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Sconfienza v. Verizon Pennsylvania

April 23, 2007


The opinion of the court was delivered by: Judge James M. Munley United States District Court


Before the court are plaintiff's objections (Doc. 84) to the report and recommendation (Doc. 81) of Magistrate Judge Malachy E. Mannion in the instant employment discrimination case. Having been fully briefed, the matter is ripe for disposition.


Plaintiff began working for Verizon in October 1990. (Defendants' Statement of Material Facts Pursuant to L.R. 56.1 (Doc. 67-3) (hereinafter "Defendant's Statement") at ¶ 1)*fn1 . Her employment continued as of April 2006, when the defendants filed the instant summary judgment motion. (Id.). Beginning in 2000, plaintiff worked as a Maintenance Administrator at the Verizon Repair Resolution Center in Wilkes-Barre, Pennsylvania. (Id. at ¶ 2). As a Maintenance Administrator, among plaintiff's job duties were answering incoming calls from customers who had problems with their Verizon service and taking orders from those seeking new service. (Id. at ¶ 4).*fn2

For approximately ten years, plaintiff suffered from migraine headaches. (Id. at ¶ 5). Dr. Kimberly Kovalick began treating plaintiff for this condition on May 22, 2001. (Id. at ¶ 6). On that day, Dr. Kovalick diagnosed plaintiff with "common migraine, without mention of intractable migraine." (Id. at ¶ 7). Defendants contend that by this diagnosis Dr. Kovalick meant that plaintiff "'has a history of migraines, but they're not something that she has on a daily basis.'" (Id. at ¶ 8). The treatment currently used by Dr. Kovalick had helped the plaintiff. (Id.). Plaintiff argues that by "intractable" the doctor meant "'that there's nothing I'm doing that's giving this patient relief,'" and that this diagnosis was not grounds to find that a patient was not disabled by the condition.*fn3 (Plaintiff's Statement at ¶ 8). Dr. Kovalick's diagnosis did not change. (Defendants' Statement at ¶ 9). Plaintiff's migraines typically coincide with the beginning of her menstrual period, though she also claims that stress can provoke the headaches. (Defendants' Statement at ¶ 10).

Dr. Kovalick testified that plaintiff reported she usually suffered from migraines once a month, at the time of her period. (Kovalick Dep. At 63). The parties disagree about how long plaintiff's migraines typically last; defendants contend "they last, at most, a day or two" while plaintiff insists that plaintiff "stated that when she gets a migraine it can last for four days." (Defendants' Statement at ¶ 12, Plaintiff's Statement at ¶ 12).*fn4 Plaintiff sometimes vomited when she had a migraine, and during a severe episode had trouble concentrating, thinking, caring for herself, working and driving. (Defendants' Statement at ¶¶ 14-15). Plaintiff took Motrin in an attempt to relieve her headaches and, "sometimes," if she "c[ould] take the Motrin early enough when [she] [felt] it coming on," she was able to reduce her usual discomfort and she could "nip it in the bud before it becomes full blown." (Plaintiff's Deposition (hereinafter "Plaintiff's Dep."), included as Attachment B to Defendants' Statement, at 75)*fn5 . Plaintiff occasionally suffered migraines while working. (Id. at 76). Sometimes, when she caught the migraine early enough and took Motrin, she was able to continue working. (Id.). Plaintiff was unable to recall whether she had ever left work because of the effects of a migraine headache. (Id. at 77).

Defendant Leslee Sparrow served as Absence Administrator for Verizon from October 2002 to December 2003. (Defendants' Statement at ¶ 31). Her responsibilities included performing that function at the Wilkes-Barre, Pennsylvania office where plaintiff worked. (Id.). Sparrow's responsibilities as Absence Administrator included handling calls from absent employees and reporting those calls to Verizon's Absence Reporting Center (ARC). (Id. at ¶ 32).*fn6 During the period relevant to this action, ARC processed employee leave requests under the Family and Medical Leave Act (FMLA). (Defendants' Statement at ¶ 33). ARC handled requests for FMLA for Verizon employees, as well as intermittent leave for chronic health conditions. (Information Guide for FBA South Transition to ARC, Attachment N to Defendants' Motion for Summary Judgment (Doc. 67) at 1, 11). When an employee reports an absence to ARC, ARC "mails to the employee's home address either: a) an FMLA introductory package for newly reported absences, b) a Personal Certification form for an absence related to a previously intermittent absence, or c) an ineligibility letter if the employee is not FMLA administratively eligible." (Id. at 2). Employees who were eligible for FMLA leave and had not previously taken such leave were required to have their health care provider complete an FMLA medical certification and return the form within twenty-five days to have that absence covered by the FMLA. (Id. at 4). In 2003 if an employee suffered from "a previously reported intermittent absence" that employee was required to complete and return a personal certification form.*fn7 (Id.). Employees certified to take intermittent leave were required to notify their supervisors, who would then call ARC. (Id. at 11). The absence was to be "reported as an absence related to an approved intermittent absence." (Id.). An employee who failed to "receive either an FMLA package or an FMLA ineligibility letter within 5 business days from the first day of absence" was required to call ARC "immediately" to speak with a customer service representative. (Id. at 5). An employee denied FMLA benefits could seek administrative review by filing a request within fourteen days of the denial letter. (Id. at 3). An employee denied benefits for failing to submit the proper forms within 25 days of the first date of absence had to submit a completed form and an explanation and documentation for why the forms were not submitted on time. (Id.). The company offered no appeals from this administrative review. (Id.).

Defendants monitored employees' attendance through a program called the Regional Attendance Plan (RAP). (See Attachment K). Under the program,"chargeable" absences, paid or not, and tardiness counted against a worker's record and could lead to disciplinary action. (Defendants' Statement at ¶ 47).*fn8 RAP "absences certified as covered by the Family and Medical Leave Act (FMLA) [we]re not considered chargeable absences and therefore and not subject" to the program. (Id. at 1). Under the plan, chargeable absences that occurred on consecutive days were calculated as "incidents," regardless of their length.

(Attachment K at 2). A "chargeable absence" under the RAP was "[a]ny absence, paid or unpaid, which [wa]s recorded and charged against an employee's record for the purposes of determining attendance performance." (Attachment K at 2). Such absences could include "non-FMLA covered sickness and disability absences; absence due to transportation difficulties; [or] unexcused time without pay." (Id.). "Non-chargeable offenses" were absences "recorded but not charged against an employee's record" of attendance, including absences for "jury duty; military duty; FMLA certified absence; death in immediate family; [and] excused time without pay." (Id.).

For employees like the plaintiff with more than five years of service, the RAP consisted of five "steps" of increasingly severe punishment (Id. at 3). The last of these steps could lead to termination. (Id.). An employee faced advancement to Step 1 of the program for, among other reasons, committing a chargeable incident of absence that exceeded four days or for two chargeable incidents within three months. (Id.). Employees on Step 1 met with a supervisor when they returned to work and discussed the absence and the importance of reliable attendance. (Id.). Employees working in Pennsylvania were advised that another chargeable incident of absence of less than four days within six months "may result in placement on Step 2" and the next chargeable incident of absence exceeding four days could place that employee on Step 3. (Id.). An employee who committed no other chargeable incident of absence for six months would be removed from Step 1. (Id.). An employee moved to Step 2 was given a "formal warning" of "unsatisfactory" attendance. (Id. at 5). Another incident could lead to a suspension, and the employee was deemed "Does Not Meet Requirements" (DN) in attendance and declared ineligible to participate in the Regional Associate Mobility Plan (RAMP). (Id.).*fn9 As a general matter, "[b]ased on the specific circumstances regarding the employee's absence or tardiness, the supervisor use[d] discretion in determining whether to initiate placement on the plan or progress an employee through the plan." (Id. at 1).

Plaintiff was certified for intermittent leave due to her migraines between October 22, 2001 and October 22, 2002. (Defendants' Statement at ¶ 73). Plaintiff missed three days of work due to her migraines after this certification expired, on November 4, 2002, November 15, 2002, and December 12, 2002. (Attachment S at 1-2).*fn10 Plaintiff submitted an FMLA Certification form on November 20, 2002. (Defendants' Statement at ¶ 75). The form sought FMLA certification for the two absences in November and certification for future intermittent leave due to plaintiff's migraines. (Id.). Dr. Kovalick completed this form. (Id.). The document certified that plaintiff had recently missed work due to her migraines, and explained the treatment she had received for the condition. (Attachment U). The document also informed defendants that plaintiff suffered from a "Chronic Condition Requiring Treatment," but did not contain any of the information the form sought about the treatment required for this chronic condition.*fn11 (Id.). Dr. Kovalick also requested intermittent leave for the plaintiff; she expected the plaintiff to be unable to work six times per month over the next year due to her condition. (Attachment U). After examining the certification submitted by plaintiff's doctor, defendants sought more information about her illness and treatment. (See Attachment V and Attachment W). Dr. Lewis Miller, who worked for ARC, faxed Dr. Kovalick on February 20, 2003 with a request that she phone him to "clarify the treatment for [plaintiff's ] condition as well as the estimated frequency/duration of her future absences." (Attachment W). Dr. Kovalick spoke with Dr. Miller about her treatment of plaintiff, probably on February 20th or 21st, 2002.*fn12 (Deposition of Dr. Kovalick, (hereinafter "Kovalick Dep.") attached as Exhibit 11 to Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment (Doc. 71) (hereinafter "Plaintiff's Brief") at 102-103). The physicians discussed plaintiff's treatment, and Dr. Kovalick recalled that "it was a phone call questioning the care . . . I was giving the patient, regarding her migraines, questioning the filling out of my forms." (Id. at 104). Part of this conversation included a suggestion from Dr. Miller that Dr. Kovalick adjust the frequency of migraines cited on the FMLA form. (Id. at 115). Dr. Kovalick did not reject this proposal immediately or insist that her diagnosis of a need for six absences per month due to migraines was approriate; she instead told Dr. Miller she would discuss the matter with the plaintiff. (Id. at 115-16). During this conversation, Dr. Kovalick found Dr. Miller rude and demeaning in the way he questioned her treatment of the plaintiff.*fn13 (Defendants' Statement at ¶ 84).

Verizon approved plaintiff's three absences due to her migraines in November and December 2002 for FMLA leave on February 27, 2003. (Attachments T, Y, Z, AA). On that date, Verizon decided to "approve absence only" for FMLA leave "until clarification can be obtained from the employee's H[ealth] C[are] [P]rovider" regarding certification for her intermittent leave request.*fn14 (Attachment W). Dr. Miller continued to phone Dr. Kovalick in an attempt to clarify the issues in plaintiff's certification. (Id.). On March 7, 2003, Dr. Miller telephoned Dr. Kovalick; she was out of the office and he left a message. (Id.). When Dr. Miller phoned the next week, Dr. Kovalick refused to speak with him. (Id.). She had her secretary inform him that she would not speak with him (Id.; Kovalick Dep. at 123). Dr. Kovalick never called Dr. Miller or anyone else at Verizon to clarify her diagnosis about the frequency of plaintiff's migraine attacks. (Kovalick Dep. at 124, 126). Dr. Miller concluded that the certification for intermittent absences could not be clarified with plaintiff's Health-Care Provider and decided not to grant the intermittent leave. (Attachment W). The record does not indicate, however, whether defendants informed plaintiff that they had denied her intermittent relief request because the certification form lacked sufficient information on her treatment or returned the form to her because it was incomplete. (Attachment W at 2).

On February 18 and 19, 2003, plaintiff was absent from work due to her migraines. (Defendants' Statement at ¶ 89; Attachments BB, CC). Her request for intermittent leave had not yet been approved. (See Attachment W). Plaintiff again missed work on March 17 and 18, 2003 due to her migraine headaches. (Defendants' Statement at ¶ 92). Defendants sent plaintiff an FMLA certification form on February 19, 2003, resending that form on March 11, 2003.*fn15 (Attachments DD, EE). The document informed her that she needed to send a completed certification to ARC by March 15, 2003 to be considered for FMLA leave. (Attachment DD). Plaintiff did not return the certification form within this time period, and defendants denied her FMLA leave for those absences.*fn16

Plaintiff missed work on March 17 and 18, 2003, due to another bout with migraines. (Defendants' Statement at ¶ 92). On March 20, 2003 defendants again sent an FMLA certification form to plaintiff.*fn17 (Id. at ¶ 93; Attachment GG). They repeated this action on March 25, 2003. (Id.; Attachment HH). Sometime around March 25, 2003, defendants gave plaintiff an Employee Discussion Document that informed her she had been placed on Step 1 of the RAP due to her absences that began February 18 and March 17, 2003.*fn18 (Defendants' Statement at ¶ 94). The document plaintiff received informed her that if she returned the certification forms for these absences and her FMLA was approved, she would be removed from Step 1 of the RAP. (Defendants' Statement at ¶ 95; Attachment JJ). On April 15, 2003, the defendants denied plaintiff FMLA leave because she had not timely filed a certification form; her absence then became chargeable under the RAP.*fn19

(Defendants' Statement at ¶ 96).

Plaintiff missed work due to her migraines on April 21 and 22, 2003. (Defendants' Statement at ¶ 97). For this absence, plaintiff returned a completed FMLA certification form and a request for intermittent leave, completed and signed by Dr. Kovalchik on May 2, 2001. (Id. at ¶ 98). Dr. Kovalick indicated she expected plaintiff to miss work three times a month due to her migraines in the next year. (Id. at ¶ 99). She expected each absence to last three days. (Id.). The company approved FMLA leave for this absence that began on April 21, 2003 and approved plaintiff's request for intermittent leave between April 21, 2003 and April 21, 2004. (Id. at 100; Attachment LL).*fn20 The document sent the plaintiff informed her that "if during the certification period, you are absent from work for this reason, you must contact on the first day of your absence and select the appropriate prompt. If you meet the FMLA eligibilty requirements, the Absence Reporting Center will send the Family and Medical Leave Act (FMLA) Employee Certification Form for Chronic Health Conditions or Scheduled Multiple Treatments that you must complete. It is your responsibility to ensure the completed form is received by our office by 25 days from the first day of absence." (Id.).

Plaintiff missed work from May 30 to June 2, 2003 due to migraine headaches. (Defendants' Statement at ¶ 101). Defendants sent plaintiff a Personal Certification Form on June 3, 2003. (Id. at ¶102). This document informed the plaintiff that she needed to complete and return the form within twenty-five days, warning her that "[f]ailure to comply with the above stated requirements may result in denial of FMLA leave, and therefore, the absence may be subject to the provisions of the established attendance plan and practices in your area." (Attachment MM). Plaintiff denies she ever received this form. (Plaintiff's Affidavit, attached as Exhibit 7 to Plaintiff's Brief at ¶ 9) (claiming that "I did not receive any personal certifications that I did not submit back to Verizon in the necessary time requirement."). Because defendants did not receive the required form within twenty-five days, they determined that plaintiff's absence was chargeable under the RAP. (Defendants' Statement at ¶ 103; Attachment OO).

Plaintiff similarly missed work due to her migraines on June 9 and 10, 2003, June 17, 2003 and July 7 and 8, 2003. (Defendants' Statement at ¶¶ 104, 107, 110). The defendants sent the plaintiff an FMLA personal certification form for each incident. (Id. at ¶¶ 105, 108, 111). Plaintiff claims she never received these forms. (Plaintiff's Affidavit at ¶ 9). Because the defendants did not receive personal certification forms for these absences, they concluded the absences were chargeable under the RAP. (Defendants' Statement at ¶¶ 106, 109, 112).

Plaintiff missed a half day of work on July 23, 2003. (Defendants' Statement at ¶ 113). The facts are unclear as to whether plaintiff's migraines caused that absence. (Id. at ¶ 114). The ARC apparently told Defendant Sparrow to record this absence as a new one, not one that grew out of plaintiff's migraine condition. Sparrow could not explain why ARC made this change. (Deposition of Leslee Sparrow, attached as Exhibit 8 to Plaintiff's Brief (hereinafter "Sparrow Dep.") at 77-78). Company absence records designate this absence as "New Absence, Related to Previously Called in Absence." (Attachment CC). Another supervisor, Kristina Laurito, testified that she believed that plaintiff had informed defendants that her absence was unrelated to her previous illness, but did not know why the absence was designated as it was. (Laurito Dep. at 180-81, 186). Plaintiff did not request or return an FMLA certification for this absence, and the half-day absence was charged to her under the RAP. (Defendants' Statement at ¶ 115).

Plaintiff had three chargeable absences in May and June. (Defendants' Statement at ¶ 116). She also had two absences for which no FMLA determination had been made. (Id.; Attachment WW). This situation led Laurito to initiate discussions with plaintiff about her status under the RAP. (Id.). When Laurito confronted plaintiff about her failure to submit the required certification forms, plaintiff informed her that she had not received the forms because ARC had an address for her at which she could not receive mail. (Defendants' Statement at ¶ 117; Attachment WW; Laurito Dep. at 141-42; Plaintiff's Statement at ¶¶ 103, 110, 113, 115 117). Plaintiff told Laurito that she could not charge her address with ARC because she needed to maintain the address on file for "tax purposes." (Attachment WW). Since ARC did not have plaintiff's proper address on file, Laurito informed her that she would have to make a separate request to ARC to send a certification form to an address where she could receive mail each time she sought FMLA leave.*fn21

(Defendants' Statement at ¶ 124). Plaintiff responded that she did not think it her responsibility to make a request for every absence.*fn22 (Defendants' Statement at ¶ 125; Laurito Dep. at 141, 143-44). Instead, plaintiff asked that Sparrow request the forms be sent to another address for her; Laurito informed her that only plaintiff had the authority to request the form be sent to an address not on the company's record. (Defendants' Statement at ¶ 125; Attachment YY). Plaintiff claims that she contacted ARC after each of her absences between May and July to request that forms be sent her at a different address, but no evidence exists to prove that plaintiff ever made these contacts.*fn23 (Defendants' Statement at ¶ 121, Attachment YY; Attachment WW at 3). Plaintiff claimed to Laurito that she had requested review of her FMLA denials. (Attachment WW).

Prior to meeting with plaintiff to discuss her absences, Defendant Sparrow had prepared a document, dated July 31, 2003, which purported to place plaintiff on Step 2 of the RAP.*fn24 (Defendants' Statement at ¶ 116; Attachment VV). Defendants decided not to issue this document because they had discretion on whether to advance employees on the RAP, and they saw their action "as a concession to Plaintiff's stated difficulties with receiving forms." (Defendants' Statement at ¶ 126). Plaintiff has never moved beyond stage one of the RAP.*fn25 (Id. at ¶ 127).

Indeed, plaintiff was ultimately removed from Step 1 of the RAP. (Id. at ¶129). Her chargeable absences never led to any suspension from work time. (Id. at ¶131). Plaintiff apparently took excused work days ("e-time") and vacation days at some point in 2003 because she worried about being terminated for her absences she feared could not be covered by FMLA. (Defendants' Statement at ¶ 134, Plaintiff's Deposition (hereinafter "Plaintiff's Dep."), included as Attachment B to Defendants' Statement at 285; Plaintiff's Statement at ¶¶ 101, 105, 111, 114, 138). She does not provide any dates for the days on which she took vacation days or e-time.*fn26 The evidence indicates that plaintiff may not have been paid for every day of e-time she took, though plaintiff's own testimony contradicts itself. (Defendants' Statement at ¶ 138, Plaintiff's Statement at ¶ 138; Compare Plaintiff's Affidavit at ¶ 10 with Plaintiff's Dep. At 91, 101-102). If plaintiff had been approved for FMLA leave she would not have had to use this e-time.*fn27 (Plaintiff's Statement, Plaintiff's Affidavit at ¶ 10). She never sought treatment for emotional distress because of the actions of defendants. (Defendants' Statement at ¶ 143). Plaintiff disputes this contention, but cites to no evidence, claiming only that she had discussed her problems at work with Dr. Kovalick. (Plaintiff's Statement at ¶ 143).

Plaintiff received a rating of "meets requirements" (MR) for her dependability rating on her year-end performance evaluation in 2002. (Defendants' Statement at Attachment G at 4). This rating included an evaluation of plaintiff's attendance. (Id.). The defendants made the same determination at the end of 2003. (Defendants' Statement at ¶ 132; Plaintiff's Statement at ¶ 132). At the time of this rating, plaintiff had been placed at Step 1 on the RAP. (Id.). During 2003, plaintiff received an MR rating every month but July. (Attachment ZZ at 7). In that month, she received a rating of "does not meet position requirements" (DN). (Id.). For the year, plaintiff received an overall rating of "improvement needed to meet position requirements" (IN). (Id.). This rating was based on her ability to meet productivity and quantity requirements. (Id.). In 2004, defendants gave plaintiff an MR rating for dependability in each month. (Attachment CCC at 4, 7). Her overall rating of DN came because of problems with productivity and quantity requirements.*fn28 (Id.).

Plaintiff frequently called in absences to Defendant Sparrow. When she did so, Sparrow "would always have an attitude" with her and "be nasty to" her. (Attachment B at 170). Sparrow would "make rude comments . . . like, oh, what is your day off this week[?]" (Id.). Sparrow would also tell her that "just in case you're not planning on coming in I thought you might like to know your day off is such and such." (Id. at 171). Plaintiff also complained that "management" made frequent calls on days she had called in sick, "wanting to know if I planned on coming to work the next day." (Id.). She found the calls so frequent and annoying that she "just made this rule, ...

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