United States District Court, W.D. Pennsylvania
MARY E. McINTYRE, Plaintiff,
KATHERINE ARCHULETA, Director, U.S. Office of Personnel Management, Defendant.
MARK R. HORNAK, District Judge.
This case focuses on whether the Plaintiff was constructively discharged from her job in violation of federal law. The Plaintiff, Mary McIntyre ("McIntyre"), brings claims pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The Defendant now asks for summary judgment in its favor on those claims.
McIntyre, who is now 83 years old, worked for the U.S. Office of Personnel Management ("OPM") for twenty-nine years in a number of positions and concluded her employment in the position of Customer Service Representative ("CSR"). Her last day of employment was May 31, 2013. The key question in this case is whether McIntyre then retired, or was instead unlawfully pushed out by her supervisor, Jonathan Sosa. The answer to that question depends, in part, on whether the Defendant engaged, as it was obligated to, in the "interactive process" required when an employee requests an accommodation for a disability. The resolution of these issues will determine whether this case may proceed to trial. The Court concludes that if McIntyre's version of the facts is believed and when all reasonable inferences are drawn in her favor a reasonable factfinder could conclude that McIntyre was constructively discharged contrary to law. Summary judgment must therefore be denied.
The parties agree on most of the relevant facts in this case. McIntyre began working for OPM on November 14, 1983, when she was 51 years old, and continued to work there until May 31, 2013. ECF No. 23, at ¶¶ 2-3. She held a number of jobs with OPM over the years-all of them at OPM's Iron Mountain underground facility located in Boyers, Pennsylvania-and her final position was as a CSR in OPM's Retirement Services section. Id. at ¶¶ 4, 9-10. As a CSR, McIntyre's job was to answer federal retirement pay and benefit inquiries for retirees and their survivors and representatives. Id. at ¶ 5. CSRs are required to answer customer inquiries by phone and through written correspondence, making adjustments to pay and solving questions using available forms, explaining forms and documents to customers, and using OPM's computer software to make changes to automated systems in response to customer inquiries. Id. at ¶ 7. When she was a CSR, McIntyre's supervisor was Jonathan Sosa ("Sosa"). Id. at ¶ 6.
McIntyre suffers from three primary medical conditions: Crohn's disease, post-shingles neuralgia, and cancer. Id. at ¶ 12; ECF No. 28, at ¶ 12. McIntyre became aware of her Crohn's disease when she was in her forties and acknowledged that she could regulate and control it with medication. ECF No. 28, at ¶¶ 13-14. As a result, she never notified OPM management of her Crohn's disease, and she never requested an accommodation for it. Id. at ¶ 15.
In the fall of 2011, McIntyre submitted leave documentation to OPM in which she stated that she had been suffering from shingles beginning on September 5, 2011. Id. at ¶ 16. She sought medical treatment. Id. at ¶ 17. From mid-September through the end of November 2011, McIntyre was away from work to recover from shingles, and she was authorized to take various types of leave, including annual, sick, donated, and leave without pay. Id. at ¶ 20.
In May 2012, McIntyre was diagnosed with breast cancer. Id. at ¶ 21. In an email dated July 2, 2012, Sosa indicated that he was aware of McIntyre's breast cancer and that she had started chemotherapy. Id. at ¶ 22. McIntyre had breast cancer surgery on September 12, 2012, but after the surgery the cancer continued to spread to her bones. Id. at ¶¶ 23-24. She underwent another round of chemotherapy. Id. at ¶ 26. McIntyre testified that during that fall she was very fatigued. Id. at ¶ 27. From mid-September 2012 through the middle of December 2012, McIntyre was authorized to be away from work, but due to her low remaining leave balance, she had to use leave without pay, and she continued to be protected by the Family Medical Leave Act ("FMLA"). Id. at ¶ 28. McIntyre's treatment for breast cancer continued into 2013, and her physician, Dr. Pathe, indicated that she would require "intermittent days off for treatment, labwork, and MD follow appointments" and that the "[t]reatments can cause increase [sic] fatigue and weakness, and increase [sic] risk of infection which may require intermittent days off also." Id. at ¶ 29.
McIntyre testified that she wanted to work another two years to fund her retirement account, and she returned to work in the middle of December 2012. Id. at ¶¶ 30, 32. Sometime between January 1, 2013 and the end of February 2013, McIntyre requested an accommodation: she wanted to work from home full time. Id. at ¶ 33. McIntyre says she made this request verbally to Sosa "at or near the fax machine in the department where Plaintiff worked in 2013, " but she never filled out paperwork requesting the accommodation. Id. at ¶¶ 34-35. The parties disagree about the facts of this conversation. Sosa testified at his deposition that (1) he did not recall McIntyre making such a request, and (2) even if she had, the request would have been denied because of McIntyre's "minimally successful" work performance evaluation for the period of 10/01/2011-9/30/2012. ECF No. 23, at ¶ 36. McIntyre says that Sosa told her that it would take two months to get her set up to work from home. ECF No. 28, at ¶ 36. Moreover, McIntyre says that Sosa never told her that she needed to complete a form.
The parties also disagree about McIntyre's performance. The Defendant presents the following litany, based on the testimony of Sosa: after Plaintiff's return to work, Sosa began receiving numerous phone calls about errors in McIntyre's work; Sosa wrote an email on January 23, 2013 in which he stated he was giving McIntyre an "unacceptable performance" rating, noting that he had "reviewed 83 letters and she had 30 errors giving her a 36.14% error rating, " which Sosa opined was a high percentage; in early 2013, McIntyre was not returning phone calls from annuitants; McIntyre was getting backlogged, and her work was being redistributed to other employees; McIntyre had difficulty using her computer and various software systems; McIntyre had difficulty reading her screen, requiring OPM to adjust her monitor and provide her with a magnifying glass; McIntyre had problems completing her production reports, which included inaccurate and incomplete numbers; and McIntyre was nodding off at her desk. ECF No. 23, at ¶¶38-46.
While McIntyre admits only that Sosa testified to these things in his deposition, ECF No. 28, at ¶¶ 38-46, McIntyre does admit that she did have certain problems at work: Casey Tynan, McIntyre's cubicle partner, stated that McIntyre was backlogged in her work during the final months of her employment and that she was having a hard time at work physically (evidenced by the fact that she sometimes slept at her desk). ECF Nos. 23 and 28, at ¶¶ 47-49.
In a First Quarter Review in 2013, Plaintiff received an unacceptable performance rating in Customer Service and, pursuant to OPM policy, was placed on a Performance Improvement Plan ("PIP") by Sosa and Human Resources on February 19, 2013. Id. at ¶¶ 51-54. Sosa gave the following explanation for why McIntyre's performance was unacceptable:
From October 1, 2012 to present, I have reviewed the correspondence you have processed and you have required constant intervention, direction and corrective measures. During the timeframe of December 12, 2012 to January 29, 2013, you processed 84 letters. I have reviewed all of the letters and there were 31 errors which is an overall error percentage rate of 36.9%. Many of the letters were returned to you multiple times for corrections. This is an Unacceptable level of performance.
Id. at ¶ 56. McIntyre was notified and acknowledged receipt of the PIP on February 26, 2013. Id. at ¶ 57. The PIP was set to last 60 days, and Sosa explained to McIntyre what was expected of her during it. Id. at ¶¶ 58-59. The parties disagree about whether McIntyre struggled with computer systems: the Defendant says she did and was thus provided with individualized training, ECF No 23, at ¶ 60, while McIntyre denies having computer difficulties, ECF No. 28, at ¶ 43, and says that she was not provided training but "was just showed where [Outlook] was, and how I used it, " id. at ¶ 60.
The parties do, however, agree that McIntyre continued to have issues at work during the PIP. She struggled with email correspondence, maintained a high overall error rate (between 34% and 41%), failed to place her phone in work mode, causing customer calls to go straight to voicemail, and left a piece of correspondence on her desk despite two emails having been sent to employees requesting that they check their desks for just that document. ECF No. 23, at ¶¶ 61-64. Moreover, during the PIP, McIntyre's workload had to be reduced, her letters had to be audited, she was taken off phone rotation, she was assigned a mentor, and she was absent a number of days, which caused the PIP to be extended to May 21, 2013. Id. at ¶¶ 65-66.
By April 2013, McIntyre had exhausted her 480 hours of FMLA Leave and had no other remaining leave time. Id. at ¶ 67. At OPM, when leave is exhausted, an employee is permitted to go into leave-without-pay status ("LWOP"), provided that the employee's request for LWOP is supported by medical documentation and leave procedures are followed. Id. at ¶ 68. McIntyre often took leave without informing Sosa or submitting a leave slip. Id. at ¶ 70. McIntyre was no stranger to leave: in 2001 she took 641 hours of total leave; in 2012 she took 605 hours; and from January 1, 2013 to May 31, 2013, she took 514.9 hours of total leave. Id. at ¶ 71. Sosa consulted with HR and issued McIntyre a Notice of Leave Restriction on April 9, 2013. Id. at ¶ 72.
From April 11, 2013 through May 14, 2013, McIntyre worked only four days. Id. at ¶ 73. On May 14, 2013, McIntyre filled out a retirement application-of which she informed Sosa two days later-and selected May 31, 2013 as her official retirement date. Id. at ¶¶ 74-75. The Notification of Personnel Action form lists McIntyre's retirement as voluntary. Id. at ¶ 76.
Why did McIntyre retire? Defendant points to McIntyre's testimony that she was out of leave and her statement that "I had to retire for the simple reason that I ran out of time, and they would not give me time." Id. at ¶ 77. McIntyre denies any implication that this is the entirety of her testimony on the subject and states that she actually had several additional reasons for retiring, including the following: commuting to work on a bus was difficult for her, she was experiencing fatigue as a result of her cancer and its treatment, and she found the workplace to be highly stressful. ECF No. 28, at ¶ 77 (citing McIntyre's deposition transcript, ECF No. 30-3, at 14-16). Defendant acknowledges that McIntyre testified that those reasons contributed to her decision to retire. ECF No. 23, at ¶ 79.
The parties disagree on another portion of McIntyre's deposition testimony relating to her own perception of her ability to keep working. Defendant says, "During her deposition, Plaintiff acknowledged that, at the time of her retirement, she was not healthy enough to work, and that she would still not be able to work to this day." ECF No. 23, at ¶ 80. McIntyre points out that she elaborated on this statement by saying that, while she did not have the energy or inclination to go into work, she could have continued to do her work from home. ECF No. 28, at ¶ 80; ECF No. 30-3, at 18-19. According to McIntyre, she was also having difficulty (and Sosa was aware of this) getting to and from work (she had to commute by bus), which caused her fatigue and contributed to her early retirement. ECF No. 30-3, at 11. McIntyre also notes that she had a laptop and internet access at her house. Id. at 20. McIntyre also points out a number of facts that could suggest that Sosa forced her to retire. She notes that in October of 2011, shortly after she began to suffer from shingles, she was sent a retirement estimate. ECF No. 29, at ¶ 121 (citing ECF No. 30-1, at 3-5). McIntyre says that Sosa and Janet Bass (a member of Retirement Services - Operations, see ECF 24-2, at 16) met with McIntyre and decided to give her the retirement estimate as guidance. Then, shortly before the PIP was issued on February 19, 2013, Sosa asked McIntyre when she intended to retire. ECF No. 30-3, at 2.
McIntyre exhausted her administrative remedies, ECF No. 23, at ¶¶ 81-91, and filed this lawsuit on March 13, 2014, id. at ¶ 92, in which she alleged disability discrimination (via a hostile work environment and constructive discharge) and retaliation. After the close of discovery, however, McIntyre consented to the dismissal of her hostile environment and retaliation claims, ECF No. 27, at 10, leaving only the claim of constructive discharge under the Rehabilitation Act of 1973, 29 U.S.C. §701 et seq.
On March 13, 2015, Defendant filed a Motion for Summary Judgment. The Court has reviewed the Motion for Summary Judgment (ECF No. 21) and its supporting brief (ECF No. 22); Defendant's Concise Statement of Material Facts (ECF No. 23) and supporting Exhibits (ECF No. 24); McIntyre's Response to Defendant's Motion for Summary Judgment (ECF No. 26) and supporting brief (ECF No. 27); Plaintiff's Response to Defendant's Concise Statement of Material Facts (ECF No. 28), Plaintiff's Statement of Additional Material Facts (ECF No. 29), and supporting Appendix (ECF No. 30); Defendant's Response to Plaintiff's Statement of Additional Material Facts (ECF No. 32); and Defendant's Reply brief (ECF No. 33). The Court heard oral argument on May 13, 2015.
II. STANDARD OF REVIEW
Summary judgment is proper "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." Fed.R.Civ.P. 56(a). An issue is genuine only if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "In considering a motion for summary judgment, a court must draw all reasonable inferences from the underlying facts in the light most favorable to the non-moving party." Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 162 (3d Cir. 2001). "When there is a disagreement about the facts or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions of the parties." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (alteration and internal quotation marks omitted). "To defeat a motion for summary judgment, the nonmoving party must raise more than some metaphysical doubt as to the ...