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Amanda Howard v. Commonwealth of Pennsylvania Department of Public Welfare

January 9, 2013

AMANDA HOWARD,
PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, ET AL., DEFENDANTS.



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

MEMORANDUM

Plaintiff Amanda Howard brings this employment discrimination suit against Defendants Pennsylvania Department of Public Welfare (DPW), Maureen Lewandowski, and Carrie Stoner (collectively, Defendants).*fn1 Howard alleges violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. She also asserts a due process claim pursuant to 42 U.S.C. § 1983.

The parties filed cross motions for summary judgment. Howard seeks summary judgment as to liability on her FMLA interference claim against Lewandowski.

Defendants seek summary judgment on all counts. For the following reasons, I will deny Howard's motion entirely and deny Defendants' motion in part.

I. BACKGROUND*fn2

DPW hired Howard on February 6, 2004, as an income maintenance caseworker (IMC) in the Lancaster County Assistance Office (LCAO). Doc. No. 25,*fn3 Ex. 2, ¶ 1. Lewandowski was the executive director of LCAO at all times relevant to this lawsuit. Doc. No. 22,*fn4 Ex. 1, ¶ 2.

A. Howard's Medical and Work Status Through 2008

Howard was diagnosed with fibromyalgia sometime in late 2004 or early 2005.*fn5

Doc. No. 25, Ex. 2, ¶ 24. She communicated her diagnosis to her supervisor, who suggested that she apply for FMLA leave.*fn6 Id. Howard did so and was approved for intermittent FMLA leave, which she used throughout her employment at LCAO for doctor's appointments and flare-ups of her fibromyalgia. Id. ¶¶ 25-28.

At LCAO, Howard worked on large cases in a two-person team with another IMC. Id. ¶ 29. In March 2008, Howard's teammate, Donna Rae Miller, hurt her foot and missed several days of work. Id. ¶ 30. During Miller's absence, Howard assumed all duties associated with the team's caseload, including filing.*fn7 Id. ¶ 31. However, when Miller returned, she refused to resume her share of the filing. Id. ¶ 32. Howard complained to her supervisor, Judy Jenkins, that the extra filling was hurting her left shoulder, but Jenkins took no action. Id. ¶¶ 33-35.

In August 2008, Howard strained her left shoulder while at the gym.*fn8 Id. ¶¶ 36-37. In late November 2008, Howard complained to Kimberly McMahon, the human resources officer at LCAO, that Howard was still performing Miller's share of filing, that it was causing pain in her shoulder and elbow, and that the pain was related to her fibromyalgia. Id. ¶ 38. McMahon told Howard to address the situation through her supervisor. Id. ¶ 39. McMahon also told Howard that filing was an essential job function of an IMC*fn9 and that if Howard brought in a doctor's note limiting her ability to file, she would be sent home.*fn10 Id. ¶ 36.

On December 11, 2008, Howard visited her rheumatologist, Dr. Colleen Matejicka, and reported soreness in her left shoulder. Id. ¶ 42. Dr. Matejicka determined that Howard was suffering from tendonitis in her left shoulder and that she should avoid repetitive use of her left arm. Id. ¶ 43; Howard Dep. at 65. Howard communicated the diagnosis to McMahon, who again stated that filing was an essential job function of an IMC and that if Howard brought in a doctor's note limiting her ability to file, she would be sent home. Doc. No. 25, Ex. 2, ¶¶ 44-45.

B. Howard's ADA Accommodation Request

In January 2009, Howard asked McMahon if an occupational therapist could evaluate her work environment. Id. ¶ 49. McMahon informed Howard one could, but only through an approved ADA accommodation. Id. ¶ 50. McMahon gave Howard an ADA questionnaire and told her to have her medical provider complete it. Id. ¶ 51. Dr. Matejicka completed the questionnaire, listing only "bicep tendonitis" as the condition requiring accommodation. The questionnaire made no mention of Howard's fibromyalgia.*fn11 Id. ¶¶ 53-54.

In a memo dated April 28, 2009, Nancy Bartholomew, DPW's disability services coordinator, denied Howard's request for an accommodation, concluding that Howard's "condition" did not qualify as a disability under the ADA. Id. ¶¶ 58-59. The memo indicated that Howard could provide "additional clarifying medical documentation" or file a "request for reconsideration." Id. ¶¶ 63-64. Upon receipt of the memo, Howard, along with a union representative, asked McMahon and Lewandowski why her fibromyalgia was not considered in Bartholomew's decision. Id. ¶ 65. According to Howard, both McMahon and Lewandowski informed her that she could not provide additional documentation regarding her fibromyalgia or appeal the decision.*fn12 Id. ¶ 69; Howard Dep. at 83-86, 104-06.

C. Howard's Medical Documentation in May 2009

Howard was assigned a new teammate in May 2009 who did her share of the filing; however, Howard's left shoulder remained "sore." Doc. No. 25, Ex. 2, ¶¶ 70-71; Howard Dep. at 114. On May 18, 2009, Howard showed up for work wearing sneakers after experiencing a fibromyalgia flare-up in her ankles. Doc. No. 25, Ex. 2, ¶ 72; Howard Dep. at 112. Howard's supervisor, Judy Jenkins, told her she would need to produce a doctor's note if sneakers were medically necessary. Doc. No. 25, Ex. 2, ¶ 73. On May 22, 2009, Howard, along with a union representative, presented McMahon with four notes from Dr. Matejicka collectively clearing Howard to wear sneakers at work and directing that she avoid repetitive use of her left arm. Id. ¶¶ 74-77. Lewandowski responded to Howard via letter that same day, reminding Howard that her ADA accommodation request had been denied and that she was therefore "required to perform the full functions and duties outline in [her] Essential Job Functions and Job Description." Id. ¶¶ 74-81.

On May 29, 2009, Howard used her intermittent FMLA leave to visit an orthopedist, Dr. Robert Davis, to whom she was referred by Dr. Matejicka. Id. ¶ 82. At the end of the appointment, Dr. Davis provided Howard with a note indicating that she could return to work immediately if certain lifting restrictions on her left arm were met.*fn13

Id. ¶ 88. Howard returned to LCAO after the appointment and presented the return-to-work note to McMahon. Id. ¶¶ 89-90. McMahon conferred with Lewandowski and a DPW labor coordinator; the three concluded that Howard would need to be sent home because Dr. Davis' return-to-work note restricted her duties. Id. ¶ 92. McMahon informed Howard that she would need to leave and that she could not return until she presented a doctor's note clearing her to work without restrictions. Id. ¶ 95; McMahon Dep. at 90. May 29 was Howard's last day at LCAO.

D. Howard's Union Grievance

On June 10, 2009, Lewandowski sent Howard a letter summarizing Howard's leave options and reiterating that Howard would need to provide medical documentation releasing her "to perform [her] full duties" before she could return.*fn14 Doc. No. 25, Ex. 6 at 13. On June 12, 2009, Howard's union representative filed a grievance on her behalf. Doc. No. 25, Ex. 2, ¶ 101. The grievance stated that Howard had "requested several accommodations be made for her medical condition (fibromyalgia)." Doc. No. 25, Ex. 6 at 14. By letter dated July 6, 2009, Lewandowski denied Howard's grievance. The letter stated that "there is no record of Ms. Howard ever filing for formal accommodations due to fibromyalgia. Management is aware of only one accommodation requested by Ms. Howard, and this formal accommodation . . . was due to an arm condition, bicep tendonitis, not fibromyalgia." Id. at 15.

E. Howard's FMLA Leave in 2009

In April 2009, Howard's intermittent FMLA leave for her fibromyalgia was up for renewal. Doc. No. 25, Ex. 2, ¶ 112. Because Howard was also being treated for tendonitis at the time, she asked McMahon and McMahon's assistant, Susan Yingst, whether she should submit a separate FMLA request for her tendonitis. Id. ¶ 113. McMahon and Yingst told Howard to do so. Id. ¶ 114. Accordingly, Howard had Dr. Matejicka complete two Serious Health Condition Certification forms, one for her fibromyalgia and one for her tendonitis. Id. ¶¶ 115-17. Howard also submitted two Request for SPF forms. Id. ¶ 118. On April 30, 2009, Defendant Carrie Stoner, DPW's SPF coordinator in Harrisburg, issued designation notices for both requests.*fn15 Id. ¶ 119.

After Howard was sent home on May 29, her absences were recorded pursuant to her approved intermittent FMLA leave. Id. ¶ 124. At some point thereafter, Yingst instructed Stoner to send Howard paperwork for full-time FMLA leave. Id. ¶ 126. On July 13, 2009, Stoner sent Howard the paperwork, which included a notice of eligibility stating, "You were previously approved for intermittent absences. Since your absence is now a full-time absence, you must provide a new Serious Health Condition Certification [by July 28, 2009,] to substantiate a full-time absence."*fn16 Id. ¶ 128. Howard subsequently telephoned Stoner and explained that she was on full-time leave because LCAO would not allow her to return to work, not because her doctor had ordered a full-time absence.*fn17 Doc. No. 22, Ex. 1, ¶ 72.

On August 10, 2009, Stoner sent Howard a disapproval notice stating, "You did not provide the certification by the date requested. Please provide a completed Serious Health Condition Certification Form no later than 8/17/09."*fn18 Doc. No. 25, Ex. 2, ¶ 34. On August 19, 2009, Howard sent Stoner a letter reiterating that LCAO, not her doctor, had forced her onto full-time leave. Doc. No. 25, Ex. 6 at 21. On August 31, 2009, Stoner sent Howard another disapproval notice, which was identical in all respects to the previous notice, only this time it added, "Please be advised that your current absence is due to Event #2. The approval period for Event #2 expired on July 31, 2009." Id. at 23. On September 15, 2009, having received no documentation from Howard, Stoner mailed a third disapproval notice indicating that Howard had not been approved for full-time FMLA leave because she did not timely provide a new Serious Health Condition Certification form. Id. at 25. The letter further indicated that Howard could either "return to full-time, full-duty work" by September 22, 2009, request paid leave, or consider resigning. Id.

On September 16, Howard faxed Stoner an updated Serious Health Condition Certification form completed by Dr. Matejicka. Doc. No. 25, Ex. 2, ¶¶ 144-45. The form pertained only to Howard's fibromyalgia; it made no mention of her tendonitis. Doc. No. 25, Ex. 6 at 32. On September 23, 2009, Stoner mailed Howard a final letter advising Howard that the updated Serious Health Condition Certification form "you submitted for Event #1 has been received and reviewed. However, as of the date of this letter you have not been absent for this reason. You have been on a full-time absence for Event #2." Id. at 34.

F. Howard's Termination

On September 22, 2009, Howard, along with a union representative, attempted to return to work at LCAO. Doc. No. 25, Ex. 2, ¶ 149. Although Howard was ready and willing to work, she still had not produced medical documentation clearing her to work without restrictions. Accordingly, she was again sent home. Id. ¶ 150-51; McMahon Dep. at 115.

By letter dated November 5, 2009, Lewandowski terminated Howard's employment due to Howard's "unauthorized/insubordinate absence" since August 1, 2009 (the day after she exhausted her intermittent FMLA leave for "Event 2"). Doc. No. 25, Ex. 6 at 39. McMahon subsequently coded ...

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