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Leiman v. Nutrisystem, Inc.

United States District Court, E.D. Pennsylvania

July 3, 2019



          Schiller, J.

          Beginning in the fall of 2016, Alesandra Leiman was a sales representative for Nutrisystem, Inc. However, for nearly her entire tenure with the company, she was unable to meet the company's required performance metrics. By the following August, Nutrisystem had fired her. The reason for her firing is the central dispute in this lawsuit. While Leiman contends that she was terminated because she was disabled and requested a reasonable accommodation, Nutrisystem maintains that it fired Leiman due to her inadequate job performance.

         Nutrisystem has now moved for summary judgment on Leiman's disability discrimination and retaliation claims under both the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). Because there are no genuine disputes of material fact with respect to any of the four claims, the Court grants Nutrisystem's motion in its entirety.

         I. BACKGROUND

         A. Nutrisystem and its Performance Requirements

          Nutrisystem is “a provider of weight management products and services, including nutritionally balanced weight loss programs sold primarily online and over the telephone.” (Def.'s Statement of Undisputed Facts [Def.'s SUF] ¶ 5.) In October 2016, Nutrisystem recruited and hired Leiman as an inside sales representative. (Id. ¶¶ 10, 16.) After completing two weeks of training, she began working the 3:30 p.m. to midnight shift under the supervision of Sales Supervisor Daniel Hoban. (Id. ¶ 17; Pl.'s Resp. to Def.'s SUF Ex. B [Hoban Dep.] at 22.) Like all other sales representatives, Leiman was hired with an initial 90-day probationary period. (Def.'s SUF ¶ 20.)

         As a sales representative, Leiman “handl[ed] both inbound and outbound calls to sell [Nutrisystem] products.” (Id. ¶ 6.) Additionally, she was responsible for “build[ing] rapport with customers, ” consulting dietary specialists about prospective customers' eligibility for certain programs, and “meet[ing] or exceed[ing] all monthly defined targets or quotas.” (Id. Ex. J.) These objective metrics included “sales conversion, revenue, up sell conversion, lead acquisition, [and] outbound sales.” (Id. ¶ 39.)

         Twice per month, sales representatives, including Leiman, were evaluated on all these metrics and their scores were tracked in Department Performance Plans (“DPPs”). (Id. ¶¶ 40-41; Hoban Dep. at 35.) For each metric, Sales Director Vidya Mohammed would set a monthly goal. (Def.'s SUF ¶ 41; Hoban Dep. at 42.) Sales representatives were rated on a scale of “1” to “5” on each metric, based on their performance relative to the established goal. (Hoban Dep. at 37-38.) The individual metric ratings were then used to create a composite monthly score for each representative. (Id.) For each individual metric and composite score, the monthly benchmark goal was “3.” (Id.)

         The parties agree that, after a sales representative's initial 90-day probationary period, “it was customary” to put any sales representative unable to meet the 3.0 benchmark for three consecutive months on a performance improvement plan (“PIP”), pursuant to Nutrisystem's performance disciplinary policy. (Def.'s SUF ¶ 49.) However, at his deposition, Hoban testified that there was some discretion in the policy: exceptions to the policy were “based on tenure, ” meaning that a newer employee might receive extra time to “get up to speed” before placement on a PIP. (Hoban Dep. at 102.)

         Pursuant to Nutrisystem's policies, a sales representative had two months to improve her performance and achieve the 3.0 benchmark after placement on a PIP. (Def.'s SUF ¶ 50.) If a sales representative failed to do so, that representative would be fired. (Id. ¶ 50; Ex. F [Cameron Dep.] at 83-84.)

         B. Leiman's Disability and Request for Accommodation

         On May 31, 2017, approximately seven months after starting at Nutrisystem, Leiman submitted a request for accommodation to Human Resources Generalist Rose Harrell. (Id. ¶¶ 24-25; Pl.'s Resp. to Def.'s SUF Ex. A [Leiman Dep.] at 80.) Specifically, Leiman submitted a letter from her psychiatrist, which stated that Leiman was “unable” to “work the third shift” from 3:30 p.m. to midnight due to her diagnoses of Attention Deficit Disorder and Adjustment Disorder with Depression and Anxiety and requested that she have a schedule change to accommodate her disability. (Def.'s SUF ¶ 25; Leiman Dep. at 82.) Upon Harrell's request, Leiman submitted Nutrisystem's reasonable accommodation forms filled out by her psychiatrist on June 6, 2017. (Def.'s SUF ¶¶ 26-27.)

         The record does not establish exactly when Mohammed and Sales Manager Sheryl Reynolds became aware of Leiman's request for an accommodation. In its Statement of Undisputed Facts, Nutrisystem states that Leiman met with Harrell and Mohmmed to discuss the accommodation after Leiman submitted her official reasonable accommodation paperwork on June 6. (Id. ¶ 28.) However, the cited portion of Leiman's deposition indicates only that Leiman met with Harrell. (Leiman Dep. at 86.) During that meeting, Harrell referenced conversations she had already had with Mohammed and Reynolds regarding the request. (Id.) According to Leiman's testimony, Harrell stated that Mohammed and Reynolds had asked if Leiman's shift change would be permanent, to which Harrell responded that “it was and that [Nutrisystem was] going to follow the letter of the law.” (Id.)

         By June 8, 2017, Nutrisystem granted Leiman's request for a permanent shift change and advised Leiman of this change by email. (Def.'s SUF ¶ 29.) Mohammed, Reynolds, and Sales Supervisors Daniel Hoban and Ted Cameron were all copied on this correspondence. (Id. Ex. O.) Although the email did not include details about Leiman's disabilities, it did state that the shift change was being made as “an ADA job modification.” (Id.) On June 12, 2017, Leiman began working the 10:30 a.m. to 7:00 p.m. shift with Cameron as her new supervisor. (Id. ¶¶ 30, 33.)

         C. Leiman's PIP and Termination

         Approximately one week after Leiman submitted her initial request for an accommodation, and on the same day that she submitted Nutrisystem's official forms for such a request, Nutrisystem placed Leiman on a PIP for failure to maintain a 3.0 benchmark average for three consecutive months after the initial probationary period. (Id. ¶¶ 46, 49, 52-53; Ex. X.) Hoban, Leiman's direct supervisor, testified that he drafted Leiman's PIP and that he was unaware of her disability or request when he did so. (Hoban Dep. at 93, 104-05.) However, Hoban indicated that Reynolds and Mohammed were also involved in the decision to place Leiman on the PIP. (Id. at 101-02.) As previously stated, it is not clear when Reynolds and Mohammed learned about Leiman's disability and request for accommodation, and, thus, the record does not establish whether they knew this information when deciding to place Leiman on a PIP.

         The parties agree that Leiman's overall benchmark was less than 3.0 for the months of January through May, before she was placed on a PIP. (Def.'s SUF ¶¶ 46-47.) However, Leiman testified that she never was advised about the PIP, received a copy of the PIP, or was told about any performance problems except with regard to outbound calls. (Pl.'s Resp. to Def.'s SUF ¶¶ 52-61.)

         There is inconsistent testimony in the record about the dates of Leiman's probationary period, three months after which she could be placed on a PIP. Nutrisystem states, without citing to the record, that Leiman was still within the probationary period during January and February 2017. (Def.'s SUF ¶ 46.) However, Hoban's testimony contradicts Nutrisystem's timeline: he testified that, by the start of February, Leiman was no longer on probation. (Hoban Dep. at 68-69.) This comports with the basic timeline ...

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