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Walsh v. Bank of America

March 26, 2008


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

(Judge Munley)


Before the court are plaintiff's objections (Doc. 61) to the report and recommendation (Doc. 60) of Magistrate Judge Thomas M. Blewitt, which proposes that we grant defendant's motion for summary judgment in the instant disability discrimination case. Having been fully briefed, the matter is ripe for disposition.


This case arises from plaintiff's employment with defendant as a customer service representative at defendant's Scranton, Pennsylvania call center. (Defendant's Statement of Material Facts (Doc. 31) (hereinafter "Defendant's Statement") at ¶¶ 1, 3).*fn1 As a customer service representative, plaintiff answered inbound calls from customers regarding their bank accounts. (Id. at ¶ 7). His job required that he perform account maintenance on customer's accounts, answer questions, make changes to accounts, and sell other banking products to those customers. (Id.). Plaintiff held that job from December 1999 until May 18, 2005, when he was terminated. (Id. at ¶ 1). Sometime in the mid 1990s, plaintiff was diagnosed as suffering from post-traumatic stress disorder ("PTSD") as a result of his military service in the Vietnam War. (Id. at ¶ 4).

The parties disagree about the nature and extent of training plaintiff received for his position. (See Defendant's Statement at ¶¶ 8-9, Plaintiff's Counterstatement of Material Facts (hereinafter "Plaintiff's Statement") at ¶¶ 8-9). Plaintiff worked with dozens of other employees as he answered phones from a cubicle in defendant's call center. (Defendant's Statement at ¶ 10). These employees were broken into smaller groups and assigned a particular supervisor. (Id.). Maureen Williamson served as one of plaintiff's supervisors during most of his employment. (Id.). She did not serve in this position continuously, however, and plaintiff described her presence as "on and off." (Plaintiff's Deposition (hereinafter "Plaintiff's Dep."), attached as Exh. A (Doc. 52-2) to Plaintiff's Statement at 54). Other managers supervised plaintiff during Williamson's absences. (Affidavit of Maureen Williamson (hereinafter "Williamson Dep." attached as Exh. B. to Defendant's Statement, at ¶ 3). In February 2005, Williamson assumed a new role in the bank and plaintiff joined a "team" supervised by Elizabeth Slattery. (Defendant's Statement at ¶ 11). In March 2005 Slattery moved out of state and management again assigned plaintiff to a new group, this one supervised by Patricia Shultz. (Id.).

Plaintiff typically worked eight hours a day. (Plaintiff's Dep. at 53). At first, he began working at 11:30 a.m., but gradually began to take earlier shifts. (Id.). Eventually, he began starting his work day around 7 a.m., remaining until 3 p.m. (Id.). He preferred to work that shift. (Id.). Though plaintiff was allowed breaks during his shift, he was generally expected to remain at his desk and answer telephone calls. (Defendant's Statement at ¶ 13).

Company officials monitored and evaluated plaintiff's job performance. These evaluations rated plaintiff on a performance scale from 1 to 5, with 5 being the highest score. A score of 3 indicated a "solid performer" and a score of 2 pointed suggested "improvement needed. (See Defendants' Exh. D-3 (Doc. 32-4)). In 2002, Williamson evaluated plaintiff, finding him satisfactory or higher in every category the company used.*fn2 (Doc. 32-1). Plaintiff's 2003 evaluation consisted mostly of positive ratings, with scores of 3 or higher. (Doc. 32-3). Williamson found, however, that plaintiff needed improvement in communication and "results orientation." (Id.). Plaintiff's evaluation in 2004 was similar, though he had improved his "results orientation" score to a 3. (Doc. 32-4). Supervisors also evaluated plaintiff's work fielding telephone calls. These ratings were performed by supervisors and evaluators who randomly listened to a series of calls and gave them a percentage score. (Affidavit of Walsh, Exh. B. At ¶ 6). Screeners considered communication skills and adherence to Bank procedures, among other factors, in evaluating representatives' performance. (Id. at ¶ 7).

The parties disagree about how frequently supervisors listened to calls the plaintiff handled. (Id. at ¶ 18). Different persons would listen to calls and evaluate them in an attempt to achieve consistency in evaluations. (Id. at ¶ 19). Plaintiff insists that his calls did not go through this "calibration" process, since wide differences between the scores assessed by different evaluators existed for his calls. (Plaintiff's Statement at ¶ 19). To achieve a passing score on these evaluations, a representative needed to receive a grade of 81.82%. (Defendant's Statement at ¶ 20). Scores lower than that range indicated that the representative had failed to follow procedures required for such calls. (Id.). Plaintiff contends that he consistently received high scores on these evaluations, and that his scores only decreased when defendant decided to discriminate against him. (Plaintiff's Statement at ¶ 20). Plaintiff received scores of 57.58% in both April and May of 2005. (Defendant's Statement at ¶ 21). He contends that no valid reason existed for assigning these scores, though he does not dispute receiving low scores on occasion. (Plaintiff's Statement at ¶¶ 21-22; Defendant's Statement at ¶ 22). Plaintiff received scores other low scores as well. (Defendant's Statement at ¶ 23; Plaintiff's Statement at ¶ 23).*fn3

Plaintiff received counseling from Williamson for his low performance scores in December 2004. (Defendant's Statement at ¶ 24). The parties disagree over whether Williamson identified specific problems with plaintiff's performance in their meeting. (Id.; Plaintiff's Statement at ¶ 24). During this session, plaintiff noted that he had consistently received good performance evaluations and asked why he had been assigned training. (Id.). In early 2005, Williams issued plaintiff a formal "Development Action Plan," which noted deficiencies in his performance and that he receive particular training. (Defendant's Statement at ¶ 25; Plaintiff's Statement at ¶ 25). The parties dispute whether plaintiff actually signed this action plan. (Defendant's Statement at ¶ 26; Plaintiff's Statement at ¶ 26). Plaintiff ascribed at least some of his problems at the end of 2004 and beginning of 2005 to changes in the medication he was taking. (Defendant's Statement at ¶ 27; Plaintiff's Statement at ¶ 27). He also told Williamson in spring 2005 that his medication had been changed, and on at least one day he left work early due to the effects of this change. (Defendant's Statement at ¶¶ 28-29; Plaintiff's Statement at ¶¶ 28-29). Plaintiff testified that he returned to work the next day and did not have any "follow-up conversation" with Williamson about his medication.*fn4 (Plaintiff's Dep. at 77). He also testified that his mental state while working for defendant "was active; and if somebody said something I would know it. I got to know the job pretty good." (Id. at 171-72). Except for a period of two weeks in 2005 when he was "a little shaky," plaintiff "was able to understand what the job required." (Id. at 172). As a result of these discussions about medication, as well as earlier personal conversations, Williamson was aware of plaintiff's PTSD and some of the symptoms he suffered therefrom sometime before April 2005. (Defendant's Statement at ¶ 31; Plaintiff's Dep. at 84).*fn5 Plaintiff told Williamson that he had bad dreams, but provided little other detail about his condition, and did not tell her that PTSD effected his job performance, since he "was doing fine on [his] job."*fn6 (Plaintiff's Dep. at 83, 85).

Criticism of plaintiff's performance grew after Williamson left and Patricia Schultz became his supervisor. Schultz testified that she was aware that plaintiff had difficulties with his performance under the previous supervisor, but insisted that she was not aware that he suffered from PTSD or any other ailment. (Schultz Affidavit., Exh. E to Defendant's Statement at ¶ 3). During March and April 2005 plaintiff received a series of unsatisfactory results on his performance scores. (Defendant's Statement at ¶ 34).*fn7 These results led to discussions with Schultz, particularly over an April 2005 call where the plaintiff gave a customer a rebate without a request from that customer. (Id. at ¶ 35). Plaintiff received a verbal warning for this action, though he contends that he acted in the best interest of the company by anticipating the customer's account problems and preventing the need for her to call on another day and receive another rebate.*fn8 (Plaintiff's Statement at ¶ 35).

The parties disagree about whether plaintiff informed Schultz that he suffered from PTSD during this meeting. (Defendant's Statement at ¶ 36; Plaintiff's Statement at ¶ 36). Plaintiff alleges that he gave Schultz a document that described the PTSD from which he suffered, but admits that the document did not relate any specific symptoms the plaintiff suffered. (Plaintiff's Dep. at 106).*fn9 The parties agree, however, that plaintiff ascribed some of his difficulties to changes in his medication. (Defendant's Statement at ¶ 38). Plaintiff contends that at some point he informed plaintiff of his disease and asked to be placed on six-hour days. (Plaintiff's Statement at ¶ 38). The parties agree that at some point Schultz requested that plaintiff provide her with documentation of his condition. (Plaintiff's Statement at ¶ 38; Defendant's Statement at ¶ 40).

Due to plaintiff's continuing performance problems, Schultz contacted the Advice & Counsel division of defendant's human resources department. (Defendant's Statement at ¶ 39). She informed them of plaintiff's low monitoring scores and described the contents of one particular call, which received a score of 57.8%. (Id.). Schultz contends that it was after this meeting that she asked plaintiff to provide documentation of his illness. (Id. at ¶ 40). Plaintiff provided Schultz with an undated, unsigned excerpt from a medical analysis of his symptoms, as well as a pamphlet about PTSD issued by the VA hopsital in Coatesville, Pennsylvania. (Id. at ¶ 41). Plaintiff provided no other material on his condition to defendant. (Id. at ¶ 42). Upon receiving this material, Schultz told plaintiff that her father was a veteran as well. (Id. at ¶ 43). Plaintiff insists that Schultz also "rolled her eyes up in the air" when she made this remark, and that he perceived her attitude towards him changing "for the worse" after this point. (Plaintiff's Statement at ¶ 43). Schultz also provided plaintiff, on May 6, 2005, with a "final written counseling--performance." (Defendant's Statement at ¶ 44). That written warning concluded that plaintiff had failed to improve his performance on calls and had continued not to verify information as required by company rules. (Id.). The document warned that failure to improve performance could "result in further disciplinary action up to and including termination." (Id.).

Between May 6 and May 18, 2005, Schultz monitored three of plaintiff's calls. (Defendant's Statement at ¶ 45). All of those calls received ratings below 81.82%, which defendant insists was the minimum required by the company. (Id.). Plaintiff disputes that, contending that he needed only to reach 77% or 78% under company rules. (Plaintiff's Statement at ¶ 45). Schultz determined that plaintiff failed properly to verify a customer's identity on at least one of the calls. (Defendant's Statement at ¶ 46). She had recorded this call, and played a tape of it for her supervisor, Dorothy Walker. (Id.). Walker listened to the call, and then endorsed Schultz's recommendation that Walker be terminated. (Id.). Walker claims she was not aware that plaintiff suffered from PTSD when she recommended his firing. (Id.; Deposition of Dorothy Walker, Exh. B. to Defendant's Satement at ¶ 10).*fn10 After speaking with Advice & Counsel, Schultz determined to fire the plaintiff. (Defendant's Statement at ¶ 47). On May 18, 2005, during a meeting at which Walsh was present, Schultz informed plaintiff that he had been terminated. (Id. at ¶ 48). Plaintiff did not mention his PTSD at this meeting. (Id.).

On March 8, 2006, plaintiff filed his complaint in this court. (See Complaint (Doc. 1) (hereinafter "Complt."). That complaint alleged that plaintiff suffered from post traumatic stress disorder, and that he had informed his employer of that condition. (Id. at ¶¶ 10-11). The complaint raised two counts. First, plaintiff alleged that defendant violated his rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") by taking an adverse employment action against him because of his disability. (Id. at ¶ 24). Count II brought identical claims under the Pennsylvania Human Relations Act, 42 P.S. § 955(a) ("PHRA"). As relief, plaintiff sought reinstatement and monetary damages. The case was assigned to Magistrate Judge Blewitt for preliminary proceedings, where the parties conducted discovery and the defendant eventually filed the instant dispositive motion.

On November 26, 2007, Magistrate Judge Thomas M. Blewitt issued his report and recommendation in the case. (Doc. 60). Magistrate Judge Blewitt recommended that we grant defendant's motion for summary judgment on plaintiff's ADA claim. Plaintiff, the magistrate judge found, had not established that he suffered from a disability that substantially limited a major life activity or that defendant considered him to be suffering from such a disability. As a result, no jury could find for him on his ADA claim. The magistrate judge also found that even if plaintiff did suffer from a disability, he was not entitled to relief under the Act because he had not informed his employer of a need for an accommodation. Because claims under the Pennsylvania Human Relations Act share legal standards with those under federal anti-discrimination law, Magistrate Judge Blewitt also proposed that we grant the defendant's summary judgment on plaintiff's PHRA claim.

After the magistrate judge issued his report and recommendation, plaintiff filed objections and a brief in support thereof. Defendant then filed a brief in opposition, bringing the case to its present posture.


As this case is brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., we have jurisdiction pursuant to 28 U.S.C. § 1332. ("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 ...

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