Opinion
Civ. A. 18-979
11-05-2021
HANS C. EHNERT, Plaintiff, v. STEAMFITTERS LOCAL 449, Defendant.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendant's Motion for Summary Judgment (ECF No. 93), be granted.
II. Report
A. Relevant Procedural History
Plaintiff Hans C. Ehnert (“Ehnert”) commenced this discrimination action against Defendant Steamfitters Local 449 (“Union”) in 2018 (ECF No. 5), and later amended his complaint (ECF No. 29). The Union's subsequent motion to dismiss his claims (ECF No. 31), was granted in part and denied in part (ECF Nos. 39, 43). Ehnert's remaining claims are for disability discrimination (actual and perceived) and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C.§ 12101 et seq., and a claim for discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. These claims remain only to the extent they are based on his termination from the Union for discriminatory reasons.
Ehnert's spoliation claim was dismissed with prejudice given that spoilation is not an independent cause of action (ECF No. 39). The Court also found that as pled, some allegations relating to Ehnert's discrimination and retaliation claims were untimely (id.)
The period of fact discovery having now closed, the Union moves for summary judgment on each of Ehnert's claims. The motion has been fully briefed (ECF Nos. 94, 100, 102, 105), and is ripe for disposition.
B. Factual Background
Ehnert is fifty-five years old and suffers from chronic cervical strain, chronic kidney stones, bowel disease, plantar fasciitis, major depression, insomnia, and Post Traumatic Stress Disorder (ECF Nos. 96-1 at 12-14).
Ehnert worked for the Chapman Corporation (“Chapman”) as a metal trades fabricator for a brief time in 2012. (ECF No. 101 ¶ 1). He was terminated from his position at Chapman on October 19, 2012 (id. ¶ 2). At the time of his termination, he was current on his dues and had just become a member of full standing at the Union (id. ¶ 1; ECF No. 102). Ehnert's claims stem from the Union's purported discriminatory actions following his termination from Chapman.
Believing Chapman's actions to result from unlawful discrimination, Ehnert contacted the Union (ECF No. 96-1 at 9-10). He spoke with Kenneth Broadbent (“Broadbent”), who is the business manager for the Union, and informed Broadbent that he believed he was terminated because of his disabilities (id. at 9, 13; ECF No. 96-2 at 10). Broadbent responded by telling Ehnert there was no need for him to come down and sign the “laid off sheet” (ECF No. 96-1 at 13). Around the same time, Ehnert applied for Social Security Disability Insurance (“SSDI”) benefits, alleging that May 21, 2012 was the onset date for his disability (id. at 73-81).
Ehnert's last dues payment to the Union was for the month ending October 31, 2012 (ECF No. 95 ¶ 4). Upon learning he was in arrears on his union dues, Ehnert's attorney sent a payment along with a letter dated April 3, 2013 (ECF No. 101 ¶ 5). His April 3, 2013 payment covered the dues Ehnert owed for the months ending November 30, 2012; December 31, 2012; and January 31, 2013 (id.) The April 3, 2013 letter did not include a request that the Union regularly send invoices to Ehnert (ECF No. 96-2 at 102). Ehnert made no further payments to the Union (id. at 7).
Ehnert's union membership was terminated on July 1, 2013 when his dues were four months delinquent (ECF No. 101 ¶¶ 8, 12). Under the Union's Constitution, members have ninety days to pay dues before they are terminated from membership without notice (id. ¶ 11). An individual can be reinstated, however, if he or she simply pays back all dues owed along with a $50.00 reinstatement fee (id. ¶ 13). Ehnert has never sought reinstatement (id. ¶¶ 14, 15).
Six months after his termination, by letter dated January 14, 2014, Ehnert's counsel inquired into his Union status and whether the Union was still searching for work for him (ECF No. 101-1 at 41-42). After learning he had been terminated from the Union, Ehnert's attorney requested in an April 23, 2014 letter that Ehnert be reinstated and that the Union send him invoices going forward (id. at 44).
During his deposition, Ehnert explained that he made no further payments because he never received an invoice despite his counsel's repeated requests (ECF No. 96-1 at 9-10). In turn, Broadbent testified at his deposition that the Union does not regularly send reminders to its members given that “[i]t's the responsibility of each member to keep their dues up” (id. at 41). In response to Ehnert's assertion that his attorney had sent letters inquiring about the amount due, Broadbent testified, “[w]hen a member pays his dues . . . three months after he was laid off, I assume that member knows how the system works” (id. at 46).
Ehnert appears to argue that the Court erred in not granting his request for additional discovery (ECF No. 100 at 9). Notably, Ehnert never sought reconsideration of the Court's denial of his Second Motion to Compel (ECF No. 85). As stated in this Court's February 24, 2021 Order, Ehnert's motion was untimely (id.). Additionally, to the extent he sought information about other Union members who have defaulted on payment of dues, he had every opportunity to probe that question through a deposition of a Union representative, including Broadbent, who was deposed (ECF No. 78 at 3).
In a July 25, 2014 decision, Social Security Administrative Law Judge Michael S. Kaczmarek (“ALJ”) awarded Ehnert SSDI benefits and identified May 21, 2012 as the date of disability (ECF Nos. 95 ¶ 20; 96-1 at 73-81). The ALJ determined that Ehnert was “unable to perform any past relevant work” and found that “there are no jobs that exist in significant numbers in the national economy that [Ehnert] can perform” (ECF Nos. 96-1 at 80-81; 101 ¶ 20). The ALJ further described Ehnert's work for Chapman as an “unsuccessful work attempt” (id. at 75). Ehnert has received Social Security disability benefits since November 2012 and continues to receive these benefits to this day (ECF No. 95 ¶ 23).
C. Standard of Review
The Federal Rules of Civil Procedure provide that summary judgment must be granted if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of identifying evidence which shows the lack of a genuine issue of material fact. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Id. at 587. An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court of Appeals has held that “where the movant bears the burden of proof at trial and the motion does not establish the absence of a genuine factual issue, the district court should deny summary judgment even if no opposing evidentiary matter is presented.” Nat'l State Bank v. Fed. Rsrv. Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992).
In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005); Doe v. Cty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
D. Discussion
1. Disability Discrimination (Actual and Perceived) under the ADA
A union is considered a “covered entity” for purposes of the ADA. 42 U.S.C. § 12111(2).
Ehnert's ADA claims fail because he cannot meet his burden of establishing a prima facie case of disability discrimination (actual or perceived). For the reasons below, the Court finds that collateral estoppel and judicial estoppel bar his disability discrimination claims.
In the absence of direct evidence of discrimination, a plaintiff may establish a prima facie case of discrimination indirectly using the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 68-69 (3d Cir. 1996). Here, the parties agree there is no direct evidence of discrimination (see ECF Nos. 94 at 3; 100 at 4). Thus, Ehnert has the burden of proving “three elements: that he was disabled, was qualified for the job, and suffered discrimination because of his disability.” Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021). For purposes of its motion, the Union concedes that Ehnert meets the first element as he is disabled within the meaning of the statute (ECF No. 94 at 3).
As for the second element, a “qualified individual” is a person “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 plaintiff bears the initial burden of proving that he is qualified and, “if an accommodation is needed, the plaintiff must show, as part of [his] burden of persuasion, that an effective accommodation exists that would render [him] otherwise qualified.” Yanoski v. Silgan White Cap Ams., LLC, 179 F.Supp.3d 413, 426 (M.D. Pa. 2016) (alteration in original) (quoting Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999)) (citation and internal quotation marks omitted).
When a plaintiff is receiving SSDI benefits, he is “not automatically estopped from pursuing an ADA claim. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 796, 798 (1999). The receipt of SSDI benefits also does not create a presumption against a plaintiff's recovery of damages under the ADA. See Id. A plaintiff, however, “must explain why [his] SSDI contention is consistent with [his] ADA claim that [he] could ‘perform the essential functions' of [his] previous job, at least with ‘reasonable accommodation.'” Id. Therefore, where a plaintiff has made a “sworn assertion in an application for disability benefits that [he] is, for example, ‘unable to work'” that “will . . . negate an essential element of [his] ADA case-at least if [he] does not offer a sufficient explanation.” Id. at 806. See Aniskevich v. Blue Ridge Pressure Castings, Inc., Civ. A. No. 3:08-0966, 2009 WL 3335545 (M.D. Pa. Oct. 14, 2009) (applying the same standard in an action against a union).
In a recent case in which Ehnert was a party, the United States Court of Appeals for the Third Circuit reiterated that courts should conduct the following two-part analysis when a SSDI recipient has filed a disability discrimination claim under the ADA:
the first question we must ask is whether the representations advanced by that plaintiff in his SSDI application and his ADA claim genuinely conflict. See Detz,
346 F.3d at 118. If we find that the representations are “patently inconsistent, ” we proceed to the second question under Cleveland: whether the plaintiff has adequately reconciled the two positions. Id. at 120.Ehnert v. Washington Penn Plastic Co., 812 Fed.Appx. 71, 74-75 (3d Cir. 2020).
Ehnert worked briefly for Penn Plastic following his termination at Chapman (id. ¶ 3).
Before the Third Circuit was the issue of whether “Ehnert's statements regarding his disability for SSDI purposes should preclude his subsequent claim that, for the purposes of the ADA and the PHRA, he was ‘qualified' for his position at [Penn Plastic] and can . . . pursue his discrimination action under the ADA and PHRA.” Id. at 75. The Court of Appeals found that his statements precluded his subsequent claim as judicial estoppel applied. Id. In so ruling, the Third Circuit explained that Ehnert's “represent[ation] to the [Social Security Administration or] SSA that he was incapable of performing any work beginning May 21, 2012” was patently inconsistent with his ADA claim position that “he had been able to work.” Id. The Third Circuit also rejected Ehnert's argument that there was no “genuine conflict” and that he had merely represented to the SSA that he could not work because he was being discriminated against. Id. The Circuit likewise found Ehnert's argument that his different stances were attributable to different statutory schemes unpersuasive because “simply [asserting] that the statutory schemes differ is not enough to survive summary judgment in light of Cleveland.” Id. (quoting Motley v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999)).
Given the Third Circuit's prior decision, collateral estoppel bars Ehnert's ADA claims. See Madero v. Luffey, __ F.Supp.3d __, 2021 WL 2953229, at *4 (W.D. Pa. 2021) (citing Witkowski v. Welch, 173 F.3d 192, 199 (3d. Cir. 1999)). The doctrine of collateral estoppel applies where:
The Court finds that the Union has preserved this defense (ECF No. 48). Even had it not, however, this issue may be raised sua sponte where appropriate. King v. E. Lampeter Twp., 69 Fed.Appx. 94, 96 (3d Cir. 2003) (affirming the district court's finding that the plaintiff was “barred from raising any allegations relating to claims that were or could have been raised in [the first action] by principles of res judicata and collateral estoppel, ” where the district court had sua sponte raised both preclusion defenses). This is a similarly appropriate situation to do so given that the Third Circuit's ruling conclusively establishes that Ehnert's claim here is barred.
(1) the issue decided in the prior litigation was identical to the one presented in the later action;
(2) there was a final judgment on the merits;
(3) the party against whom collateral estoppel is asserted [was] a party or in privity with a party to the prior litigation; and
(4) [t]he party against whom collateral estoppel is being asserted . . . had a full and fair opportunity to litigate the issue in the prior litigation.Id. (quoting Witkowski, 173 F.3d at 199). See United States ex re. Doe v. Heart Sol., PC, 923 F.3d 308, 316 (3d Cir. 2019); Iseley v. Beard, 237 Fed.Appx. 735, 738 (3d Cir. 2007).
The Third Circuit has decided the preclusive impact of Ehnert's representations to the SSA. The decision was not appealed, and final judgment has been entered on the merits. Ehnert was a named party in the prior action, and as such, had a full and fair opportunity to litigate the issue.For these reasons, collateral estoppel bars his disability claims as he cannot establish he was otherwise qualified.
Ehnert appears to suggest that the Third Circuit erred by not taking judicial notice of evidence that would have shown his statements were not inconsistent (ECF No. 105). In a footnote, however, the Court of Appeals noted that it had reviewed this evidence and it did not change its analysis. Ehnert, 812 Fed.Appx. at 75, n.6.
Ehnert's disability claims are also precluded by the doctrine of judicial estoppel. In his brief in opposition to the summary judgment motion, Ehnert maintains that his statements to the SSA are not inconsistent with his present claim. He argues that this is so because he told the “SSA that he could work but for the fact that his employers discriminated against him for his impairments, retaliated against him for asking for reasonable accommodations, [and] refused to grant him reasonable accommodations” (ECF No. 100 at 6-7). In support of this assertion, he points to evidence in the record suggesting that he could work without accommodation while employed by Chapman (Id. at 5). Notably, however, Ehnert represented to the SSA that he could not work during that same period. As a result, Ehnert's proffered explanation and supporting evidence would not allow a reasonable juror to find in the first instance that he had a good-faith belief in his entitlement to SSDI benefits and also conclude that he was qualified for his position under the ADA, as Cleveland requires. Therefore, even assuming arguendo that collateral estoppel does not apply, the application of judicial estoppel is fatal to his claims. See Ehnert, 812 Fed.Appx. at 75 (finding judicial estoppel applied when “Ehnert represented to the SSA that he was incapable of performing any work beginning May 21, 2012, which ‘crashes face first against' his current representation that-in fact-he had been able to work at that time for purposes of his current discrimination claims”).
Presumably, Ehnert takes this position because he has failed to put forth any evidence concerning the essential functions of his union position or identified an effective accommodation that would render him otherwise qualified for a position within his bargaining unit. Aniskevich, 2009 WL 3335545, at *10. It is his burden to do so on summary judgment. See id.
Ehnert's responsive brief clarifies that his retaliation claim is under the ADA (ECF No. 100 at 10).
Thus, the Court recommends that summary judgment be granted in favor of the Union as to Ehnert's actual and perceived disability claims.
2. Age Discrimination under the ADEA
Ehnert's ADEA claim is also barred by collateral and judicial estoppel. The ADEA makes it unlawful for an employer to “discharge any individual . . . because of such individual's age” and for a union
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;
(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such
employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age;
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.29 U.S.C. § 623(c); see Slater v. Susquehanna Cty., 465 Fed.Appx. 132 (3d Cir. 2012).
Once again, the parties agree that there is no direct evidence of discrimination and that the McDonnell Douglas framework applies (ECF Nos. 94 at 6-8; 100 at 8-10). Thus, to establish a prima facie case, Ehnert must ultimately prove he “(1) is a member of the protected class, i.e., at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the case of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination.” Rodriguez v. CP Dev., Inc., Civ. A. No. 20-1672, 2021 WL 3037712, at *9 (W.D. Pa. July 19, 2021) (citing Simpson v. Kay Jewelers, Sterling Div., Inc., 142 F.3d 639, 644 n.5 (3d Cir. 1998)). See Slater, 465 Fed.Appx. at 136-37 (applying the same standard in a case involving a union).
In Detz v. Greiner Industries, Inc., the Third Circuit addressed the applicability of Cleveland to ADEA claims:
While Cleveland only specifically addressed a conflict between SSDI and ADA claims, the analysis is not limited in its application to cases involving those particular statutory and administrative schemes. Like an assertion that one is a “qualified individual” for ADA purposes, a declaration that one is a “qualified individual” under the ADEA is a “context-related legal conclusion.” Therefore, a prima facie showing under the ADEA that conflicts with earlier statements made to the SSA is subject to the same analysis, as the reasoning of the Court in Cleveland also applies in the context of the ADEA.Detz v. Greiner Indus., Inc., 346 F.3d 109, 117 (3d Cir. 2003).
Thus, for the reasons discussed in Section D(1) of this Report and Recommendation, Ehnert's ADEA claim is barred by collateral and judicial estoppel, and the Court recommends that summary judgment be granted in favor of the Union.
“Protected activity includes formal charges of discrimination as well as informal protests of discriminatory employment practices such as complaints to management.” Elms v. West Chester Borough, Civ. A. No. 2:21-cv-00279, 2021 WL 5003332, at *5 (E.D. Pa. Oct. 28, 2021). Although the Third Circuit did not address this issue directly, it appears that the filing of charges of discrimination against an employer of which the union was aware can satisfy this first element when a union is being sued. Patterson v. AFSCME #£2456, 320 Fed.Appx. 143, 148 (3d Cir. 2009).
Finally, Ehnert's retaliation claim fails because he has not put forth sufficient evidence from which a reasonable juror could find a prima facie case of retaliation under the ADA.
The McDonnell Douglas burden-sifting framework also applies to claims for retaliation. Baker v. City of Washington, Pa., Civ. A. No. 2:19-cv-00113, 2021 WL 2379709, at *15 (W.D. Pa. June 10, 2021). “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. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); Peden v. District Council 33 Loc. 696, 662 Fed.Appx. 183, 186 (3d Cir. 2016) (applying the same standard to a claim against a union). “If the plaintiff cannot carry this burden, the defendant is entitled to summary judgment.” Brock v. Int'l Union of Operating Eng'r, Local, 140 F.Supp.3d 432, 439 (E.D. Pa. 2015).
“To establish the requisite causal connection[, ] a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse, 126 F.3d at 503-04; Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997)). “In the absence of proof, a plaintiff may also show, from the evidence gleaned from the record as a whole, the trier of fact should infer causation.” Brock, 140 F.Supp.3d at 439. Speculation is not enough to overcome summary judgment, however. Peden, 662 Fed.Appx. at 185 (citing Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir. 2016)).
While Ehnert makes a number of bald assertions in his briefing, he identified no place in the record to support these allegations nor has the Court been able to independently find any. Speculation cannot defeat summary judgment. See Peden, 662 Fed.Appx. at 185. Consequently, his arguments fail expressly or by implication for the reasons otherwise explained herein.
In this case, Ehnert was terminated from membership in the Union on July 1, 2013, nine months after his statement to Broadbent that he believed his termination from Chapman resulted from disability discrimination (ECF No. 101 ¶¶ 2, 8, 12). This timing is not unduly suggestive to create an inference of causation. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) (“[a]lthough there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment”).