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Morgenfruh v. Larson Design Group, Inc.

United States District Court, M.D. Pennsylvania

September 19, 2019

MARK MORGENFRUH, Plaintiff,
v.
LARSON DESIGN GROUP, INC., Defendant.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         This is an employment discrimination case brought under Title VII, the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA), and the Family and Medical Leave Act (FMLA).[1] Defendant Larson Design Group, Inc. (“Larson”), moved for summary judgment on all counts. That motion is granted.

         I. BACKGROUND[2]

         Mark Morgenfruh, the plaintiff, was employed by Larson as its Vice President of Human Resources from 2013 to 2017.[3] During his term of employment, Morgenfruh coped with a variety of medical conditions. The conditions Morgenfruh claims[4] as protected disabilities under the ADA are listed in Table 1 alongside the approximate date he informed Larson of the claimed disability.

         Table 1

Irritable bowel syndrome (IBS)

Early 2013[5]

High blood pressure

2014[6]

Degenerative disc disease

2015[7]

Chronic obstructive pulmonary disease (COPD)

2015 or early 2016[8]

Type II diabetes

April or May 2017[9]

Sleep apnea

April or May 2017[10]

         Morgenfruh attended a total of twenty-five appointments between March 18, 2013 (his start date), and March 28, 2017.[11] He continued attending doctor’s appointments in 2017.[12]

         Generally, Larson had an accrued leave policy.[13] As of January 1, 2017, Morgenfruh had accrued 120 hours of vacation time, 81.74 hours of sick time, and 8 hours for a personal day.[14] In addition to his standard accrued leave, Morgenfruh had a flexible schedule that permitted him to leave work early or arrive late to attend doctor’s appointments.[15] In fact, Morgenfruh was never denied authorization to leave work for a medical appointment.[16] Keith Kuzio, Larson’s CEO and Morgenfruh’s supervisor, also approved Morgenfruh for a half day of vacation on May 30, 2017, and a full day of vacation on May 31, 2017, to give Morgenfruh a longer Memorial Day weekend.[17]

         Two years prior, Larson contracted with TalentKeepers, a firm specializing in assessing employee engagement and retention, to evaluate engagement within the company.[18] The first evaluation was conducted in February 2015.[19] The second evaluation was conducted in November 2016, and the scores were published around January 2017.[20] The employee engagement scores from the second survey were generally lower than the February 2015 scores.[21]

         Kuzio fired Morgenfruh on June 30, 2017.[22] Kuzio was responsible for the decision.[23] Kuzio then made the decision to hire Terry Krezmer, a nondisabled woman, to replace Morgenfruh.[24] Krezmer had over twenty years of experience working in human resources and had previously worked as the global head of human resources for Lonza, a chemical manufacturer.[25]

         Larson employed significantly more men than women in middle management roles during Morgenfruh’s tenure.[26] Larson had an affirmative action plan that complied with relevant state and federal laws,[27] and the company also had a women’s career-development group called “Women of LDG.”[28] Brenda Nichols, one coworker of Morgenfruh’s, expressed a desire to see more women work at Larson.[29]

         II. DISCUSSION

         A. Standard of Review

         Summary judgment is granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[30] A dispute is “genuine if a reasonable trier-of-fact could find in favor of the non-movant,” and “material if it could affect the outcome of the case.”[31]When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the nonmoving party.[32]

         To defeat a motion for summary judgment, the nonmoving party must point to evidence in the record that would allow a reasonable jury to rule in that party’s favor.[33] “When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must ‘identify those facts of record which would contradict the facts identified by the movant.’”[34] Moreover, “if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.”[35] On a motion for summary judgment, “the court need consider only the cited materials, but it may consider other materials in the record.”[36]

         B. Discrimination[37]

         Discrimination claims under Title VII and the ADA apply the McDonnell Douglas burden-shifting framework.[38] In a McDonnell Douglas analysis, the plaintiff must first establish a prima facie case; second, the defendant must articulate some legitimate, nondiscriminatory reason for the employment action; and, third, the plaintiff must then prove that the defendant’s proffered reason was a pretext for discrimination.[39]

         In order to establish a prima facie case of discrimination, a plaintiff must show that “(1) she is a member of a protected class; (2) she was qualified for the position she sought to attain or retain; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination.”[40] For Title VII cases, a protected plaintiff who is qualified for his job may establish a prima facie case by showing that he was fired and replaced by a person who is a member of the opposite gender.[41] In ADA cases, a plaintiff who is qualified for his job and meets the statutory definition of disabled under the ADA can also establish his prima facie case by showing that he was fired and replaced by someone who is not a member of his protected class-namely, someone who does not meet the statutory definition of disabled under the ADA.[42]

         Morgenfruh establishes a prima facie case under Title VII. The fact that he was replaced by a woman is sufficient at this stage to satisfy the fourth element, which is the only one disputed by Larson.[43]

         On his ADA claim, Larson contests both the first and fourth elements. Morgenfruh may show that he is disabled within the meaning of the ADA in three ways: (1) he actually has a “physical or mental impairment that substantially limits one or more of the major life activities of such individual”; (2) he has a “record of such impairment”; or (3) he is “regarded as having such an impairment.”[44] Although Morgenfruh claims that he qualifies under all three in his complaint, he has abandoned the latter two in his summary judgment papers. I address only the first. Larson does not argue that Morgenfruh’s claimed disabilities are not the type of disabilities protected by the ADA[45] nor that he does not actually have them. Rather, it argues that Morgenfruh did not notify Larson of his sleep apnea and type II diabetes diagnoses. But at his deposition, Morgenfruh stated that he told Larson that his doctors suspected he had those conditions.[46] For purposes of summary judgment, I find that this creates an issue of material fact.

         For the fourth element, as with his Title VII claim, Morgenfruh’s demonstration that Krezmer is not disabled is sufficient, and I find he has stated a prima facie claim of disability discrimination under the ADA.

         Morgenfruh advances two additional theories of liability under the ADA: failure to accommodate and retaliation. To establish a prima facie case for failure to accommodate, “a disabled employee must demonstrate that: (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.”[47] For a prima facie case of retaliation, a plaintiff must show: “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.”[48]

         Morgenfruh posits that Larson’s failure to provide him with a flexible schedule to attend his medical appointments was a failure to accommodate and that his firing after requesting one was retaliation. However, the evidence in the record all suggests that Morgenfruh already had the flexible schedule he needed. Larson allowed him to leave work early or arrive late as necessary. He had unused flexible leave time. And, whenever he requested time off to attend to a medical issue, he was never denied it. Morgenfruh has not identified evidence showing that Larson failed to provide a reasonable accommodation or that his requests had any causal connection to his termination, and thus he has not established prima facie cases on these two theories.[49]

         I now move to the second step of the McDonnell Douglas analysis. Larson responds that Morgenfruh was fired as a result of his poor performance on the TalentKeepers employee-engagement and people-development metrics.[50] This is a valid nondiscriminatory reason for termination of employment, and the burden shifts back to Morgenfruh to demonstrate that it is pretext for either gender or disability discrimination.

         To do so, Morgenfruh must either discredit the proffered reason or adduce evidence, circumstantially or directly, that discrimination was more likely than not a motivating factor or the determinative cause of his termination.[51]

         Morgenfruh attempts to undermine Larson’s credibility by pointing out that it provides more reasons for his dismissal in its answers to interrogatories than Morgenfruh was provided with on the day he was fired.[52] But providing additional reasons is not the same as providing inconsistent reasons. Morgenfruh does not dispute his underperformance on the TalentKeepers metrics, and he does not provide any other evidence to discredit Larson’s proffered reasons.

         Morgenfruh’s attempts to demonstrate discrimination are also unpersuasive. His Title VII claim is based on his allegations that Larson fired him to advance an agenda of increasing the number of women employed there.[53] In support, he cites four pieces of evidence: (1) Larson had a women’s career-development group;

         (2) Brenda Nichols expressed her desire to have more women employed at Larson;

         (3) Larson fired more men than women in 2015; and (4) Morgenfruh’s replacement was female.[54] Morgenfruh presents no evidence suggesting that the “Women of LDG” group was anything other than a run-of-the-mill career-support group, and certainly does not demonstrate that it was part of a larger scheme to replace men in the company. Nichols’s comments are not relevant because Keith Kuzio, not Nichols, made the decision to fire Morgenfruh.[55] Putting aside the general slipperiness of statistical evidence in cases alleging individual discrimination,[56] the fact that Larson fired more men than women is neither surprising nor illuminating[57]given that Morgenfruh concedes that Larson employed significantly more men than women during that time period. The only remaining evidence Morgenfruh offers is that he was replaced by a woman. In other words, he has offered nothing more than his prima facie case. Summary judgment is therefore proper on his gender discrimination claims.[58]

         Morgenfruh’s ADA claim has little more persuasive force. Morgenfruh attended medical appointments for years without issue. As described above, Larson permitted him to leave early or arrive late as necessary, and he had plenty of unused flexible leave time at the moment of his termination. Morgenfruh continued attending doctor’s appointments in 2017 and was never denied time off. He was even approved for vacation days to extend his Memorial Day weekend a month before he was terminated. The evidence in the record simply does not support the conclusion that Larson’s decision was based on Morgenfruh’s medical leave.

         Morgenfruh makes a last-ditch effort to show discrimination by arguing that two nondisabled employees, Rob Gehr and Doug Smith, were treated differently.[59]However, Gehr and Smith were not similarly situated to Morgenfruh because they answered to a different supervisor,[60] worked in different departments,[61] and possessed different qualifications and duties.[62] Further, the gap between Larson’s treatment of Morgenfruh and Gehr was not as wide as Morgenfruh suggests. While he was permitted to keep his job, Gehr was also subject to harsh penalties for lackluster performance, including a title demotion and financial penalties.[63] And to the extent there was a difference in treatment between Morgenfruh and Smith, Morgenfruh himself explained it-Smith was the “golden child” referral of an influential board member.[64] Whatever the wisdom of such favorable treatment, it is not indicative of disability discrimination. Summary judgment is therefore proper on Morgenfruh’s disability discrimination claims.

         C. FMLA

         The FMLA provides that an eligible employee “shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable to perform the functions of his position.”[65]It is illegal for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right” under the FMLA.[66] An employer’s failure to advise an employee of his rights under the FMLA may constitute interference with the employee’s rights.[67] To establish a failure-to-advise claim, the employee must show that he was entitled to FMLA benefits, the employer interfered with them, and the employee was prejudiced by ...


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