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Jackson v. Planco

September 29, 2009

TONY JACKSON
v.
PLANCO



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

Plaintiff Tony Jackson sues his former employer, PLANCO Financial Services, L.L.C. ("PLANCO"), for discrimination and retaliation pursuant to the Americans with Disabilities Act ("ADA"), the Family Medical Leave Act ("FMLA"), and the Pennsylvania Human Relations Act ("PHRA"). Jackson claims that PLANCO discriminated against him based on his disability when it terminated his employment on May 8, 2007. He also contends that PLANCO retaliated against him for complaining about the alleged discrimination and a supervisor's negative treatment of him after he took medical leave.

PLANCO moves for summary judgment on all of Jackson's claims. For the reasons we discuss below, we will grant that motion and dismiss this action.

I. Factual Background

As is often the case with employment discrimination cases, we will begin with a lengthy canvass of the record.

A. Jackson's Employment at PLANCO and Employees' Discussions About and Use of Guns

PLANCO is a subsidiary of The Hartford, which is an insurance corporation. Declaration of Mary Creedon, Def. Ex. A, at 1. Plaintiff Tony Jackson began to work at PLANCO as a temporary employee in September of 2004. Jackson Dep. At 35. In December of that year, PLANCO hired him as a full-time employee to be its Lotus Notes Administrator. Id. at 36. Lotus Notes is a collection of software programs used for several functions, including email, and at PLANCO Jackson was responsible for the email, storage, and server functions. Id. at 36-37.

When Jackson began work at PLANCO, Jay Karabin was his immediate supervisor and Eric Paladino was the manager above Karabin. Id. at 85. Karabin left PLANCO in the spring of 2005, and Christie Vazquez in July of that year replaced him as the Platform Team Lead and Jackson's supervisor. Id. at 88; Vazquez Decl. at 1. While Paladino was at PLANCO, he wrote Jackson's performance reviews, but Vazquez took on this task when Steve Olshevski -- the target of Jackson's discrimination complaint -- replaced Paladino around July of 2006. Vazquez continued as Jackson's immediate supervisor through his termination in May of 2007. Vazquez Dep. at 11; Vazquez Decl. at 1; Goumas Dep. at 79.

Vazquez considered Jackson to be "a friend" while he worked at PLANCO, and they socialized on a few occasions.*fn1 Vazquez Dep. at 13-14. See also Jackson Dep. at 90-91. Jackson gave Vazquez a tour of The Inquirer and went with her to look at an apartment because he was concerned about her safety. Vazquez Dep. at 15. Jackson also took Vazquez to a shooting range, and he taught her how to use a gun.*fn2 Id. In fact, plaintiff collects guns and knives, as well as "Russian fairytale boxes." Jackson Dep. at 251. He owns more than twenty guns, including revolvers, semiautomatic handguns (an "Oozie [sic]"), rifles, and shotguns. Id. at 261-62. According to Jackson, he is licensed to carry a concealed weapon in twenty-eight states. Id.

Vazquez described herself as "very antigun"*fn3 and said that Jackson would often talk about guns and debate gun control issues at work. Vazquez Dep. at 17-18. Vazquez characterized Jackson as a "very rigorously progun, pro second amendment, NRA type." Id. at 19, 24. Several other people, including Paladino, joined in these debates, but Olshevski did not. Szoke Dep. at 51-52; Vazquez Dep. at 20.

Several other PLANCO employees and executives were involved in the events that led to this litigation. Mary Creedon is an Assistant Vice-President for Human Resources at The Hartford. Creedon Dep. at 9-10. Jamie Davis was a Human Resources Generalist for PLANCO. Davis Dep. at 7. Alan Hoyt was an executive in PLANCO's technology department.*fn4 At the time of the events at issue in this case, Gregg Goumas was the Practice Leader of Employee Relations Investigations for Hartford, and he conducted internal investigations of Jackson's discrimination complaint and the events that led to his termination. Goumas Dep. at 11, 20. Kevin Connor was an Executive Vice-President for PLANCO and made the decision to terminate Jackson's employment, but he never personally had contact with Jackson and would not recognize him. Connor Dep. at 10.

B. Jackson's Illnesses and Medical Leave

Jackson has atrial fibrillation, a heart condition that causes an irregular heartbeat. Jackson Dep. at 53. He had a heart attack and stroke in January of 2006, and his heart condition precludes him from "do[ing] things for a long period of time, like running for a long period of time." Id. at 53-54. Jackson was on medical leave from January to April in 2006 due to these heart problems. Id. at 105. During the last part of April he worked part-time from home, with permission from his doctor and PLANCO. Id.

In addition to this lengthy leave following his heart attack and stroke, Jackson missed work for a week in September of 2006 due to gout. Id. at 54-55, 107. During his most difficult experience with that condition, Jackson could not walk, but he was able to walk with a cane by the time he returned to work and without the cane by November of that year. Id. at 63, 335. The pain he experienced from gout returned for a day or so later in 2006, and Jackson described any problems that he had with gout in 2007 as "very minor." Id. at 62-63. The record does not show that Jackson has had any problems with gout since 2007.*fn5

C. Olshevski's Alleged Poor Treatment of Jackson After His Sick Leave

Jackson is "satisfied" with the way PLANCO addressed both of these periods of medical or sick leave. Id. at 107. He does not believe that anyone at PLANCO retaliated against him for the longer medical leave at the beginning of 2006. Id. at 111. Jackson's retaliation claim is based partially on Olshevski's "demeanor" toward him after he returned from his one-week leave in September of 2006. Id. at 109. According to Jackson, Olshevski behaved in a manner that suggested that Jackson "had in some way done something incorrect or wrong," but Olshevski never mentioned the fact that Jackson had taken this short period of leave, nor did he ever say that it was wrong to do so. Id. at 109-110. When Jackson was asked how he knew that Olshevski's behavior was due to his leave rather than his work quality, he explained that Vazquez reviewed his work, so he did not "believe" that his work quality was the source of Olshevski's concerns.*fn6 Id. at 111.

Vazquez's treatment of Jackson did not change after he returned from his September 2006 leave. Id. Plaintiff claims that only Olshevski retaliated against him, for example by giving Jackson unreasonable deadlines. When Jackson had to leave work early for medical appointments, Olshevski would often give him assignments just before he left. Id. at 162. Jackson said "there was no axe over [his] head, but [Olshevski] wanted them finished."*fn7 Id. Jackson also explained that he got unfavorable reviews after he returned from his leave and believed this was retaliatory or discriminatory. But Jackson said that his assertions regarding Olshevski's treatment of him were based on "only [his] perception of [Olshevski's] attitude." Id. at 111. Jackson also believed that Olshevski thought he could not improve, but that was also based solely on his "perception" of Olshevski's treatment. Id. at 118. Indeed, in Olshevski's annual review of Jackson's performance, he specifically stated that he thought Jackson could improve. Performance Review of Tony Jackson, Def. Ex. G ("Performance Review") at 3.

D. PLANCO Addresses Jackson's Purported Performance Issues

A few months after Vazquez began working at PLANCO --but before Jackson went on his medical leave in early 2006 -- she began to feel that Jackson was not properly performing his job. Vazquez Dep. at 37-38. She talked to Jackson about some of these issues, but she never mentioned them to Paladino. Id. When Olshevski began to work at PLANCO, Hoyt -- Olshevski's boss --told him that he wanted to improve the organization and performance of Olshevski's department. Olshevski Dep. at 13. As part of that effort, Olshevski gave Vazquez more authority in managing her group. Id. at 26. He asked her about her impression of the people on her team, and she told him that Jackson "wasn't performing essential pieces of the job" and "that a lot of the issues we [were] experiencing around the [Lotus] Notes environment were because he was not performing his job properly." Vazquez Dep. at 37. Olshevski recalls that Vazquez "had little confidence in [Jackson's] technical abilities." Olshevski Dep. At 28.

On October 9, 2006, after Jackson returned from his one-week sick leave, he met with Olshevski and Vazquez to discuss his performance and Olshevski's plan to "raise the bar" with his work. Jackson Dep. at 119; Memo from Steve Olshevski to Tony Jackson Regarding Performance Meeting on October 9, 2006, October 20, 2006, Def. Ex. E.*fn8 Jackson described this meeting as both disciplinary and setting expectations for the future. Jackson Dep. at 119. They discussed, inter alia, Jackson's "ability to remain actively working" and "not falling asleep." Id. Although Jackson disagreed with some of the performance issues that Olshevski and Vazquez brought up at the October 9 meeting, he admitted that there were some problems. For example, he was attempting to address the company's issues with its firewall, which prevented email from being sent or received, and it was "taking a while to correct" the problems. Id. at 121-22. He explained that these issues were multifaceted and difficult to fix. Id. at 125. Jackson also understood that Olshevski believed that he needed to improve his expertise in Lotus Notes, though Jackson believed his skills were already at an appropriate level. Id. at 122, 124.

On November 16, 2006,*fn9 Jackson received his annual review, which reflected his supervisors' opinions that much of his work did not meet their expectations. See Performance Review. The review, which listed Olshevski as Jackson's manager, stated that Jackson rebooted the servers during business hours, had incorrect security issues, and improperly planned software upgrades. Id. at 1-2. But it also reflected that he was willing to work additional hours and was "good at finding the cause of an issue and applying a short term fix." Id. at 2. The Performance Summary states that although Jackson's performance "did not meet expectations," he "recently attempted to make improvements" and that "Tony can succeed in making these needed improvements." Id. at 3.

Vazquez and Olshevski met with Jackson to give him this review, and Olshevski believes that Jackson "essentially agreed that he needed to improve." Olshevski Dep. at 51. But Jackson protested that his "performance was better than what they had listed, and that certain things . . . were just incorrect." Jackson Dep. at 131. He said that the review "anger[ed]" him and he believed that management "swayed" his review to make him resign or "cause problems" for him. Id. at 136-37. Jackson was also upset that he did not receive any raises after this review. Id. at 137. He asserted that "[m]ost of [the review] is lies, but there's very small amounts of truth" in it. Id. at 140. He acknowledged, for example, that he may have completed some tasks late. Id. at 141, 150. Jackson does not know if other people also had negative reviews. Id. at 157. According to Vazquez, she continued correcting Jackson on various problems in November and December of 2006.

On January 19, 2007, Vazquez gave Jackson a memo that outlined her ongoing concerns regarding his performance. Memo from Christie Vazquez to Tony Jackson, January 19, 2007, Def. Ex. H. In that memo, Vazquez stated that Jackson failed to deliver three plans for improvement. Jackson replied that the plans were late but that he eventually delivered them. Jackson Dep. at 195-6. Jackson contends that he had made some progress on some of the other identified issues, but that someone told him to stop working on them. Id. at 193. He also requested training, but Olshevski told him that he wanted Jackson to improve before the company invested in that. Olshevski Dep. at 52.

Vazquez sent Jackson another memo on January 30, 2007, which outlined another meeting regarding his progress. She asked him to make a presentation on various parts of the company's computer system to demonstrate his knowledge of the "Planco Notes environment." Memo from Christie Vazquez to Tony Jackson, January 30, 2007, Def. Ex. I. On February 24, 2007, Jackson made this presentation, which he described as a "dog-and-pony show which I had to perform for them" and a "joke." Jackson Dep. at 195, 208. See also Memo from Christie Vazquez to Tony Jackson, February 24, 2007, Def. Ex. J. Vazquez described Jackson's presentation as "high level", but identified some items that she thought were errors or omissions from the presentation. Id. She wrote that she expected Jackson to be "able to give specific details of the environment" and make suggestions regarding "how to improve system availability." Id. at 2. She concluded that she was "not confident that Tony can perform adequately as the Lotus Notes Administrator." Id.

At some point, Jackson viewed Vazquez as a friend, and based "on [his] speculation" believes that Vazquez wrote negative reviews for him because of Olshevski's influence. Jackson Dep. at 165. Jackson noticed that Vazquez treated him differently after Olshevski's arrival but had no other evidence to show that Olshevski had ordered Vazquez to "get rid" of him. Id. Vazquez thought that by early 2007 Jackson "was growing increasingly irritated with his performance management," and she believed he was angry about it. Vazquez Decl. At 2.

E. Jackson's Complaints Regarding Discrimination

On March 22, 2007, Jackson met with Mary Creedon and stated that he "felt [he] was being discriminated against because of [his] health." Jackson Dep. at 222. See also Creedon Decl. at 1. He told her that Olshevski always found fault with his work despite his attempts to do things correctly. Jackson Dep. at 222. Jackson says that he did not talk to Creedon specifically regarding retaliation, but Creedon recalls that Jackson thought Olshevski didn't like him and that he was being treated poorly partially because he had been out on leave. Id. at 234; Creedon Dep. at 14. Creedon contacted The Hartford's Employee Relations Investigation Department, which assigned Gregg Goumas to investigate Jackson's discrimination claims. Creedon Decl. at 1-2; Goumas Dep. at 28.

Creedon told Jackson that she would stop Vazquez from "micromanaging" him during the discrimination investigation, and he said this change created a "100 percent better environment." Jackson Dep. at 236. See also Creedon Decl. at 2. Jackson did not believe that Vazquez's "micromanagement" was based on his disability or medical conditions. Jackson Dep. at 241. But he thought she behaved this way on the orders of Olshevski, and Jackson believed that Olshevski did base his decisions on Jackson's medical condition. Id. Jackson thought that Olshevski "wanted to get rid" of him and concluded that the change in the ...


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