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Berhhard v. Brown & Brown of Lehigh Valley

June 10, 2010


The opinion of the court was delivered by: Gene E.K. Pratter, District Judge



Larry Bernhard was diagnosed with life-threatening neck and throat cancer in February 2006. He requested and received leave from his employer, Brown & Brown of Lehigh Valley ("Brown"), to recover from surgery and undergo radiation treatments. Unable to return to full-time employment when his leave expired, he requested an additional leave of approximately three months. Brown fired Mr. Bernhard a few days after the additional three months' leave, allegedly to ensure consistency in the application of its leave policy.

Mr. Bernhard subsequently sued Brown and two Brown employees (collectively, "Brown") pursuant to the Americans with Disabilities Act, the Pennsylvania Human Relations Act, the Family and Medical Leave Act, and breach of contract. Following discovery Brown filed a Motion for Summary Judgment on Mr. Bernhard's ADA, PHRA, and FMLA claims. For the reasons discussed below, the Court will grant in part and deny in part Brown's Motion. A jury will have to decide whether Brown's stated goal of leave policy consistency conflicts with common sense.


Mr. Bernhard was hired by Bowers, Schumann & Welch and Robertson/Welch Insurance Services, Brown's predecessor, on or about February 23, 1999. (Deposition of Larry Bernhard at 15-16.) He was hired as a producer or salesperson, and his duties included obtaining new insurance business. (Bernhard Dep. at 25-26.) Mr. Bernhard signed an Employment Agreement with Brown, which included a commitment not to solicit any of Brown's customers for two years after leaving the company. (Def.'s Ex. C.)

On April 26, 2006, Mr. Bernhard informed his supervisor, Defendant Richard Knudson, that he was scheduled for surgery on May 1, 2006 for cancer of his neck and that he expected to be back to work by May 22, 2006. (Def.'s Ex. F., Apr. 28, 2006 email from Mr. Bernhard to Mr. Knudson.) Brown did not require Mr. Bernhard to take leave under The Family Medical Leave Act ("FMLA")*fn2 and continued his full salary and commissions during this period. Mr. Bernhard returned to work earlier than expected, on May 15, 2006, working sometimes from home and sometimes in the office. (Bernhard Dep. at 40.) On June 1, 2006, Mr. Bernhard returned to full time employment while he received radiation treatments. (Bernhard Dep. at 40.) Dr. Victor R. Risch administered the radiation treatments. Dr. Risch estimated that it would take five to six months from the last treatment for Mr. Bernhard to recover. (Bernhard Dep. at 41.)

After approximately two weeks of treatment, the effects of the radiation began to impact Mr. Bernhard such that he was unable to work and he needed to take FMLA leave. (Bernhard Dep. at 43-44.) On July 5, 2006, Mr. Bernhard requested FMLA leave, expecting to return to work on or about August 21, 2006. (Def.'s Ex. G, Mr. Bernhard's Application for Family or Medical Leave; Bernhard Dep. at 44-46.)

The FMLA leave commenced on July 10, 2006. (Bernhard Dep. at 42-43.) At around that time, Mr. Bernhard submitted to Brown a certification from Dr. Risch that indicated that Mr. Bernhard would be incapacitated for four to five months and unable to perform work of any kind during that time. (Def.'s Ex. H.) The certification also indicated that radiation treatment would end on August 24, 2006, with Mr. Bernhard requiring two to three months to recover afterward. (Def.'s Ex. H.)

In late September/early October 2006, Mr. Bernhard applied for long term disability. In his application, he noted that he was "unable to perform any of [his] daily duties due to radiation w/ extended recovery." (Def.'s Ex. I.) His physician's certification accompanying his application, dated October 14, 2006, stated that any restrictions on his employment activities would end by January 2, 2007, that he could return to work in "1-3 months," and that trial employment could begin in "3 months (tbd)." (Def.'s Ex. I.)

Mr. Bernhard's FMLA leave entitlement expired on October 2, 2006, but he did not return to work then. Rather, on October 12, 2006, Mr. Bernhard emailed Mr. Knudson and Susan Lear, the operations leader and an HR specialist at Brown, and informed them that because of on-going treatments, he would be "unable to return to work for at least three more months," that "[i]f all goes well, the doctor said he would clear me to return to work by the beginning of January, 2007," and that he suspected he would "be on long term disability for a minimum of three months starting October 9, 2006 to January, 2007." (Def.'s Ex. J., October 12, 2006 email from Mr. Bernhard to Ms. Lear and Mr. Knudson.) Later that month, Brown requested additional information from Mr. Bernhard's physician and received a certification that Mr. Bernhard was "recovering slowly," but "likely will require an additional three months to recover." (Def.'s Ex. K.) Brown then terminated Mr. Bernhard. Richard Knudson made the decision to terminate Mr. Bernhard after consulting with Defendant Kelly Hoffman,*fn3 an HR consultant at Brown, and Ms. Lear. (Deposition of Richard Knudson at 18-19.) Ms. Hoffman and Mr. Knudson discussed the need to have some degree of consistency with respect to how FMLA is applied within the office in deciding to terminate Mr. Bernhard. (Knudson Dep. at 27.)

On October 20, 2006, Mr. Knudson formally informed Mr. Bernhard that his employment would be terminated effective October 23, 2006. (Def.'s Ex. M., Oct. 20, 2006 Letter from Mr. Knudson to Mr. Bernhard.) Brown also invited Mr. Bernhard to re-apply for employment should he be released to return to work. (Def.'s Ex. M.)

As it turned out, Mr. Bernhard was able to return to work in January 2007. However, Mr. Bernhard did not re-apply to Brown for employment because he "didn't feel [he] wanted to go back to work for a company that would treat their employees in that manner." (Bernhard Dep. at 71.) Instead, he obtained employment with a different insurance agency, the Yurconic Agency. On March 7, 2007, Brown sent Mr. Bernhard a letter alleging that Mr. Bernhard had

breached his Employment Agreement by soliciting Brown customers to move their insurance coverage over to his new agency and warning Mr. Bernhard that Brown would seek legal redress if Mr. Bernhard did not ...

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