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Dove v. Community Education Centers Inc.

United States District Court, Third Circuit

December 4, 2013

WILLIAM DOVE, Plaintiff,



Currently pending before the Court is the Motion for Summary Judgment by Defendant Community Education Centers, Inc. d/b/a George W. Hill Correctional Facility, Delaware County Prison (“CEC”). For the following reasons, the Motion is granted and judgment shall be entered in favor of Defendant and against Plaintiff on the entirety of the Complaint.


A. Plaintiff’s Past Medical History

Plaintiff, William Dove, was originally diagnosed with bipolar depression during his junior year of high school in 2001 to 2002. (Def.’s Mot. Summ. J., Ex. A, Dep. of William Dove (“Dove Dep.”), 13:10–14:13, Apr. 22, 2013.) He had been experiencing symptoms of severe depression, such as locking himself in his room, putting shades over his windows, and not eating. (Id. at 14:19–15:2.) A psychiatrist met with him on one occasion and diagnosed him with depression. (Id. at 15:3–25.) After that, Plaintiff treated with his family doctor, Kenneth Morris, but he did not pursue any further treatment with any other specialist. (Id. at 16:11–17:4.) Dr. Morris prescribed him fifteen milligrams of Zoloft three times a day, which he took continuously until he lost his medical coverage in his junior year of college, at which point he felt that he was doing better. (Id. at 17:5–18:18, 19:4–13.) In his senior year of college, Dr. Morris prescribed him Adderall to control a newly-diagnosed condition of attention deficit disorder. (Id. at 18:20–20:6.) He took Adderall until sometime in 2010 or 2011. (Id. at 20:7–21.)

Plaintiff remained off all medication until approximately February 2011, when Dr. Morris prescribed him Zoloft, Cesperal, and Buspirone. (Id. at 21:6–22:22.) He took these medications for about four months, but stopped because he did not have medical insurance and the money was coming out of his pocket. (Id. at 22:22–23:17.) He has not taken any medication since then.

B. Plaintiff’s Employment with CEC

Plaintiff applied to become a correctional officer at CEC in early 2010 and received an interview with Deputy Warden Colucci. (Id. at 29:25–30:4.) At the close of the interview, he was hired and sent to Human Resources to fill out paperwork. (Id. at 30:2–18.) While in Human Resources, Plaintiff did not reveal that he had any type of disability. (Id. at 30:21–31:10.) Although he was given a document entitled “Invitation to Self-Identify for Affirmative Action Purposes, ” he did not identify himself as “an individual with a disability.” (Id. at 44:6–17, 45:3–11.)

Plaintiff officially began employment with CEC as a correctional officer on May 3, 2010. (Def.’s Mot. Summ. J., Ex. D.) He began his training with a class of fifteen others for approximately one month, with two weeks in the classroom and two weeks in the prison. (Id. at 32:17–33:12.) During that time, he learned about policies and procedures in different units within the prison. (Id. at 33:15–34:3.)

When his training was completed, Plaintiff was assigned to the “first shift” (7:45 a.m. to 4:00 p.m. Monday to Friday) for one month and he worked in multiple locations. (Id. at 35:14–36:15.) After the first month, he was assigned to the “third shift” (12:00 p.m. to 8 a.m.), which also involved Plaintiff’s presence at varying locations. (Id. at 37:3–38:23.) In the summer of 2010, he was assigned to Unit 7 for a month or two because strong officers were needed. (Id. at 37:21–25.) Finally, in August or September 2010, he was assigned to the “second shift, ” which worked 4:00 p.m. to midnight, where he stayed until his termination. (Id. at 38:25–21.)

Shortly after transferring to the second shift, Plaintiff was regularly assigned to the Special Management Unit (“SMU”). (Id. at 46:19–47:1.) The SMU had two blocks. (Id. at 60:17–20.) The A Block housed juveniles, while the B block housed “[u]pstate, very high profile guys, dangerous, i.e., extremely dangerous.” (Id. at 60:23–25.) The officers assigned to the SMU were deemed to be “strong enough, good thorough officers” and they received additional training on the policies and procedures unique to that unit. (Id. at 59:3–60:11.) Plaintiff worked in the SMU almost every night, with only rare assignments to other units. (Id. at 61:23–62:25.) Plaintiff’s sergeant on SMU was Sergeant Justin Wood, who supervised all the correctional officers assigned to that unit. (Id. at 56:21–57:25.)

C. Re-emergence of Plaintiff’s Depression and Plaintiff’s Leave of Absence

Plaintiff became involved with a woman named Rachel DiOrio, a fellow correctional officer, and, in October 2010, the two were engaged. (Id. at 65:15–66:6.) In December 2010 or early January 2011, Plaintiff broke off the engagement when he learned that Ms. DiOrio was doing drugs and cheating on him with former female inmates. (Id. at 66:8–69:12.) Shortly thereafter, Plaintiff was called in for an investigation by Captain John McCarthy and Investigator Keith Heyward regarding his relationship with Ms. DiOrio. (Id. at 78:21–85:3.)

These events precipitated Plaintiff’s relapse into depression. (Id. at 76:21–77:11.) He became very emotional, crying in his car, experiencing mood swings, losing an excessive amount of weight, acting irritable with friends, cutting off contact with family and friends, and isolating himself at home. (Id.) As a result, Plaintiff took vacation from January 6 through January 9, 2011, and a sick day on January 10, 2011. (Id. at 71:5–8.) He returned to work on January 13 and 14, but then called out sick again on January 15. (Id. at 78:9–17.) From January 16 to January 30, 2011, Plaintiff worked all of his assigned shifts, but then called out sick again on January 31 and February 1 due to his depression. (Id. at 90:3–21.) Although he returned to work on February 2, he was then out again for almost the next two weeks because his depression “was really hitting [him] hard.” (Id.)

In early February of 2011, Plaintiff was taken by ambulance to the Lower Bucks Crisis Center. (Id. at 98:20–101:15.) According to the Emergency Department records, Plaintiff had used cocaine the day prior and, on the day of his hospitalization, got into a domestic dispute with his mother and stepfather. (Def.’s Mot. Summ. J., Ex. E.) When the ambulance arrived he was under the influence of alcohol, was crying badly, and had been pepper sprayed by his stepfather. (Id.; Dove Dep. 100:14–19.) He remained at the crisis center for four to five hours, spoke to a psychiatrist, and was given a Xanax before being released to his father’s care. (Dove Dep. 100:14–101:2, 104:13–23.) Upon release, he returned to his father’s house and sought follow up care with Dr. Morris. (Id. at 104:21–105:7.) Dr. Morris increased his dosage in Zoloft and gave him Cesperal. (Id. at 105:19–106:9.) After approximately a week and a half on the medications, he began to feel some improvement and he continued to take them for a couple of months. (Id. at 106:10–21.)

On February 8, 2011, Plaintiff requested a leave of absence due to his depression and anxiety. (Id. at 64:20–65:12.) He went to Jeff Bergin in Human Resources at CEC to request time off because he was “mentally suffering” and felt that he could not perform his job. (Id. at 94:25–96:2.) Mr. Bergin then looked up Plaintiff’s date of hire and discovered that Plaintiff did not yet qualify for FMLA leave. (Def.’s Mot. Summ. J., Ex. F, Dep. of Jeffrey Bergin (“Bergin Dep.”), 15:18–20, June 12, 2013.) Accordingly, Bergin told him about union leave without pay and gave him a copy of the instructions on how to request it. (Id. at 15:20–24.) Mr. Bergin advised Plaintiff to write down his request for leave on a piece of paper for submission. (Dove Dep. 97:10–16; Bergin Dep. 16:1–3.) Plaintiff wrote down his request right then and there and Bergin brought the letter to his manager, Debra Gerstenberg, who in turn brought it to Chief of Security Michael Gannon. (Dove Dep. 95:4–11; Bergin Dep. 16:3–7, 17:6–18:15.) Ms. Gerstenberg then returned and told Bergin the leave had been approved, after which Bergin emailed a copy of the approval to Plaintiff. (Bergin Dep. 19:5–12.) Chief Gannon’s approval signature was dated February 8, 2011, the same day that Plaintiff requested it. (Pl.’s Resp. Opp’n Summ. J., Ex. C.) Plaintiff understood that this leave was not covered by the FMLA. (Dove Dep. 113:9–12.)

D. Plaintiff’s Return to Work on Light Duty

Plaintiff received a doctor’s note, dated February 10, 2011, clearing him to return to work as of February 16, 2011, on a light duty basis with no inmate contact. (Def.’s Mot. Summ. J., Ex. I; Dove Dep. 115:24–116:21.) Plaintiff understood light duty to be either in training or in the mailroom. (Dove Dep. 116:22–117:8.)

Just prior to his return to work on February 15, 2011, Plaintiff spoke with Bergin notifying him that he would be returning and indicating that he needed light duty. (Id. at 117:9–118:15.) Bergin testified that he would have talked to Chief Gannon at the time to inquire into any light duty positions that Plaintiff could fulfill, but would not have told Gannon anything about Plaintiff’s medical condition other than his need for no inmate contact. (Bergin Dep. 20:6–21.) Ultimately, Plaintiff was assigned a Monday to Friday job handling ACA accreditation training where he was supervised by Lieutenant Lisa Gannon and Lieutenant Leo Levandowski. (Id. at 118:16–119:3.) Plaintiff continued to follow up with his nurse practitioner on a weekly basis. (Id. at 119:4–120:9.)

During his light duty tenure, Plaintiff claims to have been subject to harassment from Chief Michael Gannon. (Id. at 140:19–25.) One day, while Plaintiff was at work, he broke down in tears because the stress was still getting to him and he went home. (Id. at 141:5–19.) The next day, Chief Gannon called him into his office and said that he heard Plaintiff was acting “a little eccentric, a little crazy down in training . . . . [Y]ou are going to be working in the mailroom from now on.” (Id. at 142:4–11.) When Gannon inquired into what Plaintiff was going through, Plaintiff responded that it was none of his business. (Id. at 142:22–25.) Plaintiff claims that he heard other correctional officers saying that he was out “because he’s crazy.” (Id. at 135:21–136:4.)

Afterwards, when Plaintiff was assigned to the mailroom, he alleges that there were other incidents of harassment. (Id. at 143:17–144:4.) For example, Plaintiff indicated that Gannon “rode him” about having his hair cut, about having facial hair, and about using his cell phone while working. (Id. at 144:7–23, 146:22–149:24.) He also claimed that he was doing three people’s jobs in the mailroom and running around frantically, but was reprimanded in front of everyone by Lieutenant Durling and later by Chief Gannon for his pace. (Id. at 144:7–16.) Plaintiff believed that Gannon’s behavior was motivated either by his medical condition or by his request for leave. (Id. at 145:17–11.) Other than the one comment earlier on about Plaintiff acting eccentric and crazy, however, Plaintiff could not recall any other comments by Gannon about his medical condition. (Id. at 146:12–21.) Moreover, Plaintiff did not recall any other supervisors or member of administration treating him in a hostile manner while he was on light duty. (Id. at 149:25–150:3.)

E. Plaintiff’s Return to Fully Duty Work

On April 13, 2011, Plaintiff received a medical note from Dr. Morris’s office indicating that he was cleared to return to full-duty work at the prison. (Id. at 120:14–121:20; Def.’s Mot. Summ. J., Ex. J.) Plaintiff provided this note to Jeff Bergin in Human Resources and then reported to roll call as instructed. (Dove Dep. 124:21–125:12.) He was not returned immediately to his assignment in SMU, but rather was assigned to administration where he was responsible for delivering files for the Commonwealth. (Id. at 127:12–128:3.) Plaintiff then requested that Sergeant Wood reassign him to the SMU. (Id. at 128:25–129:6.) A couple of days later, he was transferred back to SMU, where Sergeant Wood was his supervisor just like before. (Id. at 131:6–22.)

Upon his return to the SMU, Plaintiff was assigned to the control room since there were new officers assigned to the A and B sides. (Dove Dep. 131:23–132:6.) He believed that was unfair because he was a senior officer there at the time and the officers there were incapable or weaker. (Id. at 132:22–133:8.) Plaintiff approached Sergeant Janet Cooper[1] about this and asked her why he was being assigned to unit 5, to which she replied, “don’t worry, you are not off SMU.” (Id. at 162:16–23.) On a second occasion, Plaintiff again approached Sergeant Cooper about why he was put in the control room and Cooper said, “you don’t question me. I’m the 09 [assistant shift supervisor], Wood’s not here. You go serve your post.” (Id. at 151:11–14.) Plaintiff then said “this is the second time you screwed me, ” and gestured his hand at her in a dismissive wave. (Id. at 151:15–25, 166:8–14.) At that point, Lieutenant Juisti, who was with Sergeant Cooper at the time, said, “that’s it, he is crazy. You will never work that post again. You will never be back on SMU again ever again.” (Id. at 151:15–19.) Sergeant Wood later testified that he observed Sergeant Cooper call Plaintiff “crazy “and a “nut case” in front of other correction officers and in the presence of Lieutenant Juisti, after which Juisti proceeded to call him crazy as well.[2] (Pl.’s Resp. Opp’n Summ. J., Ex. G., Dep. of Justin Wood (“Wood Dep.”), 79:7–21, Mar. 22, 2013.) Wood said he confronted Cooper about her comments about Plaintiff being crazy and she just laughed him off and said “who cares, he’s a f—ing psycho.” (Id. at 86:25–22.)

At the direction of his union representative, Plaintiff then prepared an incident report regarding the altercation between himself and Sergeant Cooper. (Dove Dep. 177:5–178:1; Def.’s Mot. Summ. J., Ex. L.) Likewise, Sergeant Cooper submitted an incident report regarding these events because she felt as if Plaintiff’s yelling and raising his hand to her was threatening. (Cooper Dep. 24:5–25:17; Def.’s Mot. Summ. J., Ex. M.) The report was turned over to “Investigations” to determine the appropriate level of discipline. (Cooper Dep. 37:5–38:5.) Ultimately, Plaintiff was issued a disciplinary action for insubordination and received a one day suspension.[3] (Dove Dep. 170:8–16; Def.’s Mot. Summ. J., Ex. N.) He was notified of the disciplinary action through the Investigator’s office. (Dove Dep. 170:17–19.) This discipline was issued in accord with the prison’s progressive discipline policy, although the first two levels of discipline—verbal discipline and written discipline—were skipped in favor of a one-day suspension. (Def.’s Mot. Summ. J., Ex. O.) Plaintiff appealed this discipline through his Union Shop Steward John Braun. (Dove Dep. 170:20–171:5.)

After the May 10, 2011 write-up, Plaintiff was summoned to Chief Gannon’s office. (Dove Dep. 179:15–180:3.) Gannon discussed Plaintiff’s behavior and would not let him tell his side of the story. (Id.) Gannon stated that there were no permanent posts at SMU and he could be assigned to a different unit every day, but when Plaintiff argued to the contrary, Gannon ignored him.[4] (Id. at 180:5–24.) After that meeting, Plaintiff apologized to Cooper for what happened because it was misinterpreted and Cooper responded that, “I know it was misinterpreted but I had to write you up because of Juisti.” (Id. at 181:18–23.)

Following this incident, Plaintiff claims that Lieutenant Juisti was “careful” around him and that Juisti’s body language and the way he acted around him suggested he believed Plaintiff to be a weak officer. (Id. at 187:8–25.) Lieutenant Juisti was snippy, disrespectful, and did not treat Plaintiff with the same professionalism with which he treated others. (Id. at 188:3–19.)

F. Plaintiff’s Requests for Additional Days Off

After Plaintiff’s return to full duty in April 2011, he requested “vacation days here and there.” (Id. at 192:2–7.) He took one vacation day on May 8, 2011, which, according to Plaintiff, “they fought” him for because they didn’t think he had vacation time. (Id. at 192:13–20.) He claimed that the vacation time was for a medical reason, but he did not tell anybody that was why he was using it. (Id. at 192:16–193:1.)

In June, Plaintiff took two vacation days on the 22nd and the 25th, purportedly for medical reasons, but he did not tell anybody he needed those days because of a medical reason. (Id. at 193:2–13.) Plaintiff explained, “it was none of their business. They were aware of my condition. I had medical documentation. There was no need to tell my shift supervisor. It is a HIPAA violation. If I want to disclose it, I can.” (Id. at 193:14–18.) As to the first day—June 22—he stated that he told shift commander Lieutenant Reimel, “I’m low on vacation days, I think I’m almost out. And I need this day, I have something coming up.” (Id. at 264:19–265:3.) Lieutenant Reimel approved it, but remarked that her supervisor may not. (Id. at 267:25–268:19.) Nonetheless, that vacation day was approved without any problem. (Id. at 268:21–23.) As to the June 25, Plaintiff received a “no call, no show” write up. (Id. at 194:20–22.) Shortly thereafter, however, that vacation day was also approved.[5] (Id. at 194:23–195:7.)

G. The Incident of June 27, 2011

On June 27, 2011, Plaintiff was assigned to work in the SMU control room. (Id. at 287:12–288:23.) CEC’s Post Order 30 outlines CEC’s policy regarding the security of various doors at the facility, including control room doors, as follows:

Unlock doors as needed. The Control Room door, Cage door and all day room doors shall remain LOCKED at all times. Open one door at a time. The key shall not be left in the Control Room Door lock.

(Def.’s Mot. Summ. J., Ex. R (emphasis in original).) Plaintiff explained that he was responsible for opening doors on both A and B side, including controlling the doors, filling out paperwork, and cuff and key count. (Dove Dep. 296:3–12.) Within the control room was a panel of buttons that could be used by an officer to open and close doors to access the A side from the main hallway and the individual cell doors on both tiers of the unit. (Id. at 290:16–291:23.) CEC policy provides that the control room officer should remain in the control room until properly relieved. (Def.’s Mot. Summ. J., Ex. R.)

Plaintiff testified that once someone got into the dayroom, they would have direct access to the door into the SMU control room. (Dove Dep. 292:23–293:2.) If someone walked into the control room from the A side, they would have unfettered access to walk through the control room and exit out of another doorway on the B side. (Id. at 295:7–18.) Nonetheless, Plaintiff understood the CEC policy to mean only that the doors needed to remain shut, but not necessarily locked, depending on the circumstances. (Id. at 297:14–303:6.)

At approximately 11:00 p.m. on June 27, 2011, while Plaintiff was working in the control room, Plaintiff was involved in an incident where an inmate was able to gain access to the control room. Nurse Little arrived to administer pills to the inmate. (Id. at 314:4–315:8.) Plaintiff buzzed her in with her cart. (Id. at 315:12–316:5.) At that time, an inmate became unruly and Nurse Little’s escort left her side to assist another correctional officer with the inmate. (Id. at 316:6–24.) The control room doors were unlocked because, according to Plaintiff, all the officers were going in and out of the control room to do their roster counts and new rosters. (Id. at 317:1–12.) As the nurse was unattended, Plaintiff told her to come in to the control room through the B side control room door. (Id. at 322:6–18.) Once she entered, however, he did not lock the B side door to the control room. (Id. at 322:19–24.) When Nurse Little requested to go out to do her pill call on A side (juveniles), the top-tier or max prisoners were out of their cells “rec’ing” and the lower tier inmates were in their cells. (Id. at 323:5-22, 324:16–325:5.) Therefore, Nurse Little began giving pill call through the slot in the control room door. (Id. at. 325:7–21.)

At that point, an inmate, Omar Hooks, tried to come through the control room door to “holler” or hit on Nurse Little. (Id. at 327:18–328:1.) While trying to push through the door and meeting resistance from Plaintiff, Hooks said, “You mother f—er, why you got to do that? Come on, dog, I thought we were boys. I was just trying to holler at her.” (Id. at 345:20–346:8.) Hooks did not get very far because the door opened and Plaintiff pushed him back. (Id. at 332:20–24.) Once he got Hooks out of the doorway, Plaintiff came out from the control room and told Hooks to get past the “gun line, ” which is a stripe three feet in front of the door that an inmate is not allowed to pass. (Id. at 333:1–7.) He then called his unit manager, Janet Cooper, and she came on to the unit and called code black because an inmate had made contact with a correctional officer. (Id. at 334:14–19.) Plaintiff knew that an inmate trying to get into the control room was a “big deal” because there are thirty-two buttons in there “that control – it’s the brain of that unit.” (Id. at 346:19–347:2.) The incident was captured on the prison’s video surveillance system. (Def.’s Mot. Summ. J., Ex. V.)

Following these events, Plaintiff was required to prepare an incident report because a code black had been called. (Dove Dep. 348:21–349:5; Def.’s Mot. Summ. J., Ex. W.) Both John Braun and Lieutenant Juisti were present while he wrote the report. (Id. at 349:6–350:16.) After he prepared the report, he gave it to Juisti, who was shift commander. (Id. at 350:71–351:2.) He was then relieved of his post and went home. (Id. at 354:1–6.) Sergeant Cooper, who was assigned as the SMU sergeant for that shift, also completed a disciplinary inquiry form related to the incident. (Def.’s Mot. Summ. J., Ex. X; Cooper Dep. 30:2–9.) She did so because Plaintiff “was assigned to special housing unit, special management unit, left the control door open and an inmate was able to access the control room.” (Cooper Dep. 30:10–14.) Other than preparation of this document, Sergeant Cooper had no further involvement regarding this incident or the subsequent disciplinary process. (Id. at 35:17–21, 37:6–11.) Notably, at her deposition, Sergeant Cooper barely remembered the incident, could not recall if there was any altercation between Plaintiff and the inmate, and believed that the report was written only for Plaintiff’s failure to not secure the door. (Id. at 36:2–16.) She explained that because the special housing unit housed the worst of the worst inmates, allowing any access to the control room was a serious offense. (Id. at 37:21–38:6.)

Plaintiff testified that other officers would often leave control room doors either unlocked or open and that Sergeant Cooper had, in the past, observed a control room door being opened. (Dove Dep. 375:23–376:9.) He specifically commented on one incident where Sergeant Cooper had an inmate in the control room cleaning and she left the inmate in there, while another correctional officer was inside as well. (Id. at 376:13–377:5.) The officer who was assigned to the control room at the time did not receive a suspension or termination. (Id. at 377:6–9.) Plaintiff also testified that sergeants were all aware that control room doors were left open “because half the time the control room officer would stick a water jug between the control room door. The sergeant would go up, you know you’re not supposed to do this, and wouldn’t write them up; would just say can’t do this, don’t do that, whatever.” (Id. at 378:6–12.) The control room officers were never terminated. (Id. at 378:13–17.)

Other correctional officers believed that control room doors were regularly left open and supervisors knew about it. John Braun testified that ranking officers must have known of control room doors being cracked open as they would mentioned at roll call that control room doors should be locked and secured. (Braun Dep. 19:19–20:16.) Other than that, however, Braun had no firsthand knowledge that any sergeant, lieutenant, or captain was aware that control room doors were unsecured. (Id. at 71:18–72:8.) CO Griffin testified that although the control room door was supposed to be locked, he was aware of many instances where it was left unlocked and the supervisors knew about it. (Pl.’s Mot. Summ. J., Ex. P, Dep. of Donnie Griffin (“Griffin Dep.”), 21:4–24:9, Aug. 13, 2013.) Indeed, Griffin had an incident where he left a control room door unlocked and received a write-up and suspension, but only because he had a prior discipline which jumped him to the suspension level. (Id. at 24:10–25:24.) Griffin was not the control room officer at the time and the officer who was in charge of the control room was not terminated. (Id. at 35:22–37:20.) Finally, Lieutenant Juisti indicated that during the time he worked at CEC, he was aware of control room operators leaving the door unlocked, but it was not often. (Juisti Dep. 38:24–39:16.)

H. The Investigation and Termination of Plaintiff

Upon review of the surveillance video, Investigations Supervisor Keith Heyward conducted an investigation of the June 27, 2011 incident. (Def.’s Mot. Summ. J., Ex. Y, Dep. of Keith Heyward (“Heyward Dep.”), 38:4–15, 39:16–40:13, June 12, 2013.) Heyward noted that the inmate had pushed his way into the control room, Plaintiff pushed him back out, and then Plaintiff walked a couple of feet outside the control room to continue his conversation with the inmate. (Id. at 39:16–40:13.) He explained that leaving a control room door unlocked, even if an officer is inside, constitutes a violation of policy that is a terminable offense. (Id. at 41:2–15.) This was corroborated by Investigator Donald Beese—who indicated that leaving the control room door open is a terminable offense without any prior discipline or corrective action. (Def.’s Mot. Summ. J., Ex. Z, Dep. of Donald Beese (“Beese Dep.”), 27:4–12, May 14, 2013.) It was likewise corroborated by Deputy Warden of Security Mario Colucci—who stated that breach of security for leaving the door open is a terminable offense. (Def.’s Mot. Summ. J., Ex. S, Dep. of Mario Colucci (“Colucci Dep.”), 27:18–28:9, May 14, 2013.) Deputy Warden Colucci further noted that he recalls other employees who committed a similar breach of security being terminated for their offenses. (Id. at 28:10–24.)

Upon completion of his investigation, Heyward prepared a disciplinary action form. (Heyward Dep. 52:9–24.) He explained that this form is routinely completed after the determination of a violation in which the disciplinary action was agreed to by the Warden. (Id. at 54:18–55.) He further indicated that he did not make the decision to terminate Plaintiff, but rather was instructed by the Warden to implement a termination. (Id. at 53:20–54:4, 55:2–56:18.) In this case, Captain McCarthy gave Heyward the directive to type up the disciplinary action with the termination. (Id.. 58:6–22.) At no point prior to Plaintiff’s termination did Heyward know that Plaintiff suffered from any medical condition. (Id. at 61:22–62:1.)

Deputy Warden Colucci testified that he reviewed Heyward’s investigative report and personally reviewed the video footage, but the ultimate authority to terminate came from the Warden. (Colucci Dep. 33:24–8, 42:23–43:1.) Although he also had no input into conducting the investigation, he recommended to Warden Green that Plaintiff be terminated after considering both the investigative report and the video footage. (Id. at 34:9–12, 43:2–44:10.) Notably, at the time of his deposition, Warden Green had no recollection of Plaintiff or his termination. (Def.’s Mot. Summ. J., Ex. AA, Dep. of Frank Green (“Green Dep.”), 51:17–52:14, Aug. 21, 2013.)

Chief Michael Gannon testified that, although he was made aware of Plaintiff’s conduct and the investigation, he had no part in issuing the disciplinary action that resulted in Plaintiff being terminated. (Def.’s Mot. Summ. J., Ex. H, Dep. of Michael Gannon (“Gannon Dep.”), 45:6–46:12, May 10, 2013.) Testimony from other officers, however, indicated that the Chief of Security would usually have been within the chain for review for such situations. Warden Green testified that, typically, the investigator would make a recommendation to the Chief of Security regarding discipline, which, in this case, would have been Chief Gannon. (Green Dep. 53:22–24.) Similarly, Heyward indicated that the Deputy Warden generally reviews disciplinary actions and provides a statement or findings to the Warden. (Heyward Dep. 24:10–20.) Beese likewise confirmed that usually the Captain, Chief, Deputy Warden, and Warden have a group meeting about the appropriate level of discipline. (Beese Dep. 17:21–18:16.) Finally, Colucci indicated that the Chief of Security—again, in this case, Gannon—is typically responsible for issuing discipline to corrections officers. (Colucci Dep. 16:10–14.) He further explained that there are three steps in the termination process, starting with Chief of Security Gannon, then to himself as Deputy Warden, and finally to Warden Green. (Id. at 44:15–45:6.)

On July 1, 2011, Plaintiff received an email from Jeff Bergin and a voicemail from Captain McCarthy. (Dove Dep. 355:3–9.) The email asked Plaintiff to contact Captain McCarthy as soon as possible. (Id. at 355:10–19.) Via a five minute phone conversation, Captain McCarthy then told Plaintiff that he was terminated. (Id. at 355:20–356:11.)

Plaintiff was then instructed by his union representative to talk to Captain McCarthy about this decision. (Id. at 358:18–22.) A couple of days after he was terminated, Plaintiff spoke to McCarthy and said that his termination was unfair, especially when he was just trying to do his job with others abandoning their posts, and other officers having had much greater infractions. (Id. at 359:7–360:23.) McCarthy called him back after checking into his allegations and said, “I believe it’s just sour grapes.” (Id. at 361:2–10.) Thereafter, with the assistance of Braun, Plaintiff wrote a grievance to Warden Green. (Id. at 361:19–362:18; Def.’s Mot. Summ. J., Ex. BB.) In the grievance, Plaintiff set forth a detailed version of the events as he perceived them, explained why his termination was unfair, and complained of the unethical nature in which his termination was carried out. (Def.’s Mot. Summ. J., Ex. BB.) Plaintiff did not suggest, at any point, that his termination was motivated by his disability. (Id.)

On July 11, 2011, Warden Green denied Plaintiff’s Grievance as follows:

I have reviewed your Disciplinary Write-Up, dated 6/27/2011, and all reports and video, related to the incident, which takes place in the SMU Control Room. I have also reviewed your Appeal, with regard to the Incident, and your Disciplinary history.
It is apparent; you failed to keep the Control Room Door properly secured, which is a serious breach of Security, and in doing so ...

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