United States District Court, W.D. Pennsylvania
STEWART CERCONE UNITED STATES DISTRICT JUDGE
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.
Statement of the Case
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. 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.
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.
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.
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.
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.
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.
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.
CSUMF ¶¶ 22 & 26; Def. Appdx. Ex. M.
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.
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. 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.
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.
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.
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.
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
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.Def. CSUMF ¶
January 9, 2014, Hair filed a complaint with Human Resources
stating that “tart burners” 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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
October 8, 2014, Hair submitted a resignation letter to the
FACT Office citing continued harassment and duress. Def.
CSUMF ¶ 107; Def. Appdx. Ex. UUU.
Legal Standard for Summary Judgment
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).
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
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
The Rehabilitation Act
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 ...