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Tielle v. The Nutrition Group

United States District Court, M.D. Pennsylvania

August 13, 2019

SUZANNE F. TIELLE, Plaintiff
v.
THE NUTRITION GROUP d/b/a NUTRITION, INC., Defendant

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.

         Pending before the court, in this disability discrimination action filed by plaintiff Suzanne F. Tielle, are cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56 filed by plaintiff, (Doc. 16), and her former employer, defendant The Nutrition Group (“TNG”) d/b/a Nutrition, Inc., (Doc. 19). Based upon the court's review of the motion and related materials, the defendant's motion will be GRANTED with respect to all of plaintiff's claims in her amended complaint, (Doc. 14). The plaintiff's motion for partial summary judgment regarding her disability discrimination claims will be DENIED.

         I. BACKGROUND

         The plaintiff has brought the instant action under the Americans with Disabilities Act, as amended (“ADAAA”), 42 U.S.C. §12131, et seq., as well as under the Pennsylvania Human Relations Act, (“PHRA”), 43 P.S. §951, et seq.[1] She filed her original complaint on December 29, 2017. (Doc. 1). Plaintiff then filed her amended complaint on June 29, 2018. (Doc. 14). Specifically, in Count I, plaintiff raises her combined claims under the ADAAA and the PHRA alleging disability discrimination, failure to accommodate and retaliation. She alleges that she had a knee disability and was regarded as being disabled. Plaintiff alleges that she could perform the essential functions of her head cook position with an accommodation, namely, the use of a food cart, but that TNG did not allow her to use the cart. Plaintiff alleges that she was terminated on November 7, 2016 because of her disability. She also alleges that she was terminated “in direct retaliation for having requested a reasonable accommodation of being allowed to use a cart to complete her work duties and because of her disability.”

         After completing discovery, the plaintiff filed her motion for partial summary judgment on December 6, 2018 with respect to her disability discrimination claims under the ADAAA and the PHRA, pursuant to Fed. R. Civ. P. 56.[2] (Doc. 16). TNG filed it motion for summary judgment on December 27, 2018 with respect to all of plaintiff's claims in her amended complaint. Both motions have been briefed and, statements of material facts and responses as well as exhibits were filed.[3]

         This court's jurisdiction over the plaintiff's federal claims is based on 28 U.S.C. §1331. The court can exercise supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. §1337.

         II. MATERIAL FACTS[4]

         The undisputed facts, as supported by the record, establish that the plaintiff worked from 1986 until 2009 for Aramark, a food service management company, as Kitchen Lead/Head Cook in the Old Forge School District. In 2009, TNG became the food service management company in the district and plaintiff became an employee of TNG working in her same position.

         During her employment at the Old Forge School District, plaintiff was a member of the Service Employees International Union (“SEIU”).

         Plaintiff's job duties with TNG, included the following: 1) being the lead person in the kitchen to supervise other food service workers; 2) maintaining all production records according to PDE, HACCP, and Nutrition Group; 3) ordering and receiving all bread; 4) ensuring that time sheets were filled out by employees; 4) recording of inventory; and 5) assisting FSD with food cost controls and food quality issues. Plaintiff read and agreed to her job duties. Based on her job duties, plaintiff was allowed to use one of the food carts to transport food, kitchen items and supplies in the kitchen and around the school.

         Plaintiff testified that she was in charge of nine other employees. She stated that they cooked and served breakfast, and then prepared lunch. After the meals, they would clean up the kitchen and put the food away.

         Plaintiff testified that she injured her right knee in 2005 and tore her meniscus, and wore knee braces. Plaintiff also stated that she developed very bad arthritis in her knee. She stated that she was prescribed Naproxen for her knee, that she had cortisone shots every year since her injury and, that she has a noticeable impairment in her ability to walk. When plaintiff became an employee of TNG in 2009, she told Patricia Baresse, then Regional Manager and current Director of Operations for TNG, and other TNG's representatives that she had a knee injury and that she had trouble with her legs, and she described herself as “disabled.” However, at this time, plaintiff did not provide TNG with any documentation showing that she was disabled. Nor did she indicate that she was unable to perform her job responsibilities without an accommodation, and she did not request an accommodation.

         In August 2011, Baresse and other representatives of TNG observed plaintiff routinely asking her co-workers to retrieve kitchen items for her, and they became concerned about whether plaintiff could perform all of her job duties. TNG requested plaintiff to have her doctor review her job description and determine whether she was able to perform the duties of her position. Plaintiff's doctor, Dr. Daniel Kazmierski, reviewed her job description and wrote a note stating, “okay for patient to perform said duties.” Dr. Kazmierski did not indicate that plaintiff needed an accommodation to perform any of her job duties. Plaintiff then gave Dr. Kazmierski's note to TNG in August 2011.

         For months during 2014, Baresse and other representatives of TNG saw plaintiff using a kitchen food cart to support her weight and to assist her with walking in the kitchen, to and from the restroom, to and from the back door of the school building, and to other areas of the school. Plaintiff was also observed placing the food cart by the back door of the school when she left work for the day and then use the cart to assist her with walking when she arrived at the school the next day.[5]

         The food carts are used to transport food as well as equipment and supplies in the kitchen and throughout the school. Food carts are not intended to assist a person with walking since they can tip if supporting a person's weight. Further, there is no dispute that a food cart is not a medical device.

         TNG determined that plaintiff's use of the food cart to assist her with walking was unsafe and in violation of TNG's safety policy since it put the safety of plaintiff and others at risk.

         TNG has an Employee Safety Manual and Safety Policies. TNG's Safety Manual and its safety policies require that all its employees perform their duties in a safe manner to prevent injury to themselves and others. Plaintiff was trained on TNG's safety policies and she was given a copy of the Employee Safety Manual. She read, understood and accepted all of TNG's safety policies. TNG's Safety Manual directed employees to use a “cart” for specific tasks and instructed to use a cart “[i]f a load is too heavy or bulky.” The Manual did not provide that food carts should be used to support an employee's weight. In fact, plaintiff admitted that the food cart was not intended to be used to assist someone with walking or as a crutch. Further, while plaintiff admitted that the food cart was intended to transport food and other kitchen items, she believed that it was “not going to hurt anything [or cause a problem] if a person has any type of [medical] issue [and] uses it.”

         Since plaintiff was repeatedly observed using a food cart to support her weight and to assist her with walking, on June 13, 2014, Baresse, Karen Baranowski, TNG cashier and the Union Shop Steward for SEIU, Tracy Drank, TNG's Food Service Director, Kim Yost, SEIU representative, and Ian O'Brien, TNG's general counsel, met with plaintiff and told her that using the food cart for these purposes was unsafe because it was not intended for such use. Plaintiff was also advised that using the cart in the stated manner violated TNG's safety policy because it was a safety risk. As such, plaintiff was specifically told that she could not use the food cart while at work to support her weight or for assistance for walking. Plaintiff then requested to use a cane at work to assist her when walking and TNG granted her request.

         In the meeting, plaintiff avers that she requested to use the food cart as an accommodation to help her walk due to her knee disability. However, according to Baresse, Baranowski and Drank, plaintiff did not request to use the food cart in the meeting to assist her with walking.[6] In any event, if plaintiff did in fact request to use the food cart as an accommodation to help her with walking, TNG would have denied the request due to safety concerns. Further, TNG allowed plaintiff at all times to continue to use the food cart for its intended purpose of transporting food, kitchen equipment and supplies in the kitchen and around the school.

         Despite the fact that TNG had already granted plaintiff's request to use a cane at work at the June 13, 2014 meeting, she contacted her physician, Dr. Kazmierski, on July 24, 2014 and requested a note stating that she could work but required the assistance of a cane. Plaintiff then gave TNG a note from Dr. Kazmierski stating that she “requires assistance of a cane when walking due to a knee injury. This is recommended by me for assistance when working.” TNG again allowed plaintiff to use a cane at work and expected that she would indeed use the cane while at work.

         Thereafter, plaintiff did in fact use her cane to assist her at work for some time. At no time did plaintiff state that she was unable to perform her duties with her cane or that she needed any other accommodation.

         According to plaintiff, in June 2015, Baresse asked her if she was coming back to work for the Fall school term and plaintiff replied “yes, why.” Baresse then told plaintiff that she “better be able to walk better and get [her] own stuff.” Plaintiff responded that “this is as good as I am going to get.” Baresse denied making the alleged statements and denied making any statements to plaintiff regarding her knee or her ability to walk and retrieve items in the kitchen. Regardless, plaintiff then returned to work for TNG at the Old Forge School in the Fall of 2015 and she continued to work there until November 2016.

         When plaintiff returned to work in the Fall of 2015, Baresse and other representatives of TNG again observed plaintiff using the food cart to assist her with walking and to support her body weight in place of her cane.

         On December 17, 2015, plaintiff received two Employee Warning Notices for Unsatisfactory Performance and conduct that interfered with work or school district operations. The Employee Warning Notices were issued to plaintiff regarding the meetings that were held with her to address her continued improper use of the food cart in a manner which violated TNG's Safety Policy.

         On January 28, 2016, Baresse along with representatives of TNG, namely, Susan Benczkowski, TNG's Regional Manager, Yost, Baranowski, and Drank, again met with plaintiff to discuss her continued use of the food cart to help her walk at work. Plaintiff was told that she was again seen using the food cart to assist her with walking and she was reminded that using the food cart for such purpose was unsafe and violated TNG's safety policy. Specifically, plaintiff was told that her use of the food cart put her safety and the safety of others at risk, and that she could not use the food cart to help her walk or support her weight. Further, plaintiff was advised that since TNG granted her request to use her cane at work, she should use the cane and not the food cart.

         Additionally, at the January 28, 2016 meeting, plaintiff did not contend that she was unable to perform her duties with her cane and she did not state that she needed any additional accommodation at work. Plaintiff also apologized for using the food cart in an unintended manner and, she assured TNG's representatives that she would use her cane in the future and not the food cart to assist her with walking. Finally, plaintiff was told by TNG that if she continued to use the food cart to assist her with walking in violation of the TNG's safety policy, she would be terminated.

         In her deposition, plaintiff testified that she used the food cart “for assistance to get around the kitchen.” She also testified that “it would be foolish for me to walk with my cane to then go get the cart to then go get what I was going to do, if I was going to get food or bring things to the dish room. So that cart was with me most of the time.” Despite the repeated warnings and meetings, despite the fact that TNG granted plaintiff's requested accommodation to use her cane, as recommended by her doctor, and despite the fact that plaintiff agreed to use her cane and not the food cart for walking, plaintiff was once again observed by several representatives of TNG using the food cart to assist her with walking while at work. In particular, Baresse saw plaintiff in the walk-in freezer without her cane and using the food cart for support. According to Baresse and Barnowski, plaintiff was holding onto a freezer shelf with one hand and onto an empty food cart located outside of the freezer with her other hand to support her weight.

         Consequently, another meeting with plaintiff was held on November 7, 2016. Present at the meeting were Baresse, Benczkowski, Yost, and Baranowski. During this meeting, plaintiff did not deny using the food cart to help her with walking and to support her weight. In fact, she admitted, “sometimes it's just quicker to use the cart instead of the cane.” Plaintiff also testified that at some point during the meeting she recalls Baresse saying “something about a liability”, but she could not remember exactly what was stated. However, Baresse explained to plaintiff that “using the food cart to support her weight and assist her with walking was a liability because it was unsafe.” Baresse denied making any comment that plaintiff's disability was a liability. Further, although plaintiff testified Baresse told her that she was not allowed to go back into the kitchen and that Baresse “in fact, forbade her” to work, Baresse denied making these statements. Rather, Baresse stated she informed plaintiff that she could no longer allow her to use the food cart to assist with her walking because of safety concerns and that TNG was terminating her employment. In fact, plaintiff also testified that it was her belief that she was terminated because of her use of the food cart.

         At the end of the meeting, TNG terminated plaintiff's employment based on her continued use of the food cart in violation of TNG's safety policy and TNG's directives not to use the cart to assist her walking.

         III. DISCUSSION

         Plaintiff alleges that TNG terminated her based on her known and perceived knee disability in violation of the ADAAA and the PHRA. She also alleges that TNG failed to provide a reasonable accommodate for her disability and, that TNG retaliated against her by terminating ...


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