United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Murray sued her former employer, Pennsylvania
Manufacturers' Association Insurance Company, for
violations of the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., and the Pennsylvania Human
Relations Act, 43 Pa. Cons. Stat. § 951 et seq.
(2001). Murray also asserts a claim for aiding and abetting
under the PHRA against PMA employees Patricia Brookey and
Kyleen Hastie. Defendants filed a Motion for Summary Judgment
(Mot., ECF No. 16) to which Murray responded (Pl's Resp.
in Opp., ECF No. 19). PMA filed a Reply in support of its
Motion. (Reply, ECF No. 22.) The Court heard oral argument on
March 15, 2018. (ECF No. 25.) After considering the
parties' positions and thoroughly reviewing the record,
the Court granted the Motion and entered judgment for the
Defendants. (ECF No. 26.) This Memorandum explains the
was hired as a cost containment specialist on February 27,
2006 by PMA, a property and casualty insurer that specializes
in workers compensation coverage. (Pl's Resp. in Opp.,
Exs. 16-17 (“Murray Dep.”) at 59:5-8; PMA
Position Statement, Mot., Ex. A.) On that day, Murray signed
a form acknowledging that she received PMA's employee
handbook. (Mot., Ex. C.) The handbook includes several
polices, including those governing substance abuse and
workplace safety. (Mot., Ex. D.) The substance abuse policy
provides, in relevant part, that “working under the
influence of alcohol, illegal drugs, non-prescribed
controlled substances, or any combination thereof, is
prohibited.” (Id.) Should an employee violate
the policy, he or she could be subject to corrective action
“up to and including termination of employment.”
(Id.) The workplace safety policy prohibits conduct
such as making threatening remarks and similarly, should an
employee violate the policy, he or she could be terminated.
role as a cost containment specialist, Murray was responsible
for reviewing medical bills and documentation from doctors
and processing payments. She also reviewed petitions from
physicians who were disputing the difference between how much
they billed and how much they were paid. (Murray Dep.
60:21-61:13.) Murray was promoted to managed care product
specialist in November 2012, a role that she remained in
until her termination on December 14, 2015. (Termination
Letter, Pl's Resp. in Opp., Ex. 8.)
result of several medical conditions, Murray requested-and
was granted- six medical leaves of absence during her
employment at PMA. She took medical leaves from October 25,
2007 to December 20, 2007 for shoulder surgery (Mot., Ex. H;
Murray Dep. 72:1-18), from November 18, 2008 to January 4,
2009 for surgery related to an anal/vaginal fistula (Mot.,
Ex. I; Murray Dep. 77:1-78:23), and from June 16, 2009 to
August 2, 2009 for abdominal surgery (Mot., Ex. J; Murray
Dep. 83:2-21). Murray next took leave from August 2, 2011 to
September 18, 2011 for hernia surgery (Mot., Ex. K; Murray
Dep. 85:1-86:15) and from December 17, 2013 to January 20,
2014 for another fistula surgery (Mot., Ex. L; Murray Dep.
94:2-95:14). Murray took her sixth leave of absence from May
19, 2015 to June 3, 2015 for another shoulder surgery. (Mot.,
Ex. M; Murray Dep. 97:6-19.) Murray subsequently requested an
accommodation to work from home until June 18, 2015 and PMA
granted her request. (Murray Dep. 99:1-101:6.) For each leave
of absence, Murray dealt with Senior Benefits Coordinator
Regina Florian, who was responsible for employee requests for
medical leave and workplace accommodations. (Murray Dep.
67:20-68:6; Pl's Resp. in Opp., Exs. 13-15 (“Carney
Dep.”) at 101:9-13.) Murray did not have any complaints
about how PMA handled any of her requests for medical leave.
(Murray Dep. 72:1-18; 78:16-21; 83:13-16; 86:13-15;
94:9-96:7; 101:12-17.) Murray did not receive any write-ups
for violations of workplace policies throughout her almost
ten-year career at PMA. (Carney Dep. 29:12-19.)
returning from lunch on December 7, 2015, Murray stopped by
the desk of her colleague, Anika Simmons, to speak to her
about a form that Murray had left for her earlier in the day.
Murray's interaction with Simmons brought to PMA's
attention the behavior for which Murray was ultimately fired.
Specifically, it resulted in five separate PMA employees
being asked to assess and interact with Murray and provide
statements of their observations of Murray's conduct and
demeanor. In addition to Simmons, those employees were
registered nurse Jane Mueller, Senior Employee Relations
Specialist Kyleen Hastie, Vice President of Managed Care
Patricia Brookey and Nancy McGovern, another registered
nurse. (Simmons Statement, Mot., Ex. O.) Simmons smelled
alcohol on Murray's breath and observed that Murray
“acted as if she was impaired” because her speech
was slow, she was slurring her words, her eyes were low and
disoriented, and she was repeating herself. Simmons also
“smelled alcohol on [Murray's] breath.”
(Id.) Because this was not the first time Simmons
“had an encounter with Joan and this type of behavior,
” she sent a text message to Mueller, another colleague
in the managed care department, to share her concerns.
(Id.) After reading the text, Mueller contacted
Hastie to determine what steps Mueller should take. (Mueller
Statement, Mot., Ex. P.) Hastie then sought guidance from
Kevin Carney, PMA's Assistant Vice President of Human
Resources, as well as Senior Vice President of Human
Resources Andy McGill. (Pl's Resp. in Opp., Exs. 9-11
(“Hastie Dep.”) at 57:8-14.) Hastie told Mueller
to contact someone in management to confirm Simmons'
suspicions and if that individual also believed that Murray
was impaired, to contact Human Resources. (Mueller
went to speak to Murray and observed that Murray appeared
“disheveled [and] her speech was very slow and
repetitious.” (Id.) She learned that another
PMA employee was concerned about Murray because she was seen
walking with a “staggered gate.” While talking to
Murray, Mueller also “experienced a strong smell of
alcohol.” She further noticed that Murray “was
swaying and did not appear to comprehend” the
conversation. All of this led Mueller to conclude, along with
Dave Wallace-another PMA employee who had joined the
conversation, that Murray was under the influence of alcohol.
Mueller told her boss, Brookey, of Mueller's concerns.
(Id.) Mueller also reported her observations to
Hastie. Hastie and Carney then decided that Brookey and
Hastie would meet together with Murray to assess her
behavior. (Brookey Statement, Mot., Ex. Q; Hastie Dep.
their meeting, which took place in Brookey's office,
Brookey asked if there was any reason why Murray's
colleagues would, based on their observations and smells,
believe she was under the influence of alcohol. Murray
explained that the smell of alcohol could be from
mini-toothbrush refreshers or the fact that she smoked
cigarettes. (Brookey Statement.) Murray claims that
she told Brookey that she had “cotton mouth.”
(Murray Dep. 40:10-12.) Brookey observed that Murray
“smelled of a distinct body odor of a rather musty
nature” and was flushed, had a blank look at times, was
slow to respond to questions and “rambling” in
response to questions, changing the topic to non-related
subjects. (Brookey Statement.) Brookey also stated that
Murray's speech “was slower than normal and
somewhat slurred.” Based on all of these observations,
Brookey concluded that Murray was impaired in her speech and
manner of communication. (Id.) In her statement,
Hastie also noted that Murray appeared
“incoherent.” She asked Murray if there was any
reason why others would report that she smelled of alcohol.
Murray provided several possibilities for the source of the
odor, including her perfume, Listerine, “whispy”
things (that “may have alcohol in them”) for her
teeth, that she hadn't showered that day or her dirty
clothes. (Hastie Statement, Mot., Ex. R.) Murray also said
that she takes medications but that she hadn't taken any
that day. (Hastie Dep. 22:3-7; 36:3-5; 133:10-14; Hastie
Statement; Pl's Resp. in Opp., Ex. 12 (“Brookey
Dep.”) at 24:23-25.) During this conversation, Hastie
noticed that Murray was struggling to form complete thoughts,
her speech was slightly slurred and she was speaking without
any logical sequence. (Hastie Statement; Hastie Dep.
59:21-25.) After determining that Murray was impaired, Hastie
left to speak with Carney. Concerned for Murray's safety,
the pair made arrangements for a cab to take her home.
(Hastie Dep. 22:12-19.)
Hastie was with Carney, McGovern joined the meeting. At this
point, Murray told Brookey that she had prescriptions for
Xanax and Valium but had not taken any that
She added that the alcohol others smelled on her could be
from “some sort of mint” that she “sucks
on…for her teeth.” (Brookey Dep. 24:23-25;
Brookey Statement.) McGovern observed that “based on
odor and verbal communication it appeared [Murray] was
impaired.” (McGovern Statement, Mot., Ex. S.) McGovern
stated that Murray's speech was distorted, her words were
“garbled” and she was difficult to understand.
She also stated that Murray had never had “this level
of random thoughts and slurred level of speech” during
conversations prior to that day. (Id.) Murray said
that her difficulty speaking could be a result of
“mouth refreshers and medication use, ” though
she did not cite any specific medications she thought could
be to blame, nor did she mention any conditions for which she
could have taken medications. (Id.) According to
Hastie, Brookey and McGovern, Murray then pointed her finger
at Hastie and said words to the effect of “if anything
happens with this, I will be after you.” (Hastie Dep.
24:4-6; Hastie Statement; Brookey Dep. 25:9-11; Brookey
Statement; McGovern Statement.) Murray denied making any such
statement. (Murray Dep. 162:17-163:19.) The meeting concluded
shortly thereafter and McGovern accompanied Murray to the
bathroom. (Murray Dep. 131:11-15.) Brookey, Hastie and
McGovern gathered Murray's purse and coat from her desk
and led her out of the building to the cab which had been
called to take Murray home. (Murray Dep. 131:16-24.)
Murray left, Hastie met with Carney and McGill. (Hastie Dep.
97:4-22.) Hastie described to McGill what she witnessed that
day and McGill instructed Hastie to collect statements from
the employees who had also observed Murray's behavior.
(Hastie Dep. 99:3-15; 97:8-9.) McGill also told Hastie to
suspend Murray while the company investigated the matter.
Hastie collected the statements from Simmons, Mueller,
McGovern and Brookey and gave them to McGill. Hastie also
gave McGill her own statement. (Hastie Dep. 99:3-15; 97:8-9;
Carney Dep. 77:3-78:6.) Two days later, Murray came back to
the office. (Hastie Dep. 66:22-23.) She left after being
unable to access her computer, after which Hastie called
Murray and told her that she was not to come back to work
until after the investigation was complete. (Hastie Dep.
reviewing the statements, Carney recommended to McGill that
he fire Murray. (Carney Dep. 12:8-10; 13:5-8.) McGill then
made the decision to terminate Murray's employment for
violating PMA's substance abuse and work place safety
policies. (Hastie Dep. 21:12-17; Carney Dep. 73:9-12.) Murray
was fired on December 14, 2015. (Termination Letter, Pl's
Resp. in Opp., Ex. 8.)
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the nonmoving party, the moving party is entitled to judgment
as a matter of law. Smathers v. Multi-Tool,
Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 194 (3d Cir. 2002); see
also Fed. R. Civ. P. 56(c). A genuine issue of material
fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere
scintilla of evidence in support of the nonmoving party will
not suffice; there must be evidence by which a jury could
reasonably find for the nonmoving party. Id. at 252.
Summary judgment is appropriate where “the nonmoving
party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden
of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
reviewing the record, a court “must view the facts in
the light most favorable to the nonmoving party and draw all
inferences in that party's favor.” Prowel v.
Wise Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The
court may not, however, make credibility determinations or
weigh the evidence in considering motions for summary
judgment. See Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk.
Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
first alleges that PMA discriminated against her because she
had an actual or perceived disability. Just what she is
purportedly disabled from, however, has evolved throughout
the course of the litigation. In her Complaint, Murray
alleges that she had “multiple serious medical
conditions and disabilities, ” none of which were
identified in the pleading on account of “privacy
concerns with medical diagnoses.” (Compl. ¶ 24.)
At her deposition she testified that she suffers from
ulcerative colitis, Crohn's disease, an anal and vaginal
fistula and psoriasis. (Murray Dep. 45:18-23.) In her
response to PMA's Motion, she is described as
“severely disabled” and lists maladies, in
addition to those she identified in her testimony, as uterine
mesh, Enteritis, and hernia, “to name a few.”
(Pl's Resp. in Opp. at 1, 9 ¶10.) Murray's brief
in response to PMA's Motion, however, focuses almost
exclusively not on any of these alleged conditions, but
instead on the argument that the Defendants discriminated
against Murray because they perceived her to be an alcoholic.
argument on PMA's Motion, however, Murray's counsel
returned to his client's other alleged non-alcohol
related disabilities, though he narrowed the field
significantly, stating that “her actual disability is
that she has an anal/vaginal fistula that substantially
inhibits her in the major life activity of excretion and
hygiene.” (Hr'g Tr. 6:10-13.) In fact, counsel
explained that Murray's theory was actually even narrower
than that, stating that she was discriminated against because
of the effects of her medication for her underlying
anal/vaginal fistula. (Hr'g Tr. 32:1-4.) Specifically,
Murray takes Lomotil, a drug that slows bodily secretions,
for her ulcerative colitis and anal/vaginal
fistula. (Murray Dep. 35:14-20.) ...