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Lindsay Fleck v. Wilmac Corporation

March 27, 2012


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


Presently before the Court is the Motion of Defendants WILMAC Corporation, WILMAC Medical Insurance Plan, Attleboro Associates, Ltd., Attleboro Nursing & Rehabilitation Center, and Susan Mitchell (collectively "Defendants" or "Attleboro")*fn1 for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Motion is granted in part and denied in part.


This matter involves a dispute between Plaintiff Lindsay Fleck ("Plaintiff" or "Fleck"), a licensed physical therapist in the Commonwealth of Pennsylvania, and her former employer.

On March 26, 2006, Fleck injured her right ankle while playing volleyball. (Pl.'s Resp. Opp'n to Defs.' Mot. Summ. J. ("Pl.'s Resp. Opp'n"), Ex. A ("Fleck Dep."), 19:23--24, 20:1--2.) The injury was chronic and required her to subsequently undergo several surgeries and treatments. (Id. at 20:5--24, 21:1--18.) Specifically, Plaintiff was placed in a "CAM boot," a medical apparatus akin to an air cast, to assist her in the functions of standing and walking. (Id. at 20:27, 55:7--11.)

Defendant Attleboro owns and operates a nursing rehabilitation center in Langhorne, Pennsylvania. (Am. Compl. ¶¶ 8, 10--12; Defs.' Answer ¶¶ 8, 10--11. ) In the summer of 2006, Fleck completed a physical therapy internship at Attleboro's rehabilitation center. (Fleck Dep. 23:6--11.) According to Plaintiff, she wore her CAM boot during the duration of her internship. (Id. at 58:13--14.) Plaintiff applied for a permanent, full-time position with Attleboro on March 23, 2007. (Defs.' Mot. Summ. J., Ex. 11 attached to Ex. A ("Fleck Employment Application").) Upon completing the Employment Application, Fleck signed an acknowledgment which stated that she understood her employment was "subject to meeting medical standards." (Id.)

In early August 2007, Plaintiff underwent surgery on her ankle. (Fleck Dep. 21:24, 22:1.) A few weeks later, she was hired by Attleboro as a licensed physical therapist, despite the fact that she had not yet recovered from her surgery and still could not stand or walk at this point in time. (Id. 22:2--11.) As a physical therapist, Fleck's job duties included supervising physical therapy assistants. (Id.) Upon accepting the position, Fleck signed a form that detailed the physical demands required by the position, including: "Good physical and mental health. Must be able to withstand strenuous physical activity [including] . . . continuous standing, walking, reaching, bending, transporting, pushing, pulling, stooping, kneeling, crouching, handling and palpation, and lifting in excess of 50 pounds[.]" (Defs'. Mot. Summ. J., Ex. 11 attached to Ex. A ("Job Description Form").) Fleck signed the Job Description Form, thereby acknowledging that she was "capable of performing all tasks described [t]herein with or without accommodation." (Id.) Fleck alleges that Attleboro was aware of her physical limitations at the time of her hiring because she was not "cleared to do any treatment" of patients. (Fleck Dep. 22:11--12.) Plaintiff was subsequently cleared by her doctor to perform the full duties of her job description without any restrictions in November of 2007. (Id. at 22:13--23.)

On August 7, 2008, Plaintiff notified her supervisor at Attleboro, Program Manager Rachel Schmidt ("Schmidt"), that she needed additional surgery on her ankle. (Id. at 62:16--20.) Schmidt instructed Fleck to obtain the necessary paperwork from Attleboro's Human Resources Representative, Defendant Susan Mitchell ("Mitchell"). (Id. at 62:19.) Plaintiff allegedly requested the paperwork from Mitchell several times to no avail. (Id. at 63:9.) Mitchell denies this allegation, and maintains that she gave Fleck the paperwork the first time it was requested. (Defs.' Mot. Summ. J., Ex. C ("Mitchell Dep.") 15:12--19, 16:6--8.)

A few days later on August 15, 2008, Plaintiff was disciplined for her behavior during an incident with a patient and a music therapist at Attleboro, which had prompted the music therapist to file a formal complaint against her. (Fleck Dep. 38:4--6; Defs.' Mot. Summ. J., Ex. 2 attached to Ex. B ("Comment/Concern Form").) Fleck had placed a speed-restricting device on the patient's wheelchair, and allegedly reacted in a "rude, disrespectful, and inappropriate" manner when the music therapist requested to have the device removed. (Fleck Dep. 28:15--24, 29:2--4, 32:11--24, 33:3-11; Comment/Concern Form.) On August 27, 2008, Plaintiff was issued a formal written disciplinary notice reprimanding her for her actions during the incident. (Pl.'s Resp. Opp'n, Ex. C ("Fleck Disciplinary Notice").) Plaintiff thereafter appealed her disciplinary notice, but was unsuccessful. (Fleck Dep. 41:11--17.) She now alleges that this "overblown response" to the incident was in retaliation for her earlier request to take FMLA leave. (Id. at 63:15--24; Pl.'s Resp. Opp'n 4.)

Also on August 27, 2008, Plaintiff received her annual review from Schmidt, which had allegedly been prepared in weeks prior. (Defs.' Mot. Summ. J., Ex. 5 attached to Ex. B ("Fleck Performance Evaluation").) Upon receiving her review, Fleck once again reviewed a Job Description Form indicating that she could "continuously" engage in strenuous physical activity. (Def.'s Mot. Summ. J., Ex. E, ("Job Description Form").) At no point during this meeting did Fleck inform Schmidt that she was or would be unable to perform any of the essential functions listed under her job description. (Fleck Dep. 62:7--10.) Fleck signed the Job Description Form, indicating that she would be able to meet the "physical demands" provided by the job description "with or without accommodation." (Job Description Form.) Subsequently, Fleck submitted a doctor's note on September 5, 2008, stating that she could work "without restrictions" while wearing the CAM boot. (Pl.'s Resp. Opp'n, Ex. G ("Dr.'s Note 9/5/08").) Plaintiff asserts that her CAM boot qualified as a "reasonable accommodation" which aided her in the performance of her job duties and allowed her to work without any additional restrictions. (Pl.'s Resp. Opp'n 8.)

Plaintiff underwent additional surgery on her ankle on November 20, 2008. (Pl.'s Resp. Opp'n, Ex. H ("FMLA Paperwork").) Immediately prior to her surgery, Plaintiff alleges that Mitchell unnecessarily delayed and refused to file paperwork related to her short-term leave. (Fleck Dep. 70:1--24, 89:12--13.) Plaintiff further avers that when Mitchell finally submitted the paperwork, she intentionally provided Fleck's insurer with incorrect salary information. (Id. at 89:17.) Mitchell, however, contends that she never submitted short-term disability paperwork until the day of an employee's surgery because there was always the possibility that the surgery would not occur. (Id. at 71:4--7.) In fact, on November 20, 2008-the same day as Fleck's surgery-Mitchell sent Fleck a letter stating that her request for FMLA leave was approved for the time period between November 20, 2008 and February 12, 2009. (Pl.'s Resp. Opp'n, Ex. I, ("Leave Approval Letter").) That same day, Mitchell also faxed Fleck's paperwork to the disability carrier. (Defs.' Mot. Summ. J., Ex. 15 attached to Ex. B ("11/20/08 Fax Sheet").) Fleck acknowledges that after her surgery, she was permitted to take FMLA leave and that her leave period was not questioned or interfered with in any way. (Fleck Dep. 65:9--14.)

According to Fleck's Leave Approval Letter, she was required to inform Attleboro of her status and intent to return to work at least two weeks prior to the end of her leave period, and, in the event of a need for leave extension, she needed to provide Attleboro with "reasonable notice." (Ex. I, Leave Approval Letter.) Fleck did not, however, contact Attleboro within the requisite time frame or request additional leave. Instead, she submitted a doctor's note on February 6, 2009-seven days after she was required to contact Attleboro-which stated that she could return to work on February 12, 2009, but would only be able to work for four hours per day. (Pl.'s Resp. Opp'n, Ex. K ("Dr.'s Note 2/4/09").) The note did not indicate when, if ever, the restriction would be lifted or if Plaintiff would require additional accommodations in the execution of her job duties. Upon receipt of the note, Mitchell contacted Schmidt to discuss Fleck's future schedule in light of her new time restriction. (Mitchell Dep. 33:18--25.) Schmidt allegedly informed Mitchell that she could not recall any other employee that was previously permitted to work part-time in such an instance, and that it would be too difficult to find staff coverage to accommodate Fleck's reduced work hours. (Id. at 34:3--7; Schmidt Dep. 87:1--17.) Therefore, on February 6, 2009, Mitchell and Schmidt called Fleck to inform her that her position was terminated because she had exhausted her permitted twelve weeks of FMLA leave and Attleboro could not accommodate her additional restrictions. (Id. at 36:14--25, 37:1--13.) Plaintiff asserts that at this point she requested to formally extend her leave or to have the opportunity to speak with her doctor to arrange a new schedule, but Mitchell and Schmidt allegedly told her that "it was too late for that" and refused to consider whether a different accommodation would allow Plaintiff to return to work. (Fleck Dep. 75:1--6.) Mitchell and Schmidt did tell Fleck, however, that she could reapply for the position when she was able to work without restrictions and could complete the full range of job duties. (Mitchell Dep. 38: 24--25, 39:1--5; Defs.' Mot. Summ. J., Ex. 18 attached to Ex. B ("Fleck Termination Letter").) Consequently, Plaintiff did not return to work at the end of her FMLA leave on February 12, 2009. She received a letter on this day stating that she was being voluntarily terminated "based on the failure to return from a leave of absence." (Fleck Termination Letter.)

Following her termination on February 6, 2009, Fleck allegedly made several attempts to contact Mitchell, but received no response until February 12, 2009-the day that her FMLA leave formally expired. (Pl.'s Resp. Opp'n 14; Fleck Dep. 79:1.) Ten days later, on February 16, 2009, Plaintiff discussed her post-termination healthcare benefits with Mitchell, and was told she was eligible for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and that she would receive notification of her COBRA benefits when her primary insurance expired. (Fleck Dep. 85:2--19; Mitchell Dep. 43:4--25, 44:1--19.) Plaintiff did not receive such notice until almost ten months later on November 23, 2009, despite the fact she believed her primary insurance had ended in February of 2009. (See Pl.'s Resp. Opp'n, Ex. S ("COBRA Benefits Letter"); Fleck Dep. 85:16--19.)

Plaintiff commenced this judicial action on October 21, 2010 after exhausting her administrative remedies. On December 10, 2010, she filed an Amended Complaint, asserting violations of: (1) the Americans with Disabilities Act of 1990 ("ADA") and the Americans with Disabilities Amendments Act ("ADAAA"), 42 U.S.C. § 12101 et seq., for disability discrimination (Count I) and failure to accommodate (Count III); (2) the Pennsylvania Human Relations Act ("PHRA"), 42 P.S. § 951 et seq., for disability discrimination (Count II) and failure to accommodate (Count IV); (3) the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 1001 et seq. (Count V); (4) the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. (Count VI); and (5) COBRA, 29 U.S.C. §§ 1161-1169, and the ARRA, Pub. L. No. 111-5 123 Stat. 115 (2009) (Count VII). On December 30, 2010, Defendants moved to dismiss Plaintiff's ADA, PHRA, and FMLA claims (Counts I--V) for insufficient pleading, the ERISA and COBRA claims (Counts VI and VII) for failure to specify damages, all claims for emotional distress and punitive damages, and all individual claims asserted against Defendant Mitchell. On May 19, 2011, this Court granted in part and denied in part Defendants' Motion to Dismiss. Specifically, this Court declined to dismiss:

(1) Plaintiff's ADA and PHRA claims for disability discrimination and failure to accommodate; (2) Plaintiff's FMLA retaliation claim; (3) Plaintiff's FMLA interference claim to the extent it relied upon Defendants' unwarranted issuance of discipline and failure to timely submit FMLA paperwork; (4) Plaintiff's ERISA claim in its entirety; (5) Plaintiff's COBRA claim in its entirety; and (6) all individual claims asserted against Defendant Mitchell. The Court did, however, grant dismissal of: (1) Plaintiff's interference claim with respect to the termination of her position and Defendants' refusal to provide her with reasonable accommodation; (2) Plaintiff's claims for punitive and compensatory damages under ERISA; and (3) Plaintiff's claims for punitive damages under COBRA. On January 4, 2012, Defendants moved for summary judgment in their favor on the remaining claims. Plaintiff filed a Response in Opposition on January 25, 2012, and Defendants replied on February 3, 2012. The Court will now consider the merits of Defendants' Motion for Summary Judgment.


Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Summary judgment may be granted when "the evidence is merely colorable . . . or is not significantly probative." Id. at 249-- 50 (citations omitted).


Defendants move for summary judgment in their favor on Plaintiff's remaining ADA, PHRA, FMLA, ERISA, and COBRA claims, as well as on all claims asserted against Defendant Mitchell individually. The Court considers each claim individually below.

A. The ADA and PHRA Claims*fn2

Plaintiff alleges that Defendants violated the ADA and PHRA by: (1) issuing her an unwarranted disciplinary notice and then subsequently terminating her position based on her alleged disability; and (2) failing to provide or even discuss a reasonable accommodation for her disability. In response, Defendants contend that they are entitled to summary judgment as a matter of law because there is no issue of material fact that Plaintiff was not terminated on account of her disability.

The ADA, codified at 42 U.S.C. § 12112, prohibits employers from discriminating against qualified employees on the basis of a disability. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1995). Notably, in defining the phrase "discriminate against a qualified individual on the basis of disability," the statute lists an employer's failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). The statute further provides that an employer is not in violation of the ADA if it can demonstrate that such accommodations would impose an "undue hardship" on the operation of its business. Id.

In analyzing discrimination claims brought under the ADA, courts apply the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802--05 (1973). See Fink v. Global Emp't Solutions, Inc., No. Civ.A.08-5816, 2010 WL 1741358, at * 2 (E.D. Pa. Apr. 28, 2010) (further citation omitted). The McDonnell Douglas framework utilizes a three-step process to determine whether an employer intentionally discriminated against an employee. Under the first step, the burden is initially placed on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Upon successfully making out a prima facie case, the burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for its termination of the plaintiff. Id. at 802. The third step requires the employee to prove by a preponderance of the evidence that the employer's asserted reason was nonetheless pretextual. Id. at 804.

1. Prima Facie Case of Discrimination

To establish a prima facie case of discrimination under the ADA, a claimant must prove three elements: (1) she is "disabled" within the meaning of the ADA; ( 2) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) she has suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent Tech., 134 F.3d 576, 580 (3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d ...

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