Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richard Unangst v. Dual Temp Company

March 19, 2012


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


Presently before the Court is Defendants Dual Temp Company, Inc., Kevin Keeler and Paul Bjorke's Motion for Summary Judgment. (Defs.' Mot. Summ. J., ECF No. 14.) For the following reasons, the Motion will be granted.


In the fall of 2008, Plaintiff Richard Unangst was diagnosed with non-Hodgkin's lymphoma, a form of cancer. (Compl. ¶ 22, ECF No. 1.) At the time, Plaintiff was employed as a heating, ventilation and air conditioning (HVAC) service technician for Defendant Dual Temp Company, Inc. ("Dual Temp"), a corporation based in Allentown, Pennsylvania. (Id. at ¶ 17.) Plaintiff was responsible for repairing and servicing existing HVAC systems for clients, often traveling to off-campus sites. (Bjorke Dep. 66, 85-88, Defs.' Mot. Summ. J. Ex. B.)*fn1

Plaintiff had been employed by Dual Temp since May 2008, having been hired because of his experience and knowledge. (Compl. ¶ 17; Keeler Dep. 30, Pl.'s Resp. Ex. 2, ECF No. 15.)

His direct supervisor during the six months between the commencement of his employment at Dual Temp and his cancer diagnosis was Defendant Kevin Keeler. (Compl. ¶ 18.) Keeler was employed as the service manager at Dual Temp. (Id. at ¶ 11; Keeler Dep. 9, Defs.' Mot. Summ. J. Ex. A.) Defendant Bjorke was employed as Dual Temp's human resources and safety manager. (Compl. ¶ 12; Bjorke Dep. 12.)

Prior to his diagnosis, Plaintiff's on-the-job performance was called into question on several occasions. In June 2008, Keeler expressed concern to Bjorke about Plaintiff's productivity and e-mailed Bjorke to recount a conversation Keeler had had with Plaintiff. That e-mail memorializes Keeler's sense that Plaintiff "has been performing below expectations when he is left by himself," and Plaintiff's "frustrations with [Keeler]" and the pace and level of work expected of Plaintiff. (June 19 E-mail, Defs.' Mot. Summ. J. Ex. C-9.) Several months later, in September 2008, Keeler e-mailed Bjorke to describe another conversation between Keeler and Plaintiff. In that e-mail, Keeler pointed to "shortcomings in [Plaintiff's] troubleshooting skills," using two recently mishandled jobs to illustrate the nature of the problem. (Sept. 23 E-mail, Defs.' Mot. Summ. J. Ex. C-10.) According to Keeler's second e-mail, Keeler had explained to Plaintiff that Dual Temp "expect[ed] much more from him than [it was] receiving," and was concerned that "[h]is teammates [had] begun rejecting him and . . . stopped assisting him in the field." (Id.) Keeler concluded by noting that Plaintiff had "been informed that things are not going well," and had been told that "he needs to take corrective action immediately." (Id.) Plaintiff denies that these conversations occurred, and claims that Keeler never confronted him about poor job performance during his tenure at Dual Temp. (Unangst Dep. 153-57, Pl.'s Resp. Ex. 3.)*fn2 These two instances were recorded as "Discipline Dates" in a summary of employees' evaluations, which also included negative evaluations of Plaintiff's performance as assessed by Bjorke. (Defs.' Mot. Summ. J. Ex. C-6; Bjorke Dep. 73-82.)

According to Keeler, Plaintiff was generally a subpar employee, because of his slowness, lack of understanding of "how to run a job," and difficulty working with other team members. (Keeler Dep. 55.) Keeler noted specific problems involving Plaintiff's performance on the job sites at "US Cold Storage" and "Kelly Nissan," two Lehigh County businesses. (Id. at 111-12, 114.)

Plaintiff was diagnosed with cancer in late October or early November 2008. (Unangst Dep. 96, Defs.' Mot. Summ. J. Ex. D.) Plaintiff informed Dual Temp of his diagnosis on the next workday. (Id.) According to Plaintiff, Keeler promised to "work with [Plaintiff] in the future . . . to get through to try and accommodate [Plaintiff's] needs." (Id. at 97.) Keeler and Plaintiff then proceeded to meet with Bjorke, and designed a timetable for Plaintiff to stop working. (Id. at 98-99.) At that meeting, Plaintiff was advised to take a three-month-long, paid, short-term disability leave. (Id. at 100.) Plaintiff was not under the impression that his leave would last any longer than three months. (Id. at 103.)

Plaintiff stopped working at Dual Temp and began chemotherapy treatments in November 2008, soon after receiving his diagnosis. The treatments were administered every two weeks, and left Plaintiff severely fatigued, nauseous and anxious. (ADA Intake Questionnaire ¶ 4, Defs.' Mot. Summ. J. Ex. E-2.) Although Plaintiff was on paid disability leave, he stopped by Dual Temp's offices on two occasions: in late November, to pick up a Thanksgiving turkey given to all employees, and again in December. (Unangst Dep. 104.) According to Plaintiff, at various times between November 2008 and February 2009, Bjorke inquired as to Plaintiff's wife's employment status, asked whether Plaintiff had a mortgage on his home, and raised other personal financial issues with Plaintiff. (ADA Intake Questionnaire ¶ 4.)

Plaintiff was found to be cancer-free in February 2009. (Id. at ¶ 2.) Following his treatment, Plaintiff's physicians placed no restrictions on his ability to resume a normal life and return to work. (Id. at ¶ 8; Doctor's Note, Defs.' Mot. Summ. J. Ex. E-7.)

Plaintiff's absence from Dual Temp coincided with a severe downturn in the American economy, which affected Dual Temp's business. In early 2009, Dual Temp began to lay off employees, citing a lack of work. (Bjorke Dep. 65.) From January 27, 2009 through March 30, 2009, Dual Temp laid off dozens of employees, including five service technicians. (Defs.' Mot. Summ. J. Ex. C-7.) A series of memoranda written by Bjorke detail the nature of the layoffs, noting that they were due to "current workforce requirements." (Defs.' Mot. Summ. J. Ex. C-6.) On March 9, 2009, Bjorke informed Plaintiff, who had returned to Dual Temp's offices for what he anticipated would be his first day of work, that he would be laid off because there was no work for him. (See Unangst Dep. 111-15.)*fn3 According to Bjorke, layoff decisions were made after consultation with project managers and examination of empirical evaluations. (Bjorke Dep. 61.)

On September 3, 2009, Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC"), alleging discrimination by Defendants because of his disability. On August 2, 2010, the EEOC issued a Notice of Right to Sue. On November 19, 2010, Plaintiff filed a Complaint, alleging discrimination in violation of the Americans with Disabilities Act ("ADA") and the Pennsylvania Human Relations Act ("PHRA").

Following discovery, Defendants filed the instant Motion for Summary Judgment. Plaintiff has responded, opposing Defendants' Motion.


A party is entitled to 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." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact is genuinely . . . disputed must support the assertion by . . . citing to particular parts of materials in the record."); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (noting that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no 'genuine ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.