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Dorward v. Verizon Pennsylvania, Inc.

United States District Court, M.D. Pennsylvania

February 2, 2017

ROXANNE DORWARD and SHARON PUGLIESE, Plaintiffs
v.
VERIZON PENNSYLVANIA, INC., Defendant

          KANE, J.

          REPORT AND RECOMMENDATION

          KAROLINE MEHALCHICK United States Magistrate Judge

         Plaintiffs, Roxanne Dorward (“Dorward”) and Sharon Pugliese (“Pugliese”) instituted this action on October 7, 2014 by the filing of a complaint (Doc. 1) against Defendant, Verizon Pennsylvania LLC[1] (“Verizon”). In their complaint, Dorward and Pugliese allege that Verizon discriminated against them in violation of the Americans with Disabilities Act of 1990 (the “ADA”) and the Pennsylvania Human Relations Act (“the PHRC”), 43 P.S. §§ 951-963, et seq., in that Verizon failed to accommodate their disabilities and failed to engage in the interactive process required by the ADA. (Doc. 1). Defendant asserts it is entitled to summary judgment on the grounds that Plaintiffs are not qualified individuals with a disability under the law, that Plaintiffs' requested accommodations would have required Verizon to breach its Collective Bargaining Agreement, Verizon fully engaged in the interactive process with Plaintiffs, and there is no evidence to support Plaintiffs' claims. In response, Plaintiffs submit that summary judgment should be denied as there is a material question of fact as to whether Plaintiffs can perform the essential functions of their job with or without a reasonable accommodation, and thus, whether Plaintiffs are “qualified individuals” under the ADA and PHRA.

         I. Factual Background and Procedural History

         The factual background is taken from Defendant's Statements of Undisputed Material Facts (Doc. 28-2) and Plaintiffs' Response to Defendants' Statement of Undisputed Material Facts (Doc. 34), to the extent the facts are admitted or otherwise undisputed. Where the parties dispute certain facts, those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiffs as the non-moving parties, with all reasonable inferences drawn in their favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
Local Rule 56.1 (emphasis added).

         To comply with Local Rule 56.1, Plaintiffs should (1) clearly and unequivocally admit or deny whether each fact contained in Defendants' statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016) (emphasis added); Park v. Veasie, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiffs dispute a fact set forth by Defendant, but fail to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010).

         Verizon is a broadband communications company servicing a wide range of residential and business customers throughout Pennsylvania. (Doc. 28-2 at ¶ 13). A critical component of Verizon's business model is selling products and services and providing direct customer support over the telephone. (Doc. 28-2 at ¶ 14). The Company employs Consultants as its representatives during these phone calls. (Doc. 28-2 at ¶ 15).

         Verizon hired the Plaintiffs in this Consultant role and they performed these customer consulting duties for varying periods. (Doc. 28-2 at ¶¶ 24-25 & 56). Eventually, both Plaintiffs suffered from stress and anxiety, rendering them unable to interact with customers and diminishing their capacity to talk, think, concentrate and relate with others. (Doc. 28-2 at ¶¶ 35- 36, and 61).[2] Plaintiffs' stress and anxiety resulted in each of them requesting a work accommodation of working as a Consultant with no customer contact. (Doc. 28-2 at ¶ 37, 62).[3]Defendant granted Plaintiffs' request for a no customer contact accommodation pursuant to its Medically Restricted Policy (“MRP”). (Doc. 28-2 at ¶ 39, 63).

         A. Verizon's Mid-Atlantic Medically Restricted Policy

         Verizon implemented its Mid-Atlantic Medically Restricted Policy (“MRP”), effective in 1998, after negotiating the terms of the MRP with the Union. (Doc. 28-2 at ¶ 1). Under the MRP, Verizon agreed not to discharge an employee solely due to the employee's inability to perform some of their essential job functions with or without a reasonable accommodation. (Doc. 28-2 at ¶ 2). In 2011, during negotiations for a successor labor agreement, Verizon “placed a line in the sand” over its desired changes to the MRP. As the Union explained, “‘[U]nlimited restricted duty' was something Verizon was not going to live with any longer.” (Doc. 28-2 at 71). Effective October 19, 2012, Verizon implemented this amended Medically Restricted Leave of Absence Policy (“MR-LOAPA”). (Doc. 28-2 at ¶ 4). The MR-LOAPA requires Verizon to provide employees whose medical restriction(s) prevent them from performing an essential function of their job with or without reasonable accommodation with work they can physically perform for up to 150 days (“150-Day Light Duty Period”). (Doc. 28-2 at ¶ 5). During their 150-Day Light Duty Period, employees receive full pay and benefits. (Doc. 28-2 at ¶ 6).

         Following the 150-Day Light Duty Period, if the employee remains unable to perform his or her job with or without reasonable accommodation, Verizon places the employee on unpaid leave with benefits. (Doc. 28-2 at ¶ 8). The total period of this accommodation under the MR-LOAPA (the 150-day period plus the unpaid leave of absence) is 52 weeks, as well as a finite extension in appropriate circumstances. (Doc. 28-2 at ¶ 8).

         Under the MR-LOAPA, prior to the end of the 52-week period, Verizon engages in an interactive dialogue with any employee on the plan to determine, among other issues, the following: (1) if the employee has a prognosis for recovery shortly after the leave of absence expires that would justify a finite extension, and (2) whether a previously unavailable job will shortly become available with essential functions that the employee could perform with or without a reasonable accommodation. (Doc. 28-2 at ¶ 9).

         While an employee is on the MR-LOAPA, Verizon searches for an available job in the same, equivalent or lower job classification for which the employee is qualified and medically able to perform, with or without a reasonable accommodation. (Doc. 28-2 at ¶ 10). The employee has both the ability and the corresponding duty to identify equivalent or lower paid positions that they can perform with or without a reasonable accommodation. (Doc. 28-2 at ¶ 11). If the employee is unable to return to work with or without reasonable accommodation in his or her job or in a vacancy for which he or she is qualified within 52 weeks and there are no factors justifying an extension, his or her unpaid leave of absence expires and Verizon separates the employee from employment and pays the employee a generous termination allowance. (Doc. 28-2 at ¶ 12).

         B. The Consultant Position

         Verizon Consultants are call center employees who provide sales and service support for customers. Their primary job responsibilities include the following, all of which occurs while speaking with customers over the telephone: (i) contributing to Verizon's revenue results by selling Verizon broadband, entertainment and telecommunications products and services; (ii) attaining a monthly sales objective through interviews and identifying customer needs to proactively offer for sale Verizon key broadband, entertainment and telecommunications products and services; (iii) investigating and resolving customer inquiries, disputes, and complaints regarding service, billings, and adjustments; (iv) responding to requests from customers for Verizon products and services; (v) verifying service order accuracy and completeness; (vi) investigating and resolving ...


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