Opinion
CIVIL ACTION NO. 99-CV-5405
September 30, 2003
MEMORANDUM AND ORDER
Plaintiff Pamela Heebner brings this action under the Americans with Disabilities Act ("ADA") and the Employee Retirement Income Security Act ("ERISA") to recover damages for alleged injuries suffered by her late husband, Michael Heebner, in connection with his termination from employment at Defendant Wausau Insurance. Defendants have filed a Motion for Summary Judgment (Doc. 38). For the following reasons, upon consideration of Defendants' motion, Plaintiffs Response (Doc. 44), and Defendants' Reply Brief (Doc. 50), this Court will grant the Defendants' Motion for Summary Judgment.
Wausau merged with Defendant Nationwide Mutual Insurance on December 16, 1996, during Mr. Heebner's employment. Mr. Heebner's supervisor was Frank Rubinate both before and after the merger.
FACTS
From the evidence of record taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. Michael Heebner was employed as in-house counsel at Wausau Insurance Co. ("Wausau") in 1990. In September of 1995, Mr. Heebner was diagnosed with bowel cancer. Mr. Heebner was granted a seven-week paid disability leave for surgery and recovery.While still in the hospital, Mr. Heebner was visited by his supervisor, Frank Rubinate. When informed of Mr. Heebner's plans to undergo chemotherapy, Mr. Rubinate told Mr. Heebner that the therapy would have to be scheduled around work. Mr. Heebner ultimately aborted his plans to undergo chemotherapy in October 1995 for medical reasons. In November 1995, before returning to work, Mr. Heebner asked Mr. Rubinate if he could return to work on a less than full — time basis. Mr. Rubinate refused, and Mr. Heebner returned to work full time with no physician — ordered restrictions.
Mr. Heebner was routinely assessed throughout his tenure by Mr. Rubinate. Mr. Heebner's overall performance was rated "good" or "very good" prior to the surgery, and "fair" after his return. Mr. Heebner received multiple oral and written complaints from customers over his handling of their cases after he returned to work. Mr. Heebner was informed that his performance was substandard and could lead to termination.
Mr. Heebner was placed on a 90-day probationary period in April 1996. When the probation ended in July 1996, there was no discussion of continuing probation. In April 1997, Mr. Heebner received a minimal pay raise despite continuing dissatisfaction with his work. Defendants claim that the raise was intended as an incentive to encourage improvement. The Defendants stated that the action was an acceptable exception to Nationwide's discipline policy, which does not allow pay raises to be given while an employee is on a work-improvement plan. Slight modifications from the plan were permitted so long as the Human Resources Department was consulted. In Mr. Heebner's case, Mr. Rubinate had consulted with Rick Ricker, a Nationwide human resources manager.
Between June and August of 1997, several claims managers complained about Mr. Heebner's work to Mr. Rubinate. In June 1997, a claims manager requested that none of his new cases be assigned to Mr. Heebner because his work was unsatisfactory. In August 1997, two other claims managers complained about Mr. Heebner's performance.
Mrs. Heebner alleges that throughout Mr. Heebner's initial cancer recovery, after returning to work, he suffered loss of sleep and anxiety over fear that he would die from cancer. Mr. Heebner was prescribed Xanax for anxiety initially in August 1995, before his cancer diagnosis. The prescription was renewed while he was in the hospital, and he apparently continued to take Xanax through 1996 and 1997. Mrs. Heebner stated that among the side effects of Xanax was exhaustion and listlessness. Mrs. Heebner claimed that her husband had trouble concentrating and focusing.
There is no evidence that any Nationwide employees knew about Mr. Heebner's Xanax prescription or treatment for anxiety before August 1997.
On August 10, 1997, Mrs. Heebner informed Mr. Rubinate of her husband's depression and continuing struggle with cancer recovery. She claims that she spoke to Mr. Rubinate at a party at Mr. Rubinate's house. She told Mr. Rubinate "that Mike was depressed" and "concerned about his cancer recurring." She also told Mr. Rubinate that "Mike was anxious to get his cancer tests done and to get the results back in late September or early October 1997." She alleges that Mr. Rubinate nodded.
Mrs. Heebner had a different recollection of the conversation in notes that she made after the party. She wrote that she told Mr. Rubinate, "With all that Mike has gone through with the cancer and depression, I hope all is well."
Mr. Rubinate does not remember the conversation.
Shortly after the party, Mr. Heebner drafted a letter dated August 15, 1997, to Mr. Rubinate requesting a leave of absence because of his cancer recovery and depression. The letter also states Mr. Heebner's belief that he was being treated unfairly since being diagnosed with cancer in 1995. Defendants claim that the letter was never received by Mr. Rubinate or anyone else at Nationwide. However, Mrs. Heebner stated that her husband told her at the time that he had made a written request for leave and was rejected.
Mrs. Heebner found the August 15, 1997, letter among 30 boxes of her husband's personal files that he brought home from the office after his termination. Defendants contend that it is inadmissible hearsay; Plaintiff seeks to have it admitted under Rule 807 of the Federal Rules of Evidence residual hearsay exception.
The letter states: "I am sorry it has come to this, but I must have a medical leave of absence due to cancer and depression. I feel this action is necessary as I have requested and been denied a leave of absence in May 1997. I was not treated fairly since being diagnosed with bowel cancer in 1995. Being told by you to schedule my chemotherapy around my work schedule has not helped my problem. I will, with your acceptance, get my files prepared and work until Sept. 12." The request was denied.
Mr. Heebner was fired August 29, 1997. Apparently expecting this, Mr. Heebner presented a later dated August 25, 1997, asking that he be allowed to continue working full time until he was able to find another job. He gave the letter to Mr. Rubinate after he was informed that he was fired. A voluntary severance agreement was offered to Mr. Heebner. In exchange for payment through the end of 1997, Mr. Heebner would have to give up his right to sue the Defendants. He declined. Mr. Heebner's last day of work was September 16, 1997, and he was kept on the payroll until November 3, 1997, while he exhausted his administrative appeals.
Some time before Mr. Heebner's termination became effective, he was informed by Nationwide in a letter of his rights to COBRA benefits. Mrs. Heebner claims no letter was received. However, she admits that she did have a telephone conversation with a Nationwide employee about the details of COBRA coverage.
The Consolidated Omnibus Budget Reconciliation Act ("COBRA") of 1985 requires health insurance plains to advise beneficiaries of their rights under COBRA both at the commencement of coverage and within fourteen (14) days of learning of a qualified event. 29 U.S.C.S. § 1166(a).
Two days after his last day of work, on September 18, 1997, Mr. Heebner sought treatment for depression. He was prescribed Prozac, and throughout two months of treatment, he showed marked improvement. On November 24, 1997, Mr. Heebner signed a certified statement with the Department of Labor that he had no restrictions to work.
Mr. Heebner properly filed administrative charges with the Equal Employment Opportunity Commission and Pennsylvania Human Relations Commission before commencing this suit. Mr. Heebner's cancer relapsed in February 1997, and he passed away in May 1998.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celotex. 477 U.S. at 325, 106 S.Ct. at 2553-54. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW. Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party.Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.
DISCUSSION
Defendants seek summary judgment on all claims of Plaintiffs amended complaint. Specifically, Defendants contend that there is no evidence that Mr. Heebner had a record of or was regarded as disabled by cancer or depression. Moreover, Plaintiff has no evidence to challenge Nationwide's legitimate reasons for termination. In addition, Defendants argue that the Plaintiff has admitted that she received timely notice of COBRA benefits coverage. This Court will review each of the Plaintiffs claims in turn.A. Americans with Disabilities Act ("ADA") Claims
Defendants argue that Plaintiffs ADA claims must be dismissed because there is no evidence that Mr. Heebner was disabled, regarded as disabled or had a record of a disability, as required under the act. Further, Defendants claim that they did not know about any of Mr. Heebner's medical problems and thus, could not have been motivated by those disabilities to discriminate against him. Plaintiff avers that Mr. Heebner was disabled both by the residual effects of bowel cancer and a crippling anxiety that he would die from cancer.
To state a claim for employment discrimination under the ADA, a Plaintiff must demonstrate that he is a "qualified individual with a disability," under the Act, and that he has suffered an adverse employment decision as a result of the discrimination. US Airways. Inc., v. Barnett, 535 U.S. 391, 412-13 (2002); Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002). Disability is defined as (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Major life activities include, but are not limited to, such basic functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. § 1630.2(i).
Plaintiff has failed to show that Mr. Heebner had a disability that substantially limited his major activities. If Mr. Heebner's cancer is the disability, then Plaintiff has failed to provide any evidence of impairment. After surgery, Mr. Heebner returned to work on a full-time basis with no restrictions. Plaintiff provides no evidence of cancer-related therapy or recovery that impeded any job responsibilities. If the disability is depression, then the only depression on record is from September to November 1997, after Mr. Heebner left Nationwide. He was prescribed Xanax for anxiety beginning in 1995, however, his wife admits that his only impairments were side effects of the medicine, including sleeplessness and inability to concentrate — neither impairing a major life activity. Moreover, Mrs. Heebner stated in her deposition that her husband was able to perform all the functions of his job. Further belying Plaintiffs claims, Mr. Heebner told Nationwide when he was fired that he wanted to continue working full time, and, in November 1997, he told the Board of Labor that he had no disability and was able to work.
When the disability is not obvious or admitted, the Plaintiff must produce evidence-generally medical evidence-that he had an impairment that substantially limited a major life activity. See, e.g., Marinelli v. Erie, 216 F.3d 354, 360 (3d Cir. 2000);Peter v. Lincoln Tech. Inst., 255 F. Supp.2d 417, 429 (E.D. Pa. 2002).
Additionally, Plaintiff has failed to show that Defendants knew about Mr. Heebner's illness — whether it be recurring cancer symptoms or depression. The only evidence of Defendants' knowledge of Mr. Heebner's disability is Plaintiffs claim that she told Mr.
"An employer [is not] expected to accommodate disabilities of which it is unaware." 29 C.F.R. app. § 1630.9 (1994). Furthermore, "an employer cannot be held liable under the ADA for firing an employee when it indisputably had no knowledge of the disability." Fairfax v. School Dist., 1997 U.S. Dist. LEXIS 6891 *5-6 (E.D. Pa. 1997) (quoting Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995). "Plaintiff must demonstrate that the defendant employer knew of the disability to state a prima facie case of unlawful discharge." Geraci v. Moodv-Tottrup. Int'l, 82 F.3d 578, 581.
Rubinate about her husband's depression at a party three weeks prior to Mr. Heebner's termination. However, this Court finds that none of the statements, either from her deposition or her written account of what happened after the party, amount to notice of a disability. During her deposition, she stated that she told Mr. Rubinate that her husband was "concerned about his cancer recurring" and "depressed." Alternately, her notes from the evening indicate she told Mr. Rubinate, "With all that Mike has gone through with the cancer and depression, I hope all is well." In neither case does Mrs. Heebner explain that Mr. Heebner was suffering from clinical depression or other disability, nor does her vague, past-tense statements provide any information about Mr. Heebner's present medical condition or present limitations.
Furthermore, Plaintiff cannot establish that the Defendants "regarded" Mr. Heebner as disabled under the ADA. Determining whether a person is "regarded as" having a disability focuses not on Mr. Heebner's actual abilities but "on the reactions and perceptions of the persons interacting and working with him." Rinehimer v. Cemcolift. Inc., 292 F.3d 375, 383 (3d Cir. 2002); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996). Mere knowledge of an employee's impairment is not enough, because anyone could prove a prima facie case of employment discrimination merely by showing adverse action against the individual and that the employer was aware of the employee's disability. Kelly, 94 F.3d at 109.
Plaintiffs sole evidence of Mr. Heebner being regarded as disabled is a performance report in February 1996 noting that Mr. Heebner's performance suffered due to a medical condition. However, this memo does not describe discriminatory perceptions so much as state a fact of Mr. Heebner's employment. Further, the memo recommended no adverse action, and in fact, Mr. Heebner was not placed on probation until July of 1996. This Court finds that this is not sufficient to show that Mr. Heebner was regarded as disabled.
Finally, even if Plaintiff could prove a disability, Defendants' provide well-documented evidence of Mr. Heebner's deteriorating work performance. In making an employment discrimination claim, Plaintiff must show that an employer's legitimate reasons for terminating an employee are false and that disability discrimination was the real reason.Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Medcalf v. Trs. of Univ. of Pa., 2003 U.S. App. LEXIS 16110 (3d Cir. July 30, 2003). To show that the employer's alleged reasons are a mere pretext, Plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions" in the employer's proffered reasons that a reasonable factfinder could rationally find them "unworthy of credence." Medcalf, 2003 U.S. App. LEXIS 16110 at *8-9;Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
For more than a year prior to his firing, Mr. Heebner was given repeated poor performance ratings. He received more than eighty (80) complaints from customers and claims managers complaining about his work and describing him as the worst performer in the Philadelphia office. He even admitted his shortcomings in his EEOC filing, stating, "I did in fact occasionally delay reporting file management and significant activity to claim adjusters." Plaintiff claims that Mr. Heebner's poor performance reports were part of a 16-month scheme concocted after Mr. Heebner's surgery as a pretext for firing him. However, this strains plausibility, and this Court finds that Defendants have provided legitimate reasons for firing Mr. Heebner.
B. Plaintiff did not receive timely notice of COBRA benefit coverage
Defendant claims that Mr. and Mrs. Heebner received notice of their COBRA right to elect continued health benefits coverage, as required under ERISA. Plaintiff alleges that no mailed notice reached their household. However, Plaintiff admits that she did receive all the information about continuing health benefits coverage during a telephone conversation with a Nationwide representative.
COBRA requires employers to give notice to terminated employees that they are entitled to elect to continue health benefits. 29 U.S.C. § 1161(a). However, there is no requirement that such notice be written. Since Plaintiff does not refute that she received all appropriate notice by telephone, this Court finds that there is no basis for Plaintiffs claim of not receiving notice. Thus, summary judgment is granted for Defendants on Plaintiffs COBRA claim.
The only requirement is that the notice be express. Smith v. Hartford Ins. Group. 6 F.3d 131, 143 (3d Cir. 1993).
C. Administrative Claims Against Wausau
In light of this Court's previous findings, this Court does not need to reach the issue of whether Mrs. Heebner's claims are untimely because Mr. Heebner filed his ADA claim more than 300 days after his employment was transferred in the merger from Wausau to Nationwide.
D. Tort Claims
Plaintiff voluntarily withdrew her state law claims for intentional infliction of emotional distress and loss of consortium.
CONCLUSION
For the foregoing reasons, this Court will grant Defendants' Motion for Summary Judgment on all counts.