United States District Court, W.D. Pennsylvania
ROBERT D. MILLER, Plaintiff,
COCA-COLA REFRESHMENTS USA, INC. d/b/a COCA-COLA REFRESHMENTS, Defendant.
STEWART CERCONE UNITED STATES DISTRICT JUDGE
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.
STATEMENT OF THE CASE
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.
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)
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. ¶¶
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.
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.
Miller contacted human resources, he submitted to CCR a
letter dated February 20, 2012, from his therapist which
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.'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#
Carry (20 ft.): 25#
Def.'s SOMF ¶ 43, Miller Dep. Ex. 16.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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. ¶
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).
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