Opinion
Civil Action No. 01-4937.
March 31, 2004
MEMORANDUM ORDER
Plaintiff Antoinette Cobb brings this action against her former employer, Defendant Philadelphia Gas Works ("PGW"), to recover damages on six claims: (1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq.; (2) race discrimination in violation of Title VII, 42 U.S.C. § 2000e-2 et seq.; (3) retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a); (4) discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112; (5) retaliation in violation of the ADA, 42 U.S.C. § 12203(a); and (6) sex, disability, and race discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"), Title 43 PA. CONS. STAT. ANN. § 951 et seq. Presently before the Court is Defendant's Motion for Summary Judgment, (Doc. No. 13), and Plaintiff's response thereto. For the reasons that follow, Defendant's Motion will be granted.
Count Six of Plaintiff's Complaint states:
Count [Six] — PHRA Violation Sex, Disability and Age Discrimination.
(Compl. at ¶¶ 60-62 (emphasis added).) The Count then proceeds to discuss Defendant's alleged violations of the PHRA, claiming that "Plaintiff was treated differently on the basis of her race, sex, disability and retaliated against, . . ." (Id.) Nowhere in the Count does Plaintiff mention a claim of age discrimination. Further, neither party makes reference to age discrimination in any of the filings. We therefore assume that Plaintiff unintentionally stated "age" rather than "race." If, however, Plaintiff did intend to bring a claim of age discrimination under the PHRA, we dismiss that claim for Plaintiff's failure to establish a prima facie case of age discrimination.
We also note that Plaintiff's Complaint numbers the Counts as one through five, followed by a final count under the PHRA, which Plaintiff also refers to as Count Four. For the sake of clarity, we refer to the PHRA claims as Count Six.
Also before the Court is Defendant's Motion to Strike Unauthorized and Uncertified Appendix of Plaintiff, (Doc. No. 15), and Plaintiff's response. For the following reasons, this Motion will be denied.
I. STATEMENT OF FACTS
There is significant dispute over the events leading up to this litigation. A recitation of the facts in the light most favorable to Plaintiff, the non-moving party, follows. Plaintiff is a forty-eight year old, black woman who began her employment at PGW in 1982. Plaintiff held several positions during her time at PGW, including Gas Process Operator, Gas Supply Foreman, and Credit Collections Supervisor ("CCS").
In 1992, while working as a Gas Supply Foreman, Plaintiff was diagnosed with congestive cardiomyopathy. In the Fall of 1992, Plaintiff's health caused her to take a leave of absence for several weeks. (Walsh Dep., Ex. D-14, D-15, D-16.) Shortly thereafter, Plaintiff requested that she not be assigned to shift work. Plaintiff's doctors also requested that Plaintiff be "transferred . . . to an office position on day shift," (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at Ex. 31), and avoid "long walking or climbing of steps," (Walsh Dep., Ex. D-15). In addition, Plaintiff's doctor stated that Plaintiff's overtime work should be limited. (Id.)
Plaintiff worked as a Gas Supply Foreman until October 1994, when she was transferred to CCS. (Cobb. Dep. at 207.) That transfer became permanent in January 1995. Plaintiff continued to work in her capacity as CCS, until she left PGW on extended sick leave in 1997. By March 1998, Plaintiff had used all of her sick leave and vacation benefits, and was thereafter placed on disability without pay. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 7.) However, Defendant continued to offer Plaintiff health benefits, for a premium, until she was terminated in March 2000. Plaintiff claims that the reason for her leave was that Defendant "failed to accommodate her" under the ADA. (Pl. Antoinette Cobb's Resp. to Def.'s Mot. for Summ. J. [hereinafter Pl.'s Resp.] at ¶ 4.) After two and one-half years of sick leave, Defendant terminated Plaintiff in January 2000. Plaintiff's termination became effective in March 2000. Plaintiff claims that Defendant failed to accommodate her disability, despite their willingness to provide accommodations for white, male employees. Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 7, 2000, and received her right to sue letter on July 12, 2001. (Cobb Dep., Ex. A.)
Plaintiff began receiving cash benefits from the Social Security Administration ("SSA") in March or April of 1998. During that time, Plaintiff continued to receive medical benefits from Defendant, but monetary payments from Defendant ended in or around March 1998. (Cobb Dep. at 86-87.) Plaintiff's medical benefits continued until March 2000. (Id. at 93.)
II. STANDARD OF REVIEW
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 (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 of informing the district court of the basis for 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 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial burden can be met by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met this 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.
III. ANALYSIS
A. Discovery-Related Issues
After Plaintiff filed her response to Defendant's Motion for Summary Judgment, Defendant filed the Motion to Strike Unauthorized and Uncertified Appendix of Plaintiff, ("Motion to Strike," Doc. No. 15), in which Defendant argued that (1) Plaintiff improperly sought to supplement the record with unauthenticated and uncertified documents that were not accompanied by any supporting affidavits and were therefore in violation of Rule 56(c); and (2) Plaintiff's Interrogatory Answers should not be considered by the Court because she submitted them the day after the deadline for filing dispositive motions.
In her Response to Defendant's Motion to Strike, (Doc. No. 16), Plaintiff opposes the two allegations above, and adds an allegation of her own, claiming that the Court should disallow the Affidavit of John Kelly, attached to Defendant's original Motion for Summary Judgment, because it violates the Rule 26 initial disclosure requirement that each party to a civil action must provide to the other parties "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. . . ." FED. R. CIV. P. 26(a)(1)(A).
The Court dismissed Defendant's Motion to Strike without prejudice, reserving the issue for consideration when deciding the Motion for Summary Judgment. (Doc. No. 17.) We will now address each of these arguments in turn.
1. Contents of Plaintiff's Appendix
Defendant urges the Court to suppress and strike from the record the so-called Appendix of exhibits that Plaintiff attached to her response to Defendant's Motion for Summary Judgment, claiming that Plaintiff sought to supplement the record by improperly commingling "unauthenticated, unsworn and uncertified" documents with documents that had been properly introduced during discovery depositions. Defendant claims that because these unauthenticated documents were unaccompanied by supporting affidavits, the Court may not consider them on a motion for summary judgment pursuant to Rule 56(c).
Plaintiff's response is threefold: (1) she claims that Plaintiff's exhibits submitted in opposition to Defendant's Motion were all produced by parties during the course of discovery; (2) she noted that Defendant produced over seven hundred pages of documents that it failed to Bates stamp, and that were Defendant's business records; and (3) Plaintiff's attorney provided to the Court a certification under penalty of perjury that the all sixty of Plaintiff's exhibits attached to Plaintiff's Opposition Motion were produced by the parties during discovery and are Defendant's authenticated business records. We will not strike the exhibits attached to Plaintiff's Opposition Motion from the record.
2. Plaintiff's Answers to Interrogatories
In its Motion to Strike, Defendant states that we should not consider Plaintiff's Interrogatory Answers, because they were withheld until the day after the deadline for Defendant to file dispositive motions with the Court, despite Plaintiff's "counsel's numerous promises to prepare and serve [her] interrogatory answers." (Consol. Mem. in Supp. of Def.'s Mot. to Strike Pl.'s Appen. Under Fed.R.Civ.P. 56 and Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. [hereinafter Mem. in Supp. of Mot. to Strike] at 3.) In response, Plaintiff denies ever having made such promises, and that Plaintiff's response within two weeks after the time the Interrogatories would have been due was appropriate, given the "significantly voluminous interrogatories which violated the total number of interrogatories that could be propounded on the Plaintiff in this case." (Pl.'s Consol. Mem. of Law in Opp'n to Def.'s Mot. to Strike Pl.'s Exs. Presented in Opp'n to Def.'s Mot. for Summ. J. from the Record and In Sur-Reply to Def.'s Reply [hereinafter Pl.'s Opp'n to Def.'s Mot. to Strike] at 9.) Plaintiff further claims that Defendant agreed to give her all the time she needed to respond due to the length of the interrogatories. In addition, Plaintiff notes that Defendant has missed discovery deadlines. (Id. at 3.) Finally, Plaintiff states that "Defendant did not file any motion to compel Plaintiff to respond to its Interrogatories, upon which Plaintiff could have opposed." (Id. at 9.)
We will consider Plaintiff's Interrogatory Answers as part of the record. We are satisfied that Defendant has had the opportunity to address Plaintiff's Answers in its Reply to Plaintiff's Opposition Motion. Further, Defendant did not file a Motion to Compel Plaintiff's Interrogatory Answers, and the parties dispute the facts surrounding Plaintiff's Interrogatory Answers. Absent a more compelling reason to exclude the Interrogatory Answers, they will remain part of the record.
3. Affidavit of John Kelly
Plaintiff claims that the affidavit of John Kelly, which Defendant attached to its Motion for Summary Judgment, should be stricken from the record. (Pl.'s Opp'n to Def.'s Mot. to Strike at 13.) Plaintiff claims that the affidavit should be stricken because Defendant failed to provide contact information for Kelly, who as Manager of Defendant's Gas Processing Department had responsibility for management of the gas supply and processing facilities at Defendant's Passyunk and Richmond plants from March 1, 1990 through September 30, 1995. Under the Federal Rules of Civil Procedure, every party to an action must disclose the names of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. FED. R. CIV. P. 26(a)(1)(A). Furthermore, this rule requires a party to supplement this information appropriately if that party "learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." FED. R. CIV. P. 26(e)(1). "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." FED. R. CIV. P. 37(c)(1).
Nondisclosure is harmless if it has not caused prejudice to the other party. Thus, "a failure to disclose witness information is `harmless' if the other party was well aware of the identity of the undisclosed witnesses and the scope of the relevant knowledge well before trial." Id.; see also FED. R. CIV. P. 37(c) advisory committee's note (citing "the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties" as an example of a harmless Rule 37(c)(1) violation).
Here, the Court finds that Defendant's failure to disclose Kelly as a potential witness was harmless. Plaintiff has demonstrated that she knew the identity of Kelly and his role in the events that led to this litigation well before filing her Sur-Reply. In her Motion in Opposition to Summary Judgment, Plaintiff identifies Kelly as the person who recommended Plaintiff be removed from her position as Foreman. (Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 10). Plaintiff also accuses Kelly of improperly lowering her direct supervisor's review of Plaintiff's performance from a "Fully Effective" to a "Partially Effective" ranking, and acknowledges that she challenged Kelly's review. Id. at 10-11. Furthermore, Plaintiff claims that Kelly's actions in getting her transferred away from her Foreman position and to the position of CCS show evidence of retaliation and discrimination against her in response to her complaint about his adjustment of her performance review. Id. at 11.
Therefore, while Defendant technically erred in failing to disclose Kelly as a potential witness under Rules 26(a) and (e), Plaintiff knew of Kelly's existence as a potential witness in this case. Accordingly, this error was harmless, and Kelly's affidavit shall remain part of the record.
B. Disability Discrimination Under the ADA and the PHRA
In Counts Four and Six of the Complaint, Plaintiff claims that Defendant discriminated against her, based on her disability, in violation of the ADA and the PHRA. Plaintiff claims that from October 1994, until March 2000, Defendant's failure to accommodate amounted to a continuous violation of the ADA. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 14.) Specifically, Plaintiff discusses the follow events that allegedly violate the ADA: (1) Defendant's decision to transfer Plaintiff from her position as Gas Supply Foreman to CCS, which Plaintiff claims was influenced by a `deceptive motive' to permanently place Plaintiff in a position that violated her medical restrictions; (2) Defendant's failure to accommodate Plaintiff's medical needs while Plaintiff worked as CCS; and (3) Defendant's failure to engage in the interactive process.
To establish a prima facie case of discrimination under the ADA, a Plaintiff must demonstrate that "(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination." Gaul v. Lucent Tech. Inc., 134 F.3d 576, 580 (3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)). Here, Defendant argues that Plaintiff has failed to establish either of the first two elements above.
We will discuss the ADA and PHRA claims simultaneously:
While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA, Harrisburg Sch. Dist. v. Pa. Human Relations Comm'n, 466 A.2d 760, 763 ( Pa. Commw. 1983), its courts nevertheless generally interpret the PHRA in accord with its federal counterparts; see Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995) (noting that PHRA and Title VII are interpreted similarly), . . .; Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 649, 654 (Pa. 1980) (recognizing precedents suggesting that "the Human Relations Act should be construed in light of `principles of fair employment law which have emerged relative to the federal [statute]. . . .'" (quoting General Elec. Corp. v. PHRC, 365 A.2d 649, 654 (Pa. 1976)).Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
The ADA defines "disability" as: "(1) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (2) a record of such impairment; or (3) being regarded as having such an impairment."Keeshan v. Home Depot, U.S.A., Inc., No. 00-529, 2001 U.S. Dist. LEXIS 3607, at *16 (E.D. Pa. Mar. 27, 2001) (citing 42 U.S.C. § 12102(2)). Defendant does not dispute Plaintiff's claim that she is "disabled from the major life activity of working as a result of her heart ailment of congestive cardiomyopathy." (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 10.) However, Defendant argues that to the extent Plaintiff's ADA claims are based on her assertions of job-related stress, she is not a disabled person within the meaning of the ADA. Defendant argues that "Plaintiff's current assertions of job-related stress [do not] constitute a cognizable disability under the ADA." (Id.) However, Plaintiff's situation is not a instance where stress alone is the problem. As Defendant recognizes, Plaintiff has a clear medical history of heart problems. (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at Ex. 30 (providing letters to document Plaintiff's medical complications).) These heart problems could be exacerbated by stressful conditions, which is apparently why Plaintiff raised the issue of stress-levels associated with different positions. (Letter of Brozena, M.D. to Nierenberg of 6/22/00, Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at unnumbered 22 ("Antoinette's cardiac symptoms began to worsen and she was advised to request a change in position to a less stressful job."); Letter of Jewell, M.D. of 6/15/00 ("[Cobb] was diagnosed with a cardiomyopathy in 1992. She was advised to work at a less stressful position in September of 1997, because of worsening symptoms.").) We conclude that Plaintiff's undisputed case of congestive cardiomyopathy satisfies the requirement that she demonstrate that she is disabled under the ADA.
Defendant next argues that Plaintiff cannot establish that she is a qualified individual under the ADA, and therefore fails to meet the second element. To bring a claim under the ADA, a plaintiff must be a "qualified individual with a disability," which the ADA defines as "an individual 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). The burden is on the employee to establish this second prong. Shirling, 90 F.3d at 831.
To determine whether Plaintiff is a "qualified person with a disability," we must consider whether she (1) "satisfies the requisite skill, experience, education and other job-related requirements of the employment," 29 C.F.R. § 1630.2(m), and whether she (2) "with or without reasonable accommodation, can perform the essential functions of such position." Id.
1. Gas Supply Foreman
Plaintiff's first ADA claim is that Defendant's decision to move Plaintiff from the position of Gas Supply Foreman to CCS violated the ADA because it was done with `deceptive motive' to permanently place Plaintiff in a position that violated her medical needs. The record does not support Plaintiff's claim.
In evaluating whether Plaintiff can demonstrate a prima facie case as to this claim, we note that there is little doubt that, at one time, Plaintiff possessed the requisite skills for the position of Gas Supply Foreman. In fact, her evaluations indicate that Defendant was satisfied with her performance. Plaintiff received performance ratings of "fully effective" in 1992 and 1994. (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at 39, 41.) However, Defendant argues that Plaintiff is not a qualified individual because her medical restrictions were such that she could not continue to perform her responsibilities as Gas Supply Foreman, even with reasonable accommodation. In fact, the record indicates that Defendant had some concern that Plaintiff's limitations were affecting her ability to perform the job. In 1994, Kelly indicated that Plaintiff's performance rating should be reduced to "partially effective" because, due to her disability, she was unable to perform all of the requirements of Gas Supply Foreman. (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ J. at 40.)
In addition, according to Defendant, Plaintiff specifically asked to be transferred to a position that would better accommodate her medical restrictions. (Stewart Dep. at 53-55.) Moreover, Plaintiff herself states that her doctors requested such a transfer. (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at Ex. 31 (" At my doctor's request, the employer transferred me to an office position on day shift. . . ." (emphasis added)).) Defendant further contends that Plaintiff's medical report indicated that she could not perform the functions of the job. The report, entitled "Request for Disability Information," indicates that on February 4, 1993, Defendant's medical director concluded that Plaintiff was restricted in the following ways: "Day work, no physical activity, no climbing, no extreme temperatures, minimize noxious fume exposure." (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at 10.) The medical report also concluded that Plaintiff should be placed on modified duty, and that the degree of disability was unknown. (Id.) In addition, Defendant submits letters from Plaintiff's doctor that indicate that she was restricted from "long walking or climbing of steps," (Walsh Dep, Def.'s Ex. 15; Letter from Walsh to PGW of 11/5/92), and from "heavy manual exertion such as heavy lifting, excessive climbing or other forms of exertion," (Letter from McGinnis to Whom it May Concern of 9/10/92; Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at 5).
Defendant also presents a document prepared by Kelly on January 27, 1993, which concludes that, due to the requirements of the Foreman Gas Supply position, Plaintiff will be unable to perform the job. Kelly also states that Plaintiff had "the capability to work in an office environment in an administrative capacity." (Kelly Letter of 1/27/93, attached to Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J.) Defendant describes the duties of Gas Supply Foreman as follows:
On February 9, 2003, Kelly wrote to Sydney M. Avent, Chairman of Defendant's Employee Benefits Committee, forwarding Plaintiff's medical report and stating in part:
Dr. Barlow reports that Mrs. Cobb has a medical condition which allows her only day work, no physical activity, no climbing, no extreme temperatures and also to minimize exposure to noxious fumes. These restrictions are of a possible permanent nature.
The Gas Supply Department recommends that Antionette Cobb be considered for other openings in the Company for an office position.
(Letter of Kelly to Avent of 2/9/93; Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at 12.)
[T]hat the employee tolerate exposure to probable fumes and dust. . . . that the employee work all shifts in accordance with scheduling requirements that mandate that all employees share the day shift, mid-shift, and night shift assignments on a rotating basis; . . . that employees be available for week-end work, including Sundays and holidays, and that employees may be required to work more than five consecutive days and without consecutive days off; . . . that all Gas Plant employees, other than those in secretarial positions, are required to work in severe weather conditions of extreme heat and frigid temperatures; and . . . that employees be available and able to climb as Plant operations may dictate.
(Kelly Aff. at ¶ 3, attached to Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J.) In light of these requirements, it is difficult to imagine how Plaintiff could perform the essential functions of the job, with or without reasonable accommodation.
Plaintiff claims that her only request for accommodation was that she not be assigned to shift work, and that that accommodation was made, prior to her "fully effective" evaluations in 1992 and 1994. Plaintiff dismisses Defendant's claims by stating that "other restrictions suggested by her doctors were not relevant to her job duties at the time because she did not have to engage in those activities to perform her job as Foreman." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 10.) However, Plaintiff's responses to Defendant's interrogatories stated that she required additional accommodations while working as a Gas Supply Foreman. "I would require no shift work, two consecutive days off, [and] overtime limitations." (Pl.'s Resp. to Def.'s Interrogs. at 6(b); Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at 43.)
Even viewing the facts in a light most favorable to the Plaintiff, we find that Plaintiff's doctors indicated that Plaintiff was limited in her capacity to perform the job of Gas Supply Foreman. It was only reasonable that Defendant felt that it was necessary to transfer Plaintiff to a position where her medical restrictions would not interfere with her ability to perform. The only alterative would have been a direct violation of Plaintiff's doctors' orders. While Plaintiff claims that the only accommodation she really needed was no shift work, this flies in the face of the report from Plaintiff's doctor, and her own prior statements. Because the record clearly indicates Plaintiff's need for multiple accommodations that would interfere with her ability to perform the essential functions of the job of Gas Supply Foreman, we conclude that Plaintiff has failed to demonstrate the second element of her ADA claim. We need not address the third element. As discussed in further detail below, Defendants were better able to accommodate Plaintiff's medical needs in the position of CCS.
2. Credit Collections Supervisor
Plaintiff also claims that Defendant violated the ADA when it failed to accommodate her in her position as CCS. Defendant counters by stating that Plaintiff has failed to establish that she is a qualified individual in her capacity as CCS. Again, it is undisputed that Defendant was completely satisfied with Plaintiff's work as a CCS. "Indeed, Plaintiff was considered an excellent Credit Collections Supervisor. . . ." (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 4.) However, Defendant argues that Plaintiff cannot show that she is a qualified individual because she could not perform the essential functions of the CCS position, with or without reasonable accommodations. (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 11.) Plaintiff admits that after the transfer to Collections, Defendant accommodated her in a number of ways, including: no shift work, two consecutive days off, working within the twoshift rotation only, no overtime, then a change to overtime when Plaintiff requested it, no exposure to extreme temperatures, no exposure to dust and noxious fumes, no climbing, no lifting over a specified weight, and restriction to an office environment. (Cobb Dep. at 149-51.) Specifically, Plaintiff admits::
Q: Shift work changed. One, right? That's one, right?. . . .
A: One of them.
Q: Okay. Two consecutive days off?
A: That's one of them.
Q: Okay. Working within the two-shift rotation only?
A: That's one of them.
Q: Not working overtime?
A: That's one.
Q: Working overtime?
A: That's one.
Q: No exposure to extremes of temperature?. . . .
A: That's another one, yes.
Q: No exposure to dust and noxious fumes?
A: That's one.
Q: No climbing gas tanks, for instance?. . . .
A: That's another one.
Q: No lifting over a certain weight restriction?
A: That's another one.
Q: Restriction to an office environment only?
A: That's another written restriction.
(Cobb Dep. at 149-51.)
The problem arises in that Plaintiff claims that, due to the stressful nature of the job, her medical condition prohibits her from working in that capacity. Plaintiff further claims that, because she could not meet the requirements of a CCS, Defendant had a responsibility to accommodate her by transferring her to a less stressful work environment. We disagree. Defendant demonstrated considerable effort in its attempts to accommodate Plaintiff. First, the transfer to CCS was made at the request of Plaintiff's doctors. Then, once in the CCS position, Defendant accommodated Plaintiff by making the numerous accommodations as outlined above.
According to Plaintiff, the CCS position requires that she and the other two supervisors oversee the forty-eight employees in the department, and approximately ten to twelve additional employees who would occasionally rotate into the department. (Cobb Dep. at 113.) The department was responsible for calling delinquent PGW customers in an attempt to collect overdue bills. Plaintiff would monitor these calls and handle customer service issues. (Id. at 114.) In her capacity as CCS, Plaintiff also had responsibilities related to customers who filed for bankruptcy, accounts that were handed over to collection agencies, and those accounts that were being terminated. In addition, Plaintiff represented PGW at small claims court hearings. (Id. at 114-16.) Plaintiff also indicated that her job responsibilities required that she "walk the collection floor" and "go from one building to customer service" if she had to retrieve a tape recording of a particular telephone conversation. Plaintiff could not estimate that distance. (Cobb Dep. at 119.)
Defendant maintains that Plaintiff never asked to be accommodated in a less stressful work environment. Defendant states: "[T]he record demonstrates that Plaintiff never asked for a transfer because of job stress, never complained that her supervisory responsibilities were to stressful for her, was never diagnosed with a stress disorder while employed at PGW, and took sick leave only because of her worsening heart ailment." (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 5 (citing Donahue Dep. at 30, 103; Jewell Dep. at 110-11; Walsh Dep. at 65-67; and Barlow Dep. at 156-57).) Plaintiff counters by claiming that she made several such requests. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ J. at 13-14.) At the summary judgment stage, we must view these facts in a light most favorable to Plaintiff, the non-moving party, and assume that such a request was made. However, even in doing so, we cannot conclude that Plaintiff has demonstrated a claim under the ADA.
Defendant argues that a move to a less stressful work environment is not a cognizable accommodation under the ADA. Defendant is correct. In Gaul, the Third Circuit held that an employee's "request to be transferred away from individuals causing him prolonged and inordinate stress was unreasonable as a matter of law under the ADA." 134 F.3d at 579. The court in Gaul based its analysis on the significant concerns it had for employers faced with this request. The court cautioned that such a burden on employers would be nearly impossible to accommodate because compliance would depend on the employee's "stress level at any given moment. This, in turn, would depend on an infinite number of variables, few of which" the employer controls. Id. at 581. The Gaul court also emphasized that the employer would then be obligated to transfer the employee whenever the employee felt "`stressed out' by a coworker or supervisor. It is difficult to imagine a more amorphous `standard' to impose on an employer." Id.
Even assuming that Plaintiff did properly notify Defendant of her request to be transferred to a less stressful work environment, in light of Gaul, we cannot conclude that such a request is a reasonable accommodation under the ADA. While the facts of the instant case differ from those in Gaul, the same concerns apply. In the instant case, Plaintiff has a well-documented heart condition that, she claims, is exacerbated by stress. In Gaul, the plaintiff suffered from depression and anxiety-related disorders that are not as easily defined as a heart condition. However, the concerns expressed by the Third Circuit are equally applicable to the instant facts. In Gaul, the court emphasized that as part of a plaintiff's obligation to show that his or her proposed accommodation is possible, plaintiff must demonstrate that "the costs associated with his proposed accommodation `are not clearly disproportionate to the benefits that it will produce.'" Gaul, 134 F.3d at 580-81 (quoting Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995)). The court further explained that "the term `costs' includes financial as well as administrative burdens on a company." Id. Like the court in Gaul, we conclude that the administrative burden of identifying those positions that would be less stressful for Plaintiff would be "wholly impractical." Id.
Plaintiff claims that being placed in the field as a Collections Supervisor, as opposed to the office, would be less stressful and thereby accommodate her medical needs. Plaintiff states: "She would ride around in a vehicle, check on the field collectors to make sure they were in the area they were supposed to be and were doing the work they were supposed to be doing, and if a complaint should arise with a customer, she would call the City Police." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 15.) Plaintiff claims that the field position would be less stressful than the office position because the office required that she oversee more than sixty people and deal with "numerous complaints from customers." We conclude that Plaintiff's contentions illustrate the concern expressed by the court in Gaul. While Plaintiff is quick to emphasize that the office position requires that she oversee sixty employees, she fails to state how many field employees she would oversee in the preferred field position. Moreover, it is difficult to imagine that facing disgruntled customers face-to-face, in situations that might require the assistance of local law enforcement, could be less stressful than handling customer complaints on the telephone. Yet, Plaintiff claims that Defendant violated the ADA by not accommodating her in this "less stressful" position. We do not agree. We therefore grant Defendant's Motion for Summary Judgment for Plaintiff's ADA and PHRA disability discrimination claims as they relate to Plaintiff's allegation that Defendant failed to reasonably accommodate her by not providing a transfer to a less stressful work environment.
We also take a moment to address Plaintiff's claim that Defendant failed to accommodate her by not offering Plaintiff the position as BCCS consultant. (Parties did not provide the full name for this computer program, but we note that BCCS refers to the new computer billing system that Defendant installed prior to Plaintiff's termination.) As discussed in further detail below, we note that Plaintiff failed to making a showing that she was qualified for the position. Gaul, 134 F.3d at 580 (stating that plaintiff had burden of demonstrating that "`there were vacant, funded positions whose essential duties he was capable of performing . . .'") (quoting Shiring, 90 F.3d at 832)).
3. The Interactive Process
Plaintiff also claims that Defendant violated the ADA by failing to engage in the interactive process required under the statute. In Taylor v. Phoenixville Sch. Dist., the Third Circuit stated that "[t]he ADA's regulations make clear that the purpose of the interactive process is to determine the appropriate accommodations." 184 F.3d 296, 316 (3d Cir. 1999). Defendant claims that the interactive process did take place prior to its decision to terminate Plaintiff:
[I]n an effort to meet this new, most extreme medical restriction of working from home, PGW representatives met with the Plaintiff to assess whether she had skills, such as computer literacy, of which the Company had been unaware. After meeting with Plaintiff, the PGW Human Resources Director ascertained that Plaintiff did not have the requisite computer skills to work off-site. . . . PGW representatives then canvassed the company to see if there were other positions that Plaintiff, given her skills, could perform at home.
(Def. PGW's Mot. for Summ. J. at ¶ 6 (citing Stewart Dep. at 107-08; Barlow Dep. at 108).)
The Taylor court also indicated that "the interactive process does not dictate that any particular concession be made by the employer" and emphasized that an employer's duty to engage in the process did not relieve the employee of her "burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the job's essential functions." 184 F.3d at 317. As discussed in further detail below, Plaintiff has not met her burden of showing that she was qualified for any of the positions she claims were available to accommodate her medical restrictions. Because Defendant claims to have engaged in the interactive process, and because the Plaintiff has failed to meet her burden of showing she is qualified for other positions, we conclude that Plaintiff's allegations that Defendant failed to engage in the interactive process are without merit.
D. Title VII and PHRA Claims for Sex and Race Discrimination
Plaintiff also brings claims alleging that Defendant discriminated against her on the basis of her sex (Counts One and Six) and her race (Counts Two and Six), in violation of Title VII and the PHRA. In Title VII cases, the Plaintiff has the burden of establishing a prima facie case of discrimination. If Plaintiff does so, the burden then shifts to the Defendant to "articulate some legitimate, non-discriminatory reason for the employee's rejection." If the Defendant carries this burden, the Plaintiff must then prove that the reasons proffered by the Defendant were pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Again, we analyze the Title VII and PHRA claims simultaneously. Kelly, 94 F.3d at 105.
In order to establish a prima facie case of discrimination under Title VII, Plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for and rejected for the position; and (3) non-members of the class were treated more favorably. Ezold v. Wolf, Block, Schorr, and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992).
As a black woman, Plaintiff meets the requirements of the first prong. However, Plaintiff fails to provide any indication that she is qualified for the positions that she alleges were offered to non-members of the class. Plaintiff simply concludes, with no further analysis, that she has made a showing of this element:
Plaintiff has clearly met all required elements of a prima facie case of race, sex or disability discrimination. . . . Plaintiff has presented evidence of disparate treatment by her supervisor, Donahue, as compared to male, Caucasian and non-disabled employees. Plaintiff has presented evidence of PGW's failure to provide her with the accommodation of working from home, while PGW provide [sic] male Caucasians with this form of accommodation. Plaintiff has submitted the adverse actions she suffered as a result of Defendants [sic] differential treatment of her as compared to men, Caucasians and non-disabled employees. The burden is on PGW to articulate legitimate business reasons for these [sic] differential treatment of the Plaintiff.
(Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 35.) Plaintiff's reasoning fails to account for the requirement that she be qualified for the position. If Plaintiff is alleging that Donahue discriminated against her by not offering her the BCCS position, she must demonstrate that she was otherwise qualified for the position in order to establish a prima facie case. Plaintiff claims that, during her sick leave, she kept regular telephone contact with her manager, Paul Donahue, and that in April or May of 1999, she personally delivered a written request for work. (Cobb Dep. at 108.) Plaintiff claims that Donahue was supposed to be searching for a position that would accommodate Plaintiff's needs and allow her to return to work. Plaintiff identified the BCCS position, which involved serving as a consultant to those outside vendors hired to install a new PGW computer system. But according to Plaintiff, Defendant offered the position to another employee, Angel Cuevas. (Cobb Dep. at 107-08.) Defendant claims that Plaintiff stated that she was not interested in the position. (Donahue Dep. at 56.) Plaintiff denies that Defendant ever made such an offer. Regardless of whether Defendant did indeed first offer the position to Plaintiff, Plaintiff must make a showing that she meets the qualifications of the position for which she claims she was rejected. Nothing in the record speaks to whether she possessed such skills.
In the twenty-four pages of the Argument section to Plaintiff's Memorandum, Plaintiff makes no mention of depositions, affidavits, or other supporting material. As a result, it is unclear which supporting facts Plaintiff is referring to when she says that she "has presented evidence of disparate treatment" and "evidence of PGW's failure to provide her with the accommodation of working from home."
Plaintiff alleges that when she confronted Donahue about this decision, Donahue explained that Cuevas was "more qualified for the position." Plaintiff responded that she "didn't think it was fair" because she had asked for a position change. (Cobb Dep. at 113.)
This is also true of the vacant positions that Plaintiff identifies as possibilities for her transfer. "These positions include, Product Management Administrator, Residential/Commercial Sales Representative, Major Accounts Manager, Market Manager, Residential/Commercial [sic], Manager Business Development and Federal Affairs Analyst." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 32.) Plaintiff provides no explanation of the requirements of these positions as compared to her own qualifications. In addition, Plaintiff states that she has "presented evidence of disparate treatment by Defendants of other Caucasian men as compared to her who were similarly situated," (id. at 37), and that, more specifically, "Plaintiff presented evidence of [Robert] Allgood [a white male employee] being assigned to a position in Building Service that she was also qualified for. . . ." (Id.) Again, Plaintiff fails to provide the Court with evidence of what this job requires, how her qualifications meet the job requirements, and how the employee who was ultimately offered the position was less qualified. Texas Dept. of Cmty. v. Burdine, 450 U.S. 248, 259 (1981) (explaining that Title VII does not require an employer to hire the minority or female applicant when the candidates' qualifications are equal). Only after Plaintiff makes such a showing does the burden shift to the Defendant to articulate a nondiscriminatory reason for not offering the position(s).Burdine, 450 U.S. at 254-55. Accordingly, we will dismiss Plaintiff's Title VII and PHRA claims of sex and race discrimination (Counts One, Two, and Six) as they relate to Defendant's alleged failure to offer these positions to Plaintiff.
As to Plaintiff's claim that Defendant discriminated against her by denying her request to work from home when Defendant had provided this accommodation to two white male employees, we conclude that Plaintiff has failed to make a showing that she was qualified for and rejected for the opportunity to work from home. Defendant admits that it did allow Jimmy King and Kevin Boyle, both white males, the opportunity to work from home during temporary periods of disability. Defendant also states that "their [King and Boyle's] at-home worksites required only minimal PGW provided equipment." (Def. PGW's Mot. for Summ. J. at 13.) Defendant further claims that King, who tested software for the Information Technology Department, was accommodated at home with "software and possibly some modest computer equipment" and that Boyle, the manager of media relations, was accommodated with "a telephone or reimburse[ment] . . . for telephone calls." (Id.) Defendant points out that these accommodations were temporary, lasting only a few months, while Plaintiff's request appeared to be indefinite. In fact, in April 1999, Plaintiff's doctor, Jewell, sent Defendant's medical department the following letter: "Antoinette Cobb is able to return to work at home in a sedentary position. She also should not lift anymore than ten pounds, and should take frequent breaks [illegible]." (Letter from Jewell to Barlow of 4/22/99, attached as Ex. P-6 to Dep. of Barlow.) Based on this representation from Plaintiff's doctor, we conclude that it was reasonable for Defendant to assume that Plaintiff could only return to work if she was accommodated in her home.
Plaintiff's request also differs from King and Boyle's accommodations because Plaintiff's job, as CCS, did not lend itself to work offsite. As discussed above, the job requires that the CCS be present to monitor employees' work, have private conferences with employees who are not performing up to standards, and speak with those customers who request to speak with a supervisor. Defendant claims that Plaintiff's situation is far more complex than the accommodations Defendant provided for King and Boyle. Defendant claims that in order to accommodate Plaintiff to work from home, it would have had to invest in a "very complicated" system and, according to Defendant's Information Technology Department, such a system would have been very "costly". (Donahue Dep. at 43-49.) In addition, it seems that Plaintiff would not be able to perform those CCS responsibilities that require attendance for hearings at small claims court. While disputed facts regarding whether this technology would have been prohibitively expensive may exist, we need not reach this issue because Plaintiff has failed to show that she possessed the qualifications, such as computer literacy, to work from home. Accordingly, we dismiss Plaintiff's sex and race discrimination claims as they relate to Defendant's refusal to offer Plaintiff home employment, thereby dismissing Counts One and Two of Plaintiff's Complaint in their entirety, and Count Six's claims of Race and Sex discrimination under the PHRA.
E. Plaintiff's Claims of Retaliation Under Title VII, the ADA, and the PHRA
Plaintiff alleges claims of retaliation under Title VII (Count Three), the ADA (Count Five), and the PHRA (Count Six). "The pertinent provision of Title VII states that: `[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.'" Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (quoting 42 U.S.C. § 2000e-3(a) (1994)). In order to establish a prima facie case of retaliation, Plaintiff must show: "(1) that she engaged in protected activity; (2) that the employer took adverse action against her; and (3) that a causal link exists between the protected activity and the employer's adverse action." Id.
Similar to discrimination claims, ADA and PHRA retaliation claims are analyzed under the same framework as Title VII retaliation claims, Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997), and "precedent interpreting any one of these statutes is equally relevant to interpretation of the others." Fogelman, 283 F.3d at 567. Therefore, we will address the retaliation claims simultaneously.
As to protected activity, Plaintiff states: "It is undisputed that Plaintiff made numerous complaints of discrimination on the bases of race and sex, and failure to accommodate her disability to both the EEOC and to PGW's management, between 1983 and January 6, 2000." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 55.) However, Plaintiff fails to explain precisely what the protected activity was. We can assume that, at a minimum, Plaintiff is referring to her EEOC complaints, which were filed in 1983, 1985, 1994, and 2000. (Pl.'s Exs. in Opp'n to Def.'s Mot. for Summ. J. at Exs. 31-35.)
Plaintiff then addresses the adverse action prong by stating:
It is also undisputed that Plaintiff suffered adverse employment actions from October 1994, involuntary transfer to Collection Supervisor position, and despite constant protest being kept in that position until she was forced to take sick leave in September 1997[,] where she remained, despite continuous request [sic] for accommodation and complaints of unfair treatment, until she was terminated in [sic] January 11, 2000.
(Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 55.) As discussed above, Plaintiff's transfer to CCS could qualify as an adverse employment action, if, as Plaintiff claims, Defendant selected the transfer, knowing that Plaintiff could not medically meet the demands of the position. DiIenno v. Goodwill Indus. of Mid-Eastern, 162 F.3d 235, 236 (3d Cir. 1998) ("[W]e hold that a transfer to a job than an employer knows an employee cannot do may constitute adverse employment action.") Moreover, Plaintiff's ultimate termination could be classified as an adverse employment action. Even in we were to assume that Plaintiff suffered these adverse employment actions, assumptions not supported in this record, Plaintiff still cannot establish that she suffered retaliation.
Plaintiff can not establish a causal link between her transfer to CCS and termination in January 2000, and her complaints with EEOC. A party can show a casual link between her protected activity and the employer's adverse action in a number of ways. One way is to show temporal proximity between the two events, from which an inference can be drawn that the employer's adverse action was in response to the plaintiff's protected activity.Kachmar, 109 F.3d at 178. Defendant claims that Plaintiff did not engage in protected activity, which Defendant identifies as the filing of the EEOC complaint that preceded this lawsuit, until after she was terminated, thus foreclosing the possibility that there is a causal connection between Plaintiff's protected activity and Defendant's adverse action. (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 13-14.) Defendant further contends that Plaintiff's previous EEOC complaints, filed in 1983, 1985, and 1994, were too "distant and wholly unrelated" to evidence a causal connection to Plaintiff's termination in January 2000. Plaintiff counters by claiming that she has demonstrated a temporal causal connection between these EEOC complaints and the adverse employment actions when, in October 1994, she was involuntarily transferred to the position of CCS, and was left in that position until she was "forced to take sick leave in September 1997." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 55.) We note, however, that Plaintiff's transfer occurred in October 1994, but she did not file her 1994 EEOC complaint until December. Obviously, this precludes the finding of a causal connection between the transfer and the 1994 complaint. Further, we are unpersuaded by Plaintiff's claim that, while she was originally transferred in October 1994, the transfer was not made permanent until January 1995, thus permitting an inference of causal connection. Moreover, Plaintiff's most recent EEOC complaint was filed on March 7, 2000, two months after Defendant mailed Plaintiff's termination letter.
Defendant claims that her termination took place on March 5, 2000. (Mem. of Law in Supp. of Def. PGW's Mot. for Summ. J. at 13.) However, we note that Defendant's termination letter to Plaintiff was dated January 11, 2000, and became effective March 1, 2000. (Letter from Stewart to Cobb of 1/11/00, attached to Steward Dep. as P-32.)
Plaintiff claims that her final protected activity took place on January 6, 2000, (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 55), which would have been five days before Plaintiff's termination letter. However, in her discussion of retaliation, Plaintiff fails to address why the January 6, 2000, date is significant. Elsewhere in her Memorandum, Plaintiff notes that she mailed PGW's Chief Executive Officer, Ben Hayllar, a "second written request to return to work from home." (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 23.) If Plaintiff is suggesting that this request to work from home was the protected activity that motivated Defendant's retaliation, we cannot agree. Defendant was well-aware of Plaintiff's request.See Letter from Jewell to Barlow of 4/22/99, attached as Ex. P-6 to Dep. of Barlow ("Antoinette Cobb is able to return to work at home in a sedentary position. She also should not lift anymore than ten pounds, and should take frequent breaks [illegible].") Plaintiff's January 6, 2000, letter simply restated the same request made more than eight months prior.
As Plaintiff emphasizes, temporal proximity is not the sole way in which a party can demonstrate causation. In Krouse, the Third Circuit, stated that "when temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus." 126 F.3d at 503-04. Thus, for example, "a plaintiff can establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism [directed at the plaintiff] in the intervening period." Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997). The element of causation is highly context specific, and requires looking at the record as a whole to determine whether the plaintiff has raised an "inference that her protected activity was likely the reason for the adverse action."Kachmar, 109 F.3d at 177-78 (quoting Zanders v. Nat'l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)). In considering the record in the instant case, we note Defendant's continual attempts to accommodate Plaintiff while she worked as a CCS. We also note our previous discussion that concluded that Defendant had no obligation, under the ADA, to provide Plaintiff with a transfer to a less stressful department. Gaul, 134 F.3d at 579 (finding that an employee's "request to be transferred away from individuals causing him prolonged and inordinate stress was unreasonable as a matter of law under the ADA"). In addition, Plaintiff has failed to show she was qualified for any of the positions, including home employment, that she claims would have better accommodated her medical needs. In considering these facts, in a light most favorable to the Plaintiff, we cannot conclude that Plaintiff has met her burden of showing that Defendant caused her to suffer a pattern of antagonism. Accordingly, we dismiss Plaintiff's retaliation claims (Counts Three and Five) for her failure to sufficiently allege a prima facie case.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment will be granted in its entirety, and Defendant's Motion to Strike Unauthorized and Uncertified Appendix of Plaintiff will be denied.
An appropriate Order follows.
ORDER
AND NOW, this 31st day of March, 2004, upon consideration of Defendant Philadelphia Gas Works's Motion for Summary Judgment, (Doc. No. 13), and Defendant's Motion to Strike Unauthorized and Uncertified Appendix of Plaintiff, (Doc. No 15), and all papers filed in support thereof and opposition thereto, it is ORDERED as follows:
1. Defendant's Motion to Strike Unauthorized and Uncertified Appendix of Plaintiff, (Doc. No. 15), is DENIED.
2. Defendant's Motion For Summary Judgement (Doc. No. 13) is GRANTED, and Judgement is entered in favor of Defendant, Philadelphia Gas Works and against Plaintiff, Antionette Cobb.
IT IS SO ORDERED.