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Green v. Pike County

United States District Court, M.D. Pennsylvania

March 29, 2018

ANDREW GREEN, Plaintiff,
PIKE COUNTY Defendant.



         I. Introduction

         This is an employment action arising from Plaintiff Andrew Green's termination by Defendant Pike County (the "County"). Before his termination, Mr. Green was a sergeant correctional officer for the Pike County Correctional Facility. He was terminated by a letter from the Correctional Facility's Warden, dated September 9, 2014, citing excessive unexcused absences and poor work performance. Green brings a Monell action against Pike County pursuant to 14 U.S.C. § 1983, alleging (1) discrimination and retaliation based on his request for an accommodation for his depression under the Americans with Disability Act (the "ADA"), and the Pennsylvania Human Relations Act (the "PHRA"), (2) discrimination and retaliation under the Rehabilitation Act, and (3) interference and retaliation claims under the Family and Medical Leave Act (the "FMLA"). Doc. 1. The parties have proceeded to discovery without filing motions to dismiss. Pike County filed its motion for summary judgment on June 15, 2017. Doc. 21. The parties have fully briefed the motion, and it is ripe for decision. For the reasons set forth below, Defendant's motion for summary judgment will be denied.

         II. Statement of Undisputed Facts

         The County has submitted a Statement of Material Facts as to which it submits there is no genuine issue or dispute for trial. Doc. 22. In response, Green submitted responses to the Statement of Material Facts as well as a supplemental "Counterstatement of Material Facts." Doc. 26-3. The following facts are not reasonably in dispute except as noted.

         Green was employed by Pike County at the Pike County Correctional Facility from August 30, 2010 to September 9, 2014. Doc. 22 ¶ 1. Green was first hired as a correctional officer, but was promoted to Sergeant on August 5, 2012. Id. ¶ 3. On August 6, 2014, Assistant Warden Robert McLaughlin sent a letter to Mr. Green recommending termination (the "McLaughlin letter"). Doc. 22-2. The letter was issued after an "Investigatory Interview scheduled for August 6, 2014 [to discuss] certain charges/allegations against [Green]." Id. at 1. Due to Green's failure to show up at the Interview, the "proceeding was held in absentia." Id. The letter bases its recommendation on Green's history of poor work performance, including frequent absences and "willful misconduct, " including failures to be attentive to his Sergeant duties, permitting officers he supervised to leave early, unprofessional comments to inmates, failures to follow policies or directives for inmate cell phone searches, and failure to arrange a required inmate medical transport. Id. at 1-3. See also Doc. 22 ¶¶ 20-21.

         According to the letter, Green's "absence from work Q began [on] July 11, 2014, " but he "never submitted a written report, or filed a workers compensation claim" for his absences. Id. at 3. The letter acknowledges that "[o]n August 18, 2014 [Green] spoke with Facility Personnel Liaison Jill Gschwind and conveyed that [he] didn't know [he] had to file a report and stated that [he] didn't know how [he] could have because [he] had a nervous breakdown." Id.[1]However, McLaughlin discounted Green's justification for failing to file the required paperwork, stating: "[a]s a Sergeant with two (2) years of experience and the responsibility of ensuring adherence to workers compensation protocols...! find it difficult to believe you didn't know you were required to file a report. I also conclude that you could have filed a written report within a reasonable time frame, which you have not." Id. McLaughlin concluded that he will recommend termination to Warden Lowe. Id.

         On September 9, 2014, approximately a month after the McLaughlin letter, Warden Craig Lowe sent Green a termination letter, citing his absences and poor work performance as reasons for termination. Doc. 22-3. In particular, the termination letter recounted an incident when Deputy Warden Romance and other officers called Green for help when "inmates were throwing soap out of their cells into the dayroom[, ] nearly hitting Correctional Officer Christensen, " and Green provided an "inappropriate substandard response to this situation" by telling Christensen: "They are staying locked down" and then hanging up the phone on him. Id. at 1. The letter also noted that Green had "been absent from work since July 11, 2014" and had accrued "thirty-eight (38) days off as leave without pay which is considered by definition an unauthorized or unexcused absence." Id.

         The facts above, unfortunately, are all that the parties can agree upon. The County's statement of facts contains no other assertions except legal conclusions or conclusions based on an absence of evidence, all of which are disputed by Green. Doc. 22 ¶¶ 7-17, 19. For example, the statement of facts claims that (1) "Green never asked the County to accommodate a disability"; (2) "Green provided nothing in discovery to support his claim that he suffered a disability that substantially limited at least one major life activity"; (3) "Green never provided Pike County with medical reports reflecting he suffered a physical or mental impairment that substantially limited one or more of the major life activities"; (4) "Green never even applied for FMLA leave"; and (5) "Pike County did not retaliate against Green for pursuing his FMLA rights because he never asked for such leave." Id. Most of these statements are asserted without evidentiary support, though the County has cited to the record in two instances, both of which rely on snippets of Green's deposition testimony, which were included in the statement of facts without context. First, the County asserts that Green "never asked the County to accommodate a disability, " and cites to several lines of Green's deposition where he agreed that "nowhere in these 20 pages of record did [he] request any sort of accommodation or reference any type of mental condition of any sort." Id. ¶ 7. However, it is unclear from the citation alone what "these 20 pages of record" referred to. It was not until the Court reviewed the actual relevant portion of the testimony that it became clear that Green was testifying about a record of a February 27, 2013 Investigative Interview involving him. Doc. 22-1 at 23-25. Given that the relevant events of this case occurred in the summer of 2014, the fact that Green did not request an accommodation more than a year prior to his termination does not conclusively establish that he had never requested an accommodation. Second, the County also pointed to Green's testimony as support for the proposition that Green "never even applied for FMLA leave, " but the cited portion only reflects Green's testimony that he "gave [his doctor] Dr. Al-Tariq FMLA short term disability and workman's comp paper" and that his "understanding was that [Dr. Al-Tariq] would fill out the appropriate paperwork and submit it [to his employer]." Id. ¶ 17 (citing Doc. 22-1 at 89-90). Green testified that he "never asked the question again until [he] was told by the Facility that they had not received the paperwork." Id.

         Most troublingly, the above encompasses the entirety of the County's statement of facts on which it relied for its motion. It is not until Green filed his own "counterstatement of facts" that the Court is apprised of an additional-but equally important-set of facts, to which the County did not provide any responses, nor did it file a reply brief addressing these additional facts, when it had the option to do so. The Court thus has little aid in verifying Green's counterstatement of facts. However, at least some of Green's statements of fact are supported by undisputed documentary evidence, which the Court sets forth below.

         First, Green submitted an August 1, 2014 email from him to Deputy Warden Romance. The email predates the McLaughlin letter by five days, and predates his termination by approximately a month. Compare Doc. 26-6 (the "August 1 email") with Doc. 22-2 (the McLaughlin letter dated August 6, 2014) and Doc. 22-3 (the termination letter dated September 9, 2014). The County admitted to the existence of the email in its Answer to the Complaint. Doc. 7 at 10-11 (admitting that "on August 1, 2014, Green emailed Jonathan Romance complaining of excessive workload, " but "deny[ing] Green had a disability that required accommodation, that he asked for accommodation!, ] or that his termination was disability related"). The email, which was filed as an exhibit to Green's counterstatement of facts, contains a summary of Green's efforts to keep the County apprised of his mental health condition and his efforts to request medical leave. It states in relevant part:

Please be advised that as you are aware and your records will show, I did speak with you via telephone on 7/1/14 and informed you that I was in need of urgent assistance as a result of excessive workload. I was distressed and believed that without such assistance I would be unable to complete all of my duties for the shift In accordance with the SOPs...On 7/10/141 did consult a specialist who immediately placed me on medical leave for a period of two weeks. As a result I faxed in the doctor['s] order and did contact Jill Gschwind, the personnel director[, ] several hours prior to the beginning of my shift. I was placed on hold and she told me that she was going to Inform the Warden. A moment later she returned and informed me that she had informed the Warden of the situation. Jill also informed me that I should come to the Facility and retrieve FMLA and short term disability paperwork which I did. At that time, while I was aware that an Investigatory [Interview] had been served to me on 7/10/14 and scheduled for 7/18/14, 1 was unable to attend that Interview as I was under specific directives from my doctor not to return to work. On 7/25/14 in my recent consultation with my doctor I was diagnosed as having a work related stress disorder which resulted in the Doctor filling out and forwarding workers compensation paperwork. He also extended my medical leave for an additional four weeks. On 8/1/141 did receive a certified letter containing documents referring [me] to a second Investigatory Interview scheduled for 8/6/14.1 shall be unable to attend that Interview as I remain under directive from my doctor to be away from the Facility. Consistent with the foregoing, and the code and practice extended to others who have been scheduled with Investigatory Interviews while on medical leave and have been granted a deferral of date, I respectfully request that these two Investigatory interviews be differed [sic] until such time as I am medical[ly] cleared to return to work. At that time I shall be happy to cooperate in any way possible to clear up these issues and look forward to continuing to perform my duties. I look forward to your reply.

         Doc. 26-6, at 2-3 (emphasis added). In addition to the email, Green also submitted two communications that his doctor sent to the County before his termination. The first is a fax to "Jill" (presumably referring to the County's personnel director Jill Gschwind), dated July 25, 2014, stating that "pt is still very depressed [and] progress is limited. Needs another 4 weeks off from work." Doc. 26-9.[2] The second doctor's communication was a letter dated August 22, 2014, sent from Dr. Al-Tariq to the County, stating that Green is "not ready to return to work" and that he will need to reevaluate Green in 8 to 12 weeks. Doc. 26-10. Finally, Green filed the deposition transcript of Jill Gschwind as an exhibit, in which she testified that she received Green's doctors' notes; that she shared them with Warden Lowe, since her standard practice was to "always give the doctor's notes to the Warden"; that she recalled leaving FMLA and short-term disability paperwork for Green to pick up at her office "because he advised me he was going to be out of work for some time"; and that Warden Lowe would have been aware of Green's request for FMLA paperwork because she "always kept [his office] apprised" of FMLA requests. Doc. 26-12 at 16-19.

         As discussed above, the County never filed responses to Green's counterstatement of facts, nor did it file a reply brief, which would have clarified which facts are disputed, and whether the authenticity of any of Green's exhibits are disputed. Given the County's admission to the existence of the August 1 email, Ms. Gschwind's testimony corroborating the County's receipt of the doctors' communications, and the ...

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