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SARKO v. PENN-DEL DIRECTORY CO.

July 9, 1997

SHARON K. SARKO, Plaintiff,
v.
PENN-DEL DIRECTORY CO., Defendant.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 JULY 9, 1997

 Plaintiff Sharon K. Sarko ("Plaintiff") alleges in this action that Defendant Penn-Del Directory Co. ("Penn-Del" or "Defendant") discharged her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-1 et seq., the Americans with Disabilities Act ("ADA"), § 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Con. Stat. Ann. §§ 955 and 962. Defendant moves for summary judgment on all four claims. For the following reasons, the Motion is granted in part and denied in part.

 BACKGROUND

 Defendant sells and services the advertising that appears in the yellow pages of telephone books published by Bell Atlantic-Pennsylvania. Plaintiff was a telephone sales representative in Penn-Del's office in Bethlehem, Pennsylvania, from 1991 to 1994. What follows are the facts viewed in the light most favorable to Plaintiff, with every reasonable inference drawn in her favor. We recite the facts in considerable detail given the fact-intensive inquiry required in this case.

 On November 20, 1988, Plaintiff's oldest daughter died as a result of kidney failure. Four months earlier, Plaintiff (then 44 years old) had donated one of her own kidneys in an attempt to save her daughter's life. Devastated, Plaintiff began taking medication to help cope with her loss. Plaintiff began using Xanax, a drug that helps relieve stress and anxiety, on the prescription of her family physician. After Plaintiff overdosed on the drug in July, 1989, Plaintiff began to see a psychiatrist, Ronald A. Krisch, M.D. ("Dr. Krisch"). Dr. Krisch diagnosed Plaintiff as suffering from "depressive symptoms" and treated her for anxiety and depression. Psychiatric Summary, Pl.'s App. at 25-27. At some point during Plaintiff's therapy, Dr. Krisch placed her on the anti-depressant drug Prozac. Satisfied with the effects of Prozac, Plaintiff discontinued her sessions with Dr. Krisch in February, 1990. Plaintiff has since been treated for anxiety and depression by her family physicians at Macungie Medical Group and by another psychiatrist. The most serious statement of her condition, however, appears in the report of Robert L. Sadoff, M.D., who performed an independent psychiatric examination pursuant to an order of this Court dated January 22, 1997. Dr. Sadoff writes at page 10 of his report that "Ms. Sarko is best diagnosed as having a prolonged grief reaction regarding the death of her daughter.... One might even diagnose her as having dysthymia, which is prolonged chronic depression related to the death of her daughter in 1988."

 Plaintiff was hired by Defendant on June 10, 1991. She indicated on her application that she did not have a handicap and she readily admits that neither her depression nor the medication she took to combat it affected her performance at Penn-Del. In fact, Plaintiff quickly established herself as an outstanding salesperson. According to Meryl Fischer ("Fischer"), Plaintiff's immediate supervisor from early 1992 until June, 1993, Plaintiff was the number one salesperson in the office in 1992. She was the salesperson of the month several times and was awarded a certificate of high achievement for her 1992 sales performance by Division Sales Manager Victor Raad ("Raad"). Plaintiff's performance was so impressive at the start, in fact, that Raad's predecessor, Del Humenik, offered Plaintiff a promotion in early 1992 which Plaintiff refused because she would have been required to move. Although Plaintiff's 1993 sales record was not as strong, Fischer testified that even when Plaintiff's performance "slipped one or two notches ... she was always in the top performers." Fischer Dep. at 9-10. Plaintiff's condition also did not prevent her from putting in long hours. During the busy first six months of the year, Plaintiff worked to between 7:00 p.m. and 8:00 p.m. on average, even skipping lunches and breaks when necessary.

 The combination of Xanax and Prozac did, however, make it more difficult for Plaintiff to get up in the morning, and Plaintiff blames this grogginess for her problems with chronic tardiness throughout her employment at Penn-Del. Under Penn-Del's "Rules for Telephone Salespeople," Plaintiff was required to report to work by 9:00 a.m. from the date she started until January, 1994. Plaintiff was late fourteen times in 1992 and seventeen times during the eight months she worked in 1993. *fn1" The exact number of times Plaintiff reported late to work in the first six months of 1994 is disputed, but Plaintiff concedes that her tardiness continued to be "excessive" as defined by Penn-Del, i.e. more than four times in one quarter or more than six times in a six month period. Typically, Plaintiff was late by no more than fifteen minutes, although on isolated occasions Plaintiff would come in more than one hour late.

 Fischer documented each instance of lateness and spoke to Plaintiff on several occasions regarding the problem. Fischer warned her that continued excessive tardiness could lead to her termination. Fischer nonetheless felt sympathy for Plaintiff's situation as she had also experienced the death of a close family member, her husband, and she was aware of the effects that the medication had on Plaintiff in the morning. *fn2" As a result, Fischer thought Plaintiff deserved a break regarding her starting time, particularly because Plaintiff was rarely more than a few minutes late, worked long hours once there, and was a good salesperson. Fischer explained Plaintiff's situation to Raad and requested that Plaintiff be accommodated on her starting time, but Raad denied the request.

 In June, 1993, Raad transferred Plaintiff to the crew headed by Rebecca Brahm ("Brahm"), then 25 years of age. From that point forward, Brahm made life difficult for Plaintiff. For example, Brahm required Plaintiff to perform tasks that she required of no one else. Brahm also strictly enforced the 9:00 a.m. starting time. On July 21, 1993, after Plaintiff had been several minutes late for work at least five times that month, Brahm met with Plaintiff to discuss the problem. Plaintiff indicated that she was having personal troubles and was taking medication that caused her to be drowsy in the morning, but Plaintiff did not elaborate. *fn3" The next day Plaintiff signed a document acknowledging that she was to report on time for work, which she did until she began extended disability on August 9, 1993.

 When Plaintiff returned to work on January 10, 1994, she received her evaluation for the six month period ending June 30, 1993. The evaluation--which was signed by Brahm and Ray DeLorenzo ("DeLorenzo"), who succeeded Raad as Division Sales Manager in late 1993--reflected a significant drop-off in her sales performance from 1992. It also documented Plaintiff's problems with lateness and stated that "further tardiness would lead to dismissal." Def.'s Ex. J. at 5 (original in all caps). Also in January, 1994, Penn-Del began periodically offering members of Brahm's crew the option of starting at 8:00 a.m. Despite her problems waking up and arriving for work on time, Plaintiff requested the 8:00 a.m. starting time. From then on, to the extent that the 8:00 a.m. option was available (roughly half the time), Plaintiff continued to arrive for work several minutes late on a regular basis, just at the earlier time.

 Plaintiff was not the only member of Brahm's crew whose personal life caused regular tardiness and absenteeism at work. Two younger male employees, Jim Oswald ("Oswald), born in 1961, and Matt Stewart, born in 1967, also were either late or absent numerous times in 1993 and 1994 due to personal circumstances. According to Penn-Del's records, Oswald and Stewart were each late less often than Plaintiff, and neither was late on an excessive basis within the meaning of Penn-Del's rules. According to Plaintiff, however, both were late far more often than the records reflect, but were shown preferential treatment by Brahm, enabling them to arrive late to work without being noticed. *fn4" Plaintiff's arrival time, on the other hand, was monitored daily by Brahm or the receptionist on Brahm's behalf. In addition, Stephanie Vlattas ("Vlattas") was also a younger Penn-Del employee, born in 1961, who was often late or absent without excuse because of personal difficulties. Despite this fact, Vlattas was actually promoted to sales coach before she eventually resigned.

 On June 29, 1994, after Plaintiff arrived for work five minutes late, Brahm called Plaintiff into her office and--on her own recommendation and with the approval of William Kaiser (" Kaiser"), who replaced DeLorenzo as Division Sales Manager in April, 1994--terminated Plaintiff. Plaintiff then requested to speak with Kaiser. Brahm had brought Plaintiff's tardiness to Kaiser's attention a "number of times," but had never informed him of Plaintiff's personal situation or use of medication. Kaiser Dep. at 10. *fn5" After hearing Plaintiff's explanation, Kaiser did not reverse the decision to terminate her and, instead, informed Plaintiff that "the reason for her termination was excessive tardiness, period." Id. at 9. Plaintiff was the oldest member of Brahm's crew when she was terminated. On July 5, 1994, Penn-Del hired Deborah Guth, then 40 years old, to replace her.

 DISCUSSION

 I. Standard for Summary Judgment Pursuant to Rule 56

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. ...


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