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Abror v. Commonwealth, Department of Labor and Industry Office of Vocational Rehabilitation

United States District Court, M.D. Pennsylvania

June 28, 2019

FRANK ABROR, Plaintiff,


          Hon. John E. Jones III, Judge.

         In the instant case, Plaintiff alleges that he was discriminated and retaliated against by his former employer and that he was constructively discharged. Presently pending before the Court is Defendant's motion for summary judgment, (Doc. 18), seeking summary judgment as to all counts in Plaintiff's complaint. The matter has been fully briefed, (Docs. 23, 24, 25), and is ripe for disposition. For the reasons that follow, Defendant's motion shall be granted.

         I. BACKGROUND

         Frank Abror (“Plaintiff” or “Abror”) was employed by the Pennsylvania Department of Labor and Industry (“Defendant” or “Department”) from January 1997 until his retirement on October 21, 2016. (Doc. 20-1 at 18:10-14). Plaintiff is African American, visually impaired, and hearing impaired. (Doc. 24 at 9). From his hire until 2009, Plaintiff was subject to only minimal discipline, including counseling, an oral reprimand, a written reprimand, and a one-day suspension without pay. (Doc 20-1 at 22:5-14). The one-day suspension, however, was eventually appealed and overturned. (Id. at 22:8-18; Id. at 13:10-12).

         Relevant to the instant motion, at the Department, disciplinary action begins with counseling. In the event counseling is ineffective, a supervisor is entitled to escalate the matter using oral reprimands, written reprimands, suspensions of one, two, or three days without pay, and, if all else fails, termination. (Id. at 36:13- 37:6). To be clear, however, neither counseling, nor oral reprimands, nor written reprimands impact an employee's pay or benefits. (Id. at 37:7-38:8).

         Notwithstanding his disciplinary history, in May 2009, Plaintiff was promoted to Vocational Rehabilitation Supervisor. (Id. at 30:14-18). In an employee review filed on December 22, 2014, Plaintiff received all satisfactory ratings.[1] (Doc. 20-2, Exh. 2).

         In January 2016, Plaintiff visited the emergency room where he was diagnosed with “stressful workplace environment, ” and subsequently informed the Department of his diagnosis. (Doc. 20-1 at 119:17-120:24). Nonetheless, in February 2016, Plaintiff alleges that he was temporarily assigned an increased caseload as a “placeholder” for cases supervised by recently-retired workers. (Doc. 20-7 at 51:1-18).

         In an employee review for the period of December 22, 2015 through March 21, 2016, Plaintiff received six “unsatisfactory” ratings and two “needs improvement” ratings. (Doc. 20-3). In an employee review from March 22, 2016 through June 21, 2016, Plaintiff received six “unsatisfactory” ratings and two “needs improvement” ratings. (Doc. 20-4). Plaintiff's supervisor, Nicole Wade (“Wade”), clarified in these reviews that Plaintiff was not finishing assignments, was not attending meetings, and was sleeping during meetings. (Doc. 20-7 at 81:4- 13).

         On February 9, 2016, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination.[2] (Doc. 1 at 14). Defendant received the complaint on February 24, 2016. (Id. at ¶ 34).

         On April 19, 2016, Plaintiff received an oral reprimand from Wade for failing to complete assignments. (Doc. 20-5). Notwithstanding his inability to maintain his current workload, Plaintiff contends that Wade assigned him even more work and instructed him to personally call all of the Department's clients in a certain region to check in with them-a significant task. (Doc. 20-7 at 53: 13-19).

         On July 26, 2016, Plaintiff attended a fact-finding meeting to discuss with Wade his failure to complete assignments. (Doc. 20-1 at 44:19-24). At the meeting, Plaintiff stated that he did not have the necessary updated equipment to accommodate his disabilities and that, as a result, he was overloaded with assignments. (Id. at 44:19-46:9). On August 24, 2016, Plaintiff received a written reprimand for failure to complete assignments, which was included in his personnel file. (Doc. 20-6). According to Plaintiff, when he was presented with his reprimand, he cried. (Doc. 20-1 at 47:20-48:5).

         On September 30, 2016, Wade sent an email to Elizabeth Yarnell[3] stating that she had spoken with Plaintiff about office safety, particularly his use of his white cane in the office. (Doc. 24-1).

         On October 6, 2016, Plaintiff sent an unsolicited email to Adrienne Kuhn[4]stating:

I am proud to announce my twenty years of service to the Commonwealth. I am very excited my long AWAITED twenty (20) years of service is here which qualifies me to retire with health benefits. I would therefore like to notify you of separation of my employment from the Commonwealth effective October 22, 2016. My last day of work therefore is Friday, October 21, 2016.

(Doc. 20-8) (capitalization in original).

         On December 4, 2017, Plaintiff filed a complaint in this Court. (Doc. 1). In Counts I and II, Plaintiff alleges racial discrimination under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (“PHRA”). (Id. at ¶ 14-29). Plaintiff alleges that he was discriminated against and treated differently than similarly situated colleagues as a result of his race and that this difference in treatment resulted in loss of future pay, loss of career opportunities, and other damages. (Id. at ¶ 24). In Counts III and IV, Plaintiff alleges that he was unlawfully retaliated against in violation of Title VII and the PHRA. (Id. at ¶ 31- 47). Plaintiff avers that his increased workload, his unsatisfactory reviews, and his written and oral reprimands were retaliation for filing his PHRC and EEOC complaint. (Id. at ¶ 33-40). In Count V, Plaintiff alleges that Defendant's actions amounted to a constructive discharge in violation of the PHRA. (Id. at ΒΆ57-58). Plaintiff alleges that his increase in workload as well as Wade's reprimands, ...

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