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Parker v. Verizon Pennsylvania

November 30, 2007


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge


Memorandum Opinion

I. Introduction

This is an action for employment discrimination. Plaintiff, Ray Parker (Parker), alleges that defendant, Verizon Pennsylvania, Inc. (Verizon), discriminated and retaliated against him in violation of Title I of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) by terminating him for exercising his rights under the ADA and the FMLA. Plaintiff*fn1 and his wife, Caulette Parker, also bring a state law claim of trespass against defendants, Kimberly Onesko and George Onesko for allegedly entering upon plaintiffs' property unlawfully and without consent on September 14, 2006. Pending before this Court is defendants' motion for summary judgment (doc. no. 26), with supporting documentation, and plaintiffs' response in opposition thereto (doc. no. 36). After careful consideration, and for the reasons that follow, defendants' motion for summary judgment (doc. no. 26) will be GRANTED as to the ADA and FMLA claims, and the remaining state law claim will be dismissed without prejudice.

II. Facts

The Court has assimilated approximately 99 pages of joint material facts submitted by the parties and has gleaned the following material facts.*fn2

Plaintiff was hired by Verizon as a Customer Sales and Service Consultant (CSSC) in November, 2003, and following training at the Stanwix Street, Pittsburgh, location, he was assigned to Verizon's Robinson Township Call Center.

As a CSSC, plaintiff's primary job duty was to answer telephone calls from Verizon customers who had service or billing issues, and in addition to speaking on the telephone, he was required to enter information into a computer relating to the customer call. Plaintiff concedes that talking on the telephone was an essential part of the CSSC job.

In August 2004, plaintiff was diagnosed with Sarcoidosis, an autoimmune disease that causes inflammation of the lungs and he was also diagnosed with Pulmonary Fibrosis (formation of scar tissue in the lungs resulting in inability to exchange gases resulting in hypoxemia) by his treating physician, Dr. Gosai.*fn3 As a result of plaintiff's diagnosis, he was required to treat with steroids, as well as Methotrexate, a drug with potentially severe side effects including nausea and diarrhea. Plaintiff also testified that although he had an oxygen tank available, he generally did not take the tank to work with him (except during his work at the Washington facility of Verizon). R. Parker Deposition at 69-70.

From the time of his diagnosis, plaintiff testified that he was able to dress, shower while sitting down, cook, walk short distances (in fact his doctor recommended that he walk more), mow his lawn, shop, drive, garden, exercise, spend time with his wife, and engage, as a Jehovah's Witness, in door-to-door religious ministry on a monthly basis, which involved talking to people at their homes (plaintiff engaged in this activity for a total of 60-70 hours).

In August 2004, the same month plaintiff was diagnosed with Sarcoidosis, he began his first (of three) short-term disability leaves. Following his first short term disability leave, in December 2004, he returned to the same job at the same number of hours and the same rate of pay. A few days after returning from his first leave, plaintiff began another second short-term disability leave and returned to work in February, 2005.

Prior to plaintiff's return to work in February, 2005, plaintiff's primary care physician, Dr. Gosai, sent a letter to Verizon*fn4 recommending that: (1) plaintiff be permitted to work a shorter work week and work day; (2) that plaintiff be assigned work that does not involve talking on the telephone; (3) that plaintiff's commute be shortened; and (4) that plaintiff initially work three days per week with one day off in between each day. Ms. Onesko spoke with plaintiff about the accommodations he requested.

Although defendant did not agree to plaintiff working with days off in between each day, defendant did permit plaintiff to work a reduced schedule of fewer hours each day. Verizon also honored Dr. Gosai's recommendation that plaintiff have no external or internal customer contact.

Defendants contend that because customer contact was the primary duty of his CSSC job, defendants actually created a position for plaintiff by placing him an "off-line" position where no talking was required. Plaintiff disputes that contention and argues that because plaintiff was designated a medically restricted employee in accordance with Verizon's Mid-Atlantic Medically Restricted Policy he was placed in an off-line position. Regardless of the characterization of whether a job was actually created for plaintiff, defendants did accommodate plaintiff by accepting Dr. Gosai's recommendation that plaintiff be assigned to work that did not involve talking on the telephone.

As to plaintiff's request that he be transferred to Verizon's Greensburg or Uniontown facilities because he wanted a less stressful commute, defendants did not agree to that accommodation because it deemed that request as not relating to his ability to perform his job with Verizon.

In the spring of 2005, while plaintiff was performing the off-line position, he requested a transfer to a less physically demanding job, despite the fact that he also testified that the off-line position was not physically demanding. R. Parker Depo. at 108-109.

In May 2005, Call Center Manager Joyce Adams told plaintiff and other employees with medical restrictions that positions in the Greensburg office would be available for those with restrictions that still allowed customer contact, but no sales. Plaintiff then contacted Dr. Gosai, who eventually changed plaintiff's restrictions to allow customer contact with no sales. Plaintiff testified that the reason for this change was based upon his medical condition stabilizing slightly during this time.

In December 2005, plaintiff began his third leave of absence and returned to work in February 2006, with restrictions of no talking on the telephone or customer contact. Following his return, based upon space issues at the Robinson facility, plaintiff, along with the entire off-line group, were transferred to Verizon's Washington, Pennsylvania facility, which was closer to plaintiff's home. Although the off-line position in Washington was the same number of hours as the CSSC, plaintiff's position went from having flexible start and end times, to a fixed start and end time. Plaintiff testified that he could not "think of any" instance where Verizon personnel refused to discuss any reasonable accommodations. R. Parker Depo. At 230-231.

Beginning in July or August 2006, plaintiffs decided to purchase a ranch style modular home because plaintiff was allegedly having difficulty climbing stairs in the former residence. While the home was being built, plaintiffs were residing with their aunt, approximately three blocks from the "construction site" where the new residence was being built.

On September 14, 2006, plaintiff called off work at approximately 7:45 a.m. by leaving a message for Susan Nelson, a Verizon Absence Administrator, stating: "I was taking an FMLA day today, that I wasn't feeling well." R. Parker Depo. at 148-149.

Plaintiff testified that on September 14, 2006, because he had taken the Methotrexate the night before, he "felt real nauseous" and had had "diarrhea throughout the night." R. Parker Depo at 149. Nonetheless, plaintiff left his aunt's home and went to the construction site of the new home, although plaintiff testified that he did normally go to the new home when he was feeling sick.

On September 14, 2006, plaintiff Caulette Parker had taken a half-day of work, and several construction workers as well as Caulette Parker's father were scheduled to be working at the construction site that day.

Plaintiff met the workers at the construction site and testified that he then went back to the bedroom and laid down on an inflatable mattress until his father-in-law arrived. R Parker Depo at 158. Plaintiff's father-in-law arrived at the construction site at 9:30-10:00 a.m. to build a set of stairs. Plaintiff testified that he walked up and down a set of 15 stairs a couple of times during the day. While plaintiff was in the basement, his father-in-law used an electric saw to construct the stairs. Plaintiff's father-in-law left the construction site at approximately 3:00 p.m.

Plaintiff did not call or go to the doctor's office on September 14, 2006.

Meanwhile, on the morning of September 14, 2006, Andrew Roberts, the husband of plaintiff's then manager, Debra Roberts, called his wife at Verizon and told her that he had seen plaintiff unloading something at the construction site. Plaintiff denies that he helped move materials or that he performed work on his new home. Nonetheless, Ms. Roberts then called Absence Administrator Susan Nelson and told Ms. Nelson that Mr. Roberts had seen plaintiff unloading what appeared to be shingles from a white van. After speaking with Kimberly Onesko, another Absence Administrator, hours later, Ms. Roberts also emailed Ms. Nelson and stated as follows:

On the day of 09-14-06 my husband Andrew Roberts was visiting his cousin that lives [sic] the Hiller area, which is nearby the house that Ray Parker is building. My husband saw Ray and a few other men unloading a white van that looked like it contained shingles then when my husband spoke with me he let me know he saw ray doing work at his new house which by the way he doesn't live there. Ray had advised me before he couldn't move in until the township had approved occupancy because the foundation needed to be finished. Ray is staying with in-laws just a few streets over from his new house. So after speaking with my Husband I called Suzy Nelson and advised her of the situation because Ray wasn't at work.

Susan Nelson Depo., Exhibit 9.

Ms. Onesko and Ms. Nelson agreed that a home visit should be conducted, and Ms. Onesko would do the home visit because she was more familiar with the area. Ms. Onesko left the Robinson Township Call Center at approximately noon and drove by the construction site, but she did not see plaintiff. Ms. Onesko then returned to her home to get a camera and asked her husband, George Onesko, who was not a Verizon employee, to accompany her on the home visit. The Oneskos returned to the construction site, which was marked with no trespassing signs, and observed plaintiff inside the garage. After conferring with Verizon Labor Relations Manager Cindy Marinari, Ms. Onesko decided to approach plaintiff. At approximately 5:30p.m., Ms. Onesko walked on the driveway to the Parkers' garage door, which was open. Ms. Onesko prepared notes of her home visit and her typed memorandum stated, in relevant part:

I approached the open garage door area - heard an electric saw being used in the basement area. I called out Ray's name, remaining outside the garage. Ray entered the garage from the basement area. Ray was perspiring and wiping his hands on a rag. At this point the saw stopped running.

Onesko Depo., Exhibit 18.

Plaintiff entered the garage from the basement of the house, and Ms. Onesko told plaintiff that if he was feeling better, he was required to report to work. Plaintiff responded that he was "starting to feel better, but [he] was not feeling well enough to go into work." R. Parker Depo. at 195. During this conversation, plaintiff Caulette Parker also entered the construction site to find her driveway at least partially blocked by the Oneskos' van. Mr. Onesko did not get out of the van during the conversation between plaintiff and Ms. Onesko. Plaintiffs never asked either of the Oneskos to leave the property. In fact, plaintiffs engaged in discussion with Ms. Onesko while she was on the property. The Oneskos caused no physical damage to the property. Plaintiff also believes that Mr. Onesko was on his property earlier in the day on September 14, 2006 allegedly to take photographs of plaintiff, but ...

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