive and pretext. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46 (1989) (mixedmotive cases require direct evidence); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973) (pretext cases involve circumstantial evidence). These two distinct frameworks,
developed in the context of Title VII actions, have also been applied to PHRA, ADA, and ADEA
claims. See Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157 (3d Cir.
1995) (“[T]he ADA, ADEA and Title VII all serve the same purpose-to prohibit discrimination
in employment against members of certain classes. Therefore, it follows that the methods and
manner of proof under one statute should inform the standards under the others as well.”).2
The Court must analyze a pretext claim using the tripartite burden-shifting formula set
forth in McDonnell Douglas. To do this, a plaintiff must first establish a prima facie case of
discrimination. See, Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999)
(citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089,
1093, 67 L.Ed.2d 207 (1981) (citations omitted)). “While the burden of production may shift,
‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.’ ” Id.
A prima facie case of discrimination under the ADA requires a plaintiff to prove three
elements: (1) that she has a “disability” within the meaning of the ADA; (2) that she was
qualified for the position, with or without accommodation; and (3) that she was subjected to an
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Because the facts as pled by Plaintiff suggest the application of a pretextual theory, the Court will not discuss an
ADA discriminatory termination claim under a mixed motive theory.

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adverse employment decision as a result of discrimination. Shaner v. Synthes, 204 F.3d 494, 500
(3d Cir. 2000). The prima facie case is not intended to be rigidly applied or difficult to prove.
Equal Employment Opportunity Comm’n v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir.1990);
see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3rd Cir.1999) (the prima facie case
“is merely a sensible, orderly way to evaluate the evidence in light of common experience as it
bears on the critical question of discrimination”).
The Court in its prior Opinion (doc. no. 61) noted that Plaintiff admitted that she did not
have a learning disability that she reported to her employer at the time she was taunted by a coworker. See Doc. No. 61, p. 5. Thus, Plaintiff’s ADA discriminatory termination claim cannot
be predicated upon a learning disability.
However, Count Two of Plaintiff’s Amended Complaint implies that she was employed
by Defendant at the time she was diagnosed with Major Depressive Disorder, that her employer
knew about this mental disability, and discharged her because of it. Doc. No. 24, ¶¶ 53-64.
However, the record (and Plaintiff’s argument in her Brief in Opposition) does not support
Plaintiff’s proposition in this regard.
As noted above, in order to support a prima facie case for discrimination under the ADA,
Plaintiff here must prove three elements: (1) that she has a “disability” within the meaning of the
ADA; (2) that she was qualified for the position, with or without accommodation; and (3) that
she was subjected to an adverse employment decision as a result of discrimination.
As noted in the Court’s prior Opinion, the ADA defines disability as “(A) a physical or
mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment (as
described in paragraph (3)).” 42 U.S.C.A. § 12102 (1).

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Based on the above citations to the record (see “Section II. Factual Background,” above),
and construing all evidence presented in a light most favorable to Plaintiff (the non-moving
party), the Court finds that there is no question of material fact that: (1) Plaintiff, not Defendant,
severed her employment with Defendant, and (2) that Plaintiff’s last day of employment was
either September 15, 2011 or September 16, 2011.
It is uncontested that Plaintiff resigned her employment on September 13, 2011, and then
requested that September 16, 2011 be her last day of work, as opposed to September 23, 2011.
Thus, the only question is whether there is a dispute of fact that a jury must decide as to
Plaintiff’s last day of employment.
However, it is uncontested that Defendant (Quach and Lapcevic) did not learn about
Plaintiff’s suicide attempt until September 19, 2011, three or four days subsequent to Plaintiff’s
last day of work, Defendant certainly cannot be said to have discharged Plaintiff as a result of a
mental or emotional disorder.
Moreover, there is no question that Plaintiff’s Major Depressive Disorder was not
diagnosed by a medical professional until some point in time after she went to the hospital.
There is no evidence of record as to when that diagnosis was actually made. However, there is
no dispute that the first time Plaintiff went to the hospital was on September 16, 2011, at some
point after 6 p.m. Accordingly, her employer could not have been, and was not made, aware of
her Major Depressive Disorder until after Plaintiff’s employment with Defendant ceased. Thus,
it is not possible to prove that Defendant knew Plaintiff suffered from Major Depressive
Disorder on the last day of her employment with Defendant.
In sum, the Court finds (and reiterates) that Plaintiff did not possess a “disability,” as that
term is defined by the ADA, on or before the date that her employment ended with Defendant.

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The evidence of record construed in a light most favorable to Plaintiff indicates Plaintiff
resigned, and it was she who requested that September 16, 2012, be her last day of employment.
Her suicide attempt was not known to Defendant until some tie on September 19, 2011 three or
four days after her last day of employment with Defendant. Accordingly, Defendant’s Motion
for Summary Judgment will be granted as to Count Two, which was a claim for discriminatory
termination under the ADA.

IV. Conclusion
Based on the above, Defendants’ Motion for Summary Judgment will be GRANTED as
to Count Two.
ORDER
AND NOW, this 7th day of December, 2012, upon Reconsideration of Defendant’s
Motion for Summary Judgment as to Count Two of Plaintiff’s Amended Complaint, the Court
GRANTS said Motion.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc: All ECF Counsel of Record

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