United States District Court, M.D. Pennsylvania
ROBERT D. MARIANI, District Judge.
On November 2, 2012, Plaintiff, Kenneth Finley, brought suit against the Commonwealth of Pennsylvania, Department of Corrections, SCI Waymart and Captain Patrick Herbert, individually and in his official capacity, and Superintendent Joseph Nish, individually and in his official capacity, claiming that the Defendants discriminated against him in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count I); that Defendants interfered with Plaintiffs right to leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.; and retaliated against him by disciplining him for having taken leave which he alleges Defendants should have designated and treated as protected leave under the FMLA (Count III), Plaintiff, in Count IV, alleges a violation by Defendants of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq. Plaintiff also argues that he was constructively discharged by the Commonwealth. (Compl., Doc. 1).
Before the Court is Defendants' Motion for Summary Judgment (Doc. 21) on all of Plaintiffs claims. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion.
II. Statement of Undisputed Facts
The Defendants have submitted, pursuant to Middle District Local Rule 56.1, a Statement of Material Facts as to which they submit there is no issue to be tried. (Def's' Statement of Material Facts ("DSOF"), Doc. 22). The Plaintiffs have submitted a Response to Defendants' Statement of Material Facts. (Pl.'s Statement of Material Facts ("PSOF"), Doc. 30-2). Based on a review of the parties' submissions, the following facts, unless otherwise noted, are undisputed:
Plaintiff, Kenneth Finley, was hired by the Commonwealth of Pennsylvania, Department of Corrections, in or around 1991 as a Corrections Officer assigned to SCI Waymart. (DSOF, at ¶ 1; PSOF, at ¶ 1). The Defendant, Commonwealth of Pennsylvania, Department of Corrections, is an agency of the Commonwealth of Pennsylvania. (Id. at ¶ 2). Defendant, State Correctional Institution at Waymart ("SCI-Waymart) is a correctional institution operated by the Department, located in Waymart, PA. (Id. at ¶ 3).
Defendant, Patrick Herbert, was formerly employed by the Department at SCI-Waymart. He retired in 2012 with the rank of Captain. (Id. at ¶ 4).
Defendant, Joseph Nish, was formerly employed by the Department at SCI-Waymart as a Superintendent. He retired in 2011. (Id. at ¶ 5).
In 2007, Plaintiff Finley was promoted to the rank of Sergeant. (Id. at ¶ 6).
A Lieutenant is considered a management level employee and is no longer covered by the Union. Lieutenants are supervisors and do performance evaluations, assign and approve sick leave and vacation, and make the schedules for the running of the institution and enforce the policies and procedures of the institution. (DSOF, at ¶ 7; PSOF, at ¶ 7).
On January 28, 2011, Plaintiff Finley was working in the Control Center of the facility. (Id. at ¶ 8). The Control Center is a critical area because it covers the entire function of the institution. It is the security of the institution where inmate counts are conducted, line movements are controlled and those in the Control Center are responsible for the number of inmates at the jail. (Id. at ¶ 9).
Plaintiff Finley was working the six to two shift, as the Shift Lieutenant on January 28, 2011. (Id. at ¶ 10). As the Shift Lieutenant, Finley was charged with ensuring all officers get fed, the inmates go out to the yard, the meals get served, no inmates escape from the institution, and the overall orderly running of the institution on his shift. (Id. at ¶ 11).
It is undisputed that on January 28, 2011, Finley left work after telling Lt. Merkel "he was going home SPF." (DSOF, at ¶ 31; PSOF, at ¶ 31). The code SPF is used by the Department of Corrections as an acronym for "sick parental family" leave. (Id. at ¶ 33). Finley never returned from his SPF leave. (Id. at ¶ 95).
The circumstances surrounding Plaintiff Finley's departure from SCI-Waymart on January 28, 2011 are factually in dispute. The Defendants in paragraphs 14 through 23 of their Statement of Material Facts assert that Cpt. Herbert was conducting an investigation into an allegation of staff/inmate abuse that required that several staff members be relieved from their assignments to be interviewed. (DSOF, at ¶ 14). They further assert that when asked to arrange for these officers and sergeants to be relieved so that they could be interviewed, Finley resisted, arguing that he did not have enough staff to allow for the release of the officers who had been requested by Cpt. Herbert. Defendants assert that "Finley's voice was raised" and Cpt. Herbert felt he was being "difficult", (Id. at ¶ 19). Eventually, according to Defendants, Cpt. Herbert called Finley's Supervisor, Cpt. Mushensky, and informed him that "Finley was very unprofessional" and that Herbert needed two officers to leave for an interview. (Id. at ¶ 21).
Opt. Mushensky then called Finley and Defendants assert that Finley, when asked what was going on, "explained the conversation and asked where Herbert wanted him to pull the officers from, "out of his ass?" (Id. at ¶ 22). Defendants assert that Opt. Mushensky told Finley to get it done. (Id. at ¶ 23).
Finley disputes this account of his communications with Cpt. Herbert and Cpt. Mushensky. (PSOF, ¶¶ 14-23). Finley maintains that he asked Cpt. Herbert for advice, saying to him, "Captain, I don't have the parties to do it. I said you are a captain, I am a lieutenant. I am asking you for advice. Now what would you like me to do? How would you like me to get this done?" (Id.). Finley further asserts that after asking Cpt. Herbert for guidance, Cpt. Herbert "became angry, started yelling well maybe I should just call your shift commander, " to which Finley states he responded, "Well, maybe you should." (Id.). Finley further states that after being told by Opt. Mushensky that "whatever Herbert wants, he needs to make it happen, " he closed an entire housing unit within SCI-Waymart and locked all the inmates in their cells. After he ordered that done, he left one officer on the cellblock and relieved all the other officers requested by Herbert and told them to report to Cpt. Herbert and provide their interviews. (Id.).
Nonetheless, it is undisputed that Finley made the arrangements to get the officers relieved and they were relieved five minutes prior to their appointment time. (DSOF, at ¶ 24; PSOF, at ¶ 24). The Defendants and Plaintiff Finley agree that pulling officers from their posts is complicated and involves a safety factor. Any officer taken from their area has to be replaced with another which requires coordination and can be very stressful. (Id. at ¶ 27).
Lt. Merkel, after doing rounds, returned to the Control Center to relieve Finley for his meal and see if he needed any help. (Id. at ¶ 28). Finley was very upset and mad and informed Merkel of his phone calls with Opts. Herbert and Mushensky. (Id. at ¶ 29). Lt. Merkel told Finley to take an hour or more to eat and do rounds. Finley said, "Thanks, " and exited the control room. (Id. at ¶ 30)
As noted, 10 or 15 minutes later, Finley returned to the control room and told Merkel he was going home SPF. (Id. at ¶ 31).
The parties' dispute whether Lt. Merkel had authority to grant Finley leave to go home and further dispute whether he actually granted Finley leave to go home. (DSOF, at ¶ 32; PSOF, at ¶ 32).
It is further undisputed that when Opt. Mushensky returned to the control room, Finley was no longer there. (Id. at ¶ 38).
Mushensky spoke with Lt. DeLucy, who was working in the control room, and DeLucy informed Mushensky that Finley had gone home. Mushensky reported Finley's absence to Major Kosciuk and filed an incident report with Major Kosciuk detailing what had occurred with Finley on the morning of January 28, 2011. (Id. at ¶¶ 39-41).
Cpt. Mushensky was not told that Finley was having a medical emergency or that he was having a panic attack. (Id. at ¶ 43). Cpt. Herbert learned later that morning that Finley had left the institution. (Id. at ¶ 44). Supt. Nish was also informed on January 28, 2011 that Finley had left the facility without proper authorization. (DSOF, at ¶ 45). Plaintiffs response to this paragraph is to characterize it as a "conclusion of law to which no response is required". (PSOF, at ¶ 45). While the question of whether Finley left the facility "without proper authorization" may be a conclusion of law, the statement that Supt. Nish was informed on January 28, 2011 that Finley had left the facility is not a conclusion of law and Plaintiffs failure to deny that assertion requires that it be deemed admitted. It is undisputed that Nish was never informed that Finley suffered any type of panic attack, anxiety attack or medical emergency. (DSOF, at ¶ 46; PSOF, at ¶ 46).
Major Kosciuk and Deputy Gavin informed Finley that he was suspended without pay although Supt. Nish never called Finley to discuss the incident. (Id. at ¶¶ 64-65).
Kosciuk and Gavin asked Finley "who authorized you to leave the institution?" Finley responded that Lt. Merkel did. Gavin and Kosciuk informed Finley that Capt. Mushensky had to be the one to give him authorization to leave. (Id. at ¶ 66).
Nish signed a certified letter to Finley indicating that he was suspended without pay and a fact finding would be conducted. (Id. at ¶ 69).
A fact finding is a review of the incident in which statements of various people are taken to determine what occurred. It is not an automatic indication of discipline or firing. (Id. at ¶ 70). The fact finding was scheduled for Wednesday, February 2, 2011, at 9:00 a.m. with Cpt. Herbert. (Id. at ¶ 71).
Finley did not attend the fact finding. (DSOF, at ¶ 86; PSOF, at ¶ 86).
When Finley did not attend the fact finding, Herbert called Finley at home. Finley told Herbert that he was off on SPF, and that if Herbert had any questions he could call Finley's attorney. Herbert responded, "Thank you, good-bye." (Id. at ¶¶ 87, 90).
Prior to January, 2011, Herbert had no knowledge that Finley was suffering from any medical condition. (Id. at ¶ 73).
On February 3, 2011, Supt. Nish sent Finley a letter that stated:
This letter is to advise you that your Fact Finding Meeting with Cpt. Herbert, which was outlined in my letter to you on January 28, 2011, has been put on hold until you return to work from SPF leave. Once you return to work, we will proceed with our administrative action regarding your fact finding.
(Doc. 22-2; DSOF, at ¶ 94). The Plaintiffs response, although purporting to be a denial, states that the aforesaid letter "is a writing and that such speaks for itself." (PSOF, at ¶ 94). Again, the letter having been accurately quoted, Plaintiff has not properly denied paragraph 94 and, thus, it is deemed admitted.
The notice of suspension and fact finding issued to Finley noted three violations of the Department of Corrections Code of Ethics:
1. Violation of the Department of Corrections Code of Ethics, Section B, No. 8 which states, "No employee shall leave his assigned post or leave the institution or grounds without being properly relieved and receiving proper authorization from a supervisor. Proper relief involves communicating any special observations or orders to the relief personnel."
2. Violation of the Department of Corrections Code of Ethics, Section B, No. 9, which states, "Lawful orders by a supervisor to a subordinate must be executed promptly and faithfully by the subordinate even though the employee may question the wisdom of such order. The privilege of formally appealing the order may be done at a later date through either the supervisory command structure, civil appeal, or the grievance machinery."
3. Violation of the Department of Corrections Code of Ethics, Section B, No. 21, which states, "An employee who knows that he/she will be unable to report for duty due to illness, emergency, or injury shall immediately notify his/her supervisor in accordance with their local policy, advising the supervisor of the nature of the injury, emergency or illness; and the expected date of return to duty.
The Supervisor shall also be advised of a change in any condition which may occur after the original notification was given. An employee injured while on duty shall report such injury to his/her supervisor as soon as possible and shall comply with the provisions of existing regulations pertaining to such injuries. An employee who becomes ill while on duty and finds it necessary to be relieved from an assigned post or duty shall report this fact to his/her immediate supervisor and comply with #8 above."
(DSOF, at ¶ 77 (citing Finley Dep. at Ex. F-2)). Plaintiff responds by stating "the code of ethics is a writing and as such speaks for itself." (PSOF, at ¶ 77). The Notice of Suspension (Doc. 22-2) is properly quoted in the Defendants' Statement of Material and Undisputed Facts at paragraph 77 and the same is therefore deemed admitted.
The Code of Ethics is a document that all Department of Corrections employees receive and Finley recalls receiving a copy. (DSOF, at ¶ 75, 76; PSOF, at ¶ 75, 76). Although, as previously noted, it is undisputed that Finley never returned from his SPF leave, the parties dispute whether Finley resigned his position with the Department of Corrections by retiring on February 17, 2011 at the recommendation of his psychiatrist (DSOF, at ¶ 96) or whether, as contended by Finley, he was "constructively discharged from his employment after the FMLA abuses...." (PSOF, at ¶ 96)
With respect to Finley's FMLA leave, it is undisputed that in June of 2010, he applied for FMLA leave for severe headaches which he thought were due to the alignment of his back. (DSOF, at ¶ 47; PSOF, at ¶ 47). A designation notice was processed by Maritza Evans, the SPF Coordinator at the Department's main office, for Kenneth Finley, approving him for leave under the FMLA for his own serious health condition for absences beginning July 3, 2010 through January 3, 2011. (Id. at ¶ 48).
In September of 2010, Finley was diagnosed with an anxiety disorder. (Id. at ¶ 49).
A Designation Notice is a notice approving an employee for medical leave for certain timeframes and certain amounts of time. (Id. at ¶ 50), The Designation Notice authorizing FMLA leave issued to Finley (Doc. 22-7) states:
Your absence is approved and all leave taken for this reason through 01/03/11 will be designated as FMLA leave, provided you submit recertification, if indicated below.
[X] You are required to provide recertification within 15 days following your first absence that occurs after 01/03/11.
[X] if you have an absence due to this reason after 01/03/11 (the duration certified by the health care provider), you will be required to provide a request to extend the absence and new certification.
[X] If you have an absence due to this reason after 01/03/11 (the end of your eligibility year), your eligibility will be remeasured and you will be required to provide new certification.
(Doc. 22-7). Defendants cite to the Designated Notice as evidence that Finley was required to provide recertification within 15 days following his first absence that occurred after January 3, 2011. (DSOF, at ¶ 51). Plaintiff responds to this paragraph by stating that the "designation notice is a writing and as such speaks for itself." (PSOF, at ¶ 51). The designation having been accurately cited for the proposition that Defendants advance, the same is deemed admitted.
Throughout Finley's approved period of FMLA leave, he took approximately four or five days off. (DSOF, at ¶ 53; PSOF, at ¶ 53).
After Finley left on the 28th of January stating that he was taking FMLA, he did not submit anything to the Department until after they sent him a notice on February 4, 2011, that he had 15 days to return paperwork on his FMLA leave. (Id. at ¶ 54). On February 4, 2011, Maritza Evans, the SPF Coordinator, sent an Additional Information Notice to Finley informing him that the January 28, 2011 absence exceeded the frequency and/or duration described by the healthcare provider and recertification would be necessary. (DSOF, ¶ 55; Doc. 22-7). Plaintiffs response to Defendants' paragraph 55 is that the "additional information notice is a writing and as such speaks for itself." (PSOF, at ¶ 55). This is not a proper denial of the issuance of the Additional Information Notice and the same is therefore deemed admitted.
Finley submitted an updated Serious Health Condition Certification from his physician, Satish K. Mallik, M.D., dated February 8, 2011. (DSOF, at ¶ 56; PSOF, at ¶ 56).
On February 23, 2011, an updated Designation Notice was issued reflecting that the January 28, 2011 absence was approved as FMLA/SPF Leave and leave taken for Finley's work related stress serious health condition through July 28, 2011 was also approved. (DSOF, at ¶ 57; Doc. 22-8). Plaintiffs response to Defendants' paragraph 57 states only that "the updated designation notice is a writing, and as such speaks for itself." (PSOF, at ¶ 57). The Designation Notice of February 23, 2013 is therefore admitted.
When a Designation Notice is issued, a copy is kept in the SPF Absence Coordinator File, one is sent to the employee, a copy goes to the facility Human Resource Office, and a copy is ...