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Fink v. Global Employment Solutions

April 28, 2010

JOEL FINK, PLAINTIFF,
v.
GLOBAL EMPLOYMENT SOLUTIONS, INC., DEFENDANT.



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

MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. Introduction

Plaintiff, Joel Fink ("Fink"), brings an employment discrimination claim arising under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., against his former employer, Global Employment Solutions, Inc. ("GES"). Presently before the Court is Defendant's Motion for Summary Judgment (Doc. No. 28). For the reasons discussed below, the Court will deny Defendant's motion.

II. Background and Contentions

This case arises out of Plaintiff Joel Fink's employment as an executive recruiter with Defendant GES. GES is a commercial staffing firm based in Littleton, Colorado, with twenty locations in the United States, including an office in Bala Cynwyd, Pennsylvania. Fink was hired an executive recruiter in the Bala Cynwyd office, and began his employment with GES on September 26, 2005. During the interview process, Fink informed GES of his diabetic condition.

Defendant contends that while Plaintiff's initial performance was strong, his production in the second half of 2006 declined considerably, as Plaintiff brought in zero revenue in the months of July and August, 2006. Defendant also contends that Plaintiff's two team members, for whom Plaintiff was responsible, were equally non-productive, and that Plaintiff's activity and prospects for potential new business were non-existent. As a result of these issues, Defendant asserts that Plaintiff's supervisors began counseling Plaintiff to help him improve his performance, and that Defendant's supervisors warned Plaintiff that his failure to correct his performance could result in termination. Nevertheless, GES decided in September, 2006 that Plaintiff should be terminated, and Plaintiff was subsequently terminated on September 21, 2006 -- the day after he placed a call to GES' payroll and benefits department to inquire about GES's short-term and long-term disability plans. Defendant contends that the GES employee with whom Plaintiff spoke about disability plans did not speak to anyone else at GES about Plaintiff's telephone call prior to Plaintiff's termination.

Plaintiff contends that he was terminated by GES in material part based upon his being a diabetic and his resultant needs which included having medical visits and doctor's appointments during the business day, wearing an insulin pump on his waist, wearing sneakers at work, and having to work at times in only socks, without wearing shoes or sneakers.

Plaintiff filed his Complaint against GES on December 15, 2008 (Doc. No. 1), and GES filed its Answer on January 12, 2009 (Doc. No. 3). Defendant filed its motion for summary judgment on November 4, 2009 (Doc. No. 28). Plaintiff responded on November 23, 2009 (Doc. No. 31), and Defendant replied on December 7, 2009 (Doc. No. 36).

In its motion for summary judgment, Defendant GES argues that Plaintiff has no claim for unlawful termination because: (1) Plaintiff is not "disabled" within the meaning of the ADA because his diabetes does not substantially limit one or more of his major life activities; (2) even if Plaintiff could demonstrate that he was disabled under the ADA, GES terminated Plaintiff for the legitimate reason that Plaintiff's job performance was poor; and (3) Plaintiff cannot demonstrate evidence of pretext. Plaintiff responds by arguing that: (1) Plaintiff is "disabled" under the ADA because he was substantially limited in activities of central importance to his daily life; (2) there is a material dispute of fact as to whether Plaintiff was terminated or otherwise discriminated against by GES because of Plaintiff's disability and his status as a disabled person under the ADA; and (3) the record in this case would allow a jury to determine that the Plaintiff was discriminated against and/or terminated by GES because of his disability.

The Court held Oral Argument on these issues on March 11, 2010, prior to which the Court, in its Order of February 8, 2010 (Doc. No. 41), instructed the parties to focus their arguments on (1) whether Plaintiff was "disabled" for ADA purposes, and (2) whether Plaintiff can show pretext. At Oral Argument, the Court asked Plaintiff to file a supplemental brief containing evidence and citations to the record to support a finding that Plaintiff was fired in violation of the ADA, and that the reason given for the firing was pretextual. Plaintiff filed his supplemental brief on March 22, 2010 (Doc. No 48). Defendant responded on April 8, 2010 (Doc. No. 51), pursuant to the Court's Order of March 25, 2010 (Doc. No. 50). The matter is now fully briefed and ripe for disposition.

III. Analysis

The ADA prohibits covered entities, including private employers like GES, from discriminating against "a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a); Sutton v. United Airlines, Inc., 527 U.S. 471, 477-78 (1999).

Unlawful discrimination includes terminating an individual because of his disability. See 42 U.S.C. § 12112(a). In cases involving discrimination claims brought under the ADA, courts apply the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See, e.g., Parker v. Verizon Pa., Inc., 309 Fed. Appx. 551, 555 (3d Cir. 2009); see also Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751, 759, n.3 (3d Cir. 2004); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). The McDonnell Douglas framework "serves to bring the litigants and the court expeditiously and fairly to [the] ultimate question" of whether GES intentionally discriminated against Plaintiff. Texas Dep't Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In other words, the framework helps courts determine whether unlawful reasons motivated an employer to take an action against an employee. Jackson v. Planco, 660 F. Supp. 2d 562, 577 (E.D. Pa. 2009).

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. Second, the burden shifts to the defendant employer "to articulate some legitimate, nondiscriminatory reason" for its termination of the plaintiff. McDonnell Douglas, 411 U.S. at 802. Third, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant employer's nondiscriminatory reason was pretextual. Id. at 804; Burdine, 450 U.S. at 252-53. A plaintiff may show pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer[,] or indirectly ...


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