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Namako v. Acme Markets

March 11, 2010

STAN NAMAKO PLAINTIFF,
v.
ACME MARKETS, INC. DEFENDANT.



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

MEMORANDUM

I. Introduction

In the present action, pro se plaintiff Stan Namako claims that his employer, Acme Markets, Inc. ("Acme"), engaged in discrimination by failing to accommodate plaintiff's medical and mental conditions and firing plaintiff as a result of his disability. Presently before the Court is defendant's Motion for Summary Judgment ("Motion"), which the Court grants for the reasons set forth below.

II. Background*fn1

Plaintiff was employed by Acme for five years as an electrician, from July 2000 until his termination on October 25, 2005. (Pl.'s Dep. 9-11.) Plaintiff's job duties included installing, maintaining, and repairing the electrical equipment at 58 Acme stores. (Id. at 14.) Plaintiff regularly worked overtime. (See id. at 36.) As part of his employment, defendant gave plaintiff a cell phone for business use only to communicate with his supervisors and company employees. (Id. at 26.)

In April 2005, plaintiff was diagnosed with high blood pressure and related migraine headaches, and prescribed medications for both conditions. (Id. at 114, 126.) In July 2005, plaintiff was hospitalized for five days due to a rise in his blood pressure.*fn2 (Id. at 40-41.) Plaintiff's father passed away in January 2003, and his mother-in-law passed away a year later, which caused plaintiff and his wife great emotional stress. (Id. at 36-37, 44.) From April to October 2005, plaintiff was also experiencing what he refers to as "family problems." (Id. at 36-37.)

Plaintiff first discussed with his supervisors, Jim Cowley and Jack Walther, a desire to work a regular work week with no overtime in July 2005. (Id. at 40-41.) Plaintiff's doctor recommended reducing overtime to treat plaintiff's high blood pressure, and plaintiff said he also wanted to spend more time at home due to emotional and family stress. (Id. at 36-41.) Thereafter, plaintiff chose to work overtime on only a few occasions "[t]o see how [he] could . . . cope with it," and returned to a normal forty-hour week when he realized that "[he] couldn't do it." (Id. at 56.) On three occasions between July and October 2005, Cowley and Walther asked plaintiff to work overtime due to emergencies. In response, plaintiff sais he could not do so. (Id. 47-48, 56.)

On October 3, 2005, plaintiff met with Cowley and Sunday Council-Baker, the manager of Human Resources, to discuss plaintiff's lack of confidence in his ability to perform job assignments. (Mem. of October 3, 2005, Pl.'s Resp. Ex. 1.) Plaintiff noted the recent deaths in his family, and that he had been absent due to his mother's illness and some dental appointments.

(Id.; Pl.'s Dep. 58-59.) Council-Baker recommended that plaintiff discuss any personal issues with Employment Assistance Program ("EAP") counselors, who would keep all information confidential. (Mem. of October 3, 2005, Pl.'s Resp. Ex. 1.) Plaintiff did seek assistance through EAP, and met with counselor Frank Blanche for the first time on October 17, 2005. (Pl.'s Resp. 2.)

In October 2005, Cowley was notified by defendant's communications department that Verizon Wireless reports for August, September, and October showed unusually high use of plaintiff's cell phone. From June 14, 2005, to September 13, 2005, 3,411 calls were made from plaintiff's phone for a total of 15,736 minutes. (Mot. ¶¶ 20-22.) The reports also disclosed personal calls to plaintiff's aunt, uncle, and father-in-law. (Id. ¶ 31.) During these months, 152 calls were made to plaintiff's aunt for a total of 5,386 minutes. (Mot. ¶¶ 32, 35, 37.)

Cowley and Walther met with plaintiff, two union representatives, and one additional company official on October 25, 2005, to address plaintiff's cell phone usage. (Id. ¶ 26.) Plaintiff admitted that he had made some personal calls, but disputed the accuracy of the phone records, particularly as to the length of calls. (Pl.'s Dep. 81-87.) He offered to pay for the personal calls he had made. (Id. at 73.) At the end of the meeting, Cowley fired plaintiff for excessive use of the company cell phone, effective immediately. (Id. at 69.)

Plaintiff claims that defendant discriminated against him by failing to accommodate his medical and mental conditions -- specifically, high blood pressure, related migraine headaches, and emotional stress -- and firing him as a result of those disabilities. (Id. at 101-03; Compl. ¶¶ 12-14, 32, 33.) Plaintiff, represented by counsel Andrew Calvelli, filed a charge with the Pennsylvania Human Relations Commission ("PHRC") on April 20, 2006, and cross-filed the charge with the Equal Employment Opportunity Commission ("EEOC"). (Mot. ¶ 39-40.) In its Findings of the Investigation dated September 18, 2007, the PHRC concluded that "the investigation did not establish a prima facie case" of discrimination. (Mot. Ex. E, at 9.) The EEOC issued a Dismissal and Notice of Rights letter on April 17, 2008, adopting the findings of the PHRC and advising plaintiff of his right to sue under federal anti-discrimination law. (Mot. Ex. F.)

Plaintiff filed a Complaint in this Court on July 11, 2008, alleging two counts of disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (Count One),*fn3 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 955 et seq. (Count Two). By Order of July 22, 2009, due to disagreements between plaintiff and his counsel over litigation strategy and discovery issues, the Court granted Calvelli's Motion to Withdraw as Counsel. Plaintiff now proceeds pro se in this action.

III. Standard of Review

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). After this examination, a court should grant summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant ...


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