United States District Court, W.D. Pennsylvania
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For NORMA BIELICH, Plaintiff: James B. Lieber, LEAD ATTORNEY, Jacob M. Simon, Thomas M. Huber, Lieber Hammer Huber & Bennington, P.C., Pittsburgh, PA.
For JOHNSON & JOHNSON, INC., trading and doing business as ETHICON, INC., Defendant: Martha Hartle Munsch, LEAD ATTORNEY, Richard L. Etter, Reed Smith LLP, Pittsburgh, PA.
Joy Flowers Conti, Chief United States District Judge.
This is an employment discrimination case. Pending before the court is a motion for summary judgment (ECF No. 45) filed bye defendant Johnson & Johnson, Inc. t/d/b/a Ethicon, Inc. (" Ethicon" ) seeking judgment as a matter of law against plaintiff Norma Bielich (" Bielich" ) with respect to all claims asserted in her first amended complaint. (ECF No. 14.) In her fourteen-count complaint, Bielich claims that Ethicon a) treated her less favorably due to her gender and disability, b) failed to accommodate her disability, c) subjected her to a hostile work environment based on her disability, and d) subjected her to retaliation based upon her request for an accommodation. Bielich asserts claims pursuant to Title VII, 42 U.S.C. § § 2000e - 2000e-17 (" Title VII" ), the Americans with Disabilities Act, 42 U.S.C. § 12101 - 12117 (the " ADA" ), the Rehabilitation Act, 29 U.S.C. § 701 - 718 (the " RA" ), and the Pennsylvania Human Relations Act, 43 P.S. § 951 - 963 (the " PHRA" ). Bielich seeks monetary relief, including punitive damages and attorneys' fees, as well as unspecific injunctive relief against Ethicon.
This court exercises subject-matter jurisdiction over Bielich's federal claims pursuant to 28 U.S.C. § 1331, and over her state-law claims under the PHRA pursuant to 28 U.S.C. § 1367(a) and 42 U.S.C. § 2000e-5(f)(3).
For the reasons set forth below, the court finds that Ethicon's motion for summary judgment must be granted, in part, and denied, in part. The only claims triable to a jury are the failure to accommodate claims Bielich asserts under the ADA and the PHRA.
I. Factual Background
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to Bielich. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Other undisputed facts may be discussed in the context of each of Bielich's legal claims where appropriate.
A. Bielich's Employment and Performance History at Ethicon
Plaintiff was hired by Ethicon in 1998 as a field sales representative and was promoted to the position of professional education manger in 2006. (ECF No. 63 ¶ 1.) As a professional education manager, Bielich a) planned, coordinated, and facilitated professional education events, b) recruited, contracted, trained, and administered consultants, and c) attended meetings, provided status reports, and managed communications from sales personnel. (Id. ¶ 2.) At the time she was hired, Bielich was qualified for the position. (Id. ¶ 80.) It is disputed that Bielich remained qualified for the position if she suffered from the limitations that she articulates in the summary judgment submissions. (Id.)
In May 2009, Michael Willick (" Willick" ) became Bielich's supervisor. (Id. ¶ 10.) Prior to this time, Willick had been Bielich's peer on the professional education team, and Andrew Hart (" Hart" ) supervised them both. (Id.) After Willick's promotion, the other members of Bielich's professional education team were Rick Summerlin (" Summerlin" ) and, later, Timothy Mauri (" Mauri" ). (Id. ¶ 11.) In August 2009, Mauri joined the professional education team because the workload being carried by Summerlin and Bielich resulted in them both " working extraordinarily hard and long hours." (Id. ¶ ¶ 11, 72, 110.) All members of the team worked remotely from different locations throughout the country. (Id. ¶ 12.) Bielich worked from her home in Pittsburgh, Pennsylvania. (Id.) By July 2009, Bielich reported to Willick, Willick reported to Richard Merklinger (" Merklinger" ), Merklinger reported to David Bourdeau (" Bourdeau" ), the group director of Worldwide Professional Education, and Bourdeau reported to Sandra Humbles, the vice president of Global Education Solutions. (Id. ¶ 15.)
On April 24, 2009, while still her supervisor, Hart gave Bielich an annual evaluation of her 2008 job performance. (Id. ¶ 13.) During this evaluation, Bielich was told that she was not meeting expectations, that her performance was not acceptable, that she would be placed on a sixty-day performance development plan, and if she was still not meeting expectations would then be placed on a ninety-day performance improvement plan. (Id. ¶ ¶ 13, 16; ECF No. 48-1 at 18; ECF No. 52 at 35-36.) Hart gave her a numerical rating of 4 out of 10 for her work in 2008. (ECF No. 63 ¶ ¶ 13, 90.) On Monday April 27, 2009, although she did not have an appointment, Bielich drove from Pittsburgh, Pennsylvania, to the company's headquarters in Somerville, New Jersey, to meet with Bourdeau. (Id. ¶ 14.) Bielich told Bourdeau she was shocked by her poor evaluation, apologized, and told him she would do her absolute best to improve her performance. (Id.) During this meeting Bielich told Bourdeau that she was confused and exhausted and that she had been struggling, but did not know how to explain it; she did not tell Bourdeau that she was unable to do her job for medical reasons, and did not ask for an accommodation for any disability. (Id. ¶ ¶ 14, 92.)
On June 19, 2009, Willick, who had recently become Bielich's supervisor, sent the sixty-day development plan to her via email. (Id. ¶ 20.) Bielich reviewed, signed, and faxed back a copy of the plan to Willick on June 22, 2009. (Id.) The sixty-day plan identified two areas where management believed Bielich demonstrated a need for improvement: " sense of urgency" and " collaboration and teaming." (Id. ¶ 21.) Willick and Bielich had several bi-weekly telephone calls during the term of the sixty-day plan to discuss Bielich's progress as compared to the objectives of the plan. (Id. ¶ 24.) During the sixty-day plan period, Bielich received both positive
and negative feedback: Willick complimented Bielich on completing certain tasks, but two internal customers and an employee in a different Ethicon department expressed concerns with Bielich's timeliness in completing other tasks and responding to inquiries. (Id. ¶ ¶ 25-28.)
Bielich met with Willick, in Dallas, Texas, on September 10, 2009, to discuss her performance under the sixty-day plan. (Id. ¶ 33.) Willick informed Bielich that she failed to satisfy the objectives of her sixty-day plan, shared with her negative feedback about her performance that had been submitted by internal customers, and told her that she would be placed on a ninety-day performance improvement plan (" PIP" ). (Id. ¶ ¶ 33, 36.) Internal customers also submitted positive feedback about Bielich during the sixty-day plan period, although Willick did not review positive comments during the meeting. (Id. ¶ 112.) Willick asked Bielich to develop and submit the objectives for her PIP, which Bielich did. (Id ¶ 37.) Bielich submitted her PIP objectives, with relevant deadlines, to Willick via email on October 8, 2009. (Id. ¶ ¶ 37, 40.) In response, Willick asked Bielich if she " felt comfortable with this plan...that it can be accomplished," to which Bielich answered " It HAS to be accomplished!" (Id. ¶ 38.) Willick reviewed the objectives, along with the deadlines established by Bielich, and approved the PIP. (Id. ¶ 39.) Shortly after the approved PIP was transmitted to Bielich, she extended some of the deadlines, for various reasons, to which Willick did not object. (Id. ¶ 41.) The PIP stated that Bielich's employment could be terminated prior to expiration of the ninety-day review period if, for example, significant and sustained progress was not being made. (Id. ¶ 145.)
During the course of the PIP, Bielich and one of her supervisors, either Willick or Merklinger, met weekly via telephone to review her progress, and Bielich submitted weekly written reports to Willick. (Id. ¶ 42.) Willick sent multiple reminders of deadlines and assignments to Bielich during her PIP, and both Merklinger and he provided Bielich with positive reinforcement during her PIP. (Id. ¶ 46.) It is undisputed that Bielich missed various deadlines set forth in her PIP, and missed deadlines otherwise set by management during this time period for various tasks. (Id. ¶ ¶ 48-58, 125, 147-51.) Willick was responsible for notifying upper management whether or not Bielich met the requirements of her PIP. (Id. ¶ ¶ 132-33.)
Willick emailed Merklinger and Lena Tai (" Tai" ), a member of Ethicon's human resources department, on December 22, 2009, with a draft letter for terminating Bielich's employment. (Id. ¶ ¶ 60, 120.) He requested a termination date of January 19, 2010. (Id.) In the draft termination letter, Willick wrote that Bielich was being terminated for continuing performance deficiencies with respect to demonstrating a " sense of urgency" with respect to meeting deadlines, attaining goals, and for violating Ethicon's standards by discussing personal issues with other employees and making " purely emotional comments" after being directed by management not to do so. (Id. ¶ 127; see sections I.B. and I.C., below.) On January 5, 2010, Willick emailed Tai to finalize arrangements for Bielich's termination and to suggest January 21, 2010, as the date of termination. (Id. ¶ 61.) Violating Ethicon's standards does not appear as a reason for termination in the revised termination letter emailed by Willick to Tai on that date, or in the final termination memorandum. (Id. ¶ 131.)
Willick, Merklinger, and Tai met with Bielich on January 21, 2010, in the Hyatt Hotel at the Pittsburgh Airport to notify Bielich about her termination, effective that date. (Id. ¶ 63.) Willick gave Bielich
a memorandum regarding her termination. (Id.; ECF No. 52-7 at 26-28.) The memorandum stated that " you have attempted to do the minimum expected, but your performance has failed to satisfy the performance goals/objectives and you have not demonstrated the [Global Leadership Profile] behaviors that were set forth in your 2009 PIP and Action Plan." (ECF No. 63 ¶ 64.) In the memorandum Willick a) set forth several deadlines that Bielich had missed, b) noted Bielich's admission in a December 11, 2009 email that she had " some catching up to do" and was " behind" on her goals, and c) recounted a complaint that he had received in November 2009 with respect to Bielich's timeliness in arranging reimbursement of a dinner event. (Id. ¶ 143.) Ethicon hired two security guards to be seated outside the room during the termination meeting. (Id. ¶ 140.) When Timothy McGinnis was fired at the Pittsburgh Airport, Ethicon did not hire security guards. (Id. ¶ 141.) Bielich was replaced by a male, Hasan Campbell. (Id. ¶ 152.)
B. Bielich's Relationship with Dr. Heniford
Between October 2006 until approximately October 2007, Bielich had a consensual sexual affair with Dr. Todd Heniford (" Heniford" ). (Id. ¶ 3.) Heniford was an outside consultant and " Key Opinion Leader" for Ethicon. (Id.) Bielich dealt with him on business matters on behalf of Ethicon. (Id.) In late July 2007, Bielich was diagnosed with a sexually transmitted disease (" STD" ), HPV, which was asymptomatic and discovered during a routine OB/GYN examination. (Id. ¶ 6.) Bielich attributes contraction of this disease to Heniford. (Id. ¶ ¶ 45, 122.) On January 2, 2008, Bielich had surgery to remove the HPV, and it has not recurred. (Id.)
Bielich kept her relationship with Heniford a secret until early January 2008, when she told Hart, her then-manager, about the relationship and her contraction of HPV as a result. (Id. ¶ ¶ 5, 82.) Upon making this disclosure to him, Hart indicated that he had contracted the same STD. (Id. ¶ 129.) Hart recommended that Bielich disclose her relationship to the other team members, at that time, Jennifer Bailey and Summerlin, in order to explain why she would prefer not to be assigned to events involving Heniford; which she did. (Id. ¶ 82.)
In early October 2009, Bielich told her co-worker, Michelle Barczack, about her relationship with Heniford and that she had been diagnosed as suffering from premenstrual dysphoric disorder (" PMDD" ). (Id. ¶ 115.) On October 26, 2009, Bielich, Willick, and Merklinger had a conference call to discuss the PIP, during which Bielich was advised that concerns had been expressed to management about Bielich's discussion at work of her relationship with Heniford, her contraction of and surgery for an STD, and her PMDD. (Id. ¶ 44.) According to Bielich, Willick and Merklinger told her " not to share details of her personal life in order to explain or justify any performance deficiencies" and that her PIP and personal issues, including PMDD, were " completely separated." (Id. ¶ ¶ 44, 116.) On December 3, 2009, Bielich told a co-worker, Dan Patterson, about her previous relationship with Heniford and that he had given her an STD. (Id. ¶ ¶ 45, 122.) Willick became aware of this disclosure and told Bielich that Tai would be discussing the matter with her. (Id. ¶ ¶ 122-23.) After that time, Bielich contends that Willick became less supportive of and nice to her, and was " very angry" with her. (Id.) Tai addressed the matter with Bielich during an in-person meeting on December 15, 2013, by chastising her for what she characterized as unprofessional behavior. (Id. ¶ 124.)
C. Bielich's Disclosure of Medical Condition
On June 1, 2009, Bielich was diagnosed as suffering from PMDD. (Id. ¶ 74; ECF No. 52-7 at 8.) PMDD is classified as a mood disorder, and causes Bielich to experience chronic fatigue, difficulty concentrating, feelings of despair and mental paralysis, bouts of uncontrollable crying, and suicidal thoughts. (ECF No. 63 ¶ ¶ 75, 76.) These episodes last about two weeks each month. (Id. ¶ 76.) PMDD limits Bielich's brain function, by causing her to lose focus and concentration, and to take extra time to accomplish certain tasks. (Id. ¶ 77.) Bielich treats this condition with medication. (Id. ¶ 78.) Although Bielich began seeing a licensed therapist in June 2008, she stopped seeing that clinician around June 2009, and did not see another therapist during the time period at issue in this case. (Id. ¶ 7.) Bielich was diagnosed with depression after she was terminated. (Id. ¶ 8.)
According to Bielich, she informed Ethicon about her condition, and the adverse effect it was having on her work performance, on six occasions: (1) a June 2, 2009 telephone call with Willick; (2) a June 24, 2009 telephone call with Tai; (3) an August 28, 2009 in-person meeting with Merklinger in Chicago, Illinois; (4) a September 10, 2009 in-person meeting with Willick in Dallas, Texas; (5) a December 15, 2009 in-person meeting with Tai; and (6) a January 6, 2010 email to Willick. (Id. ¶ ¶ 19, 94.) There is no genuine dispute that Bielich never made an explicit request for an accommodation from Ethicon; instead, Bielich contends that she implicitly requested an accommodation by disclosing her medical condition and explaining that it was negatively affecting her performance at work. (Id. ¶ ¶ 19, 22.)
On June 2, 2009, Bielich phoned Willick to tell him she was diagnosed with PMDD, was getting treatment for the disorder by starting medication, and now knew why she had been performing so badly in the past. (Id. ¶ ¶ 18, 19.) Bielich's deposition testimony indicates that she told Willick " that there was a reason that I hadn't been performing up to my potential, that there was a reason that I had made so many mistakes" and that PMDD " explains why I've been having so much trouble at work." (ECF No. 52-1 at 4.) Willick told Bielich that this information was " personal" and that if she wanted to discuss it further she should contact Tai, a human resources department employee. (Id. at 4-5.)
Bielich and Tai arranged a telephone call, to take place on June 24, 2009, because Tai would be involved in the sixty-day performance plan process. (ECF No. 63 ¶ ¶ 19, 22; ECF No. 52-1 at 8.) During that phone call, Bielich disclosed her PMDD diagnosis and told Tai that she wanted her " to understand why I've been struggling. There is an explanation for what you guys call my poor performance." (ECF No. 52-1 at 9.) Tai responded that the matter was " personal" and indicated that Bielich could contact Ethicon's employee assistance program for counseling. (Id.) Bielich told Tai that she did not need to contact the program because she already had a good therapist. (ECF No. 63 ¶ ¶ 19, 101; ECF No. 52-1 at 9.)
Bielich meet with Merklinger in Chicago, Illinois, on August 28, 2009, when they were both there for a work-related conference. (ECF No. 63 ¶ 29.) Bielich and Merklinger were personal friends, as well as co-workers, and met privately after the day's business meetings to discuss various work and personal matters. (Id.; ECF No. 52-1 at 14:22-24.) According to Bielich she " broke down" at the meeting and told Merklinger " all of the difficulties I was having, how stressed I was. I told him about my medical condition, how I had been having suicidal thoughts. I was trying
so hard to put on a good face" and about her emotional obstacles, fatigue, and the ups and downs with her medication. (ECF No. 52-1 at 14-15.) Bielich denies that she told Merlinger she was " okay." (ECF No. 63 ¶ 29.) Bielich later stated that during this meeting she knew she needed help, but did not know how to ask for it. (Id. ¶ 30.) She stated in her deposition that she " knew they were going to put me on the PIP. I didn't know what to do. I was afraid - you know, I felt fake it until you make it. Norma, collapsing in front of them is not going to do you any good, and I tried like crazy to pull myself together." (Id.)
Bielich met with Willick, in Dallas, Texas, on September 10, 2009, to discuss her performance under the sixty-day plan. (Id. ¶ 33.) Willick informed Bielich that she failed to satisfy the objectives of her sixty-day plan, shared with her negative comments made about her performance by internal customers, and told her that she would be placed on a ninety-day PIP. (Id. ¶ ¶ 33, 36.) According to Bielich she explained to Willick at this meeting that a change in birth control medication made her PMDD symptoms worse, and " that is exactly when my decline in performance happened" and that " I started my sixty-day development plan strong and I wavered" because her doctor was attempting to find the right doses of medication. (ECF No. 52-1 at 21:4-11, 22:1-4; ECF No. 63 ¶ 34.) Bielich told Willick that she had been exhausted and stressed out due to her workload during this meeting. (ECF No. 63 ¶ 34.)
Bielich met in-person with Tai on December 15, 2009, to address Bielich's continued discussion of her relationship with Heniford at work. (Id. ¶ 59.) According to Bielich, during this meeting, she explained to Tai how her PMDD made her unfocused and unable to complete tasks in a timely manner (Id. ¶ ¶ 19, 59; ECF No. 52-1 at 3-4.)
Bielich and Willick exchanged a series of email communications on January 6, 2010, in which Bielich responded to Willick's " concerns about [her] performance." (ECF No. 63 ¶ 62; ECF No. 52-7 at 10.) In a message sent by Bielich at 10:51 p.m., Bielich referenced her diagnosis with " a medical condition that I immediately sought help for" and stated that " I told you and Lena [Tai] that the onset of this condition perfectly corresponds to the decline in my performance." (ECF No. 63 ¶ 134; ECF No. 52-7 at 8.)
When an employee informs an Ethicon manager that he or she has a mental impairment that is affecting job performance, the employee is to be referred to Ethicon's occupational health department in order to determine whether job accommodations are needed. (ECF No. 63 ¶ 97.) Bielich was never referred to the occupational health department. (Id. at 98.)
II. Procedural History
Bielich filed a charge of discrimination and harassment on the basis of gender and disability with both the U.S. Equal Employment Opportunity Commission (" EEOC" ) and the Pennsylvania Human Relations Commission (" PHRC" ). (ECF No. 14 ¶ 5.) The EEOC issued a right to sue letter to Bielich on September 30, 2011. (Id) The instant complaint was filed on April 17, 2012. (Id)
In her first amended complaint, Bielich makes a series of discrimination and retaliation claims based upon her gender and alleged disability. (ECF No. 14.)
o In Counts I and X, Bielich alleges that Ethicon violated Title VII and the PHRA by subjecting her to disparate treatment based on her gender. (ECF No. 14 ¶ ¶ 154, 286.)
o In Counts II, VI, and XI, Bielich alleges that Ethicon violated the ADA, the RA, and the PHRA by subjecting her to disparate treatment based on her alleged disability. (Id. ¶ ¶ 165-68, 219-22, and 299-302.)
o In Counts III, VII, and XII, Bielich alleges that Ethicon violated the ADA, the RA and the PHRA by failing to accommodate her alleged disability, PMDD. (Id ¶ ¶ 177-81, 236-40, and 312-16.)
o In Counts IV, VIII, and XIII, Bielich alleges that Ethicon subjected her to a hostile work environment on the basis of her alleged disability, in violation of the ADA, the RA, and the PHRA. (Id ¶ ¶ 189-99, 253-63, and 325-35.)
o In Counts V, IX, and XIV, Bielich alleges that Ethicon retaliated against her for engaging in protected activities, namely her implicit request for accommodation, in violation of the ADA, the RA, and the PHRA. (Id. ¶ ¶ 206-08, 275-77, and 343-45.)
Ethicon asserts in its motion for summary judgment that it is entitled to judgment as a matter of law with respect to each of Bielich's legal claims because Bielich failed to meet her evidentiary burdens to support any of them. (ECF No. 46.) The court will address each grouping of legal claims below, but, in summary, finds that only the failure to accommodate claims made pursuant to the ADA and the PHRA are supported by sufficient evidence to warrant submission to a jury.
III. Applicable Law
A. Summary Judgment Standards
Federal Rule of Civil Procedure 56 provides in relevant part:
(a) Motion for Summary Judgment or Partial Summary Judgment.
A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant 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. The court should state on the record the reasons for granting or denying the motion.
Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produced admissible evidence to support the fact.
Fed. R. Civ. P. 56(a), (c)(1)(A), (B).
Rule 56 of the Federal Rules of Civil Procedure " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (" A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof." (citing Celotex Corp., 477 U.S. at 322-26; Liberty Lobby, 477 U.S. at 248-52)).
" [W]hen the moving party has carried its burden under Rule 56(c), its opponent 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 rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'"
Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001); Woodside v. Sch. Dist. Of Phila. Bd. Of Educ., 248 F.3d 129, 130 (3d Cir. 2001); Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). A court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).
When the nonmoving party bears the burden of proof at trial, the moving party may discharge its burden by pointing out " that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Once the moving party has made this showing, the burden then shifts to the nonmoving party, who cannot simply rest on the allegations in the pleadings and must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 586. Summary judgment is proper in cases where the nonmoving party's ...