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Bialko v. Oats

March 30, 2010


The opinion of the court was delivered by: Judge Vanaskie


Plaintiff, John Bialko, Jr., suffers from severe anxiety and depression, which forced him to take an extended leave of absence from his position as a Forklift Operator for Defendant SVC Manufacturing, Inc. in August of 2005. Approximately one year later, in July of 2006, he was cleared to return to work with the restriction that he not work over forty (40) hours per week. No additional limitations were placed on his return to work. Because overtime was required of all production workers at the SVC facility, Plaintiff was not allowed to return to work. Based on this refusal, Plaintiff filed this action, asserting claims of disability discrimination and retaliation under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq.*fn1

Currently pending is Defendants' Motion for Summary Judgment and Plaintiff's Motion for Partial Summary Judgment. (Dkts. 58, 61.) Because Plaintiff has failed to produce evidence sufficient to support an inference that his disorders substantially interfered with a major life activity or were regarded as having such an effect, his disability discrimination claims fail. Furthermore, Plaintiff's retaliation claim fails because he did not raise it in the required administrative agency processes. Accordingly, Plaintiff's Motion for Partial Summary Judgment will be denied and Defendants' Motion for Summary Judgment will be granted.


Defendant SVC Manufacturing, Inc. ("SVC") is a wholly-owned subsidiary of Stokely-Van Camp, Inc., which is a wholly owned subsidiary of Defendant Quaker Oats Company, which is a subsidiary of PepsiCo, Inc. (Kramer Aff., Dkt. 62-11, at 2.) SVC operates a facility in Pennsylvania known as the "Mountain Top" facility. (Id.) The Mountain Top facility employs approximately 190 hourly production employees and 45 salaried managerial employees. (Kramer Dep., Dkt. 67-14, at 26.) The Mountain Top facility produces Gatorade. "All hourly production employees at [Mountain Top] are employees of SVC and their employment is governed by a collective bargaining agreement (the "CBA"), under which Local 2905 of the International Association of Machinists & Aerospace Workers represents the hourly production employees." (Kramer Aff., Dkt. 62-11, at 3.)

Under the CBA, the Mountain Top facility "is authorized to operate on a seven-day-per-week, 24-hours-per-day production schedule whenever SVC determines it is in the best interest of the company," and all "hourly production and warehouse employees must work assigned overtime." (Id.) The Mountain Top facility operates on a "40/64" production schedule when production needs dictate. (Id. at 4.) During this schedule, production and warehouse employees are required to work mandatory overtime. (Kramer Aff., Dkt. 62-11, at 4; Pl. Dep., Dkt. 67-12, at 11; Kramer Dep., Dkt. 67-14, at 17.) When this schedule is in effect, employees work forty hours during the week and 12 hours on each day of the weekend. (Pl. Dep., Dkt. 67-12, at 11.) In addition to the operation of the 40/64 schedule, there are also other times when employees are required to work overtime. (Id. at 22.)

Bialko began working at the Mountain Top facility in 1999 as a Forklift Driver. (Amend. Comp., Dkt. 53, at ¶ 8.) In August of 2002, Dr. Matthew Berger, a psychiatrist, diagnosed Plaintiff as having panic disorder and generalized anxiety disorder. (Psych. Eval., Dkt. 67-7, at 1-2.) A treatment plan was created. (Id.)

On Friday, July 29, 2005, Plaintiff had to leave work by ambulance due to illness. (Hilt E-Mail, Dkt. 62-11, at 19; Pl. Dep., Dkt. 67-12, at 52.) Plaintiff reported that his heart rate was elevated, he felt like he was going to pass out, and could not stand.*fn2 (Pl. Dep., Dkt. 67-12, at 52.)

On August 19, 2005, Plaintiff filed a Certification of Health Care Provider, pursuant to the Family and Medical Leave Act of 1993. (Certification, Dkt. 62-6, at 28.) The Certification stated that Plaintiff had severe anxiety and panic attacks that occurred without triggers and caused him to be unable to work or function adequately when an attack occurred. (Id.) The Certification indicated that Plaintiff may need "episodic time off [from] work while having severe anxiety or panic attacks," and would need "ongoing medication, monitoring, and psychotherapy." (Id.) On September 2, 2005, SVC approved Plaintiff's FMLA leave request beginning July 30, 2005, with an "unknown" end-date. (Employer Response, Dkt. 62-11, at 22.) The Employer Response form indicated that the requested leave would be counted against Plaintiff's FMLA leave entitlement.*fn3 (Id.)

SVC provided its workers with short and long term disability benefit plans, which were administered by a third party, VPA, Inc. (Kramer Aff., Dkt. 62-11, at 4.) "It is VPA, Inc.'s practice not to share medical information with [Ms. Kramer] (or anyone else at the [Mountain Top facility]) about employees" who are on short-term or long-term disability leave. (Id. at 5.) SVC receives approval vouchers for disability benefits from VPA, but the vouchers do not identify the disabling condition. (Kramer Dep., Dkt. 67-14, at 29.)

In September 2005, Plaintiff became eligible for short term disability ("STD") benefits. (DSUMF, Dkt. 64, at ¶ 30.) Short term disability benefits are available if an employee of SVC has a "non-work related illness or injury that prevents [the employee] from doing the basic duties of [his or her] job." (STD Plan, Dkt. 62-11, at 36.) Based on VPA's practices, Ms. Beverly Kramer of SVC's Human Resource Department did not receive any medical information from VPA while Plaintiff was receiving STD benefits. (Kramer Aff., Dkt. 62-11, at ¶ 14.)

In March 2006, Ms. Kramer notified Plaintiff that "due to the needs of the business," his Forklift Operator position was being posted to be filled by another employee. (Id. at ¶ 13.) The position was filled shortly thereafter. (Id.)

On April 6, 2006, Melissa Jones, a Disability Benefit Specialist II at VPA, Inc., sent Plaintiff a letter advising him that review of his long term disability ("LTD") benefit claim had been completed and that it had been determined that he was "eligible for benefits under the PepsiCo LTD Plan," based upon the finding that he was unable to perform the essential duties of his occupation.*fn4 (VPA Letter, Dkt. 62-11, at 27.) VPA and Plaintiff spoke regularly regarding Plaintiff's medical condition. (Pl. Dep., Dkt. 67-12, at 17.)

On July 11, 2006, Dr. Berger issued a letter stating that Mr. Bialko was currently under his care for a medical condition and that he was able to return to work, with the only restriction being that he could not work more than forty (40) hours per week. (Berger Letter, Dkt. 62-6, at 33.) Plaintiff brought the letter to Ms. Kramer and seemed excited to return to work. (Kramer Dep., Dkt. 67-14, at 15.) Ms. Kramer indicated that she would have to talk to management to determine what positions were available since his previous position had been filled several months earlier. (Pl. Dep., Dkt. 67-12, at 13.) Ms. Kramer did not ask for any further documentation, or inquire into why Plaintiff could only work 40 hours per week. Plaintiff did not provide any additional medical information or documentation. (DSUMF, Dkt. 64, at ¶ 41.)

On July 24, 2006, Ms. Kramer sent a letter to Plaintiff stating that he would not be allowed to return to work with his 40-hour work week restriction. (DSUMF, Dkt. 64, at ¶ 57.)

On August 7, 2006, Ms. Kramer spoke with Plaintiff's wife, Laurie Bialko, and discussed Plaintiff's situation. (Id. at ¶ 18.) Ms. Kramer stated that she explained to Mrs. Bialko that there were "no warehouse or production positions that were within Plaintiff's 40-hour restriction." (Id.) Ms. Kramer looked into whether Plaintiff was eligible for FMLA time to cover mandatory overtime, but determined that Plaintiff's 12 weeks of FMLA had expired and he "wasn't eligible under FMLA for new FMLA." (Kramer Dep., Dkt. 67-14, at 40.) After speaking with Mrs. Bialko, Ms. Kramer sent Plaintiff a letter with an enclosed Return to Work form that needed to be completed by Plaintiff's doctor. (Kramer Aff., Dkt. 62-11, at 5.)

On August 23, 2006, Mrs. Bialko sent an e-mail to Ms. Kramer's boss, Deon Riley, the Director of Human Resources of Quaker Oats Company, headquartered in Chicago. (DSUMF, Dkt. 64, at ¶ 61.) The letter stated that Plaintiff suffered from severe depression/anxiety, and that a doctor had issued a note allowing him to return to work with a forty (40) hour work week restriction, but that Plaintiff had not been allowed to return to work. (Id.)

On August 24, 2006, Plaintiff's union filed a grievance, which stated that it "disagrees with the company for not bringing John Bialko back to work. John wants to come back with a 40 hr work restriction, which the company is currently allowing other employees to do.'" (DSUMF, Dkt. 64, at ¶ 62.) On September 6, 2006, Ms. Kramer denied the grievance. (Id. at ¶ 63.) The Union refused to accept the denial of the grievance and requested that the grievance be taken to the next step. (Id. at ¶ 64.)

On November 21, 2006, without the assistance of counsel, Plaintiff completed, reviewed, and signed Pennsylvania Human Relations Commission intake form IN-17 -Non-Job Related Disability Questionnaire. (Questionnaire, Dkt. 62-7.) Plaintiff indicated that he was discriminated against based on a "non-job related disability" of "depression/anxiety" that affected his job in that he "can only perform 40 hrs work week[s]," because he "mentally cannot handle [the] stress of 60 hr work weeks." (Id. at 4.) On December 5, 2006, Plaintiff signed a PHRC Complaint that had been prepared by the PHRC. (Complaint, Dkt. 62-7, at 15.) Plaintiff's PHRC Complaint of Discrimination states:

'I have a mental impairment of Depression/Anxiety Disorder.... Because of my limited toleration of stress I am not able to work more than 40 hours per week... I can perform the essential functions of my job with the reasonable accommodation of not working more than 40 hours per week.... By a letter dated July 24, 2006, the Respondent informed me that they would not accommodate me with a 40 hour work week.'

(Id. at 16-17.)

On February 7, 2007, Plaintiff's counsel sent a letter to Defendants demanding that Plaintiff be returned to work with a forty (40) hour work week restriction. (Dkt. 62-7, at 20.) In February 2007, Ms. Kramer became aware that Plaintiff had filed a claim with the PHRC. (Kramer Dep., Dkt. 67-14, at 29.) In late February, Ms. Kramer informed Plaintiff that he could return to work in a position that would not require overtime. (DSUMF, Dkt. 64, at ¶ 71.)

On March 2, 2007, Dr. Berger completed a "Medical Treatment/Return to Work Questionnaire" for Plaintiff which identified Plaintiff's diagnosis as "panic disorder" and released Plaintiff "to return to work for 8 hour days for a total of 40 hours a week." (Return to Work, Dkt. 62-11, at 20-21.) Plaintiff returned to work on March 5, 2007. (DSUMF, Dkt. 64, at ¶ 73.)

On March 6, 2007, the Union grievance filed on behalf of Plaintiff was treated as resolved. (Grievance, Dkt. 62-6, at 45.)

Plaintiff is currently employed at the Mountain Top facility with a 40-hour-per-week restriction. (Kramer Aff., Dkt. 62-11, at 5.) Between March 5, 2007 and February 5, 2009 Plaintiff missed approximately 20 days of work, total, because of his anxiety. (Pl. Dep., Dkt. 67-12, at 14.)

Plaintiff brought this action on February 26, 2008, alleging a violation of the ADA and the PHRA for disability discrimination, failure to accommodate, and retaliation. Discovery in this matter closed on March 30, 2009. (Dkt. 16.) On May 22, 2009, Plaintiff was permitted leave to file an amended complaint in this matter. (Dkt. 50.) An amended complaint was filed on May 28, 2009. (Dkt. 53.) On June 22, 2009, Plaintiff filed a Motion for Partial Summary Judgment (Dkt. 58), and Defendants filed a Motion for Summary Judgment. (Dkt. 61.) The motions have been fully briefed and are ripe for review.


A. Standard of Review

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir. 1994). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988), abrogated on other grounds, Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). Once the moving party satisfies its burden, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary ...

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