The opinion of the court was delivered by: Hon. Gene E.K.PRATTER U.S. District Court Judge
William J. Fuller, Jr. used to work at the United States Mint in Philadelphia. He sued his former employer, Defendant Timothy F. Geithner, Secretary of the United States Department of the Treasury ("the Mint"), after his employment was terminated on March 17, 2007. In his Complaint, Mr. Fuller "asserts that his removal was motivated by discrimination on the basis of his disability" and that the Mint "discriminated against him on the basis of his disability." Compl. ¶¶ 32, 33, ECF No. 1. Following the close of discovery, the Mint filed the Motion for Summary Judgment that is now addressed by the Court.
Factual and Procedural History*fn1
Mr. Fuller began working at the Mint in September 1998 as a metal forming machine operator. In that capacity, Mr. Fuller worked with other individuals, called "die setters", to make coin currency using mechanical presses. A metal forming machine operator's duties include emptying the traps of the coins and placing them on a conveyor belt; inspecting coins; and ensuring that the mechanical presses function properly. See Def.'s Statement of Uncontested Facts ¶¶ 1-2 (hereinafter "Def.'s St.").
Mr. Fuller was diagnosed with sleep apnea in 2005. Id. ¶ 21. Initially, he was treated at the Philadelphia Sleep Center. Fuller Dep. 32-33, Dec. 2, 2009, attached as Ex. B to Def.'s Mot. for Summ. J., ECF No. 8 (hereinafter "Fuller Dep."). After this diagnosis, Mr. Fuller was prescribed a CPAP machine and mask to wear while he slept. Def.'s St. ¶ 21. The mask applied pressure to his airway, opening it and allowing Mr. Fuller to inhale more oxygen while he slept. Id. Initially, the mask helped reduce Mr. Fuller's snoring and gave him more energy. See Fuller Dep. 35-36. However, sometime in the middle of 2006, the CPAP machine began to malfunction, which caused Mr. Fuller to unconsciously remove the mask in his sleep because of lack of proper airflow. See id. 30-31. Because of the machine malfunctions, Mr. Fuller had severe fatigue, migraines, and difficulty waking himself up. See id. 38, 74-75. His physician prescribed Mr. Fuller Percocet, Darvocet and Naproxen, all of which masked his symptoms but did not actually address the cause of his condition. See id. 38.
On March 17, 2006, the Mint sent Mr. Fuller a Notice of Proposed Removal, which had been prepared by Mr. Fuller's supervisor, Howard Jackson. Def.'s St. ¶ 3. The Notice stated that between January 19, 2006 and March 17, 2006, Mr. Fuller was absent without leave ("AWOL") for 35 work days, and that he had failed to properly follow formalized Mint leave procedures for every day that he was AWOL. Mem. from H. Jackson to W. Fuller (Mar. 17, 2006), attached as Ex. 1 to Robidoux Decl., attached as Ex. C to Def.'s Mot. for Summ. J. (hereinafter "Robidoux Decl.").
Mr. Fuller responded to the Notice of Removal by sending a letter to Richard R. Robidoux, the Plant Manager who was the official who decided personnel suspensions and removals. Letter from W. Fuller to R. Robidoux (Apr. 6, 2006), attached as Ex. 2 to Robidoux Decl. In his letter, Mr. Fuller attributed his absences to shingles and to an upper respiratory infection. Id. He stated that he "had been prescribed and was consuming narcotic pain and cough medicine, which motivated incapacitation and lead [sic] to [his] inadvertently not following leave procedures." Id. Mr. Fuller wrote, "As I explained to you during our discussion, I have been overcoming my own illness and trying to do the best I can with another chronic condition that I deal with on a daily basis. Due to the medication intake, I was not fully attentive." Id. Mr. Fuller's letter closed: "Please consider my dilemma in this situation. I accept responsibility for any disciplinary action taken against me, excluding termination of employment. I feel that would be an extremely unfair judgment due to the circumstances of my illness." Id.
On April 6, 2006, Mr. Fuller was offered the opportunity to make an oral reply to the Notice of Proposed Removal. See Mem. from R. Robidoux to S. McDonnell (May 1, 2006 ), attached as Ex. O to Def.'s Mot. for Summ. J. In his oral reply, Mr. Fuller again attributed his absences to shingles and an upper respiratory infection, and also mentioned his girlfriend's health issues and his status as a single parent. Id. He did not mention sleep apnea; nor did he claim that he suffered from a disability. See id.
On May 22, 2006, Mr. Robidoux issued a memorandum suspending Mr. Fuller for 30 days for his failure to properly follow leave procedures. Mem. from R. Robidoux to W. Fuller (May 22, 2006), attached as Ex. 3 to Robidoux Decl. The memorandum specifically noted the mitigating factors presented by Mr. Fuller in his April 6 oral reply, and it did not reference sleep apnea. See id. In addition to his 30-day suspension, Mr. Fuller was placed on a 90-day sick and annual leave restriction beginning May 28, 2006. Mem. from H. Jackson to W. Fuller (May 22, 2006), attached as Ex. 4 to Robidoux Decl. To comply with this restriction, Mr. Fuller was required to alert his supervisor or designee within two hours from the start of his shift if he could not report to work, and provide third-party documentation for any sick leave and annual leave. Id.
In or about June 2006, Mr. Fuller contacted the Philadelphia Sleep Center to report that his CPAP machine was malfunctioning, and requested that a technician come to his house to adjust the machine. Fuller Dep. 30-32. After a significant delay, he received a new CPAP machine, but was apparently improperly fitted for the mask. See id. at 32.
At some point after his first period of leave restriction, Mr. Fuller spoke to his immediate supervisor, Charles Krecko, about his medical difficulties. See Fuller Dep. 57-61. At his deposition, Mr. Fuller testified about this conversation:
Q. What did you say to [Mr. Krecko]?
A. I asked him if there was -- that I -- I stated to him that I didn't want to get into any more trouble, and that the health issues were causing this to happen to me. And if there was any way that I could -- if I was late, if I was a couple hours late, if I could just stay later or if -- if I missed my shift, if I could go a different shift for that day. Anything -- anything to keep me from getting in more trouble. And they told me that that was not possible and if I didn't follow the rules, I would be disciplined.
Q. You mentioned the health issues. What health issues were you talking about with Charles Krecko?
A. The sleep apnea and all the symptoms included in that.
Q. Well, what did you specifically tell him? I mean, did you mention sleep apnea by name?
Q. Did you discuss the symptoms with him?
A. Well, he -- I discussed what was going on. Why -- like he asked me why -- why I couldn't call out or why I was coming in late or why I couldn't call out until it was -- if I was going to call out, I couldn't call out until after the time.
And I explained everything to him. That -- about the migraines, about the deep, deep sleep that where I couldn't even be woken up. Somebody had to come and shake me or slap me in the face to wake me up.
Id. 42-43. Mr. Fuller contends that in so speaking with Mr. Krecko, he requested an accommodation of a flexible work schedule on account of his sleep apnea-related problems, and that this request was denied. Pl.'s Statement of Uncontested Facts ¶¶ 46-47 (hereinafter "Pl.'s St."). Mr. Fuller's attendance did not improve, and so the Mint extended his sick leave restrictions in August 2006 and again in November 2006. See Def.'s St.¶ 8. On or around October 3, 2006, Mr. Fuller requested to transfer from the second shift to the third shift, which ran from 11:00 p.m. to 7:00 a.m., because of childcare issues that made the other two shifts unworkable for him. Id. ¶ 10. Mr. Fuller's request was granted, and Mr. Krecko talked to him about the importance of coming to work and following leave procedures. Id.
Between May 22, 2006 and January 29, 2007, Mr. Fuller was absent on unscheduled leave over 30 percent of the time. Id. ¶ 11. Mr. Fuller's supervisor or co-supervisor recorded his frequent absences and the reasons and documentation he offered for those absences. Id. These unscheduled absences included absences where Mr. Fuller was late to his assigned shift, as well as absences when Mr. Fuller did not show up at all for his assigned shift. Id. On some occasions, Mr. Fuller called before or during his shift to notify his supervisor of his absence; on other occasions, Mr. Fuller failed to call at all. Id.
Mr. Fuller does not dispute these absences, but states that they were causally related to his sleep apnea. Pl.'s Resp. to Def.'s St. ¶ 11. Mr. Fuller testified that his symptoms, and his associated inability to show up for work, were caused by the malfunctioning of the CPAP machine. See, e.g., Fuller Dep. 36-43. In an attempt to wake up on time for work, Mr. Fuller used four alarm clocks, which were sometimes effective in rousing him from a deep sleep. See Fuller Dep. 127. During and around this time period, Mr. Fuller asserts that he provided medical documentation for at least some of his absences, and attaches to his brief copies of the following:
* A doctor's note from July 11, 2006, labeled "excuse slip", requesting that Mr. Fuller be excused from work due to a migraine;
* A doctor's note from August 3, 2006, labeled "excuse slip", requesting that Mr. Fuller be excused from work due to "sleep apnea heat related";
* A doctor's note from December 7, 2006, labeled "excuse slip", requesting that Mr. Fuller be excused from work due to what appears as "HA migraines";
* A doctor's note dated January 29, 2007, labeled "Certificate to Return . . . [illegible]", stating that Mr. Fuller "will be able to return to work on ___" and noting that the "nature of illness or injury" is "sleep apnea/fatigue"; and * A doctor's note dated February 1, 2007, stating "The above patient is being treated for severe obstructive sleep apnea and suffers from headaches and fatigue - since 8/25."
See Medical Notes, attached as Ex. 6 to Pl.'s Resp. to Def.'s Mot. for Summ. J., ECF No. 13 ...