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Hair v. Fayette County of Pennsylvania

United States District Court, W.D. Pennsylvania

September 13, 2017

JULIA HAIR, Plaintiff,



         I. Introduction

         Plaintiff, Julia Hair (“Hair” or “Plaintiff”) filed an Amended Complaint alleging: (1) Discrimination, Hostile Work Environment and Retaliation under the Rehabilitation Act against Defendant, Fayette County (the “County”); (2) Discrimination, Hostile Work Environment, and Retaliation under the Pennsylvania Human Relations Act (the “PHRA”), 43 Pa. Cons. Stat. Ann. § 955 et seq., against Defendants, Jeffrey Whiteko (“Whiteko”) and Dominick Carnicella (“Carnicella”); (3) Hostile Work Environment, Discrimination and Retaliation under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., against the County; (4) Interference and Retaliation under the Family and Medical Leave Act (the “FMLA”), 29 U.S.C. § 2601 et. seq., against Whiteko and Carnicella; (5) violation of Civil Rights under 42 U.S.C. § 1983 against Whiteko and Carnicella; and (6) Intentional Infliction of Emotional Distress against Whiteko and Carnicella. Hair filed a Motion for Partial Summary Judgment on her FMLA claims and the County Defendants filed a Motion for Summary Judgment. Responses have been filed and the motions are now before the Court.

         II. Statement of the Case

         Hair began employment with Fayette County on January 15, 1997, as a legal secretary in the Office of the Public Defender (the “Public Defender's Office” or the “Office”). Defendants' Concise Statement of Undisputed Material Facts (“Def. CSUMF”) ¶ 1; Plaintiff's Concise Statement of Material Facts (“Pl. CSMF”) ¶¶ 6 & 9[1]. The Public Defender's Office is located in the Fayette County Courthouse in Uniontown Pennsylvania. Def. CSUMF ¶ 2. Hair was a member of the Service Employees International Union, Local 668, AFL-CIO (the “Union”). Def. CSUMF ¶ 4.

         The Union entered into a Collective Bargaining Agreement (“CBA”) with the County on January 1, 2010, and January 1, 2014. Def. CSUMF ¶ 5. Pursuant to the CBA, Hair's work schedule was from 8:30 a.m. until 4:00 p.m. with a one (1) hour lunch break from 12:00 p.m. until 1:00 p.m. and two (2) fifteen (15) minute breaks throughout the day. Def. CSUMF ¶ 6. The CBA provides that an employee must notify the office before the start of the employee's regularly scheduled workday when the employee would be using sick leave. Def. CSUMF ¶ 7.

         In October of 2008, Hair was diagnosed with breast cancer, which was treated and was in remission in or around the spring of 2013. Def. CSUMF ¶ 11; Pl. CSMF ¶ 15. On September 23, 2013, Hair was examined Dr. Paul E. Means (“Dr. Means”) for severe sunburn on her back and shoulders. Def. CSUMF ¶ 14; Def. Appdx. Ex. G. During the appointment, Dr. Means completed a form for intermittent leave under the FMLA because of recurring abdominal pain and Diabetes Mellutis Type II. Def. CSUMF ¶ 15; Def. Appdx. Ex. I; Pl. CSMF ¶ 20. The application provided no schedule for the requested intermittent leave. Id.

         The procedure for obtaining FMLA leave in Fayette County required the requesting employee to provide a physician certification for review to determine if the condition was eligible for FMLA leave. Def. CSUMF ¶ 16. After the review, Human Resources would certify the FMLA request and meet with the requesting employee's manager to discuss accommodating the request. Id.

         On October 10, 2013, Hair and her Union representative, Dennis Hull (“Hull”), met with Carnicella, the County's Human Resources Director, Public Defender Whiteko, and Office Coordinator, Debbie McGee (“McGee”). Def. CSUMF ¶ 17. The meeting was to discuss Hair's requested intermittent FMLA leave, attendance and attitude issues, and to request that Hair notify the office as far in advance as possible regarding when she would be using her FMLA leave. Id.; Pl. CSMF ¶ 22. At the meeting, Hair was also asked to return to her physician for clarity as to what her FMLA leave would entail. Def. CSUMF ¶ 18.

         On October 15, 2013, Dr. Means supplemented the physician certification stating that Hair that Hair could be as late for work as 9:30 a.m. up to two (2) days per week and could be absent from work up to two (2) times per week. Def. CSUMF ¶ 19. Dr. Means then wrote a letter dated November 6, 2013, stating that Hair was “experiencing recurrent symptoms” which could cause her to be late for work “up to 9:30 a.m. and up to 5 days per week. She could also miss work . . . up to 2 days per week.” Def. CSUMF ¶ 20; Def. Appdx. Ex. L.

         By letter dated November 12, 2013, Carnicella notified Hair that she was approved for FMLA leave effective September 23, 2013. Def. CSUMF ¶ 21; Def. Appdx. Ex. M. Hair's intermittent leave was approved to the extent indicated by Dr. Means, that she “could be as late for work as 9:30 a.m. up to 5 days per week depending on [her] symptoms and that [she] could miss up to 2 days of work per week due to this condition.” Id. Carnicella's FMLA approval letter also provided:

the County, for purposes of managing the operation, needs to be aware of when you will be coming to work. Since you have not requested a set schedule but rather hours or days which could differ every day of the week, the days which you are reporting to work after 8:00 am or will not be reporting at all, you are required to call the Office Coordinator or in her absence the Department Clerk 1, at 8 am and inform her if you will coming to work that day and if so, approximately when you will be arriving. If you are calling prior to 8 am for this purpose, instead of contacting the Office Coordinator, contact the Chief Public Defender on his cell phone . . . and leave him a message with the above required information. . .
Regarding time off work for doctor appointments, please inform the Chief Public Defender in writing in as far as advance as possible of any upcoming work time that you need off for appointments and if they are pertaining to your FMLA or not. You must also provide me with verification from the treating physician of your attendance at these appointments.

         Def. CSUMF ¶¶ 22 & 26; Def. Appdx. Ex. M.

         On November 22, 2013, Jennifer Kondrla (“Kondrla”), a legal secretary in the Public Defender's Office, and Assistant Public Defender Mary Spegar (“Spegar”) were involved in an incident with Hair. Def. CSUMF ¶ 31. Kondrla and Segar were looking for a file in the storage area of the office, often referring to the file by name, when after several minutes, Hair said “I can't make you suffer anymore, ” and told them where the file was located. Id. Kondrla and Hair then exchanged words about allowing Kondrla and Spegar to waste time looking for the file, about Hair's attitude and about employees snubbing each other in the office. Id. Kondrla told Hair that she was going to report her attitude problem to Human Resources, and Hair told Kondrla to just “sit in her hole” and “shut up”. Id.; Def. Appdx. Exs.Q, R, S & T. Kondrla and Hair filed complaints with Human Resources against each other over the incident. Def. CSUMF ¶ 32.

         On November 25, 2013, Hair met with Carnicella regarding the FMLA approval letter and indicated that she did not believe she had to verify her attendance at her doctor's appointments or to call when she will be late as required in the approval letter[2]. Def. CSUMF ¶ 35. On November 26, 2013, Whiteko sent Hair a memo reminding her of the policy that required her to call in no later than 8:00 am if she was going to be late or absent. Def. CSUMF ¶ 36. Whiteko also indicated that if she would not abide by this guideline, he would write her up. Id. Whiteko, further, told Assistant Public Defender, Charity Krupa, that Hair was a “cancer in the office, constantly disrupting.” Pl. CSMF ¶ 31.

         On December 5, 2013, Whiteko issued Hair a verbal warning for failing to abide by the requirements of the office attendance policy by arriving late without notifying the office on several dates prior to her FMLA leave. Def. CSUMF ¶ 37; Def. Appdx. Ex. X. Whiteko also issued Hair a written warning on that same day for arriving late for work on several days after the commencement of her FMLA leave and failing to notify the office that she would be late. Id. Whiteko counseled Hair that she must “inform [him] in as far in advance as possible if [she was] going to be late or need to leave early, but no later than the beginning of that work day.” Id.

         Hair filed a Union grievance regarding the warnings issued by Whiteko on December 5, 2013, concerning her failure to notify the office when she would be late. Def. CSUMF ¶ 40. Hair contended that she was not counseled in a timely manner, and was not given an opportunity to correct the issues prior to receiving progressive discipline steps. Id.

         On the morning of December 6, 2013, Hair stepped out of the Public Defender's Office, and McGee and Kondrla spotted a camera that they believed was set up by Hair to record them in the office. Def. CSUMF ¶ 38. Kondrla made a complaint to Whiteko contending that Hair had a video recorder on her desk which violated the confidentiality required in the Public Defender's Office with regard to their clients. Def. CSUMF ¶ 39. Whiteko forwarded Kondrla's complaint to Human Resources, and on December 9, 20133, Hair was suspended with pay pending an investigation of the video recorder incident. Def. CSUMF ¶¶ 41 & 42.

         On December 13, 2013, Carnicella notified Hair that her use of a video recorder on December 6, 2013, may have violated County policy and the Pennsylvania Wire Tap Law. Def. CSUMF ¶ 44. Further, Carnicella indicated that her comments made to Kondrla on November 22, 2013, also may have violated County policy. Id. The County, therefore, would hold a Loudermill hearing at which she would be able to address the allegations. Id.

         The County held the Loudermill hearing on December 20, 2013. Def. CSUMF ¶ 45. As a result of the hearing, Hair was issued a one day unpaid suspension for her comment “sit in your hole and shut up” directed at Kondrla. Def. CSUMF ¶ 46. Hair was directed to return to work on January 6, 2014. Id. Moreover, on January 27, 2014, Human Resources informed Hair that there was insufficient evidence to prove that the video recorder she allegedly set-up on her desk was turned on, therefore she was cleared of the allegations regarding the video recorder.[3]Def. CSUMF ¶ 47.

         On January 9, 2014, Hair filed a complaint with Human Resources stating that “tart burners”[4] were being used in the office and the scent was giving her headaches and bothering her stomach. Def. CSUMF ¶ 48. On January 13, 2014, Hair was notified that the use of tart burners would be discontinued in the office or she would be moved to an area of the office in which she was not bothered by the scent for the next 15 days pending a physician certification that such sensitivity qualified as disability under the ADA. Def. CSUMF ¶ 50.

         Hair visited Dr. Means on January 22, 2014, and Dr. Means completed a Physician's certification that indicated Hair was not disabled but was sensitive to substances in the work environment, which included tart burners. Def. CSUMF ¶ 53. On January 23, 2014, Hair was examined by Robert S. Gorby, M.D. (“Dr. Gorby”) at Westmoreland Allergy & Asthma Associates regarding her sensitivity to perfumes, candles and strong scents. Def. CSUMF ¶ 54. Dr. Gorby found no evidence of hypersensitivity, but explained that “it is quite possible that things at work are bothering quite a bit and . . . it would be helpful if her place of employment could limit the amount of perfumes, cleaning fluids, smoke from candles, etc.” Id. Nonetheless, on February 14, 2014, the Fayette County Commissioners approved an accommodation for Hair in which the use of tart burners and scented candles would be discontinued within the Public Defender's Office. Def. CSUMF ¶ 58. On March 6, 2014, the County notified Hair that her requested accommodation was approved and that the use of tart burners, air fresheners and scented candles would be permanently discontinued during her employment in the office. Def. CSUMF ¶ 62.

         By letter dated January 27, 2014, Hair was notified that a Loudermill Hearing was scheduled for January 30, 2014, to respond to allegations that she refused to answer phones in the office, slept at her desk, glared at her co-workers and failed to notify co-workers of when she would leave the office. Def. CSUMF ¶ 56. Following the hearing, Hair was issued a written warning for violating County policy by intimidating employees, misusing County time, failing to follow the chain of command, failing to perform job duties, unauthorized absence from work station/area during the workday and for unprofessional behavior. Def. CSUMF ¶ 57; Def. Appdx. Ex. RR.

         On March 4, 2014, Debbie McGee filed a Workplace Harassment Complaint Form against Hair alleging that she was attempting to provoke an altercation and was acting threatening and intimidating. Def. CSUMF ¶ 61. Specifically, McGee complained that Hair made comments to her throughout the day, stared and/or glared at her, refused to perform job tasks, refused to follow scheduling rules and continually attempts to bully and intimidate her. Id.; Def. Appdx. Ex. WW. Kondrla also filed a Workplace Harassment Complaint Form against Hair in March of 2014, alleging that Hair made comments to her, stared and smirked at her, and refused to answer the telephone. Def. CSUMF ¶ 65.

         A Loudermill hearing was scheduled for March 24, 2014, regarding the allegations of McGee and Kondrla. Hair admitted that she would not answer the telephone in the office, and opined that she did not have to take her breaks in accordance with the break schedule. Def. CSUMF ¶¶ 66 & 67. Based upon her admissions, Hair received a one (1) day unpaid suspension for intimidating employees, unsatisfactory performance of job duties, misuse of County time, refusal to perform assignments, failing to abide by office hours and break times and unprofessional communications in the office. Def. CSUMF ¶ 68; Def. Appdx. Ex. CCC.

         On May 6, 2014, the Public Defender's Office implemented a sign in/sign out sheet for its employees. Def. CSUMF ¶ 72; Def. Appdx. Ex. GGG. All Union employees in the Public Defender's Office were required to use the sign in/sign out sheet. Def. CSUMF ¶ 74. Hair at times did not follow the Office procedures. Def. Appdx. Ex. OOO. The Union told Hair that the procedures she was being asked to follow in the Office were within Management's rights. Id.

         On June 10, 2014, Hair and her Union Representative met with Human Resources to discuss issues in the Public Defender's Office regarding Hair and the Office procedures. Def. CSUMF ¶ 87. At the meeting, the parties agreed to the following:

a. the temperature in the office would remain at 72 degrees during the summer months;
b. the sign in/sign out sheet would be kept in a neutral area in the office and that if employees were signing out for a break, the employees would just have to state that they were taking a break, not where they were going during their break;
c. Whiteko would collect the Time Off Request Forms, Whiteko would handle all discipline of Hair, and Hair would keep track of her own timesheets; and
d. interviews of Public Defender clients would only be conducted in the back offices and not at desks in the main office to ensure confidentiality.

Id.; See also Def. Appdx. Ex. HHH.

         Despite the agreement, Hair violated the Office procedures regarding the temperature of the Office and the procedure regarding interviewing clients at her desk. Def. CSUMF ¶¶ 88 & 89; Def. Appdx. Ex. OOO. Whiteko issued a written warning to Hair for such violations. Def. Appdx. Ex. KKK. Further, on June 26, 2014, Hair saw McGee in the Courthouse hallway, raised her voice, pointed at McGee and told McGee to stop following her. Def. CSUMF ¶ 90. McGee alleged Hair left the Office without signing out, and she was unaware Hair was in the Courthouse. Def. CSUMF ¶ 91.

         On June 26, 2014, Carnicella issued a Loudermill Hearing Notice suspending Hair with pay effective June 27, 2014, pending the results of the investigation of the altercation with McGee, and scheduling the hearing for June 30, 2014. Def. CSUMF ¶ 92. At the hearing, Hair admitted that she did not use the sign out sheet, and also admitted that she told McGee to stop following her. Def. CSUMF ¶ 93.

         Because of Hair's “continued inappropriate action, ” Carnicella recommended to the Commissioners that Hair undergo an Employee Assistance Program (“EAP”) evaluation and that she be placed on unpaid suspension until she completes the EAP. Def. CSUMF ¶ 94. The Fayette County Commissioners accepted the recommendation and issued Hair an unpaid suspension pending completion of an EAP. Def. CSUMF ¶ 95. Hair was notified of such disciplinary action on July 23, 2014. Def. CSUMF ¶ 96.

         Because the Union believed that mandatory EAP was not part of the progressive discipline policy set forth in the CBA, Hair initially refused to attend mandatory EAP. Def. CSUMF ¶ 97; Def. Appdx. Ex. N (Cindric Depo. pp. 64-67). Hair, however, agreed to voluntarily attend EAP counseling. Id.

         In discussions with Carnicella, Hair's Union Representative, Rose Cindric (“Cindric”), advocated the need to have Hair relocated to another County office. Def. Appdx. Ex. N (Cindric Depo. pp. 36-37, 67-68). Hair was transferred to the Fayette Area Coordinated Transportation (“FACT”) Office on August 28, 2014, as a Transportation Information Specialist. Def. CSUMF ¶ 104; Def. Appdx. Ex. N (Cindric Deposition at pp. 36-37, 67-68).

         On October 8, 2014, Hair submitted a resignation letter to the FACT Office citing continued harassment and duress. Def. CSUMF ¶ 107; Def. Appdx. Ex. UUU.

         III. Legal Standard for Summary Judgment

         Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

         When 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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

         These rules apply with equal force to cross-motions for summary judgment. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). When confronted with cross-motions for summary judgment, as in this case, the Court considers each motion separately. See Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 150 (3d Cir. 1993) (noting that concessions made for purposes of one party's summary judgment motion do not carry over into the court's separate consideration of opposing party's motion).

         IV. Discussion

         A. The Rehabilitation Act

         The Rehabilitation Act of 1973 (the “Act”) prohibits discrimination on the basis of disability in programs receiving federal financial assistance. Section 504 provides, in relevant part, that:

(a) No otherwise qualified individual with a disability in the United States, as defined in [29 U.S.C. § 705(20)], shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794 (a). The Act defines the term “program or activity” as follows:

(b) “Program or activity defined.” For purposes of this section, the term “program or activity” means all of the operations of -
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the ...

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