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Wolski v. City of Erie

United States District Court, W.D. Pennsylvania

September 28, 2012

Mary WOLSKI, Plaintiff,
CITY OF ERIE, Defendant.

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Paul J. Susko, The GideonBall House, Erie, PA, for Plaintiff.

Gerald J. Villella, Dailey, Karle & Villella, Gregory A. Karle, Erie, PA, for Defendant.


McLAUGHLIN, SEAN J., District Judge.

After being terminated from her job as a firefighter with the City of Erie, Plaintiff Mary Wolski commenced this civil action under Title I of the Americans with Disabilities Act (" ADA" ), 42 U.S.C.A. § 12117(a).[1] Following a five-day trial, a jury found in favor of Wolski. Presently pending before the Court is the Defendant's motion for judgment as a matter of law and/or for a new trial.[2] For the reasons set forth below, the City's motion will be granted in part and denied in part.


Wolski was hired as the first female firefighter in the City of Erie Fire Department in 1997. During her tenure she performed well and gained the respect of her peers.

In April 2005, Wolski's mother was diagnosed with MRSA, resulting in months of hospitalization, multiple surgeries, and ultimately a pronged and painful decline. Wolski's mother passed away on Christmas Eve, 2005 at the age of 69.

Over the course of her mother's illness, Wolski took an extensive amount of FMLA leave from her job in order to care for her mother. During this time, the City made no efforts to terminate, demote, or discipline Wolski as a result of her absences and, in fact, many of Wolski's co-workers expressed concern or support for her.

Following her mother's death, Wolski experienced feelings of personal guilt and began suffering from panic attacks. In September of 2006, she took sick leave from her job. Upon the recommendation of her primary care physician, Wolski began seeing a psychiatrist to help her cope with her grief. She developed a severe depression and began taking multiple prescription medications to address her mental health problems.

In conversations with the City's benefits coordinator, Colleen Faytek, Wolski disclosed tat she was seeing a psychiatrist, was on medications and was receiving counseling. Wolski eventually agreed to return to work on a part time basis, with the intent of performing two half-days of light duty per week beginning December 12, 2006.

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When December 12, 2006 arrived, however, Wolski did not report to work and the City was unable to contact her. Consequently, Fire Chief Anthony J. Pol sent his deputy, Vance Duncan, to Wolski's residence in order to check on her. Deputy Chief Duncan later generated a report of his encounter with Wolski:

[Wolski] asked me to come in and sit down. She explained that she has been very depressed and has had some suicidal thoughts. She stated she has been going to the doctor and seeing a psychiatrist. She also stated she has begun a new medication yesterday and that the previous medications " did not work." Some medications made her " feel anxious." She said that " the new medication may take several days until it makes her feel better." She also stated that she did not want to talk to anyone today; that is the reason she did not answer the phone when Colleen (Faytek) called earlier. She said that she has been depressed due [to] the circumstances (her mother's death last Christmas eve) and she has not been out of the house much.
I told her that we were concerned since she did not answer the phone. We wanted to make sure that she was okay. I also told her that if she needed anyone to talk to, feel free to call myself, Chief Pol, Colleen (Faytek) or [Human Resources Manager] Connie Cook.
She stated that it would probably help if she got out of the house and came back to work. She said that she has not been motivated to [do] anything.
I once again told Mary to call Colleen the next day or two and at the latest to call on Friday. I also restated that she should call either me, Chief Pol or Connie Cook also at anytime to talk.

(See Pl.'s Ex. 2.)

After leaving Wolski's house, Deputy Chief Duncan contacted Chief Pol and related the foregoing events, adding that " something needs to be done." He was transferred to Connie Cook and left her a voicemail message, then completed the foregoing report.

On December 27, 2006, Wolski's immediate supervisor, Lt. Darren Hart, telephoned to check on Wolski in light of the fact that it was the anniversary of her mother's death. Wolski advised Lt. Hart that she was " freaking out, but I have my family with me, so I'll be okay."

The following day, overwhelmed by severe depression and the side-effects of her medication, Wolski attempted to take her life in her father's vacant residence.[3] She disconnected the smoke alarm, ingested an overdose of pills, and set some clothing on fire in the bathtub with the intent to commit suicide through carbon monoxide poisoning. Wolski subsequently extinguished the fire out of concern that property damage or danger to others might occur if she were to lose consciousness while the fire was still burning. She subsequently passed out and was discovered by family members who sought emergency medical treatment.

Meanwhile, emergency fire crews arrived on scene. Although the fire was already extinguished, the firefighters sprayed down some areas with water to ensure that any hot spots would not reignite.

Wolski was initially hospitalized in Pittsburgh, then transferred to Erie where her medications for severe depression were

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changed prior to her release in January 2007. She was ultimately diagnosed with severe depression— single episode.

In the wake of these events, the City of Erie police department commenced an investigation concerning possible criminal charges relating to the setting of the fire. Ultimately, the Erie County District Attorney declined to press charges.

In the meantime, however, Wolski had approached Chief Pol at a retirement party on March 6, 2007 and inquired what she had to do in order to be able to return to her job. According to Wolski, Chief Pol replied that he did not know and suggested that the matter would have to await resolution of the pending criminal investigation. On April 3, 2007, after Plaintiff's sick time was depleted, Chief Pol placed Wolski on paid administrative leave.

On April 11, 2007, after the DA had officially decided to forego criminal charges, Chief Pol signed a letter of termination directed to Wolski. The letter stated, in relevant part:

The reasons for this action were referenced in my letter of April 4, 2007, placing you on paid leave pending the completion of the investigation of the December 28, 2006[ ] incident involving you. On that date, you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.
This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence...

Aside from Chief Pol, those having input into the decision to terminate Wolski's employment included the City's Human Resources Director, Connie Cook, and the Mayor of the City of Erie.

After being terminated from her job, Wolski unsuccessfully pursued a grievance procedure pursuant to her collective bargaining agreement. At some point after June 26, 2007, Wolski submitted to the City, for the first time, a letter from Lance Besner, M.D., a treating psychiatrist. This letter, dated June 26, 2007, consisted of one sentence indicating that Wolski had been medically cleared to return to work as of March 15, 2007.

Wolski subsequently submitted another letter from Dr. Besner dated August 6, 2007 which purported to summarize Wolski's mental status, both past and present, as well as her medication trials. This letter was received by the City on August 28, 2007.

Two days later, hearings commenced before the City's Civil Service Commission relative to Wolski's appeal from her unsuccessful grievance procedure. During these hearings, the Civil Service Commission heard testimony from Chief Pol and Connie Cook, among others, concerning the circumstances surrounding Wolski's termination. Following three days of testimony, the Commission rendered an adverse decision on December 11, 2007, stating the following:

Upon reviewing all the notes from the testimony, as well as the transcripts of the proceedings, the Civil Service Commission upholds the action of the City of Erie, in the matter surrounding the discharge of Ms. Mary Wolski.
While fully recognizing the unique and painful circumstances affecting Ms. Wolski during the time in question, her admission on November 20, 2007, regarding her setting a fire at 1834 East 35th

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Street, is the single most significant act a fire fighter may not commit.
The act of establishing a fire in a residence is wholly incompatible with the role of the fire fighter, despite the mitigating circumstances of Ms. Wolski's psychological state.

(Defs.' Ex J.) The Commission's decision became final for purposes of state law after Wolski withdrew her appeal to the Erie County Court of Common Pleas on March 10, 2009.


Title I of the ADA prohibits covered employers from discriminating against qualified individuals with disabilities because of their disabilities with regard to terms, conditions, and privileges of employment including, among other things, job application procedures and the hiring, advancement, or discharge of employees. See 42 U.S.C. § 12112(a). The statute defines prohibited acts of discrimination to include the use of employment " qualification standards ... that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities" unless the employer shows that the standard being invoked is " job-related for the position in question and is consistent with business necessity." 42 U.S.C. § 12112(6). Valid job " qualification standards" may include a requirement that an individual not pose a " direct threat" to the health or safety of other individuals in the workplace, 42 U.S.C. at § 12113(b); 29 C.F.R. § 1630.15(b)(2), which is understood as " a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. at § 1630.2(r).

Where a perceived " direct threat" is invoked as a job qualification standard, however, the employer's determination of " direct threat" must be based on an " individualized assessment of the individual's present ability to safely perform the essential functions of the job." 29 C.F.R. at § 1630.2(r). Such an assessment must, in turn, be based on " a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence." Id. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.

Further guidance is provided by the EEOC's enforcement handbook relative to psychiatric disabilities:

Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a " direct threat." [ ] Employers must apply the " direct threat" standard uniformly and may not use safety concerns to justify exclusion of persons with disabilities when persons without disabilities would not be excluded in similar circumstances. [ ]

* * *

... With respect to the employment of individuals with psychiatric disabilities, the employer must identify the specific behavior that would pose a direct threat.[ ] An individual does not pose a " direct threat" simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.[ ]

(EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Pl.'s Ex. 6) at p. 219 (footnotes omitted).)

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The enforcement handbook also speaks directly to the issue of attempted suicide:

35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?
No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person's ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical ...

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