Opinion
Civil Action 3:18-CV-00209
07-28-2020
JO ANN ALLEN, Plaintiff, v. LACKAWANNA COUNTY, et al., Defendants.
(MARIANI, J.)
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
This is a civil action, initiated upon the filing of the original complaint in this matter by pro se Plaintiff Jo Ann Allen (“Allen”) on January 30, 2018. (Doc. 1). In her operative Amended Complaint (the “Complaint”), Allen asserts that actions taken by the Defendants leading up to her termination, the circumstances surrounding her termination, and her posttermination unemployment compensation hearing violated the Americans with Disabilities Act of 1992 (42 U.S.C. § 12101 et. seq.) (“ADA”), Family and Medical Leave Act of 1993 (29 U.S.C.A. § 2601 et. seq.) (“FMLA”), the Fourteenth Amendment, and state tort law. (Doc. 35). Now before the Court is a Motion for Summary Judgment filed by Defendants William Browning, Lackawanna County Director of Health & Human Services; Brian Loughney, Lackawanna County Deputy of Human Resources in 2016; Colin Holmes, Lackawanna County Area Agency on Aging Administrator in 2015; Matthew Carmody, Attorney for Lackawanna County; and the Lackawanna County Board of Commissioners (“Defendants”). (Doc. 67). This motion has been fully briefed and is ripe for disposition.(Doc. 69; Doc. 74; Doc. 81; Doc. 83; Doc. 88). For the reasons stated herein, it is recommended that the Motion for Summary Judgment be granted.
As an initial matter, Defendants' Motion for Summary Judgment was timely filed because the date motions were due, January 20, 2020, was Martin Luther King Jr. Day, a national holiday. (Doc. 52). When a court order specifies a time period ending on a legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(c). As such, Defendants' motion which was filed on Tuesday, January 21, 2020, conforms to the Court-ordered time period and was timely filed. (Doc. 67). Defendants' Motion should not be denied for untimely filing, as argued by Allen in her first Brief in Opposition. (Doc. 74).
I. Summary of Material Facts
This factual background is taken from Defendants' Statement of Facts and accompanying exhibits. (Doc. 68). Pursuant to Local Rule 56.1, Allen has provided her response to Defendants' Statement of Facts. (Doc. 82). The Court takes as true all stated material facts which are undisputed and supported by the record. Where the record evinces a disputed fact, the Court will take notice. In addition, the facts have been taken in the light most favorable to Allen as the non-moving party, with all reasonable inferences drawn in her favor.
Despite failing to provide citation to the record as required by Local Rule 56.1, the Court will consider Plaintiff's responses, as a pro se litigant, to Defendants' Statement of Material facts as long as the record supports those responses.
Plaintiff Jo Ann Allen was employed as an Aging Care Manager II at the Lackawanna County Area Agency on Aging (“AAA”). (Doc. 68, ¶ 1; Doc. 82, ¶ 1). Pending before the Court is Plaintiff's second amended complaint. (Doc. 68, ¶ 2; Doc. 82, ¶ 2). Pursuant to Judge Mariani's September 23, 2019, Order, Plaintiff's claims for (1) retaliation under the ADA; (2) hostile work environment under the ADA; (3) failure to accommodate under the ADA; (4) disability discrimination under the ADA; (5) FMLA retaliation; (6) fraud; (7) intentional infliction of emotional distress; and (8) Fourteenth Amendment Due Process claims against Lackawanna County in connection with Plaintiff's October 19, 2016, and November 1, 2016, pre-termination notices survived Defendants' Motion to Dismiss. (Doc. 68, ¶ 3; Doc. 82, ¶ 3).
Plaintiff was sent a due process notice on April 25, 2016, scheduling a due process hearing for May 10, 2016, at 9:00 a.m. related to Plaintiff's suspected failure to deal with the public in a courteous manner and suspected neglect of duty related to careless workmanship resulting in waste or delay. (Doc. 68, ¶ 4; Doc. 82, ¶ 4; Doc. 68-1, at 13). Plaintiff submits that this was in conflict with the organization's discipline procedure as dictated by its Employee Guidelines Manual and Contract Agreement with Allen's union. (Doc. 82, ¶ 4; Doc. 84, at 45, 7, 8, 9, 17-18). Subsequent to receiving the April 25, 2016, notice, Plaintiff exercised her entitlement to leave under the Family and Medical Leave Act (“FMLA”). (Doc. 68, ¶ 5; Doc. 82, ¶ 5). On May 23, 2016, Plaintiff was issued a second notice rescheduling Plaintiff's due process hearing to May 26, 2016. (Doc. 68, ¶ 6; Doc. 82, ¶ 6). Again, upon receipt of the May 23, 2016, notice, Plaintiff exercised entitlement to FMLA leave. (Doc. 68, ¶ 7; Doc. 82, ¶ 7). On June 27, 2016, Plaintiff was issued a third notice scheduling a due process hearing for July 7, 2016, or alternatively providing for Plaintiff to respond in writing to the allegations by July 6, 2016. (Doc. 68, ¶ 8; Doc. 82, ¶ 8).
The Court notes that the disciplinary schedule is non-binding when the County deals with major disciplinary and/or repeated violations. (Doc. 84, at 5).
On July 22, 2016, Plaintiff was given a written warning as a result of her misuse of SAMS and breaches of confidentiality. (Doc. 68, ¶ 9; Doc. 82, ¶ 9). On July 28, 2016, pending the outcome of an investigation into Plaintiff's conduct, Plaintiff's job duties were changed. (Doc. 68, ¶ 10; Doc. 82, ¶ 10). Defendants assert that Plaintiff's job duties were changed consistent with her request, however Plaintiff disagrees with this assessment. (Doc. 68, ¶ 10; Doc. 82, ¶ 10). Defendants assert that Plaintiff returned from FMLA leave on July 28, 2016, though this is not supported by the record; Plaintiff submits that she returned from FMLA leave on July 18, 2016, which is supported by Plaintiff's testimony before the Unemployment Compensation Board of Review. (Doc. 68, ¶ 11; Doc. 82, ¶ 11; Doc. 68-1, at 235). Subsequent to each pre-termination due process notice, Plaintiff would take leave. (Doc. 68, ¶ 12; Doc. 82, ¶ 12).
Plaintiff was again provided with pre-termination due process notices on October 19, 2016, and November 1, 2016. (Doc. 68, ¶ 13; Doc. 82, ¶ 13). The October 19, 2016, pretermination due process notice indicated charges that Plaintiff was (1) absent without leave, (2) had unauthorized access to the Department of Aging's Social Assistance Management System (“SAMS”) through a non-agency computer, (3) falsified documentation, (4) used confidential consumer information for personal use, and (5) was insubordinate. (Doc. 68, ¶ 14; Doc. 82, ¶ 14). On October 25, 2016, Plaintiff responded to the allegations to the October 19, 2016, pre-termination notice. (Doc. 68, ¶ 15; Doc. 82, ¶ 15). Subsequently, Defendants issued a supplemental pre-termination notice on November 1, 2016, including a statement that the date and time of the proposed due process hearing would be November 9, 2016, at 10:30 a.m. (Doc. 68, ¶ 16; Doc. 82, ¶ 16). The November 1, 2016, pre-termination notice contained a list of allegations indicating that Plaintiff was (1) absent without leave, (2) had unauthorized access to the Department of Aging's Social Assistance Management System (“SAMS”) through a non-agency computer, (3) falsified documentation, (4) used confidential consumer information for personal use, and (5) was insubordinate. (Doc. 68, ¶ 17; Doc. 82, ¶ 17). The November 1, 2016, pre-termination notice contained a questionnaire and requested a written response as an alternative to an in-person hearing. (Doc. 68, ¶ 18; Doc. 82, ¶ 18). The November 1, 2016, pre-termination notice indicated that the allegations contained in the notice could lead to discipline up to and including termination. (Doc. 68, ¶ 19; Doc. 82, ¶ 19).
On November 3, 2016, after receiving the October 19, 2016, and November 1, 2016, pre-termination notices, Plaintiff sought a reasonable accommodation for her alleged disabilities. (Doc. 68, ¶ 20; Doc. 82, ¶ 20). On November 9, 2016, Plaintiff provided a response to the November 1, 2016, pre-termination notice. (Doc. 68, ¶ 21; Doc. 82, ¶ 21). On November 14, 2016, an interactive process meeting was held between the County and Plaintiff. (Doc. 68, ¶ 22; Doc. 82, ¶ 22).
Defendants state that the reasonable accommodation request was sought on November 3, 2019, though this appears to be a typographical error. (Doc. 68, ¶ 20).
Defendants assert that this response was provided on November 12, 2016, however the response is dated November 9, 2016. (Doc. 68, ¶ 21; Doc. 68-1, at 34-36).
On November 18, 2016, Plaintiff was given a letter indicating that she had been terminated effective November 21, 2016, for (1) unauthorized access to SAMS through a nonagency computer, (2) falsification of documentation, (3) using confidential consumer information for personal use, and (4) insubordination. (Doc. 68, ¶ 23; Doc. 82, ¶ 23). The November 18, 2016, letter indicated that while Plaintiff's response of November 12, 2016, was untimely, it was taken into consideration along with an October 25, 2016, letter sent by Plaintiff. (Doc. 68, ¶ 24; Doc. 82, ¶ 24). Subsequent to Plaintiff's termination, Plaintiff was sent a letter indicating that her request for accommodation was moot. (Doc. 68, ¶ 25; Doc. 82, ¶ 25).
Again, the record indicates Plaintiff responded on November 9, 2016. (Doc. 68-1, at 34-36).
After Plaintiff's termination, she sought unemployment compensation, and a hearing was held on January 31, 2017, before an Unemployment Compensation Referee. (Doc. 68, ¶ 26; Doc. 82, ¶ 26). At the unemployment compensation hearing, an email containing the pertinent portion of the County's SAMS access policy was entered into evidence. (Doc. 68, ¶ 27; Doc. 82, ¶ 27). Plaintiff contends that this email misrepresented the policy, as it portrayed the policy as saying SAMS could only be accessed using an agency-issued computer and the policy required all work to be performed on an agency-issued computer. (Doc. 82, ¶ 27). On February 2, 2017, the Unemployment Compensation Referee issued an order terminating Plaintiff's unemployment compensation benefits. (Doc. 68, ¶ 28; Doc. 82, ¶ 28). On April 20, 2017, the Unemployment Compensation Board of Review issued an order affirming the February 2, 2017, Unemployment Compensation Referee's Decision to terminate Plaintiff's unemployment compensation benefits. (Doc. 68, ¶ 29; Doc. 82, ¶ 29).
The policy states, “All staff are required to perform work via either a laptop or a desktop computer that is issued by the Agency.” (Doc. 84, at 3).
The Lackawanna County Area Agency on Aging policy regarding accessing SAMS states in pertinent part, “All staff are required to perform work via either a laptop or a desktop computer that is issued by the Agency.” (Doc. 68, ¶ 30; Doc. 82, ¶ 30). The email that Plaintiff alleges is false or that was used fraudulently states:
Reminder ... since SAMS is an internet based program, it can be accessed anywhere there is an Internet connection. It is the policy of our agency that SAMS ONLY be accessed using an LCAAA issued laptop. A home computer/tablet/laptop is NOT to be used to access SAMS.
(Doc. 68, ¶ 31; Doc. 82, ¶ 31) (emphasis in original).
On January 8, 2016, Plaintiff cross-filed a charge of discrimination with the EEOCand PHRC. (Doc. 68, ¶ 33; Doc. 82, ¶ 33). Plaintiff's charge of discrimination was dismissed, and Plaintiff was issued a ninety (90) day right to sue letter. (Doc. 68, ¶ 34; Doc. 82, ¶ 34).
II. Motion for Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Id.
“Although the party opposing summary judgment is entitled to the ‘benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact.'” Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, *7 (M.D. Pa. August 31, 2010) (quoting Goode v. Nash, 241 Fed.Appx. 868, 868 (3d Cir. 2007) (citation omitted). The opposing party ‘cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.' Id. If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, ” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007).
See also Beenick v. LeFebvre, 684 Fed.Appx. 200, 206 (3d Cir. 2017) (stating the purpose of requiring parties to cite to particular parts of the record in their briefs about a motion for summary judgment is to “assist the court in locating materials buried in a voluminous record”) (quoting Fed.R.Civ.P. 56(c)(1)(A)).
III. Discussion
A. Claims brought under the ADA
The Court notes that the “ADA does not impose individual liability, ” and thus bars claims against individual defendants. Michalesko v. Freeland Borough, 18 F.Supp.3d 609, 626 (M.D. Pa. 2014) (citing McInerney v. Moyer Lumber and Hardware, Inc., 244 F.Supp.2d 393, 398 (E.D. Pa. 2002); see also Ciferni v. Boilermakers Local 13, 158 F.Supp.3d 263, 267 (E.D. Pa. 2016) (concluding individual defendants cannot be held liable for retaliation under ADA and dismiss[ing] the ADA claims against the individual defendants with prejudice”).
In Counts One, Four, Five, and Six of Allen's Amended Complaint, Allen alleges that the Defendants violated her rights under the ADA. Pursuant to the ADA, employers are prohibited from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). A “qualified individual with a disability” is defined by the ADA as a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2).
Merely having an impairment does not make one disabled for the purpose of the ADA. Claimants need to demonstrate that the impairment limits a major life activity. To prove disability, a plaintiff must further show that the limitation on the major life activity is substantial; that is, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily life. The impairment must also be permanent or long-term. Assessment of disability is an individualized inquiry made on a case-by-case basis. George v. Pennsylvania Dept. of Corrections, 2010 WL 936778, *8 (M.D. Pa. 2010) (citing Pritchett v. Ellers, 324 Fed.Appx. 157, 159 (3d Cir. 2009).
The Court discusses each of Allen's ADA claims in turn.
1. Retaliatory Discharge Claim
In Count One of the Complaint, Allen brings a retaliatory discharge claim against her former employer, Lackawanna County. (Doc. 35, at 3-4). Allen alleges that, based on her Osteoarthritis, she submitted a reasonable accommodation request on November 3, 2016, in relation to her long-distance walking. (Doc. 35, at 3). Lackawanna County held an interactive process meeting on November 14, 2018, but allegedly participated in “bad faith” and did not address any reasonable accommodations for Allen. (Doc. 35, at 3). Lackawanna County then discharged Allen on November 18, 2018, and denied her request for reasonable accommodations as moot. (Doc. 35, at 3).
The ADA imposes a duty on an employer to hold an interactive process meeting after an employee makes a request for a reasonable accommodation. Castellani v. Bucks Cnty .Municipality, 351 Fed.Appx. 774, 777 (3d Cir. 2009) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999)).
Defendants aver that they are entitled to summary judgment on this claim because there is record evidence that Allen's termination was due to legitimate non-discriminatory reasons and Allen has failed to refute this evidence. (Doc. 69, at 16). Defendants contend that the due process notices provided to Allen prior to her request for an interactive process meeting establish that Lackawanna County had legitimate non-discriminatory reasons for terminating Allen's employment. (Doc. 69, at 16). Defendants assert that to survive summary judgment, Allen must provide evidence to cast substantial doubt upon Lackawanna County's proffered non-discriminatory reasons for her termination which she has not done. (Doc. 69, at 17). Allen submits that the due process notices were null and void because they were issued without a prior written warning as required by Lackawanna County policy. (Doc. 83, at 8-9). Allen appears to argue that because these notices were null and void, they may not be used as evidence of legitimate non-discriminatory reasons for Allen's termination. (Doc. 83, at 89).
In order to establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). It is undisputed that Allen made a good-faith request for an accommodation, which constitutes protected employee activity under the ADA, and that Allen was subsequently terminated, an action which qualifies as adverse under the ADA. (Doc. 68, ¶¶ 20, 23; Doc. 82, ¶¶ 20, 23); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003); Aguiar v. Morgan Corp., 27 Fed.Appx. 110, 112 (3d Cir. 2002). The final element, the causal connection, often rests on two key factors: “(1) the temporal proximity between the protected activity and the alleged retaliation and (2) the existence of a pattern of antagonism in the intervening period.” Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006) (internal quotations omitted).
Because Allen asserts ‘pretext' on the part of Lackawanna County for the retaliation and does not allege any direct evidence of retaliation, she must establish a prima-facie case under the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 2 (3d Cir. 1997).
“The Court measures temporal proximity from the date on which the litigant engaged in his first protect[ed] action.” Gairloch v. Pa. State Univ., 84 F.Supp.3d 407, 418 (M.D. Pa. 2015). If temporal proximity between the protected activity and the adverse employment action is not close enough to give rise to an inference of causation, courts then determine “whether plaintiff's allegations as a whole raise an inference of discrimination.” Murphy v. McLane Eastern, Inc., 2017 WL 770653, at *5 (M.D. Pa. 2017).
When analyzing an ADA retaliation claim, courts use the same framework as that employed for retaliation claims arising under Title VII. Krouse, 126 F.3d at 500. To obtain summary judgment on an ADA retaliation claim, the employer must show that, as a matter of law, the trier of fact could not conclude “(1) that retaliatory animus played a role in the employer's decisionmaking process and (2) that it had a determinative effect on the outcome of that process.” Krouse, 126 F.3d at 501. An employer may accomplish this showing by establishing the plaintiff's inability to raise a genuine dispute of material fact as to either “(1) one or more elements of the plaintiff's prima facie case or, (2) if the employer offers a legitimate non-retaliatory reason for the adverse employment action, whether the employer's proffered explanation was a pretext for retaliation.” Krouse, 126 F.3d at 501. Defendants assert that even if Allen can establish a prima facie case of retaliation, that they have offered a legitimate non-retaliatory reason for the adverse employment action and that Allen has failed to raise a genuine dispute of material fact as to whether their proffered explanation was a pretext for retaliation. (Doc. 69, at 16-17).
Before addressing Defendants' proffered reasons for Allen's termination, Allen must first establish a causal connection between her request for reasonable accommodation and her subsequent termination, the final prong of the prima facie case. See Krouse, 126 F.3d at 500. Temporal proximity between the protected activity and the adverse employment action can, by itself, give rise to an inference of causation. Shellenberger, 318 F.3d at 189. To give rise to such inference, the timing must be “unusually suggestive of retaliatory motive.” Shellenberger, 318 F.3d at 189 n. 9. The Third Circuit has found two days between the protected activity and the employee's termination to be “unusually suggestive.” Jalil v. Avdel Corporation, 873 F.2d 701, 708 (3d Cir. 1989). Nineteen months between the protected activity and adverse action, meanwhile, “was too attenuated to create a genuine issue of fact.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). This Court has explained that an “unusually suggestive” timespan is composed of days, rather than weeks or months. Breslin v. Dickinson Tp., 2012 WL 7177278, at *16 (M.D. Pa. 2012).
Allen's first protected action was her request for an accommodation which occurred on November 3, 2016. (Doc. 68, ¶ 20; Doc. 82, ¶ 20); see Shellenberger, 318 F.3d at 191 (noting that the right to request an accommodation is a protected action under the ADA); see also Gairloch, 84 F.Supp.3d at 418 (explaining that temporal proximity is measured from the date on which the litigant engages in his first protected action). Allen's employment was then terminated on November 18, 2016. (Doc. 68, ¶ 23; Doc. 82, ¶ 23). Fifteen days, or just over two weeks, is not an unusually suggestive timespan so as to unilaterally raise an implication of retaliatory motive. Abdul-Latif v. Cnty. of Lancaster, 990 F.Supp.2d 517, 530 (E.D. Pa. 2014) (“[S]ix days is at the long end of what has been held to be unusually suggestive”); Breslin, 2012 WL 7177278, at *16. Allen presents no other evidence that Lackawanna County's decision to terminate her employment was caused by her request for an accommodation. As such, Allen fails to establish a prima facie case of retaliation under the ADA.
Had Allen presented evidence of causation, Defendant Lackawanna County would have inherited a “relatively light” burden of advancing a legitimate, non-retaliatory reason for terminating Allen. See Krouse, 126 F.3d at 500. Any legitimate reason will do; there is no need for the employer to prove the stated reason actually motivated the action. Krouse, 126 F.3d at 501. Defendants met this burden by producing notices they sent to Allen on October 19, 2016, and on November 1, 2016, identifying charges that she (1) was absent without leave, (2) had unauthorized access to the Department of Aging's Social Assistance Management System (“SAMS”) through a non-agency computer, (3) falsified documentation, (4) used confidential consumer information for personal use, and (5) was insubordinate. (Doc. 68, ¶¶ 14, 17; Doc. 82, ¶¶ 14, 17). The reasons given for her termination were identical to these charges. (Doc. 68, ¶¶ 14, 17, 23; Doc. 82, ¶¶ 14, 17, 23). These notices were sent to Allen prior to her request for reasonable accommodation on November 3, 2016, therefore they constitute evidence of a legitimate, non-retaliatory reason for terminating Allen. See Krouse, 126 F.3d at 500.
Upon Defendants advancing such reason, “[Allen] must produce sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action, ” which is usually done “by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.'” Krouse, 126 F.3d at 504 (internal quotations omitted). Allen has not attempted to produce such evidence, rather she contends that the notices used as evidence by Defendants were null and void. (Doc. 83, at 8-9).
The notices in question were not null and void. Allen contests their validity on the grounds that they were issued without a prior written warning, which she avers was in violation of Lackawanna County AAA's Disciplinary Policy. (Doc. 83, at 8-9). However, this contention is unconvincing, as the policy also states that the “[disciplinary] grid is provided to offer guidance and instruction as it is related to the seriousness of the offense, it is not an all inclusive list and any infraction depending on the severity and type may result in discipline ranging from a verbal warning to immediate dismissal.” (Doc. 84, at 4). Furthermore, the policy states, “The County shall not be bound to this schedule when dealing with major disciplinary and/or repeated violations.” (Doc. 84, at 5). Finally, these notices could be considered the written warnings which Allen asserts she never received; the policy calls for written warning to precede suspension or termination. (Doc. 84, at 7-9).
The CBA cited by Allen only calls for written notice of the reasons for suspension, demotion, or discharge within three days after such action. It makes no mention of a written warning requirement prior to the issuance of a due process notice. (Doc. 84, at 17-18).
The record lacks evidence which a reasonable fact-finder could use to find a causal link between Allen's request for reasonable accommodation and her subsequent termination. Krouse, 126 F.3d at 500. Additionally, Defendants have submitted evidence that they had a legitimate, non-retaliatory reason for taking adverse employment action against Allen. (Doc. 68, ¶¶ 14, 17, 23; Doc. 82, ¶¶ 14, 17, 23). Having failed to refute Defendants' proffered reasons with evidence of her own, Allen has failed to raise a genuine issue of fact as to whether Lackawanna County's proffered reasons were not its true reasons for the challenged employment action. See Krouse, 126 F.3d at 504. Therefore, it shall be recommended that Defendants' Motion for Summary Judgment be GRANTED as to Allen's claim of retaliatory discharge under the ADA. (Doc. 67).
2. Hostile Work Environment Claim
When liberally construed, Count Four of Allen's Complaint asserts a hostile work environment claim against Lackawanna County, Holmes, Loughney, and Browning. (Doc. 35, at 6-9). Defendants assert that they should be granted summary judgment on Allen's hostile work environment claim because she has produced no evidence that any incident of hostility included a remark, comment, or insult regarding her alleged disability. (Doc. 69, at 21). Allen responds that Defendants' “continual bombardment of fraudulent disciplinary charges against Plaintiff ... along with [their] unnecessary, routine scheduling of ADA, IP Meetings for the non-essential, ACM2 duties/responsibilities were severe, and pervasive acts” which created a hostile work environment. (Doc. 83, at 10-11).
To establish a prima facie case for a hostile work environment claim under the ADA, an employee must show that:
(1) [She] is a qualified individual with a disability under the ADA; (2) she was subject to unwelcome harassment; (3) the harassment was based on her disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) that [the employer] knew or should have known of the harassment and failed to take prompt effective remedial action.”Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999).
To be sufficiently severe or pervasive, the complained of harassment must “‘alter the conditions of the victim's employment and create an abusive working environment.'” Ballard-Carter v. Vanguard Grp., 703 Fed.Appx. 149, 152 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Additionally, the harassing conduct must be because of the plaintiff's disability. Griffin v. Municipality of Kingston, 2011 WL 718697, at *5 (M.D. Pa. 2011) (emphasis in original) (internal quotation omitted).
In her Complaint, Allen states that she is a qualified individual under the ADA based on her Anxiety Disorder and Osteoarthritis. (Doc. 35, at 6). Allen also complains of the following alleged acts of harassment:
Not included in this list is Allen's complaint that Defendant Loughney repeatedly scheduled interactive process meetings. The Court previously determined that this does not give rise to a hostile work environment claim because this conduct was statutorily-mandated by the ADA. (Doc. 46, at 18 n. 15; Doc. 49).
(1) Pre-termination notices, based on fabricated charges, filed by Loughney on October 19, 2016, and November 1, 2016 (Doc. 35, at 7);
(2) Loughney's decision to schedule Loudermill Hearings while Allen was on medical disability leave, and then citing her for not attending said hearings (Doc. 35, at 7);
(3) Holmes threatening her with insubordination and termination on January 15, 2014, because she refused to sign her updated job description, which included performing priority home visits, and filed a related union grievance the day before (Doc. 35, at 8);
(4) Charging Allen for refusing to conduct three priority home visits on September 25, 2014 (Doc. 35, at 8);
(5) Holmes issuing Allen a three-day suspension without pay on March 11, 2015, while on disability leave (Doc. 35, at 8);
(6) Browning issuing infractions to Allen for deterioration in her work performance on September 20, 2015, based on her request for counseling sessions with her immediate work supervisor (Doc. 35, at 8); and
(7) Browning offering Allen an in-office job with a 5% salary reduction, based on fabricated charges. (Doc. 35, at 8).
In support of summary judgment, Defendants challenge Allen's ability to meet the third and fourth requirements of a hostile work environment claim. (Doc. 69, at 20-22). To meet the third requirement, Allen must show that the harassment was based on her disability or a request for an accommodation, and Defendants submit that she has not presented evidence that the incidents she complains of included any remark, comment, or insult regarding her alleged disability. (Doc. 69, at 21); see Walton, 168 F.3d at 667. Defendants aver that “every document of record pertaining to any disciplinary action taken against Plaintiff are linked to legitimate, non-discriminatory examples of Plaintiff's malfeasance at work.” (Doc. 69, at 22). To meet the fourth requirement, Allen must show that the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment, and Defendants submit that she relies on eight “unpremeditated, isolated, and sporadic incidents” which occurred over a thirty-six-month period. (Doc. 69, at 20); see Walton, 168 F.3d at 667.
In support of her claim, Allen cites to a series of “fraudulent” charges she received in 2014, 2015, and 2016. (Doc. 83, at 10). Allen submits as evidence a union grievance dated March 16, 2015, stating that on March 11, 2015, Allen received a three-day suspension “for allegedly violating Agency policies and procedures, not starting or incomplete assignments, breaching confidentiality, altering dates/times in SAMs and failure to consult her supervisor regarding her assessments.” (Doc. 1-3, at 10). Allen also cites a series of hearing notices sent to Allen by the Defendants. On April 25, 2016, Defendant Browning, on behalf of Lackawanna County Department of Human Services Area Agency on Aging, sent Allen a letter informing her of a due process hearing because the “AAA has reason to believe that you may have failed to deal with the public in a courteous and professional manner and neglect of duty relative to careless workmanship resulting in waste or delay.” (Doc. 26-1, at 5). On May 23, 2016, Browning sent another letter to Allen bearing identical language to the April 25, 2016, letter apart from rescheduling the due process hearing. (Doc. 26-1, at 6). On June 27, 2016, Browning issued a notice of charge to Allen explaining the evidence supporting the charges. (Doc. 68-1, at 7). On July 22, 2016, Browning issued Allen a letter acknowledging receipt of Allen's response to the statement of charges and notifying her that he found the charges substantiated. (Doc. 68-1, at 18). In this letter, Browning also formally warned Allen for neglect of duty and failure to deal with the public in a courteous and reasonable manner, and ordered her to attend further training. (Doc. 68-1, at 18-19). On October 19, 2016, Defendant Loughney sent Allen another notice of a due process hearing scheduled for October 27, 2016, to address various issues pertaining to her work. (Doc. 55-1, at 5-6). The alleged circumstances giving rise to the issues are outlined in detail. (Doc. 55-1, at 5-6). Finally, on November 1, 2016, Defendant Loughney sent Allen a letter giving notice of a due process hearing and providing a list of alleged workplace infractions committed by Allen. (Doc. 68-1, at 30-31).
Material from September 25, 2014; November 17, 2014; and September 20, 2015, are not included in the record and so cannot be used to support Allen's claims. Fed.R.Civ.P. 56(c).
The March 11, 2015, communication is not included as an exhibit. (Doc. 1-3, at 10; Doc. 84).
To defeat summary judgment on an ADA hostile work environment claim, a plaintiff must present evidence that would support an inference that the defendants' actions related to the plaintiff's disability or request for an accommodation. McGlone v. Philadelphia Gas Works, 733 Fed.Appx. 606, 612 (3d Cir. 2018) (upholding summary judgment where the record suggested a personality conflict unrelated to disability and defendant's investigation was consistent with company policy); Martin v. Allegheny Airlines, Inc., 126 F.Supp.2d 809, 821 (M.D. Pa. 2000); Walton, 168 F.3d at 667. The communications identified by Allen as evidence of a hostile work environment, along with other communications contained in the record, do not reference Allen's disability nor do they provide reason to infer that they are related to Allen's disability. (Doc. 83, at 10) (citing Doc. 1-3, at 10; Doc. 26-1, at 3-4, 5-6; Doc. 55-1, at 5-6; Doc. 68-1, at 7, 18-19, 30-31). Allen has failed to provide evidence that Defendants' conduct at issue was related to Allen's disability. See Walton, 168 F.3d at 667. As such, it shall be respectfully recommended that Defendants be GRANTED summary judgment on Allen's ADA hostile work environment claim. (Doc. 67).
3. Failure to Accommodate Claim
In Count Five, Allen brings a failure to accommodate claim under the ADA. (Doc. 35, at 9-10). Her claim arises from her employer's alleged failure to discuss or provide reasonable accommodation in the form of limited walking after her request. (Doc. 35, at 910). Defendants assert that they are entitled to summary judgment on this claim because at the time of her request, adverse employment action was already imminent and so the request was “too little, too late.” (Doc. 69, at 22-24). Allen responds that she expected Defendant Lackawanna County to discuss her reasonable accommodation request on November 12, 2016, or on November 14, 2016, and instead was terminated on November 18, 2016. (Doc. 83, at 11).
Under the ADA, discrimination encompasses an employer's failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity .... ” Phillips v. Center for Vision Loss, 2017 WL 839465, at *11 (M.D. Pa. 2017) (citing 42 U.S.C. § 12112(b)(5)(A)). In order to establish a prima facie claim for failure to accommodate under the ADA, a plaintiff must prove: “(1) [s]he is a disabled person within the meaning of the ADA;” (2) [s]he is otherwise qualified to perform the essential job functions, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination[, ] “which in this context includes refusing to make reasonable accommodations for a plaintiff's disabilities.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d Cir. 2009) (internal quotations omitted). The employee must notify the employer that a reasonable accommodation is necessary in order to trigger the employer's duty to accommodate. Schillaci v. Cargill Meat Solutions, 2012 WL 6589941, at *4 (M.D. Pa. 2012). The employee must then establish that the accommodation was denied. Schillaci, 2012 WL 6589941, at *4. In this case, it is undisputed that Allen notified Defendants that a reasonable accommodation was necessary on November 3, 2016. (Doc. 68, ¶ 20; Doc. 82, ¶ 20). So, generally, the ADA imparted on Defendants a duty to make reasonable accommodation after that notification. See Hohider, 574 F.3d at 186.
Yet, if “an employee requests an accommodation only after it becomes clear that an adverse employment action is imminent, such a request can be too little, too late. The ADA does not mandate that an employer excuse an employee's previous misconduct, even if it was precipitated by his or her disability.” Lassiter v. Children's Hosp. of Phila., 131 F.Supp.3d 331, 351 (E.D. Pa. 2015). In Willis v. Norristown Area School Dist., 2 F.Supp.3d 597 (E.D. Pa. 2014), the court granted summary judgment for the defendants when the plaintiff sought reasonable accommodation only after committing the conduct which resulted in his termination. Willis, 2 F.Supp.3d at 609. It is undisputed that Allen sought accommodation only after receiving due process notices on October 19, 2016, and November 1, 2016, both informing her that “if the County's information is accurate, your conduct constituted a violation of a standard of conduct [which] the County may reasonably expect from you, and is a serious matter. This may result in discipline, up to and including termination.” (Doc. 68, ¶ 20; Doc. 82, ¶ 20; Doc. 68-1, at 22, 31). It is undisputed that every reason given for Allen's termination on November 18, 2016, was also included in the due process notices on October 19, 2016, and on November 1, 2016, prior to her request for reasonable accommodation. (Doc. 68, ¶¶ 14, 17, 23; Doc. 82, ¶¶ 14, 17, 23). As in Willis, Defendants were not required to excuse Allen's previous misconduct upon her request for a reasonable accommodation. See Willis, 2 F.Supp.3d at 609. It shall be respectfully recommended that Defendants be GRANTED summary judgment as to Allen's failure to accommodate claim under the ADA. (Doc. 67).
4. Disability Discrimination Claim
In this Court's Memorandum and Order of September 23, 2019, Allen's Amended Complaint was deemed to contain allegations of decreased job duties and replacement by a less experienced, non-disabled person, as well as improper demotion, suspension, and termination. (Doc. 48, at 6-7) (citing Doc. 35, at 3-10). The Court determined that these allegations gave rise to an ADA disability discrimination claim. (Doc. 48, at 7). In support of their Motion for Summary Judgment, Defendants aver that Allen has produced no evidentiary support from which a reasonable jury could conclude that the adverse employment decisions were the product of unlawful discrimination. (Doc. 69, at 24-25). In opposition, Allen refers the Court to her exhibits as a whole, as well as to EEOC letters notifying Allen of its finding that the available evidence did not establish a violation of any statutes. (Doc. 83, at 11-12).
In order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir.1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). In order to defeat summary judgment, a plaintiff must make a showing that “the disability ‘played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process.'” Moore v. CVS Rx Services, Inc., 142 F.Supp.3d 321, 346 (M.D. Pa. 2015) (quoting New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 n. 4 (3d Cir. 2007)). Here, the record contains no evidence that Defendants considered Allen's disability in making decisions with regards to her employment. The communications between Defendants and Allen do not demonstrate frustration or resentment towards Allen for the effects of her disability. Allen has failed to produce evidence that any adverse employment decision was a result of discrimination, rather than a consequence of her conduct. As such, it shall be recommended that Defendants be GRANTED summary judgment as to Allen's claim of disability discrimination under the ADA. (Doc. 67).
B. Claims brought under the FMLA
The primary purposes of the FMLA are to balance the demands of the workplace with the needs of families and to entitle employees to take reasonable leave for medical reasons. The FMLA endeavors to accomplish these purposes in a manner that accommodates the legitimate interests of employers. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005).
In Count Three of her Amended Complaint, Allen brings a retaliation claim against Lackawanna County and Defendant Browning under the FMLA. (Doc. 35, at 5-6). This claim arises from Allen's allegation that upon returning from taking her approved FMLA leave on July 18, 2016, she was functionally demoted and replaced by a younger, nondisabled, less-experienced employee. (Doc. 35, at 5). This functional demotion allegedly included reassignment of Allen's workload, the removal of all of her state job responsibilities, and the removal of her ACM2-level status. (Doc. 35, at 5-6). Accordingly, Allen asserts that Browning denied her the protections of her former position and retaliated against her for using her approved leave under the FMLA. (Doc. 35, at 6). Defendants submit that Allen fails to present evidence of an adverse action or that any adverse action was causally related to her use of FMLA rights. (Doc. 69, at 26-29). Allen responds that the July 28, 2016, email from Defendant Browning shows that she was transferred from her ACM2-level job, a transfer which was sufficiently adverse. (Doc. 83, at 12).
Under the FMLA, “eligible employees are entitled to 12 workweeks of leave during any 12-month period due to an employee's own serious health condition, ” and upon returning from such leave, “the employer must restore the employee to the same or equivalent position held by the employee when the leave commenced, as well as restore the employee with equivalent benefits and conditions of employment.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 151 (3d Cir. 2017). To succeed on an FMLA retaliation claim, the plaintiff must show that “(1) he invoked his right to FMLA-qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was causally related to his invocation of rights.” Capps, 847 F.3d at 152 n. 6.
To satisfy the second prong of an FMLA retaliation claim, the alleged retaliatory action must “alter[] the employee's compensation, terms, conditions, or privileges of employment, deprive[] him or her of employment opportunities, or adversely affect[] his or her status as an employee. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 257 (3d Cir. 2014). Examples of such adverse employment actions include “significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits.” Malik v. Wyoming Valley Med. Ctr., P.C., 2020 WL 3412692, at *5 (M.D. Pa. 2020) (quoting Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749 (1998)). In Malik, this Court held that the transfer of an employee from a director-level position to an associate qualified as an adverse employment decision because “the associate position was lesser-paying, non-supervisory, less prestigious, and detrimental to her career and earning capacity internally and externally.” Malik, 2020 WL 3412692, at *5. Also qualifying as an adverse employment action was the transfer of a police officer from the K-9 unit to light administrative duty. Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005). In Caver, the court held that such transfer met the adverse employment action standards by significantly altering the employee's duties and status in a way that lessened his prestige and prevented him from performing the normal duties of his job. Caver, 420 F.3d at 256. The transfer was essentially a demotion. Caver, 420 F.3d at 256.
Allen submits that the July 28, 2016, email from Browning functionally demoted her and so should qualify as an adverse employment decision. (Doc. 83, at 12). In this email, Browning stated, “Given the restrictions placed upon your job activities by your physician, the following duties/responsibilities are assigned to you pending your interactive ADA meeting.” (Doc. 68-1, at 272). Browning explained that several of the restrictions would be temporary because they affected essential job functions and so would affect her civil service classification. (Doc. 68-1, at 272). This letter served to “temporarily remove[] [Allen] from care management of [her] caseload pending the outcome of [her] ADA meeting, except for duties specifically assigned by [her] supervisor.” (Doc. 68-1, at 272). Those assigned duties included “2 week follow up on new services, ” “6 month contacts, ” “calls to consumers who do not test their PERS monthly, ” and “calls to consumers who do not answer for their MOW.” (Doc. 68-1, at 272). The overarching effect of this employment decision was that it prohibited Allen from communicating with consumers on her caseload. (Doc. 68-1, at 272). Though the changes were nominally “temporary, ” Allen states that the ADA meeting was never held and so the changes lasted until her termination on November 18, 2016. (Doc. 681, at 272; Doc. 83, at 12). A reasonable juror could find that by removing Allen from management of her caseload, Defendants' lessened her prestige, prevented her from performing the normal duties of her job, and potentially damaged her career and earning capacity internally and externally. Thus, as in Malik and Caver, a reasonable juror could find that this constituted an adverse employment action, satisfying the second requirement of an FMLA retaliation claim. See Caver, 420 F.3d at 256; Malik, 2020 WL 3412692, at *5.
The third requirement of an FMLA retaliation claim is that the adverse action was causally related to the employee's invocation of rights. Capps, 847 F.3d at 152 n. 6. To demonstrate this, a plaintiff “must point to evidence sufficient to create an inference that a causative link exists between her FMLA leave and [the adverse employment action].” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012). The plaintiff may satisfy this requirement either by establishing unusually suggestive temporal proximity between the invocation of FMLA leave and the adverse employment action - usually several days - or a showing that the evidence as a whole is sufficient to create an inference of a causative link between invoking FMLA leave and the adverse action. Lichtenstein, 691 F.3d at 307; Malik, 2020 WL 3412692, at *6.
Here, Allen testified before the Unemployment Compensation Board of Review that she returned from FMLA leave on July 18, 2016, the date which she also provides in her Brief in Opposition to Summary Judgment. (Doc. 68-1, at 235; Doc. 83, at 12). Browning's letter restricting Allen's job functions was dated July 28, 2016, leaving ten days between Allen's return from leave and the alleged adverse employment action. (Doc. 68-1, at 272). The Third Circuit, when faced with a ten-day window between protected activity and termination, determined that causation could be inferred upon combining the temporal proximity with other evidence. Shellenberger, 318 F.3d at 189. This Court has allowed for causation to be inferred from temporal proximity alone when the adverse employment action occurred eight days after the invocation of leave. Kaczmarek v. County of Lackawanna Transit System, 2017 WL 5499160, at *4 (M.D. Pa. 2017). Though a close call, the ten days between Allen's use of FMLA leave and Defendant Browning's email could be seen as unusually suggestive of causation. See Lichtenstein, 691 F.3d at 307 (finding seven days unduly suggestive); Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193 (10th Cir. 2006) (24 days was sufficient to allow inference of causal connection); but see Burt v. Lane, 2017 WL 4681807, at *9-10 (M.D. Pa. 2017) (collecting decisions indicating that temporal proximities of 17 days, three weeks, seven weeks, and between one to three months all were insufficient to establish causation). As all inferences must be drawn in Allen's favor at this stage, the record contains sufficient evidence to allow for the inference of a causal connection between Allen's use of FMLA leave and the possible functional demotion. Allen has successfully established a prima facie case of FMLA retaliation.
This Court has considered employees' return from FMLA leave as the start of the temporal proximity measurement. Kintz v. SMNRC, L.P., 2018 WL 5279320, at *5 (M.D. Pa. 2018); Kiederling v. RFM Services, Inc., 2014 WL 297522, at *8 (M.D. Pa. 2014); Montone v. Schuylkill Health System, 2014 WL 3055363, at *6 (M.D. Pa. 2014).
Since Allen has established her prima facie case, Defendants must articulate a legitimate, nondiscriminatory reason for the restrictions placed on Allen in the July 28, 2016, letter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing burden-shifting framework for discrimination claims). If accomplished, the burden shifts back to Allen to prove, by a preponderance of the evidence, that the Defendants' articulated reason was a mere pretext for discrimination. Capps, 847 F.3d at 152 (citations omitted). Defendants have identified record evidence of a legitimate, nondiscriminatory reason for their potentially adverse employment action: in the July 28, 2016, letter, Defendant Browning explains that the functional restrictions were a product of restrictions placed upon Allen by her physician for Allen's own benefit. (Doc. 68-1, at 272). Furthermore, Karen Schimelfenig, an administrative officer with the Lackawanna County Area Agency on Aging, testified before the Unemployment Compensation Board of Review to being familiar with the investigation and termination of Allen. (Doc. 68-1, at 221). She described Allen's physician expressing concern about Allen's cognitive ability, including her ability to concentrate, multi-task, and critically think when having exacerbations of anxiety. (Doc. 68-1, at 228). Schimelfenig concluded that the restrictions contained in the July 28, 2016, email were in response to the doctor's return to work restrictions. (Doc. 68-1, at 229).
Upon articulating a legitimate, nondiscriminatory reason for the restrictions placed on Allen, the burden falls on Allen to present evidence sufficient for a reasonable factfinder to conclude that Defendants' stated reasons for taking action were pretextual, keeping in mind that the correctness of the reasons is irrelevant; a reason is pretextual only if the Defendant did not honestly hold the belief that the employment action was taken for the non-discriminatory reason given. Capps, 847 F.3d at 152, 155. The record lacks evidence of such pretext. As such, it shall be recommended that Defendants be GRANTED summary judgment on Allen's claim of retaliation under the FMLA.
C. Constitutional Claims
In her Complaint, Allen asserts a variety of due process violations arising from suspensions, warning letters, a functional demotion, and her termination. (Doc. 35). on september 23, 2019, this Court determined that Allen's claim against Lackawanna County arising from her termination and the adequacy of the Pre-Termination Notices dated October 19, 2016, and November 1, 2016, was sufficiently pled, but dismissed her remaining procedural due process claims. (Doc. 49, at 2). Defendants now aver that they are entitled to summary judgment on the surviving claim because the evidence shows that the process they afforded Allen was constitutionally adequate. (Doc. 69, at 34-36).
The Fourteenth Amendment to the United States Constitution provides that a state may not “deprive any person of life, liberty, or property, without due process of law, ” U.S. Const. amend. XIV, § 1. “Federal law determines what process is due.” Kohn v. Sch. Dist. Of City of Harrisburg, 817 F.Supp.2d 487, 505 (M.D. Pa. 2011) (citing McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 1995)). “Generally, federal due process requires a pre-deprivation hearing before a person is deprived of a property right.” Kohn, 817 F.Supp.2d at 507 (citing Schmidt v. Creedon, 639 F.3d 587, 595-96 (3d Cir. 2011)). “This means that an employee who possesses a constitutionally protected property interest in employment must be given at least some way to respond to the charges against her prior to discharge.” Judge v. Shikellamy Sch. Dist., 135 F.Supp.3d 284, 294 (M.D. Pa. 2015) (citing Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The pre-termination hearing “‘need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story.'” Cipriana v. Lycoming Cnty. Hous. Auth., 177 F.Supp.2d 303, 319 (M.D. Pa. 2001) (citing Gilbert v. Homar, 520 U.S. 924, 929 (1997)).
It is undisputed that Allen was provided with pre-termination due process notices on October 19, 2016, and November 1, 2016. (Doc. 68, ¶ 13; Doc. 82, ¶ 13). The October 19, 2016, due process notice indicated charges that Plaintiff was (1) absent without leave, (2) had unauthorized access to the Department of Aging's Social Assistance Management System through a non-agency computer, (3) falsified documentation, (4) used confidential consumer information for personal use, and (5) was insubordinate. (Doc. 68, ¶ 14; Doc. 82, ¶ 14). It is also undisputed that Allen was given the opportunity to respond to the charges. On October 25, 2016, Plaintiff responded to the allegations to the October 19, 2016, pre-termination notice. (Doc. 68, ¶ 15; Doc. 82, ¶ 15). Subsequently, Defendants issued a supplemental pretermination notice on November 1, 2016, including a statement that the date and time of the proposed due process hearing would be November 9, 2016, at 10:30 a.m. (Doc. 68, ¶ 16; Doc. 82, ¶ 16). The November 1, 2016, notice also identified the charges brought against Allen. (Doc. 68, ¶ 17; Doc. 82, ¶ 17). This notice contained a questionnaire, requested a written response as an alternative to an in-person hearing, and notified Allen that the charges could lead to discipline up to and including termination. (Doc. 68, ¶¶ 18, 19; Doc. 82, ¶¶ 18, 19).
Prior to termination, a formal adversary hearing is not required, rather a process which provides “an initial check against mistaken decisions - essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action” is all that the Constitution requires. Loudermill, 470 U.S. at 54546. The employee's opportunity to respond in writing satisfies due process. Loudermill, 470 U.S. at 546. The notices at issue have been entered into the record and they demonstrate a point-by-point breakdown of the charges and explanation of the evidence. (Doc. 68-1, at 2122, 30-31). The November 1, 2019, notice provided a questionnaire for Allen to complete which included charge-specific questions providing Allen the opportunity to explain herself. (Doc. 68-1, at 32-33). Indeed, Allen's characterization of the charges outlined in the due process notices as “fabricated” indicates an awareness of - albeit a disagreement with - the charges levied against her by Lackawanna County. (Doc. 82, ¶ 14). Also included in the record are Allen's responses to these due process notices. (Doc. 68-1, at 28, 35-36). These responses establish that Allen challenged the merits of the evidence presented in the October 19, 2016, and November 1, 2016, notices and mailed the challenges to Defendant Loughney. (Doc. 68-1, at 28, 35). Allen was subsequently terminated for charges identified in the October 19, 2016, and November 1, 2016, notices. (Doc. 68, ¶ 23; Doc. 82, ¶ 23). As such, Defendants have established that prior to her termination, they provided Allen with written notice of the charges, an explanation of the employer's evidence, and an opportunity for Allen to tell her side of the story. SeeCipriana, 177 F.Supp.2d at 319. Allen has submitted no evidence to establish a genuine dispute of material fact as to this process.
For the aforementioned reasons, it shall be respectfully recommended that Defendants Motion for Summary Judgment be GRANTED as to Allen's Fourteenth Amendment Due Process claims. (Doc. 67).
D. Supplemental Jurisdiction
In her Complaint, Allen also asserts state law claims for fraud and intentional infliction of emotional distress. (Doc. 35, at 4, 9). Where a District Court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3). Whether a court exercises supplemental jurisdiction is within its own discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). A court's decision should be based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that the remaining claims properly belong in state court. Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this case from the ordinary one, the balance of factors in this case “point[s] toward declining to exercise jurisdiction over the remaining state law claims.” See Cohill, 484 U.S. at 350 n. 7. Therefore, it is recommended that Allen's state law claims be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
IV. Recommendation
Based on the foregoing, it is recommended that:
1. Defendants William Browning, Matthew J. Carmody, Colin Holmes, Brian Loughney, and Lackawanna County Board of Commissioners be GRANTED summary judgment as to Allen's federal claims, (Doc. 67);
2. That Allen's state law claims be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); and
3. The Clerk of Court be directed to close this matter.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 28, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.