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Schirnhofer v. Premier Comp Solutions, LLC

United States District Court, W.D. Pennsylvania, Pittsburgh.

March 28, 2018



          Cynthia Reed Eddy United States Magistrate Judge.

         Presently pending before the court is the motion for summary judgment filed by Defendant Premier Comp Solutions, LLC (“PCS”). (ECF No. 45). For the reasons that follow, the motion will be granted as to Ms. Schirnhofer's Family Medical Leave Act claims against PSC and otherwise denied.[1]

         This action was removed from state court to federal court on April 19, 2016. (ECF No.1). Beth Schirnhofer (“Ms. Schirnhofer” or “Plaintiff”) filed her first amended complaint (“FAC”) on June 16, 2016. (ECF No. 8). In her FAC, Ms. Schirnhofer alleges that PCS, her former employer, subjected her to discrimination and retaliation in violation of the Family and Medical Leave Act (“FMLA”), as amended, 29 U.S.C. § 2601 et seq., the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et seq.; the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq., and the Allegheny County Nondiscrimination Ordinance (“ACHRA”), Code of Ordinances, § 215-30 et seq. Ms. Schirnhofer alleges that PCS denied her request for reasonable accommodation, interfered with her right to take medical leave, and terminated her because; (1) she is disabled or was perceived by PCS to be disabled; (2) she sought accommodation for her disability; and (3) she sought medical leave for her own serious health condition. The court has jurisdiction over Ms. Schirnhofer's federal law claims pursuant to 28 U.S.C. § 1331 and her state law claims pursuant to 28 U.S.C. § 1367.

         Fact discovery ended on March 15, 2017. (ECF No. 31). PCS filed its motion for summary judgment on June 15, 2017, along with a brief in support, concise statement of material facts, and appendix of exhibits. (ECF Nos. 45-48). On August 18, 2017, Ms. Schirnhofer filed a brief in opposition, concise statement of material facts, response to defendant's concise statement of material facts, and appendix of exhibits. (ECF Nos. 55, 57-59). On September 18, 2017, PCS filed a reply brief, a reply to plaintiff's response to its concise statement of material facts, a response to plaintiff's concise statement of materials facts, a supplemental concise statement of material facts, and a supplemental appendix of exhibits. (ECF Nos. 66-70). On October 10, 2017, Ms. Schirnhofer filed a sur-reply brief, a response to defendant's supplemental concise statement of material facts, a supplemental appendix of exhibits, a motion to strike PCS's reply to plaintiff's response to defendant's concise statement of material facts and a supporting brief. (ECF Nos. 74-78). On October 23, 2017, PCS filed a sur-surreply brief. (ECF No. 82). On October 24, 2017, the court issued a Memorandum Order denying Ms. Schirnhofer's motion to strike and stating that it would “take into consideration all of the parties' submissions in determining the pending motion for summary judgment.” (ECF No. 84 at 2). The matter thus is fully briefed and ripe for disposition. (Id.).

         I. Statement of the Facts[2]

         A. Ms. Schirnhofer's mental impairment and mental health treatment

         Ms. Schirnhofer reported being treated for mental health issues episodically since she was about ten years old. (ECF No. 48-1 at 40). She was not sure exactly why the treatment started then but recalled having a reoccurring nightmare. (Id.).

         Ms. Schirnhofer began her employment with PCS as a billing assistant in its billing department in January 2009. (ECF No. 48-1 at 38). Beginning in May, 2010, Ms. Schirnhofer was having panic attacks and sought mental health treatment from Jefferson Regional Medical Center (“Jefferson”). (ECF No. 58-3). Ms. Schirnhofer's treating therapist at Jefferson originally was Robert McElhose, Ph.D. (“Dr. McElhose”), a psychologist. (ECF No. 58-2 at 5). Dr. McElhose did an initial intake assessment of Ms. Schirnhofer on May 17, 2010. (Id.). Based upon Ms. Schirnhofer's personal history[3] and current anxiety, Dr. McElhose diagnosed Ms. Schirnhofer as suffering from Post-Traumatic Stress Disorder (“PTSD”). (Id. at 9).

         Ms. Schirnhofer's treating psychiatrist at Jefferson was Dennis Wayne, M.D. (“Dr. Wayne”). Dr. Wayne did a psychiatric evaluation of Ms. Schirnhofer on July 19, 2010 and his diagnoses for Ms. Schirnhofer were bipolar, attention deficit disorder (“ADD”), PTSD, and generalized anxiety disorder (“GAD”). (ECF No. 48-4 at 6). His diagnoses were based upon Ms. Schirnhofer's personal history and symptoms, which included nightmares, night terrors, anxiety and panic attacks. (ECF Nos. 48-5 at 6-7; 58-6 at 8). Dr. Wayne opined that Ms. Schirnhofer's PTSD was significant, chronic, and ongoing. (ECF No. 58-6 at 8).

         Dr. McElhose treated Ms. Schirnhofer as a patient until May 2013 when Ms. Schirnhofer had an aggressive outburst during one of their therapy sessions. (ECF No. 58-2 at 14). As a result of the outburst, Dr. McElhose opined that he could not treat Ms. Schirnhofer and referred her to Timothy Brodkorb (“Mr. Brodkorb”), a licensed clinical social worker, for continued therapy. (Id.).

         Ms. Schirnhofer began treating with Mr. Brodkorb in June, 2013. (ECF No. 48-4 at 5). Mr. Brodkorb did not do a specific assessment of Ms. Schirnhofer after he took over treatment for purposes of confirming that she had PTSD or GAD. (Id. at 9).

         From a mental health standpoint, Ms. Schirnhofer's health remained essentially static until 2012. (ECF No. 58-1 at 4). Beginning in 2012, her mental health began to deteriorate. (Id.). The triggering events were that Ms. Schirnhofer's newborn grandson died and a co-worker to whom Ms. Schirnhofer was close left PCS. (Id.). She began to suffer from hyper-vigilance, paranoia, pervasive anxiety with panic attacks, and feelings of isolation. (Id.). Her work-related stressors continued during 2013, which included conflicts with co-workers and PCS changing some of its policies. (Id.).

         Ms. Schirnhofer's behavior and problems with interacting and communicating with her co-workers were discussed amongst PCS management. Linda Schmac (“Ms. Schmac”), the President of PCS, testified at her deposition that Ms. Schirnhofer “complained about everything. She complained about [co-workers] talking. . . . [J]ust the fact that if she could hear their voice, she complained about.” (ECF 58-26 at 8). Ms. Schmac stated: “when people whispered, she thought they were talking about her.” (ECF No. 58-26 at 3). Additionally, “she got loud and she would get in fights with people.” (Id. at 4). “[T]hey didn't include her in a birthday celebration so that was another complaint.” (Id.). “She took pictures with her cell phone of people talking and would e-mail them to my husband or a scarecrow dropped off of her cubical onto her keyboard and she takes a photo of it and e-mails it to my husband.” (Id.). With respect to Ms. Schirnhofer complaining about a co-worker who had talked about holding a baby, Ms. Schmac stated in a January 10, 2014 email to her husband Don Schmac, a member of PCS's management team, and Jennifer Snyder, PCS's human resources person, “Beth is beyond sensitive, ” “[i]f it bothers Beth, she's going to have to seek medical attention for her issue because we're not going to tell our entire staff not to talk about babies because Beth lost a grandchild. . . . No. normal person, me included, who has lost a child would expect th[a]t everyone they work with to completely stop talking about babies or children. So that's just unreasonable for her to expect.” (ECF No. 58-17 at 4-5). Ms. Schmac summarized Ms. Schirnhofer's complaints as being “oddities” and that Ms. Schirnhofer “was just a complainer. It was a hater type of person. (ECF No. 58-26 at 6-7).

         Ms. Schmac's January 10, 2014 email was in response to Ms. Snyder's January 9, 2014 email to Ms. Schmac and Mr. Schmac wherein she explained: “Beth doesn't chitchat with anyone[;] she easily takes offence [sic.] to the fact that others have relationships with one another and chitchat throughout the day. Beth also needs to realize that we will not require that employees sensor everything they say in order to avoid saying something that is going to strike a chord with another employee. Beth is correct that every employee has their own issues and stresses. Apparently Beth puts all of hers out there and expects the others to tiptoe around any subjects that might relate to her own stresses.” (ECF No. 58-17 at 6).

         On January 16, 2014, Karen Gillooly (“Ms. Gillooly”), Ms. Schirnhofer's direct supervisor, sent an email to Mr. Schmac concerning Schirnhofer's performance review for 2013 in which Ms. Gillooly stated: “This is a hard review because she is such a good worker but the personal issues are starting to overshadow the good job she does especially when it affects others in the department.” (ECF No. 58-18 at 3). On February 4, 2014, Mr. Schmac responded to Ms. Gillooly via email about Ms. Schirnhofer's annual review, and included Ms. Snyder, in the email. He stated: “Karen, . . . As you state, Beth does a very good job on her tasks, she just needs to improve her communication with others in the office.” (ECF 58-18 at 2). In the same email he stated: “Jen, [p]lease help Karen state Beth's relationship issues a little better in the review.” . . . “I wanted to put in there something to the effect that . . . ‘Beth should also feel comfortable asking a co-worker what they are saying if she feels they are being disrespectful towards her'.” (Id.).

         On February 5, 2014, Ms. Gillooly sent an email to Mr. Schmac. (ECF No. 58-22 at 2). The “Subject” was “BETH.” (Id.). In the email she explained that Beth had complained to her about Melissa Gozner (“Ms. Gozner”), a co-worker in the billing department with whom Ms. Schirnhofer did not get along, told Ms. Snyder that “she works with a bunch of haters, ” and she mentioned that Annie and Ms. Gozner were whispering. (Id.). In response, Ms. Snyder questioned Ms. Gozner, who told her that the reason they whisper is so they do not upset Ms. Schirnhofer. (Id.).

         Ms. Schirnhofer's annual performance reviews also showed how Ms. Schirnhofer's behavior changed in terms of her interacting and communicating with her co-workers. (ECF No. 58-7). One of the categories in which Ms. Schirnhofer was reviewed yearly was “Working Relationships, ” defined as “[c]ooperation and ability to work with supervisor, co-workers, and clients served.” (Id.). In her 2009 Employee Performance Evaluation, with respect to “Working Relationships, ” Karen Gillooly stated in pertinent part: “Beth's working relationship with her co-workers and other employees meets expectations the majority of the time. Although there was a problem earlier in the year with her working relationship with a co-worker this has improved and has ceased to be a problem. Beth is cooperative and readily accepts direction. I have received positive feedback from her co-workers.” (ECF No. 58-7 at 2). In Ms. Schirnhofer's 2010 Employee Performance Evaluation, with respect to “Working Relationships, ” Ms. Gillooly stated: “Beth's working relationships with her manager and co-workers meets expectations. Beth works well with others in the department and is willing to assist others when needed.” (ECF No. 58-7 at 4). In Ms. Schirnhofer's 2011 Employee Performance Evaluation, with respect to “Working Relationships, ” Ms. Gillooly stated: “Beth's working relationships with her co-workers meets expectations. She has demonstrated the ability to work with others in her department including her manager to recognize and resolve issues concerning her work.” (ECF No. 58-7 at 6). In Ms. Schirnhofer's 2012 Employee Performance Evaluation, with respect to “Working Relationships, ” Ms. Gillooly stated: “Beth's working relationships meets expectations. Beth has established a good working relationship with our contracted providers. She is willing to help others in the department. Issues and concerns are typically brought to her manager's attention however, there have been occasions where has Beth [sic.] voiced frustrations with other employees in the office. Beth should focus on communicating her concerns and issues with her manager so they can be addressed.” (ECF No. 58-7 at 8). Ms. Schirnhofer was fired from PCS on February 5, 2014, before she received her 2013 performance review but it can be reasonably inferred from the emails between PCS management, it would have referenced her problems with her co-workers. (ECF No. 58-18 at 3).

         B. The beginning of the end of Ms. Schirnhofer's employment with PCS

         On November 27, 2013, Ms. Schirnhofer got into an argument with Ms. Gozner. (ECF No. 46 at 4, ¶ 24). This was not the first conflict between the two employees. As a result of the November 27 argument, Ms. Schirnhofer, Ms. Gozner, and others in the billing department who witnessed the argument had to meet with Ms. Snyder of PCS's human resources department. (ECF No. 46 at 4, ¶ 26). Ms. Schirnhofer met with Ms. Snyder on December 3, 2013. (ECF No. 46 at 4, ¶ 27). Ms. Snyder was relatively new to the company in December, 2013. During her investigation of the incident between Ms. Schirnhofer and Ms. Gozner, Ms. Snyder learned from Ms. Schirnhofer that Ms. Gillooly had been allowing Ms. Schirnhofer to take breaks in addition to those allowed pursuant to PCS's policy on hours of work, as needed. (ECF No. 58-28 at 5). Ms. Schirnhofer explained that the breaks were needed for a medical problem she had. (Id.). PCS's hours of work policy (the “PCS Work Hours Policy”) required non-exempt employees like Ms. Schirnhofer to work Monday-Friday from 8:30 a.m. to 5:00 p.m. and allowed a ten-minute break in the morning and a ten-minute break in the afternoon as well as a thirty-minute lunch period any time between 11:30 a.m. and 2:00 p.m., as well as restroom and coffee breaks as needed.

         On December 5, 2013, Ms. Schirnhofer told Ms. Snyder that she might be having a neck surgery upcoming, Ms. Snyder explained to Ms. Schirnhofer that she could use FMLA leave for the surgery, and Ms. Snyder gave Ms. Schirnhofer the necessary forms that needed to be completed by Ms. Schirnhofer and her treating physician. (ECF NO. 48-16 at 3-5). Ultimately, Ms. Schirnhofer never took FMLA leave or had neck surgery. (ECF No.48-1 at 46).

         On December 6, 2013, both Ms. Schirnhofer and Ms. Gozner received a first occurrence disciplinary notice (“FOD”) as a result of their November 27 argument. (ECF Nos. 48-12 at 2; 48-13 at 2). In issuing the FOD to Ms. Schirnhofer, Ms. Snyder explained to Ms. Schirnhofer: “[a]ll employees are held to the same standard pertaining [to] breaks and lunch periods. If an employee requires time above and beyond what the Hours of Work and Payday Policy No. 210 permit due to a medical condition, the employee needs [to] make an FMLA or accommodation request and supply the proper medical documentation to approve the additional time away from their work area.” (ECF No. 48-12 at 3). In other words, Ms. Schirnhofer no longer was permitted to take additional breaks when needed other than to take a quick break to get coffee or use the bathroom as permitted by PCS Work Hours Policy.

         In response to being told by Ms. Snyder that she would not be able to take additional breaks as needed on an informal basis, and that she needed to make an accommodation request and supply medical documentation in support of the request, Ms. Schirnhofer spoke to Mr. Brodkorb about her need to have breaks at work to deal with the stress she was feeling at work. (ECF No. 48-4 at 15). In response, Mr. Brodkorb wrote a letter to PCS, dated December 9, 2013 (“the December 9 letter”) that stated in relevant part: “This letter is in reference to the documentation regarding our client, Beth Schirnhofer. She is currently being treated for an Anxiety Disorder.[4] We would request that you allow her to take ‘time outs' or short breaks during her work day to assist with her coping appropriately with work stressors.” (ECF No. 48-17 at 2). The signatories on the letter were listed as Mr. Brodkorb and Dr. Wayne, but originally the letter was only signed by Mr. Brodkorb. (ECF No. 48-17 at 2). Ultimately, Dr. Wayne also signed a copy of the letter which was sent to PCS. (ECF No. 58-14 at 2). Dr. Wayne explained that Ms. Schirnhofer “had shared with [Mr. Brodkorb] that she needed some time, as he described it, [to] take time-outs, short breaks, and he agreed with her, and he came to me and asked me if I'd sign off on this and - to help her out, and I said sure.” (ECF No. 48-5 at 14).

         Upon receipt of the December 9 letter, Ms. Snyder explained to Ms. Schirnhofer that more information was needed from her treatment providers for PCS to be able to determine whether or not to grant her request for additional breaks. (ECF No. 58-14 at 2). Ms. Snyder gave Ms. Schirnhofer a Certification of Health Condition and Accommodation form (“the Accommodation Form”) and Ms. Schirnhofer gave the form to Mr. Brodkorb to complete.

         On the Accommodation Form, Mr. Brodkorb explained that Ms. Schirnhofer's condition was “PTSD, Anxiety” and requested an adjustment to Ms. Schirnhofer's work schedule “of one additional 10-minute break for morning and another one in afternoon.” (ECF No. 58-16 at 4). The Accommodation Form asked, “Is the employee unable to perform any of his/her job duties due to the condition?” Mr. Brodkorb marked “no.” (Id. at 6-7). The next question read, “If yes, what major life activity is limited due to the condition described above?” (Id. at 6). Despite having answered the prior question, “no, ” Mr. Brodkorb answered “communicating with others” as the major life activity that was limited. (Id.). When asked at his deposition to explain why he answered the question about limited major life activities when he had answered “no” to the prior query, “[i]s the employee unable to perform any of his/her job duties due to the condition?, ” Mr. Brodkorb explained that he had answered the question to the best of his ability and that he opined Ms. Schirnhofer could only do her job with the accommodation sought after. (ECF No. 58-5 at 7-8). Mr. Brodkorb further explained that Ms. Schirnhofer had repeatedly asked him to answer this question by explaining that work stressors were changing her personality, but he answered the question as he did because he opined that he should be using one of the listed impairments. (ECF No. 48-4 at 25). Mr. Brodkorb also listed, in response to the instruction “list the essential functions of the job that the employee is unable to perform due to the condition, ” “communication with coworkers and/or supervisor at times.” (ECF No. 58-16 at 5). Mr. Brodkorb did not recall discussing with Ms. Schirnhofer the number of, or the timing of, breaks Ms. Schirnhofer was permitted to take at PCS, although the Accommodation Form requests “additional” breaks. (ECF Nos. citation; 48-4 at 15-16, 58-16 at 4). Dr. Wayne signed a copy of the Accommodation Form completed by Mr. Brodkorb. (ECF No. 58-16 at 7). PCS received both the Accommodation Form signed by Mr. Brodkorb and the Accommodation Form signed by Dr. Wayne on or about January 15, 2014. (ECF No. 48-26 at 2).

         Based upon the documentation from Ms. Schirnhofer's mental health treatment providers that explained Ms. Schirnhofer needed an accommodation in the form of two 10-minute breaks, to enable her to be able to communicate with others at her job, Ms. Snyder opined: “I would consider being able to communicate with co-workers and the manager as an essential part of the job.” (ECF No. 58-16 at 2). She also opined that the documentation showed a disability. (ECF No. 58-28 at 6).

         Regardless of Ms. Snyder's opinion, by letter dated January 28, 2014, bearing Ms. Snyder's signature, PCS refused Ms. Schirnhofer's request for an accommodation in the form of two additional breaks. (ECF No. 48-2 at 2). The letter set out what PCS considered were the essential functions of Ms. Schirnhofer's job and stated, “[a]fter a careful review of your request, we have determined that we are unable to provide you with an accommodation at this time because it does not appear that you require any accommodation in order to perform the essential functions of your job.” (ECF No. 48-26 at 3). The letter concluded: “[s]ince we are unable to accommodate you reasonably in your current job, if you wish to transfer to another position, please advise me of you[r] request to do so and we will notify you of position vacancies.” (ECF No. 48-2 at 3). A PCS job description for a billing assistant dated May 19, 2009, four months after Ms. Schirnhofer was hired by PCS as a billing assistant, listed “[e]xcellent communication skills, ” as one of the qualifications needed for the job. (ECF No. 58-15 at 2). The decision maker for the denial of the requested accommodation was Ms. Schmac, (ECF No. 48-29 at 12).

         On February 5, 2014, Ms. Schirnhofer approached Ms. Gillooly and told her about issues she was having with Ms. Gozner, the co-worker with whom she had the argument on November 27, 2013, and another co-worker, Anne; the co-workers had compared Ms. Schirnhofer to “Sybil.” (ECF No. 58-22 at 2). As Ms. Schirnhofer understood the reference, Sybil was a character in a movie starring Sally Field, in which Field portrayed an individual who experienced a multiple personality disorder (now referred to as Dissociative Identity Disorder) and Ms. Schirnhofer equated Sybil as “a crazy person.” (ECF Nos. 57 at 5, ¶ 29; 58-1 at 6, 68 at 8, ¶ 29, 70-1 at 65). “Sybil” is “an iconic representation of the stigma associated with mental health disorders.” (ECF No. 58-1 at 5). At 12:43 p.m. on February 5, 2014, Ms. Gillooly emailed Mr. Schmac about the conversation she had with Ms. Schirnhofer earlier in the day, noted that she had asked Ms. Gozner about the “Sybil” comment, and Ms. Gozner explained that Anne had called Ms. Schirnhofer “Sybil.[5]” (Id.). In fact, Ms. Gozner had called Ms. Schirnhofer “Sybil” on more than one occasion. (ECF No. 58-29 at 8). At 1:59 p.m., Mr. Schmac forwarded Ms. Snyder's email to Ms. Schmac, and commented, “[h]ow about this crap? I have an e-mail drafted to [Ms. Gillooly] which I'll copy you on. After injury management it looks like billing is our next personnel project.” (Id.). Ms. Schmac replied to Mr. Schmac by email at 2:10 p.m., “I think you need to let Beth go as she truly is Cybill (sic.).” (Id.).

         At some point during the day on February 5, 2014, Ms. Gillooly learned from Ms. Gozner that Ms. Schirnhofer was posting on Facebook about haters and being bullied, but that the posts did not specifically mention work. (ECF No. 48-36 at 2). Ms. Gillooly informed Mr. Schmac about the Facebook posts. (Id.). Mr. Schmac told Ms. Schmac, who asked for the Facebook posts to be printed out. (Id.). The posts were printed out and reviewed by Ms. Schmac. (ECF No. 48-29 at 8. They read, in order:

a. (Monday, February 3, 2014) (Ms. Schirnhofer): “U do know science right….for example….‘For every reaction there is a reaction';”
b. (Monday, February 3, 2014) (Ms. Schirnhofer): “Just because I don't talk all day I am pissy or crazy I don't get it - feeling confused;”
c. (Tuesday, February 4, 2014) (Ms. Schirnhofer): “What's sad is when you and your 6 year old baby girl are crying together in the morning trying to build strength to face the bullies of our days;”
d. (Tuesday, February 4, 2014) (Tania Komyanik (“Ms. Komyanik”)): “Aww, hope you guy's day gets better;”
e. (Tuesday, February 4, 2014) (Ms. Schirnhofer): “Tania sometimes I wish I could go back to the old days and handle s*** the old way;”
f. (Tuesday, February 4, 2014) (Ms. Komyanik): “Ill come handle it, I need to relieve my anger some how. Ill. put someone in their place quicker than they can ask who I am. Hope you have a better day. We gotta hang out soon;”
g. (Tuesday, February 4, 2014) (Ms. Schirnhofer): “I am the way I am cause I c what u do and I don't want any part of it. Got 99 plus problems and a bitch ain't one!!!;”
h. (Wednesday, February 5, 2014) (during her lunch hour at work) (Ms. Schirnhofer): “I understand now y ppl who r bullied commit suicide nobody sees it and turns a blind eye.…fuck it the bullies win I am done trying to deal and get through it…I have no more strengt….fml;”
i. (Wednesday, February 5, 2014) (Ms. Komyanik): “[J]ust because you fight back doesn't mean your stooping to their level or acting like them, its standing up for yourself and saying enough is enough. This isn't the Beth I know or use to know. Oh fuck it let me take care of that shit. Nuff said.”

(ECF No. 48-37 at 2-3). Upon reading the Facebook posts, three hours after she had referred to Ms. Schirnhofer as “Cybill, ” and told her husband he needed to fire Ms. Schirnhofer, Ms. Schmac called Ms. Schirnhofer into her office and fired her for posting messages on her Facebook page that Ms. Schmac deemed threatening, in violation of the PCS Social Media Policy. The Social Media Policy states that “[i]nappropriate posting may include discriminatory ...

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