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Miller v. Coca-Cola Refreshments USA, Inc.

United States District Court, W.D. Pennsylvania

March 23, 2018

ROBERT D. MILLER, Plaintiff,
v.
COCA-COLA REFRESHMENTS USA, INC. d/b/a COCA-COLA REFRESHMENTS, Defendant.

          MEMORANDUM OPINION

          DAVID STEWART CERCONE UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Robert D. Miller (“Miller” or “Plaintiff”) filed a five count Complaint alleging one count of age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”), three counts of disability discrimination (failure to accommodate, failure to hire/unlawful termination and retaliation) in violation of the Americans with Disability Act, 42 U.S.C. § 12101 et seq. (the “ADA”), and one count claiming violations of the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (the “PHRA”) against Defendant, Coca-Cola Refreshments USA, Inc. d/b/a Coca-Cola Refreshments (“CCR” or “Defendant”). CCR filed a motion for summary judgment (ECF Nos. 24, 25 and 37), Miller responded (ECF No. 30) and the motion is now before the Court.

         II. STATEMENT OF THE CASE

         CCR is engaged in the production, sale and distribution of Coca-Cola® and other related products. Defendant's Statement of Material Facts in Support of Motion for Summary Judgment (hereinafter, “Def.'s SOMF”) (ECF No. 26) ¶ 1. In 1976, Miller was hired as a truck driver by an independent Coca-Cola bottling company in Houston, Pennsylvania. Id. ¶ 2. In approximately 1999, Miller transitioned to a merchandising position when the bottling company was acquired by Coca-Cola Enterprises, Inc. Id. ¶ 3. Is 2008, Miller assumed the position of Account Manager - Large Store (the “Account Manager position”). Id. ¶ 4.

         After CCR acquired Coca-Cola Enterprises in 2010, Miller remained in the Account Manager position until his employment was terminated on May 30, 2013. Def.'s SOMF ¶¶ 5, 6. In that position, Miller oversaw approximately 25 customer accounts, which included supermarkets and discount department stores such as Giant Eagle, Wal-Mart, Shop ‘N Save and Foodland. Id. ¶ 7. As an Account Manager, Miller was responsible for maintaining a relationship with the customers, determining the stores' product needs, placing and transmitting product orders, maintaining appropriate inventory levels, replacing and maintaining advertising materials and ensuring that stores complied with CCR's merchandising standards. Id. ¶¶ 8, 9. CCR's written description of the Account Manager position lists one of the job duties as “[p]eriodic lifting of 50 pounds, bending, reaching, kneeling and light merchandising.” Id. ¶ 11; Deposition of Robert D. Miller (“Miller Dep.”) (ECF No. 27-2) Ex. 2.

         CCR's products, which include 6 packs, 12 packs, 20 packs and cases of 2-liter bottles of soda, were delivered to the large store accounts and stored on rows of pallets located in the back room of the store. Def.'s SOMF ¶ 12. To assess inventory levels and determine a store's product needs, Account Managers sometimes had to pull individual pallets out from the rows of pallets using a hand jack, or lift individual packs or cases. Id. ¶ 14. Although CCR employed merchandisers to bring products from the back room to the sales floor and stock the shelves, Account Managers also were expected to stock the shelves if they were low. Id. ¶ 15. This entailed lifting the products off of the pallets stored in the back room, placing them on a cart and pushing the cart out to the sales floor, where the Account Manager would then transfer the products to the shelves or displays. Id. ¶¶ 16, 17. According to Miller, CCR's policy was that the last man in the store was responsible for the account, which meant that he was required to re-stock the shelves if they were empty or if a merchandiser had not done his job. Id. ¶ 18. Miller explained that it was impossible to predict when that situation might occur, but he estimated that 25-30% of his work day involved lifting. Id. ¶¶ 19, 46.

         On November 27, 2011, Miller suffered a stroke. Def.'s SOMF ¶ 33. Miller's request for medical leave was approved under CCR's Family and Medical Leave (“FML”) and Short Term Disability (“STD”) policies for a leave of absence beginning on November 27, 2011, through February 17, 2012. Id. ¶ 35.

         On February 7, 2012, Miller spoke with Heather Wade, a CCR Human Resources team member, and explained that he would require an additional 4-6 weeks off from work. Miller Dep. 69:18-71:15; Miller Dep. Ex. 14. Wade's notes concerning their conversation indicate that Miller had contacted UNUM, CCR's third-party leave administrator, to initiate a request for an extension of his leave. Miller Dep. Ex. 14. On February 16, 2012, UNUM advised Miller that he had been approved for disability leave through February 29, 2012. Def.'s SOMF ¶ 38. However, UNUM informed Miller that February 17, 2012, was his last day of protected leave under the FMLA and that due to the exhaustion of his FML leave, CCR no longer was required to hold open his position. Id. ¶ 39. Miller understood this information. Id. ¶ 40. UNUM directed Miller to contact CCR's human resources team to discuss his ability to return to his position, as well as other options available to him if he was unable to do so. Id. ¶ 41; Miller Dep. Ex. 13.

         After Miller contacted human resources, he submitted to CCR a letter dated February 20, 2012, from his therapist which stated:

Upon receipt of Mr. Miller's job description, it is apparent that he cannot safely perform his job duties as assigned, specifically, ‘periodic lifting of 50 pounds.'[1]He could, however, perform light duty work as long as it does not include either single or repetitive lifts over [the following weight limits]:
Floor to Knuckle: 26#
Knuckle to Shoulder: 11#
Shoulder to Overhead: 10#
Pull: 26#
Push: 13#
Carry (20 ft.): 25#

Def.'s SOMF ¶ 43, Miller Dep. Ex. 16.

         Between February 22, 2012, and March 9, 2012, Stephanie Duffy, who was CCR's Employee Relations Consultant, consulted with Miller, Jeff Lowe (District Sales Manager), Mario Fiordilino (Area Sales Manager), Kristi Prince (Human Resources representative for the Houston facility) and Heather Wade (Return to Work Coordinator) to determine what accommodation Miller would need in order to perform his job. Def.'s SOMF ¶ 45; Miller Dep. Ex. 17; Deposition of Stephanie Duffy (“Duffy Dep.”) (ECF No. 27-6) Ex. 8.

         Duffy testified that she had a discussion with Miller and asked, “What part of your job is it that you can't do?” Duffy Dep. 33:24-34:5. Miller responded that he was unable to lift more than approximately 20 pounds, and Miller indicated that he spent 25-30% of his day lifting. Id. 34:6-34:11. In an undated note, Duffy recorded Miller's response that he spent 25-30% of his day lifting products, and she also wrote that Miller “was agreeable to staying on leave.” Def.'s SOMF ¶ 46, Duffy Dep. Ex. 5. On February 27, 2012, Duffy made a note that she spoke with Miller and he was “agreeable to continuing [the] current LOA unless local management can accommodate restrictions. Reaching out to local management to further discuss.” Duffy Dep. Ex. 9.

         Also on February 27, 2012, Duffy sent an email to Lowe, Fiordilino, Prince and Wade explaining that CCR “has engaged in the accommodations/interactive process with” Miller, listing the lifting restrictions identified by Miller's therapist, noting her understanding that Miller “would typically spend 25-30% of his day lifting product in excess of 25#” and asking whether they knew “of any way to make an accommodation for [him] so that he [could] return to his position.” Duffy Dep. Ex. 11. Fiordilino, who had been an account manager for over three years and supervised individuals in that position for approximately ten years, responded that it would be very difficult to make accommodations for the Account Manager position. Deposition of Mario Fiordilino, Jr. (“Fiordilino Dep.”) (ECF No. 27-4) 24-30; Duffy Dep. Ex. 11. CCR ultimately determined that there was no reasonable accommodation that would allow Miller to perform the essential functions of the Account Manager position. Duffy Dep. Ex. 8 at 11-16.

         Duffy documented the process that had occurred on a form entitled “CCR Case Summary/Checklist for Accommodation Request.” See Duffy Dep. Ex. 8. The form indicates that the accommodation request was initiated because of Miller's medical restriction, that he was unable to lift, pull or push more than 26 pounds, and that he spends 25-30% of his day lifting products. Id. at 4, 6. The form specified that it was “unknown” what accommodation Miller believed he needed to perform his job. Id. at 7. Duffy testified that she wrote “unknown” because Miller did not know what accommodation he needed when she asked him. Duffy Dep. 139:1-139:13. The form also indicated that Miller's job as an Account Manager could not be modified or restructured. Duffy Dep. Ex. 8 at 11. The proposed accommodation was identified as continuing Miller's leave of absence until November 26, 2012. Id. at 16. The form indicates that Duffy, Lowe, Fiordilino, Prince and Wade were involved in the process on behalf of CCR. Id. at 3, 16.

         On March 9, 2012, Duffy and Miller spoke to discuss his options. Miller Dep. 77:18-78:1; Miller Dep. Ex. 17. Miller acknowledged that “we agreed that [CCR] could and [would] leave [him] on his current leave of absence.” Miller Dep. 78:2-78:18; Miller Dep. Ex. 17. Miller testified that he did not suggest to Duffy any alternative to a leave of absence, he did not ask if he could return to the Account Manager position at that time, he was not aware of any accommodation that would have allowed him to do so, nor did he suggest any accommodation. Miller Dep. 78:19-79:9.

         Duffy sent a letter to Miller confirming their March 9, 2012, conversation, and the agreement that CCR would continue him on the leave of absence. Miller Dep. Ex. 17. The letter stated that Miller should contact Duffy if he had any questions, and he should let her know if the “arrangement [was] no longer effective.” Id. Miller admitted that he never contacted Duffy for either reason. Miller Dep. 80:3-80:15.

         While Miller was on leave, relief employees or a district manager covered his route and duties, but that arrangement could not continue indefinitely due to CCR's business needs. Fiordilino Dep. 70:17-71:10, 129:21-130:7. Between March 9, 2012, and May 25, 2012, Miller did not contact anyone at CCR regarding his return to work. Def.'s SOMF ¶ 55. In the interim, CCR hired Samantha Wooster (age 26) on April 28, 2012, and Cheryl Neuman (age 54) on May 15, 2012, to work as large store account managers. Id. ¶ 57.

         On or about May 25, 2012, Miller was cleared to return to work with no restrictions. Def.'s SOMF ¶ 54. When Miller contacted CCR in late May 2012, regarding his return to work, he was advised that his position had been filled. Miller Dep. 83:5-16. However, CCR granted Miller two special personal leaves of absence (“SPLOA”) between June 15, 2012, and April 26, 2013, so that he could apply for open positions for which he was qualified. Def.'s SOMF ¶ 59; Miller Dep. Exs. 18 and 21.

         On July 6, 2012, Miller applied for the position of Warehouse Manager. Def.'s SOMF ¶ 60. Miller did not receive an interview for that position, and he admitted that he was not qualified for it. Id. ¶¶ 61, 62. The individual who was hired to fill the Warehouse Manager position was the same age as Miller. Id. ¶ 63.

         On August 8, 2012, Miller applied for the position of Market Development Manager. Def.'s SOMF ¶ 64. Miller described the Market Development Manager position as “basically a sales job” that involved “[a] lot of cold call[s]” to generate new business in the Beaver Falls, Pennsylvania area. Id. ¶ 65. Although Miller believed that his prior work experience as an Account Manager made him qualified for the Market Development Manager position, Miller stated that he never brought in any new accounts during his time as an Account Manager. Miller Dep. 92:10-93:13.

         CCR employee Eric Storer interviewed Miller for the Market Development Manager position. Def.'s SOMF ¶¶ 67, 68. Miller admitted that he never met Storer prior to the interview, and he had no reason to believe that Storer was aware of his prior medical condition. Id. ¶ 69.

         Miller was not hired for the Market Development Manager position. Def.'s SOMF ¶ 70. Rather, Storer extended an offer to Sean Martin (age 42), who met most, if not all of the job requirements, and who Storer deemed to be best suited for the position out of the pool of qualified candidates. Declaration of Eric Storer (“Storer Decl.”) (ECF No. 27-8) ¶ 10. After Martin declined the offer, Storer extended an offer to the second choice, Russell Graham (age 27). Id. ¶ 12; Def.'s SOMF ¶ 72. Graham accepted the offer and was hired as the Market Development Manager. Storer Decl. ¶ 13.

         Miller did not apply for any other positions with CCR. Def.'s SOMF ¶ 73. Miller's second SPLOA expired on April 26, 2013. Id. ¶ 74. Because Miller did not secure a position with CCR during his two SPLOA periods, CCR terminated his employment effective May 30, 2013. Id.; Miller Dep. Ex. 22. Amy Corbell, who was CCR's Employee Relations Consultant, initiated the request for dismissal, which was approved by Patrick Kennedy (District Sales Manager), Roger Maher (Market Unit Director of Retail Sales) and Kristi Prince (HR Business Partner). Def.'s SOMF ¶ 75; Declaration of Robin Gee (“Gee Decl.”) (ECF No. 27-1) ¶¶ 15, 16 and Ex. 1.

         Miller claims that while he was employed with CCR, his supervisors referred to him as “old school.” Def.'s SOMF ¶ 76. Miller interpreted the “old school” remark as being accompanied by “more of a jokingly” attitude, and he was not usually offended by it. Miller Dep. 29:11-17. Further, the “old school” remark was not directed solely at Miller. Def.'s SOMF ¶ 78. Finally, Miller admitted that none of his supervisors ever made any negative or derogatory comments about his alleged disability. Id. ¶ 79.

         III. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Pursuant to Rule 56(a) 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, Inc., 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. Twp. of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999).

         When the moving party has carried its burden under Rule 56, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must identify “specific facts which demonstrate that there exists a genuine issue for trial.” Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Further, the non-moving 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 “by 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) (citation omitted).

         IV. DISCUSSION

         A. A ...


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