United States District Court, W.D. Pennsylvania, Pittsburgh.
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.).
Statement of the Facts
Ms. Schirnhofer's mental impairment and mental health
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.
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 and current anxiety, Dr.
McElhose diagnosed Ms. Schirnhofer as suffering from
Post-Traumatic Stress Disorder (“PTSD”).
(Id. at 9).
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).
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.).
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).
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.).
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).
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).
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
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.
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).
The beginning of the end of Ms. Schirnhofer's employment
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.
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).
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.
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. 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
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.
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).
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
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).
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.” (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.).
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
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
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
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
remarks, harassment, and threats of violence or similar
inappropriate or unlawful conduct.” (ECF No. 35 at 3).
Expert Witness ...