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BOONE v. PENNSYLVANIA OFFICE OF VOCATIONAL REHABILITATION

October 12, 2005.

CHRISTINE BOONE, Plaintiff,
v.
PENNSYLVANIA OFFICE OF VOCATIONAL REHABILITATION, et al., Defendants.



The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM

Before the court is Defendants' Motion for Summary Judgment (Doc. 98). Plaintiff filed suit against Defendants on eight counts. Defendants previously filed a Motion to Dismiss, which the court granted in part and denied in part. Defendants have now moved for summary judgment on all remaining claims. The parties have briefed the issues and the matter is now ripe for disposition. For the reasons set forth below, the court will grant in part and deny in part Defendants' motion for summary judgment.

I. Background

  A. Factual Background

  The following facts are undisputed except where noted.*fn1 In or about May 2000, Plaintiff, who is blind, was hired as the Director of the Pennsylvania Bureau of Blindness & Visual Services ("BBVS"). (Defs.' Statement of Undisputed Facts ¶ 1.) BBVS is one of a group of bureaus in the Office of Vocational Rehabilitation ("OVR"), which is a component of the Pennsylvania Department of Labor and Industry ("the Department"). (Id. ¶¶ 6, 7.)

  Plaintiff reported to Stephen Nasuti, the Executive Director of OVR. (Id. ¶ 4.) While Plaintiff was serving as Director of BBVS, Stephen Schmerin became the Secretary of the Department and, as such, Mr. Nasuti's direct supervisor. (Id. ¶¶ 4, 5.)

  1. Plaintiff's Dismissal

  On August 14, 2003, Plaintiff was dismissed as Director of BBVS. (Id. ¶ 17.) Plaintiff was an appointed official and thus an at-will employee who did not have an employment contract. (Id. ¶ 3.) The dismissal letter, which was signed by Secretary Schmerin, cited "insubordination, lack of cooperation," concern about whether Plaintiff would carry out Department policies, and Plaintiff's lack of required skills, as reasons for the dismissal. (Defs.' Mot. for Summ. J. Ex. 2.) The letter also specifically referenced the following: a) Plaintiff's refusal to follow or implement an OVR policy; b) a "two-week, unpaid, disciplinary suspension" for "among other things, [Plaintiff's] failure to follow departmental procurement protocols"; and c) Plaintiff's receipt of two letters regarding her "failure to follow other protocols or exercise good judgment." (Id.)

  Plaintiff was required to leave at the end of the day on August 14th and was not permitted to access any of her computer files after Defendants informed her of her dismissal. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. 9, Ex. 2 ¶¶ 122-25.) She was able to notify some staff members and others before she left, but most OVR employees learned of her departure via a one-sentence notification in an e-mail sent on behalf of Mr. Nasuti. (Id. Ex. 22.) After Plaintiff's dismissal, her office was sealed off with yellow crime tape. (Buzzanco Dep. at 5.)

  Following her termination, Plaintiff experienced difficulty securing other employment. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. Ex. 2 ¶ 134; C. Boone Dep. at 162-63.) In April 2004, Plaintiff found a part-time position as Director of Legal Affairs and Training for the Blind Industries & Services of Maryland. (Defs.' Mot. for Summ. J. Ex. 19 at 8.) In this position, Plaintiff earns less money and commutes to Baltimore from her home in Pennsylvania. (Id. at Ex. 19 at 8-17.)

  a. The OVR Policy

  On June 4, 2003, Plaintiff sent an e-mail to Susan Benbow, an official with the federal Rehabilitation Services Administration, seeking advice about a proposed OVR policy. (Id. at Ex. 6.) Specifically, Plaintiff inquired about the nature of merit scholarships and whether OVR could deduct them from amounts paid towards college tuition. (Id.) Plaintiff attached to the e-mail a May 20, 2003 memorandum ("College Policy Memorandum") that contained Catherine Wojciechowski's*fn2 legal opinion on the same issue. (Id. at Ex. 4.) The words "Privileged and Confidential Attorney Work Product" appeared in bold lettering on the top of the front page of the College Policy Memorandum. (Id.) Plaintiff does not dispute that she intentionally sent the College Policy Memorandum to Ms. Benbow (Defs.' Statement of Undisputed Facts ¶ 11); however, she states that she reads documents through translating software, and does not recall whether she was aware of the "privileged and confidential" language when she sent the e-mail (Pl.'s Statement of Mat'l Facts ¶ 10).

  On July 29, 2003, Plaintiff exchanged e-mails with OVR employee Andrew Chopak regarding her request that certain policy language*fn3 be deleted from an OVR training memorandum, OVR Numbered Memorandum 03-200.01. (Defs.' Mot. for Summ. J. ¶ 13, Exs. 5, 7.) Mr. Chopak told Plaintiff that Mr. Nasuti had approved the language. (Id. at Ex. 7.) Ultimately, Plaintiff stated that she would not sign the memorandum and indicated that Mr. Nasuti would have to sign in her place if the policy language were not removed. (Id.)

  Mr. Nasuti cited Plaintiff's July 29, 2003 refusal "to follow or implement" the policy in an August 12, 2003 memorandum to Secretary Schmerin, in which Mr. Nasuti recommended Plaintiff's dismissal. (Id. at Ex. 3.) However, Mr. Nasuti stated in his March 2005 deposition that OVR had delayed implementing the policy, which was "on hold" at the time of his retirement. (Nasuti Dep. at 139.)

  b. The Two-Week Disciplinary Suspension

  Plaintiff was suspended without pay from June 30 through July 14, 2003, for planning a meeting and contracting for services with the Harrisburg Hilton and Towers ("Hilton") without authorization. (Defs.' Mot. for Summ. J. Ex. 8.) Plaintiff's suspension letter, dated June 23, 2003, noted Plaintiff's failure to fully review the terms and conditions of the Hilton contract before signing it and her failure to follow Procurement Code provisions for contracting for services or obtaining proper authorization. (Id.) The letter also noted her failure to inform her superiors about the contract, her plans to close the office for three business days to conduct the meeting, or about the meeting at all until two weeks before its scheduled date, which was September 4-6, 2002. (Id.)

  The facts concerning whether Plaintiff followed proper contracting procedure appear to be somewhat in dispute. Plaintiff maintains in an affidavit that her method of contracting was consistent with OVR staff advice (Pl.'s Statement of Mat'l Facts, Ex. 2 ¶ 94), although she has admitted that she did not fully review the contract before signing it. (Defs.' Mot. for Summ. J. Ex. 9.)

  In addition, the facts regarding whether Plaintiff provided notice to Mr. Nasuti regarding the meeting prior to August 2002 are in dispute. On April 17, 2003, Lisa Sanno, Chief of the Department's Labor Relations Division, conducted a fact finding regarding the Hilton contract and Plaintiff's plans for the meeting. (Id. at Ex. 9.) At that fact finding, Plaintiff indicated that in February 2002 she included Mr. Nasuti on an all-staff e-mail and discussed her plans at a Directors' Meeting. (Id.; Pl.'s Statement of Mat'l Facts ¶ 7.) Mr. Nasuti stated at the fact finding that neither he nor any of the Bureau Directors recalled Plaintiff informing them about the meeting (Pl.'s Statement of Mat'l Facts Ex. 9), but stated in his March 14, 2005 deposition that Plaintiff copied him on two mass e-mails prior to the conference. (Nasuti Dep. 79-84.)

  Plaintiff has also indicated that Mr. Nasuti should have been aware of the plans for the meeting because it appeared on the OVR training calendar as early as May 2002. (Pl.'s Statement of Mat'l Facts ¶ 7, Ex. 2 ¶ 93, Ex. 7.) Plaintiff also said that at a July 2002 training session the staff often spoke about the meeting in Mr. Nasuti's presence, and at times with Mr. Nasuti, who did not appear to lack knowledge of the meeting. (Pl.'s Statement of Mat'l Facts ¶ 7, Ex. 2 ¶ 95.) Wendy Buzzanco, an OVR employee during Plaintiff's term as Director, stated the same in her deposition. (Buzzanco Dep. 22-24.)

  Neither Defendants' Brief in Support of their Motion for Summary Judgment nor their Reply Brief in Support of Their Motion for Summary Judgment provide details regarding the training session at issue. However, Plaintiff's suspension and dismissal letters (Defs.' Mot. for Summ. J. Exs. 8, 2) contain brief references indicating that Plaintiff's conduct in planning the meeting was a basis for her dismissal. Mr. Nasuti also included a brief description of the incident in his August 12, 2003 memorandum recommending Plaintiff's dismissal. (Id. at Ex. 3.)

  c. The Letters Regarding Plaintiff's Failure to Follow Protocols

  Plaintiff's dismissal letter refers to two "letters of instruction involving [Plaintiff's] failure to follow other protocols or exercise good judgment." (Id. at Ex. 2.) Mr. Nasuti's memorandum recommending that Plaintiff be terminated identified an August 5, 2003 Memorandum of Instruction that he sent to Plaintiff and an April 2003 memorandum to Plaintiff from the Office of Chief Counsel. (Id. at Ex. 3.)

  Mr. Nasuti's August 5, 2003 Memorandum of Instruction outlined the proper procedures regarding political contacts on behalf of the Department. (Id. at Ex. 11.) Mr. Nasuti indicated that he issued the memorandum because Plaintiff sent an e-mail (which she later rescinded at Mr. Nasuti's request) to her District Managers instructing them to write to Senator Arlen Specter regarding obtaining matching funds and assist in having Casework Managers and customers to do the same. (Id.)

  In the April 22, 2003 memorandum, Catherine Wojciechowski, the Department's Deputy Chief Counsel, instructed Plaintiff to immediately stop providing legal advice to her staff and to "seek and follow the legal advice provided by [the Office of Chief Counsel] and otherwise by the Office of General Counsel (OGC)." (Id. at Ex 10.) The memorandum also stated that Plaintiff had "readmitted a blind vendor into the Business Enterprises Program (BEP)" against the advice of the Office of Chief Counsel. (Id.)

  It is unclear whether the April 22nd memorandum was based on instances of Plaintiff's providing legal advice separate from the readmittance of the blind vendor. The memorandum merely states "You have apparently been providing legal advice to members of your staff." (Id.) It also sets forth statutory provisions regarding the ramifications of Plaintiff rendering legal advice, but never discusses any specific instances other than that involving the blind vendor. (Id.) Plaintiff disputes whether she provided unauthorized legal advice or acted without or against the advice of the Office of Chief Counsel in the matter. (Pl.'s Statement of Mat'l Facts ¶ 9.) Plaintiff states that she consulted with Assistant Counsel Robert Schramm before readmitting the vendor into the program. (Id.) Mark Frankel, formerly acting Director of Field Operations at OVR, also submitted in an affidavit that he and Plaintiff worked with Mr. Schramm in the matter. (Id. at Ex. 1 ¶ 5.)

  2. Mr. Nasuti's Conduct During Plaintiff's Employment at OVR

  Plaintiff bases her ADA and PHRA claims on several encounters with Mr. Nasuti and others during the course of her employment, including a) accusations of misconduct to engineer her dismissal; b) verbal abuse; and c) denial of reasonable accommodations. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. 1-2.)

  a. Accusations of Misconduct The facts set forth above in Section I.B.1. regarding Plaintiff's dismissal are the same facts that are relevant to Plaintiff's allegations that Defendants falsely ...


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