The opinion of the court was delivered by: Judge Munley
Before the court are plaintiff's (Doc. 110) and defendants' (Doc. 109) objections to the report and recommendation of Magistrate Judge Malachy E. Mannion (Doc. 108) in the instant employment discrimination case. Having been fully briefed, the matter is ripe for disposition.
Plaintiff began working for Verizon in 1996. (Defendants' Statement of Undisputed Facts (Doc. 59) (hereinafter "Defendants' Statement") at ¶ 1, Plaintiff's Statement of Undisputed Facts (Doc. 69) (hereinafter "Plaintiff's Statement") at ¶ 4). She voluntarily resigned in August 2000. (Defendants' Statement at ¶ 2, Plaintiff's Statement at ¶ 5).She returned to the company in 2001, receiving no credit for her previous service, despite what she contends was a promise from Verizon. (Plaintiff's Statement at ¶ 5, Defendants' Statement at ¶ 5). During her service for Verizon, defendant Sanders was an administrator responsible for attendance. (Plaintiff's Statement at ¶¶ 2, 31-32, Defendants' Statement at ¶ 29).
During plaintiff's employment, Verizon used a Regional Attendance Plan (RAP) to administer employee absences. (Plaintiff's Statement at ¶ 16, Defendants' Statement at ¶ 6). This program monitors attendance and establishes a record of unexcused absences or tardiness, which can lead to disciplinary action. (Plaintiff's Statement at ¶ 17, Defendants' Statement at ¶¶ 7-8). The program credits as an "incident" a period of absence, whether that period consist of one day or several. (Defendants' Statement at ¶ 9). If a leave is certified under the Family and Medical Leave Act it does not qualify as an incident under the program. (Plaintiff's Statement at ¶ 17, Defendants' Statement at ¶ 8). In the relevant time period, Verizon employed a five-step RAP program for employees who had five or more years of experience and a four-step program with those employed between six months and five years. (Plaintiff's Statement at ¶ 16, Defendants' Statement at ¶¶ 14-15). The parties disagree about whether use of the RAP is discretionary; plaintiff contends that it is, but defendants insist that the only discretion available for supervisors is flexibility about whether to place an employee under the provisions of the RAP, not in how to administer the program. (Plaintiff's Statement at ¶ 23, Defendant's Statement at ¶ 28). If an employee violated the RAP rules, that employee would be raised one step in the program. (Defendants' Statement ¶ 17). If the employee committed no attendance violation for six months, that person would be reduced one step on the RAP program. (Defendants' Statement at ¶ 18). Employees who reached the next-to-last step on the RAP program were suspended; they were fired when they reached the final step. (Defendants' Statement at ¶¶ 20-25). Any employee who violated the RAP program received a letter, as required by the Verizon program's rule. (Plaintiff's Statement at ¶¶ 47-48). Plaintiff points to one employee, Jennifer Irizarry, who was reinstated in her job after the company fired her without providing the notice required in the program. (Plaintiff's Statement at ¶ 28).
Verizon's employee benefits also included a Sickness and Accident Disability Benefits Plan. (Plaintiff's Statement at ¶ 18, Defendants' Response to Plaintiff's Statement of Material Facts (Doc. 96) (Defendants' Response) at ¶ 18). This plan provided employees who were absent from work due to an illness or injury with benefits. (Id.). The program offered long-term disability benefits to employees who had been disabled for fifty-two weeks. (Doc. 69, Ex. 4 at 83-85). Benefits became available to employees under this program on their eighth consecutive day of absence. (Id. at ¶ 19). The company allowed leave under the FMLA and this Disability Benefits Plan to run concurrently. (Id. at ¶ 20). In such cases, the RAP did not apply to the absences. (Id. at ¶ 21). Leave taken under the disability that was not covered by the FMLA could be charged under the RAP. (Id.).
Plaintiff was free from violations under the RAP when she returned to Verizon in 2001. (Defendants' Statement at ¶ 30). Two absences in April 2001 were not covered by the FMLA, and plaintiff was placed on step one of the RAP on April 30, 2001. (Id. at ¶¶ 31, 33). Another absence, from September 10 to September 12, 2001, caused the company to advance her to step two of the RAP. (Id. at ¶ 35-36). An absence from work on October 31, 2001 caused the company to extend the date on which plaintiff would be reduced to step one of the RAP to May 1, 2002. (Id. at ¶¶ 37, 39). Plaintiff became eligible for FMLA leave in March 2002, and she received one day of FMLA leave on March 22, 2002. (Plaintiff's Statement at ¶¶ 9, 99). The company reduced her one step on the RAP on May 1, 2002. (Defendants' Statement at ¶ 42).
The plaintiff had various medical ailments, and she first began to seek treatment for them in May 2002. (Plaintiff's Statement at ¶ 25). Plaintiff took leave from work beginning on May 2, and was unable to return until August 4, 2002. (Plaintiff's Statement at ¶ 24, Defendants' Statement at ¶ 43). She asked that this leave be considered FMLA leave. (Plaintiff's Statement at ¶ 24 Plaintiff cited stress and headaches as the cause for her leave from May 2 through June 30, 2002. (Plaintiff's Statement at ¶ 25, Defendants' Statement at ¶ 44). A doctor later diagnosed her with syringohydromyelia and cervical radiculopathy. (Plaintiff's Statement at ¶ 25). Her leave at this point was for child care and personal medical issues. (Plaintiff's Statement at ¶ 36). Plaintiff took leave from July 1 to August 4, 2002 because she had surgery. (Defendants' Statement at ¶ 45). The defendants approved of leave under the FMLA and company disability plan during this latter period. (Id.).
The defendants denied plaintiff's request for FMLA leave during the first two months of her absence, contending that she had failed to submit a request for FMLA certification by the required to the company's benefits administrator. (Plaintiff's Statement at ¶¶ 38, 41, 100, Defendants' Statement at ¶ 47). The plaintiff contested this ruling, arguing that her doctor had failed to submit the proper certification, not her. (Plaintiff's Statement at ¶ 39). The defendants dispute this, contending that plaintiff never informed the administrator that her doctor had failed to submit the required form. (Defendants' Response at ¶¶ 39, 41). They also argue that plaintiff did not submit additional information as required by the plan and that the form she submitted was incomplete. (Id. at ¶ 40). Plaintiff contends that the company had promised her benefits if she returned the documents by June 25, 2002, and that she did so. (Plaintiff's Statement at ¶ 40). Defendants also denied plaintiff's company disability plan request for this period. (Defendants' Statement at ¶ 47).
Plaintiff returned to work after her leave of absence on August 5, 2002. (Plaintiff's Statement at ¶ 44, Defendants' Statement at ¶ 49). She was issued a step letter by Defendant Sanders indicating the company had elevated her to step 2 of the RAP process. (Plaintiff's Statement at ¶44, Defendants' Statement at ¶ 50). The company assigned her this status because of her absence from May 2 to June 30, 2002. (Id.). Plaintiff contends that the step letter was inappropriate because her appeal of the FMLA was still "open." (Id. at ¶ 46). Defendants claim that plaintiff's appeal had closed by August 7, 2002. (Defendants' Response at ¶ 46). After the plaintiff again missed work, this time to care for an ill daughter, she requested FMLA leave. (Plaintiff's Statement at ¶ 51, Defendants' Statement at ¶ 51). Her request was denied because she failed to submit the proper form; she contends her doctor later faxed the company's FMLA administrator to take responsibility for failure to file the form. (Plaintiff's Statement at ¶¶ 52-53). The company insists that this form was not sent to the administrator, but rather to a health care provider. (Defendant's Response at ¶ 53). Plaintiff had two other medical absences in September and October, 2002, and did not receive FMLA approval for either. (Defendants' Statement at ¶¶ 52-53, Plaintiff's Statement at ¶ 55).
Defendants issued a step letter to plaintiff on October 17, 2002, advancing plaintiff to step three of the RAP for her absences from September 17 through 19. (Plaintiff's Statement at ¶ 56, Defendants' Statement at ¶ 54). This action suspended her for three days without pay. (Id.). Plaintiff contends she never received a copy of this disciplinary letter and argues that this action was in error, since her request for leave was on appeal. (Plaintiff's Statement at ¶¶ 64, 98). Defendants deny that plaintiff failed to receive a copy of the letter. (Defendants' Response at ¶ 64). Plaintiff also alleges that Defendant Sanders agreed to remove the letter from her file on October 30, 2002. (Plaintiff's Statement at ¶ 98). Plaintiff then on October 17 filed an appeal of defendants' denial of her FMLA leave from May 2 through June 30 with the United States Department of Labor. (Plaintiff's Statement at ¶ 62). Plaintiff took another leave of absence from October 18, 2002 through January 19, 2003 because of chronic headaches related to spinal problems. (Defendants' Statement at ¶ 56, Plaintiff's Statement at ¶ 72). This same illness had led to her earlier medical leave. (Plaintiff's Statement at ¶ 73). Defendants initially approved of the leave as a FMLA absence on November 13, 2002, and eventually sent plaintiff a series of letters that extended company disability leave beginning on October 25, 2002. (Plaintiff's Statement at ¶¶ 68, 70, Defendants' Statement at ¶¶ 57-58).
On January 8, 2003, the Department of Labor, after discussions with both parties, settled and closed plaintiff's complaint. (Plaintiff's Statement at ¶¶ 75-76, Defendants' Statement at ¶ 59). The Labor department found that the Verizon defendants had violated plaintiff's FMLA rights by denying her request for leave from May 2, 2002 to June 30, 2002. (Defendants' Statment ¶¶ 59-61, Ex. S). The Department also found that plaintiff should be issued a step letter for her absences that occurred after July 24, 2002, when she exhausted her FMLA leave. (Id. at Ex. S). The ruling also concluded that the step letter should be changed to reflect absences after July 24, 2002. (Id.). Plaintiff would receive a step letter for absences after she exhausted her leave, however. (Id.). Plaintiff claims that she was informed by the Department of Labor that she may be advanced to step 3 of the RAP and suspended, but no other disciplinary action would be taken. (Plaintiff's Statement at ¶¶ 76-77). Defendants deny this claim, and note that no evidence other than plaintiff's claim supports this view. (Defendants' Response at ¶ 76). Though plaintiff received the Department's decision and her case file, she denies that her FMLA leave was exhausted before November 15, 2002, and contends she had no notice that she had used up her leave by July 24, 2002. (Plaintiff's Statement at ¶¶ 59-61). Following the terms of the letter, Defendant Sanders adjusted the August 5 and October 17 step letters. (Plaintiff's Statement at ¶ 45, Defendants' Statement at ¶ 61). He did not provide plaintiff with copies of these letters, however, before Verizon terminated her employment. (Plaintiff's Statement at ¶ 49).
Verizon examined plaintiff's attendance and prepared an individual attendance report on January 13, 2003, adjusting the record to reflect the Department of Labor's ruling. (See Exhibits to Defendants' Statement of Facts for Summary Judgment (Doc. 63) (hereinafter "Defendants' Exhibits") Ex. T.). According to this record, plaintiff occupied step one of the RAP on May 1. (Id.). After she exhausted her FMLA leave entitlement on July 23, 2002, she was placed on step two. (Id.). Since she had originally been placed on step two on May 1, the company changed the record to reflect that she achieved this status only after exhausting her FMLA leave on July 24, 2002. (Id.). The company placed plaintiff on step three of the RAP on October 17, 2002, based on her unexcused absence from September 17 to September 19, 2002. (Id.).
Plaintiff claims she phoned defendant Sanders on January 13, 2003 to inform him she would be able to return to work on January 20, 2003. (Plaintiff's Statement at ¶ 78). She also insists that he faxed her a new work schedule. (Id. at ¶ 79). Defendants deny both these assertions, claiming that Sanders recalls neither. (Defendants' Response at ¶¶ 78-79). On January 17, 2003, plaintiff faxed a letter to Sanders from her doctor that indicated she could return to work with accommodations for her medical conditions. (Plaintiff's Statement at ¶ 81, Defendants' Statement at ¶ 64). These accommodations included "an orthopedic chair, hourly changes of position for 5-10 minutes, no overtime, and desk work days when plaintiff has severe pain." (Defendants' Statement at ¶ 64, see also Plaintiff's Statement at ¶ 81). The parties agree that Verizon expressed an ability and willingness to accommodate the plaintiff's condition. (Defendants' Statement at ¶ 66, Plaintiff's Response to Defendants' Statement of Undisputed Facts (Doc. 98) (hereinafter "Plaintiff's Response") at ¶ 66).
On January 20, 2003, the day plaintiff returned to work, she was told to report to Defendant Sanders's office. (Plaintiff's Statement at ¶ 83). Once there, Sanders informed her that Verizon would terminate her because of excessive absences. (Plaintiff's Statement at ¶ 84, Defendants' Statement at ¶ 65). The company had concluded that her absences placed her on step four of the RAP, mandating termination. (Defendants' Statement at ¶ 65). Plaintiff had been placed on a step-three status due to her absence from September 17 to 19, 2002 and a step-four status because of her absences on September 30, October 8-11, 2002 and October 18-December 31, 2002. (See Defendants' Exhibits, Ex. T). Plaintiff was not issued step letters for these absences when they occurred, but defendants did prepare a letter on January 20, 2003 indicating that these absences had placed her on step four status, leading to her termination. (Defendants' Statement at ¶ 65). This was one of three or four versions of the letter prepared before the January 20, 2003 meeting. (Plaintiff's Statement at ¶ 95, Defendants' Response at ¶ 95). Defendants failed to provide plaintiff with the final step-four letter; they claim that plaintiff left Sanders's office before he could give her the document. (Plaintiff's Statement at ¶ 50, Defendants' Response at ¶ 50). He also failed to mail her the letter. (Id. at ¶ 50). Plaintiff contends that she should have been on the five-step RAP, and therefore her termination was not justified. (See Plaintiff's Response at ¶ 15). At this meeting, Sanders may have replied to plaintiff's questions about the Department of Labor findings by declaring that "I don't care." (Plaintiff's Statement at ¶ 22). At the time of her termination, defendants also did not discuss with plaintiff taking short-term disability benefits, returning to work, or taking long-term disability. (Id. at ¶ 158). Verizon did, however, provide benefits to the plaintiff under the company disability program that lasted until January 19, 2003. (Id. at ¶ 70). CORE, Verizon's benefits administrator at the time, informed plaintiff by letter on January 29, 2003 that she had been approved for FMLA leave for her absence from May 2-July 23, 2002. (Defendants' Statement at ¶¶ 67-68).
Plaintiff also contends that defendant Sanders applied the RAP inconsistently. At his deposition, the union steward testified that word in the office was that Sanders had favored some workers over others when determining whether their absences should be excused. (Plaintiff's Statement at ¶¶ 132-135). The steward named several workers unhappy with the way that Sanders applied the RAP program. (Id.). Defendants deny that the program was applied unfairly and note that plaintiff offers only unsubstantiated rumors and gossip to support these claims. (Defendants' Response at ¶¶ 132-135, 138).
Plaintiff filed a complaint (Doc. 1) on January 10, 2005, raising allegations against Verizon Communications, Inc. and Verizon Pennsylvania under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601, et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons Stat. Ann. §§ 955, et seq. She amended the complaint on September 3, 2005 (Doc. 32). This amended complaint added defendants Verizon Benefits Center, James Sanders, and CORE, Inc. That complaint specified that her claims under the FMLA were aimed at all defendants, but those under the ADA and PHRA applied only to Verizon Communications, Verizon Pennsylvania and Verizon Benefits Center. Plaintiff added a third count, alleging that all defendants had violated the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 12101, et seq. On November 15, 2005, by stipulation the parties dismissed defendant CORE from the case and dismissed against the remaining defendants any allegations related to COBRA or non-pay. (See Doc. Nos. 40 and 41).
The amended, modified complaint consisted of three counts. The first court, raised against all of the defendants, alleged interference with plaintiff's rights under the FLMA and retaliation under that act. The second count alleged discrimination for failure to accommodate and retaliation under the ADA and PHRA against Verizon Communications, Verizon Pennsylvania and Verizon Benefits Center. That claim also alleged that Verizon's attendance policies were discriminatory because they had a disparate impact on those with disabilities or illnesses that required them to be absent from work. Plaintiff also raised a claim under ERISA, alleging that the defendants failed to provide her with proper notice of her opportunities for disability leave and with documentation related to her employment and pension status she had requested.
After discovery, both sides submitted motions for summary judgment, submitting them to the magistrate judge. On January 12, 2007, Magistrate Judge Mannion issued his report and recommendation in the case. He recommended that we grant summary judgment ot the defendants on plaintiff's discrimination claims under the ADA and PHRA, as well as her ADA retaliation claim. He also recommended that we grant summary judgment to the plaintiff on her interference claim under the FLMA for the period between May 2, 2002 and July 30, 2002. He found, however, that we should deny the summary judgment motions of both sides and allow the matter of damages owed the plaintiff for this period to proceed to trial. Additionally, the Magistrate Judge recommended that we deny both sides' summary judgment motions on plaintiff's interference claim under the FLMA for the period of July 7 through August 4, 2002. He found the same action appropriate for plaintiff's FMLA retaliation claim. Both sides submitted objections and briefs supporting their positions, and the matter is now ripe for disposition.
Because this case raises claims under the ADA, FMLA, and ERISA, this court has jurisdiction we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's claims under the PHRA pursuant to 28 U.S.C. § 1367.
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
When no objections to the report and recommendation have been filed, in order to decide whether to adopt the report and recommendation, we must determine whether a review of the record evidences plain error or manifest injustice. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983); FED. R. CIV. P. 72(b) 1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that ...