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Judith Cavaliere v. Advertising Specialty Institute Inc.

February 16, 2012

JUDITH CAVALIERE
v.
ADVERTISING SPECIALTY INSTITUTE INC.



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

MEMORANDUM

Plaintiff Judith Cavaliere ("Cavaliere") brings this action against defendant Advertising Specialty Institute Inc. ("ASI") under the Family and Medical Leave Act ("FMLA" or the "Act"), 29 U.S.C. §§ 2601, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. Cavaliere worked for ASI for nearly six years -- both as an associate publisher and business development director -- before ASI terminated her in 2010. Cavaliere alleges that ASI retaliated against her in violation of the FMLA,*fn1 and also discriminated against her (based both on her actual disability and perceptions of her disability) and retaliated against her in violation of the ADA.

ASI has filed a motion for partial summary judgment as to which Cavaliere has filed a response in opposition and ASI has filed a reply in support. For the reasons that follow, we will grant ASI's motion in part and dismiss Cavaliere's claim for discrimination under the ADA on the grounds of estoppel as well as her damages claim for back pay and front pay.

I. Factual Background

Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011). We will thus recite the undisputed facts in this matter, pausing occasionally to supplement those facts with disputed factual assertions that the parties have supported with specific citations to the record.

A. Cavaliere's Career And Termination At ASI

Cavaliere began working for ASI in August of 2004 as an associate publisher, and became its business development director around January 1, 2007. Her supervisor in the latter capacity was Ed Koehler ("Koehler"). Def.'s Statement of Facts ("Def.'s Stmt.") ¶¶ 1-3; Pl.'s Resp. to Def.'s Stmt. ("Pl.'s Resp.") ¶¶ 1-3. The position description for business development director stated that it required travel thirty percent of the time, Def.'s Stmt. ¶ 5 (citing Ex. 3 to Def.'s Stmt. ("Position Description")), and Cavaliere explained in her deposition that she believed her employment contract required travel between seventy-five and eighty percent of the time. Id. (citing Ex. 12 to Def.'s Stmt. ("Cavaliere Dep.") at 74). In any event, Cavaliere claims that "she could have performed her job without traveling," Pl.'s Resp. ¶ 5 (citing Cavaliere Dep. at 120 ("I could have done it from home.")), and that Koehler confirmed this fact. Id. (citing Koehler Dep. at 54 ("As long as the rep makes the sales and the sales come in and they make their budget, whether they travel or not, it's up to them.")).

According to Koehler and ASI's publisher, Rich Fairfield ("Fairfield"), ASI had to deal with problems relating to Cavaliere's work that involved (1) pricing discrepancies in which Cavaliere's clients said they should have been billed at a lower amount than ASI billed them for particular advertisements, and (2) claims by those clients that they had not agreed to orders that Cavaliere had placed for them. Def.'s Stmt. ¶¶ 6-7; Pl.'s Resp. ¶¶ 6-7. Some of these clients asked that a new ASI account representative replace Cavaliere. Def.'s Stmt. ¶ 8; Pl.'s Resp. ¶ 8. At a February 9, 2010 meeting with Koehler and Carol Albright ("Albright"), ASI's Senior Vice-President of Human Resources, Cavaliere received a Final Written Warning. Def.'s Stmt. ¶ 12; Pl.'s Resp. ¶ 12. At that meeting, ASI instructed Cavaliere to (1) stop submitting false orders, (2) make a list of existing orders with potential problems, and (3) submit that list to Koehler. Def.'s Stmt. ¶ 20; Pl.'s Resp. ¶ 20.

Koehler and Albright ultimately decided to terminate Cavaliere's employment with ASI, and on March 8, 2010, Koehler and Albright informed her by phone that she had been fired.

Def.'s Stmt. ¶¶ 26, 29; Pl.'s Resp. ¶¶ 26, 29. Koehler testified that ASI terminated Cavaliere because (1) she was falsifying orders, (2) her inaccuracies regarding pricing had created problems with clients, and (3) she had failed to provide a complete list of problem accounts contrary to what she was told at the February 9, 2010 meeting. Fairfield added that Cavaliere was terminated because she put in orders that were either not real or partially real, but at different prices than had been agreed upon. Def.'s Stmt. ¶¶ 30-31; Pl.'s Resp. ¶¶ 30-31. ASI did not hire a new business development director following Cavaliere's termination. Def.'s Stmt. ¶ 32; Pl.'s Resp. ¶ 32.

B. Cavaliere's Health Problems

In October of 2009, Cavaliere was diagnosed with spondylolisthesis.*fn2 Def.'s Stmt. ¶ 34; Pl.'s Resp. ¶ 34. She also claims to suffer from osteoarthritis, fibromyalgia,*fn3 degenerative disc disease, depression, obsessive-compulsive disorder ("OCD"), and anxiety, and states that she has been seeing an orthopedic surgeon, Dr. Jeffrey Miller ("Dr. Miller"), for five or six years.*fn4 Def.'s Stmt. ¶¶ 35-36; Pl.'s Resp. ¶¶ 35-36. According to Cavaliere, her condition flared up in September of 2009, causing pain in her hip that was treated with a steroid injection. Def.'s Stmt. ¶ 37; Pl.'s Resp. ¶ 37. According to Dr. Miller, she told him on October 20, 2009 that she was experiencing pain in her right leg, and in December of that year stated that she was experiencing pain in her back, hip, and right leg. Pl.'s Stmt. ¶¶ 23-24; Def.'s Resp. to Pl.'s Stmt. ("Def.'s Resp.") ¶¶ 23-24. Dr. Miller further reported that Cavaliere told him on March 25, 2010 that she did not feel able to do her job due to its travel requirements. Pl.'s Stmt. ¶ 25; Def.'s Resp. ¶ 25. Cavaliere has seen a chiropractor, continues to treat with Dr. Miller, and began seeing a psychiatrist in 2011. Def.'s Stmt. ¶¶ 38-40; Pl.'s Resp. ¶¶ 38-40.

C. Cavaliere's Requests For Accommodations From ASI

ASI claims that Cavaliere only made one request for accommodations from ASI on account of her health problems, asking for a chair and a lumbar support that ASI provided to her.

Def.'s Stmt. ¶ 47 (citing Cavaliere Dep. at 137 (Counsel for ASI: "Did you ever request, other than asking Ms. Ambrose to rearrange your office -- and 'rearrange' is a loose term, but I think that's what you said -- did you request any other accommodation from ASI because of your back condition?" Cavaliere: "Just the chair.")). Cavaliere responds that she "requested from Mr. Koehler that she be able to work from home after her back problems began to flare up in the fall and winter of 2009" and that he told her that she could not. Pl.'s Resp. ¶¶ 40, 47 (citing Cavaliere Dep. at 120 ("I asked Ed if I could work from home when I started feeling ill and he said no.")). While Cavaliere testified that she was not allowed to work from home while at ASI, she also testified that she "'could work at home for California calls, which I did late at night,'" Def.'s Stmt. ¶ 56 (quoting Cavaliere Dep. at 309); Pl.'s Resp. ¶ 56, and that she occasionally worked from home as part of her job at ASI.

Def.'s Stmt. ¶ 56; Pl.'s Resp. ¶ 56.

Cavaliere also alleges in her complaint that ASI terminated her "in retaliation for seeking reasonable accommodations (periodic time off from work)." Pl.'s Compl. ¶ 32. ASI insists that Cavaliere never sought periodic time off from work, instead requesting only occasional days off "which ASI granted her without issue", Def.'s Stmt. ¶ 49 (citing Cavaliere Dep. at 261). Cavaliere appears to agree with the first part of this statement, Pl.'s Resp. ¶ 49 (quoting Cavaliere Dep. at 261 (Counsel for ASI: "Was there a point where you sought periodic time off from work and were denied?" Cavaliere: "No, just days.")), but disagrees with the latter portion, Pl.'s Resp. ¶ 49 (citing Cavaliere Dep. at 260-62), apparently because Koehler "might have commented" on Cavaliere taking those days off. Cavaliere Dep. at 261. The parties agree, in any case, that (1) Cavaliere never exhausted the number of days off that ASI allowed her, (2) all of the time off that she took was permitted by ASI, and (3) ASI never indicated to her that the time she took off from work played any role in her termination. Def.'s Stmt. ¶¶ 52-53; Pl.'s Resp. ¶¶ 52-53.

ASI claims that Cavaliere never told anyone at ASI that she was unable to travel. Def.'s Stmt. ¶ 57 (citing Cavaliere Dep. at 94 (Counsel for ASI: "Did you tell anyone at ASI while you still worked there that you could no longer travel at all?" Cavaliere: "No.")). Cavaliere responds that she told Koehler about her inability to travel on specific trips, Pl.'s Resp. ¶ 57 (citing Cavaliere Dep. at ...


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