Opinion
3:CV-02-0645.
May 18, 2004
MEMORANDUM
Plaintiff Rosanne Veltri commenced this action against Defendants Thompson Consumer Electronics ("TCE") and Local 178 International Union of Electrical Salaried Machine and Furniture Workers (Local 178), asserting: (1) disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111 et. seq. ("ADA"); (2) sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e-5 ("Title VII"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. ("PHRA"); and (3) intentional infliction of emotional distress. TCE has moved for summary judgment on all claims, as well as for sanctions under Rule 11 of the Federal Rules of Civil Procedure.
Veltri, claiming disability due to drug addiction, contends that TCE's decision to fire her was motivated by bias against persons with substance abuse problems. Because the undisputed evidence shows that Veltri was in jail when she was terminated for unauthorized absence from work, and thus did not have the ability to satisfy any essential function of her job, her disability claim must be dismissed as a matter of law. Veltri's gender bias claim is premised upon her bald assertion that male TCE employees were not discharged when they were absent from work due to incarceration. Because Veltri has failed to tender competent evidence in support of this assertion, her Title VII and PHRA sex discrimination claims must also be dismissed as a matter of law. Finally, because Veltri cannot show that TCE's decision to fire her under these circumstances was outrageous, her intentional infliction of emotional distress claim will be dismissed.
Accordingly, judgment will be entered in favor of TCE on all claims. TCE, however, will not be awarded sanctions because it failed to comply with the procedural requirements of Federal Rule of Civil Procedure 11(c)(1)(A).
I. BACKGROUND
Veltri was hired by TCE as a loader in its Scranton, Pennsylvania facility in April, 1993. (Def's SMF, ¶ 1.) Veltri was a member of Local 178. (Id.) The terms of Veltri's employment were governed in part by a series of collective bargaining agreements ("CBAs") between TCE and Local 178. (Id., ¶ 2.) Article 9, Section 9.02 of the CBA provided:
Continuous service credit of an employee will be lost or terminated under the following conditions, and when so lost or terminated an employee for all purposes shall be considered a new employee without seniority or other Company privileges if and when rehired . . . (c) Unexcused absence for one week.
Citation to a paragraph in TCE's Statement of Material Facts ("SMF"), submitted in accordance with Local Rule 56.1, signifies that Plaintiff has admitted the asserted fact.
TCE has closed its Scranton facility, and Local 178 is apparently no longer in existence.
Section 9.02 was interpreted to mean that missing six consecutive work shifts resulted in termination. (McGarvey Aff., Ex. 1.) Veltri knew that if she was absent from work for one week she could be fired. (Veltri Dep. at 69-70.)
On April 14, 1999, Veltri was arrested and charged with possession of cocaine. (Def's SMF, ¶ 13.) After pleading guilty, Veltri was sentenced to five years probation and ordered to undergo monthly urinalysis. (Id.)
While admitting the accuracy of these facts, Veltri contends that TCE was unaware of her narcotics addition.
In September, 1999, Veltri required medical leave after overdosing on a sleeping pill. (Veltri Dep. 25, 28-29.) She was on leave for about two weeks. (Id. at 25.) A second overdose, due to cocaine, speed and valium, resulted in another medical leave in December of 1999. (Id. at 25-26.)
At that time, TCE approved Veltri's request for medical leave to attend a drug rehabilitation program. (Def's SMF, ¶ 16.) Veltri attended an out-patient program, although she had sought admission to an in-patient facility. (Veltri Aff., ¶ 14.) Veltri did not successfully complete the program, and she was discharged from it. (Veltri Dep. at 62-63.) Veltri returned to work with TCE in early January of 2000. (Def's SMF, ¶ 20.) At that time, she informed a company doctor that she failed to complete the rehabilitation program. (Veltri Aff., ¶ 15.)
In violation of her probation, Veltri tested positive for cocaine in March, April, and May of 2000. (Def's SMF, ¶¶ 22, 23.) As a result, Veltri was incarcerated in the Lackawanna County Prison from June 5 until June 18, 2000. (Id., ¶¶ 23, 27.) While Veltri was in jail, she did not report to work for five consecutive scheduled days. Specifically, she failed to report to work on June 5th through June 9th. (Id., ¶ 25.) TCE knew that Veltri was absent from work due to her incarceration. (Id., ¶ 26.)
Veltri contends that TCE was unaware of her renewed drug use.
On June 12, 2000, Veltri's sixth consecutive work shift for which she was unavoidably absent, Veltri's attorney, Joseph D'Andrea, sought medical leave for Veltri. (McGarvey Aff. ¶ 13.) D'Andrea first called Vince McGarvey, TCE's Director of Human Resources. (Id.) Veltri's lawyer declined to respond to McGarvey's question as to whether Veltri remained in jail. (Id.) D'Andrea then faxed McGarvey two letters. The first letter was from the Lackawanna County Commission on Drug and Alcohol Abuse. (Def's Ex. 4.) The letter discussed arranging long term residential treatment for Veltri's "chemical dependency." (Id.) The second letter was from D'Andrea and requested medical leave on Veltri's behalf. (Def's Ex. 5.) The succinct letter concluded with the following statement: "Please note that if a medical leave is not granted, I will assume that your offices are aware that any improper discharge due to Ms. Veltri's medical conditions would be a violation of the American Disabilities Act." (Id.) TCE did not grant the requested medical leave. Instead, by letter dated June 12, 2000, TCE terminated Veltri's employment. (Pl's Ex. F.) The letter states that Veltri was terminated because her unexcused absence of one week violated Section 9.02 of the CBA. (Id.)
According to Veltri's affidavit, several male employees continued to work for TCE after they were incarcerated. Specifically, she asserts that Paul Hickey continued to work for TCE after he was in jail for over two months for assault; TCE retained Louis Brewer even though he was incarcerated "numerous times"; and Greg Fronk continued to work for TCE after he was incarcerated for DUI and possession. (Id., ¶ 41(b)-(d).)
On April 16, 2003, following exhaustion of administrative remedies, Veltri brought this lawsuit. Initially, both TCE and Local 178 were active participants in the litigation. However, on February 7, 2003, counsel for Local 178, with the concurrence of Veltri's counsel, moved for leave to withdraw from representation of Local 178. In his motion, counsel averred that TCE had closed its plant, laid off all Local 178 members, and terminated its contractual relationship with Local 178. He further averred that Local 178 had no assets as well as no source of income, and was effectively defunct. By Order dated February 11, 2003, the motion to withdraw as counsel for Local 178 was granted.
On April 30, 2003, TCE filed a combined motion for summary judgment and sanctions. Briefing on the motion was completed on July 29, 2003. Oral argument was heard on January 30, 2004. The matter is ripe for disposition.
II. DISCUSSION
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment if there was adequate time for discovery and a party "fails to make a 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.
Disparate Treatment under the ADA
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The burden shifting analysis of McDonnell Douglas governs claims of disparate treatment under the ADA. See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). Under this framework, a plaintiff must first make out a prima facie case of discrimination. See id. Upon establishing a prima facie case, "the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason" for the adverse employment action.Id. If the defendant meets the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action, then the burden of proof shifts to the plaintiff to show that the employer's reason is actually a pretext for discrimination. See id.
To establish a prima facie case under the ADA, a plaintiff must prove that (1) the plaintiff is disabled within the meaning of the ADA; (2) the plaintiff is qualified, with or without reasonable accommodation, to perform the job the plaintiff held or sought; and (3) the plaintiff suffered an adverse employment decision because of the plaintiff's disability. See Shaner, 204 F.3d at 500; Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998). TCE argues that Veltri has failed to procure evidence sufficient to warrant a trial on the elements of a prima facie case.
As to the first prong, TCE contends that Veltri is not a "qualified individual with a disability" because she was a current drug user when TCE fired her. (Def's Br. in Supp. of Mot. for Summ. J., 6-8.) The term "qualified individual with a disability" does not include "any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. § 12114(a).
There is no dispute in this case that at the time of her firing, Veltri was engaged in the illegal use of drugs. Veltri argues, however, that TCE did not know that Veltri was incarcerated due to use of cocaine, and thus did not act on the basis of her illegal drug use. (Pl's Br. in Opp'n to Def's Mot. for Summ. J., 5, 7.)
The record shows that TCE knew that Veltri abused drugs in the past based on her overdose of Soma in September, 1999, and because of her drug rehabilitation treatment she received in December, 1999. In June, 2000, Veltri was incarcerated because she tested positive for cocaine. Veltri's attorney faxed McGarvey a letter from the Lackawanna County Commission on Drug and Alcohol Abuse on June 12, 2000. The letter discussed how the Commission was arranging treatment for Veltri's "chemical dependency." (Def's Ex. 4.) It is thus evident that, at the time Veltri's employment was terminated, TCE knew she had a substance abuse problem. No reasonable fact-finder could conclude otherwise.
At first glance, however, it is unclear that TCE's action was based on Veltri's drug use. TCE's termination letter stated that it fired Veltri because she had six consecutive unexcused absences. Presumably, TCE would have fired Veltri for her absences regardless of her drug use. Where it is unclear that adverse employment action has been motivated by current drug use, reliance upon 42 U.S.C. § 12114(a) may be inappropriate. See, e.g., Todd v. U.P.S., 1998 WL 34077712, Civ. A. No. 3:97-CV-00126-H, at *7 (W.D. Ky. Oct. 22, 1998) (denying employer's motion for summary judgment because the record was unclear as to whether the employer terminated the plaintiff on the basis of illegal drug use).
It seems incongruous that an employee who is terminated for absences that, unknown to the employer, were caused by illegal drug use, could avail herself of the protections of the ADA, whereas an employee terminated for drug use that caused absences from work falls outside the ADA. There is no need to address the incongruity in this case, however, because it is patent that TCE is entitled to summary judgment on the ADA claim on other grounds.
The reason articulated by TCE for its dismissal of Veltri was her unexcused absence from work for six consecutive shifts. Courts have consistently recognized that regular attendance is an essential function of a job. See, e.g., Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994); Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994); Santiago v. Temple Univ., 739 F. Supp. 974, 979 (E.D. Pa. 1990), aff'd, 928 F.2d 396 (3d Cir. 1991).
Veltri's argument that she was entitled to leave is unavailing. Her alleged disability due to chemical dependency was not subject to accommodation. Under the ADA, employers may have "`the same qualification standards for employment of job performance and behavior' for all employees `even if any unsatisfactory performance or behavior is related to . . . drug use.'" Fogle v. Ispat Inland, Inc., 32 Fed. Appx. 155, 157 (7th Cir. 2002) (citing 42 U.S.C. § 12114(c)). Thus, "nothing in the ADA prohibits employers from disciplining employees with a history of drug addiction for unsatisfactory job performance." Fogle, at 157. "Congress has decided to treat drug and alcohol addiction differently from other disabilities by ensuring that employees do not have to go through the accommodation process in these cases."Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998). Thus, TCE was under no obligation to grant Veltri an indefinite leave of absence so that she could pursue drug rehabilitation. Because Veltri failed to perform the essential functions of her job after violating the CBA and missing six consecutive days of work, she has failed to show that she is "qualified" under the ADA.
Furthermore, Veltri has adduced no evidence whatsoever that the reason for her discharge articulated by TCE was a pretext for anti-addict bias. It is indisputable that she was absent from work for six consecutive shifts, the absences were not excused, and the CBA authorized termination in these circumstances. Thus, a reasonable jury could not find that TCE fabricated grounds for dismissal. Moreover, no evidence was presented that unexcused absences of non-addicts were ignored, but used to justify firing addicts. No reasonable juror could find "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [TCE's] proffered legitimate reasons for its action" as to render them "unworthy of credence." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (quotations omitted). Under these circumstances, summary judgment in favor of TCE on the ADA claim is compelled. See Salley, 160 F.3d 981.
Sex Discrimination under Title VII
Title VII bans employment discrimination "because of an individual's . . . sex." 42 U.S.C. § 2000e-2(a). In the absence of direct evidence of discrimination, a plaintiff terminated from her job may establish a prima facie case of sex discrimination by showing: 1) the plaintiff is a member of a protected class; 2) the plaintiff was qualified in that the plaintiff performed according to the employer's legitimate expectations; 3) the plaintiff was terminated; and 4) the termination occurred under circumstances giving rise to an inference of discrimination.See Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352, 356 (3d Cir. 1999); Veillard v. Spring House Leasing, Inc., Civ. A. No. 93-2144, 1994 WL 376912, at * 2 (E.D. Pa. July 18, 1994); Dodge v. Susquehanna Univ., 785 F. Supp. 502, 506 (M.D. Pa. 1992).
TCE argues that Veltri cannot establish a prima facie case because her absences show that she failed to perform according to TCE's legitimate expectations. (Def's Br. in Supp. of Mot. for Summ. J., 12.) Veltri argues that she did meet TCE's legitimate expectations because she was never disciplined for her inability to perform the work. (Pl's Br. in Opp'n to Def's Mot. for Summ. J., 9.) Veltri's argument is without merit. Meeting an employer's legitimate expectations is not necessarily confined to an appraisal of the employee's substantive work. See Oates v. Discovery Zone, 116 F.3d 1161, 1171-72 (7th Cir. 1997). Coming to work is clearly a legitimate expectation of an employer.See, e.g., Contreras v. Suncast Corp., 237 F.3d 756, 760-61 (7th Cir. 2001); Travers v. Computing Analysis Corp., No. 98-1671, 1999 WL 285859, at *3 (4th Cir. May 7, 1999). Because Veltri failed to come to work for six straight shifts in violation of the CBA, Veltri has failed to meet the legitimate expectations of TCE.
Even if Veltri could show a prima facie case, she offers no competent evidence that the reason for her firing was a pretext for gender discrimination. Instead, she tries to support her disparate treatment claim on the bald assertion in her affidavit that male employees who were absent from work due to imprisonment were not fired. (Pl's Aff. 41(b), (c), (d).)
Despite the fact that TCE deposed Veltri extensively for two days, and that the parties engaged in discovery for six months, Plaintiff did not make this substantive allegation regarding unfair treatment based on gender until responding to TCE's summary judgment motion. Veltri has failed, however, to produce any competent evidence of such disparate treatment. She has not, for example, presented personnel records of the mentioned employees to corroborate her assertion. There are no affidavits or deposition testimony, other than the affidavit of Veltri herself, to consider on this point. Veltri's naked assertion is not sufficient to warrant a jury trial. See, e.g., Evans v. Pennsylvania Power Light Co., No. 03-2534, slip op. at 9 (3d Cir. May 17, 2004) (non-precedential) (bald allegations in affidavit, unsupported by "documentary evidence such as personnel records, third-party evidence or testimony," insufficient to defeat summary judgment motion); Williams v. Borough of West Chester, 891 F.2d 458, 467 (3d Cir. 1989) (Garth, J., concurring) ("To defeat a motion for summary judgment, competent evidence must be produced. . . ."); Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985) ("[A]n opposing affidavit must set forth such facts as would be admissible in evidence and must show that affiant is competent to testify to the matters stated therein.").
Furthermore, TCE responded to Veltri's unsubstantiated assertion with competent evidence in the form of an affidavit of its Human Resources Manager along with personnel records that completely undermine Veltri's position. Indeed, TCE showed that the one arguably similarly situated male — an alcoholic who was jailed for probation violations — was fired for unexcused absences. No reasonable juror could conclude on the competent evidence presented here that Veltri was the victim of gender discrimination. Thus, summary judgment will be granted on Veltri's sex discrimination claim.
Intentional Infliction of Emotional Distress
To establish a claim in Pennsylvania for intentional infliction of emotional distress, a plaintiff must demonstrate that the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). "Cases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have had [sic] presented only the most egregious conduct." Id. "[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Id. (quoting Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir. 1998)). Summary judgment will be granted in favor of TCE because no reasonable jury could find that TCE's act of terminating Veltri after missing six straight work shifts constitutes outrageous conduct.
Rule 11 Sanctions
In addition to requesting summary judgment, TCE has also moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The motion for summary judgment and the motion for Rule 11 sanctions were presented in a single document. TCE has failed to comply with Rule 11(c)(1)(A), which requires that: "[a] motion for sanctions under this rule shall be made separately from other motions." Fed.R.Civ.P. 11(c)(1)(A). Because TCE failed to satisfy Rule 11's procedural requirements, I will deny the Rule 11 motion. See, e.g., Clement v. Pub. Serv. Elec. and Gas Co. 122 F. Supp. 2d 551, 554-555 (D.N.J., 2000); Slater v. Skyhawk Transp., Inc., 187 F.R.D. 185, 201 (D.N.J. 1999).
III. CONCLUSION
For the reasons set forth above, summary judgment will be granted on all claims. The motion for Rule 11 sanctions will be denied. An appropriate order follows.
As noted above, Plaintiff also sued Local 178. In light of the finding that TCE has no liability to Veltri, it is doubtful that there exists any basis for liability on the part of Local 178. Furthermore, Plaintiff consented to the withdrawal of Local 178's counsel, who represented that Local 178 is a defunct organization. It would thus appear that judgment could be entered in Defendants' favor in this matter. Out of an abundance of caution, however, Plaintiff's counsel will be afforded an opportunity to inform the Court in writing as to Plaintiff's position concerning the claims against Local 178 and the entry of final judgment.
ORDER
NOW, THIS 18th DAY OF MAY, 2004, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:1. Defendant's Motion for Summary Judgment (Dkt. Entry 20) is GRANTED.
2. Defendant's Motion for Rule 11 Sanctions (Dkt. Entry 20) is DENIED.
3. Plaintiff's counsel shall inform the Court in writing of Plaintiff's position with respect to the claims against Local 178 no later than May 31, 2004.