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Albright v. The Trustees of University of Pennsylvania

United States District Court, E.D. Pennsylvania

October 18, 2019

KEITH ALBRIGHT Plaintiff.
v.
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA et al., Defendants.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Keith Albright was fired from his job as a clinical audiologist after showing up late to work sixty times in a span of two years. He claims that his clinical depression and anxiety disorders caused him to oversleep. Albright filed this lawsuit against his supervisor, Sherrie Davis, and his employer, the Trustees of the University of Pennsylvania (“University”), arguing that Defendants discriminated and retaliated against him under the Americans with Disabilities Act (“ADA”), Pennsylvania Human Relations Act (“PHRA”) and Philadelphia Fair Practices Ordinance (“PFPO”); failed to provide him with reasonable accommodations under the ADA; interfered with his Family and Medical Leave Act (“FMLA”) benefits; and retaliated against him for taking FMLA leave. Davis and the University filed a Motion for Summary Judgment which the Court, after considering all of the briefing, thoroughly reviewing the record and holding oral argument, grants in full.

         I

         Albright was a clinical audiologist who was hired by the University in 2013. (Offer Letter, Ex. B, ECF No. 20-3.) He saw patients in a clinical setting where he conducted hearing tests and fitted hearing aids. (Compl. ¶16, ECF No. 1.) From 2013 to 2016, Albright worked five days a week from 8:00 AM-4:30 PM, splitting his time between the audiology department's University City (Philadelphia) and Radnor, Pennsylvania locations. (Albright Dep. 31:8-17; ECF No. 20-3.) By all accounts, Albright was a skilled audiologist and he received accolades for his performance, particularly as it related to patient-care satisfaction. See (Emp. Recognition Email, Ex. B, ECF No. 23-2; Performance Evaluation, Ex. K, ECF No. 20-1).

         In 2016, Albright started showing up late to work without informing Davis in advance. See (Albright Dep. 75:7-10; Attendance Log, Ex. G, ECF No. 20-3.) According to Davis, the department-wide policy required employees to text her by 7:00 AM anytime they were running late or had a last-minute unscheduled absence. (Davis Dep. 48:5-21, ECF No. 20-3.) In 2016 alone, Albright accumulated twenty-three unexcused late arrivals. (Attendance Log, Ex. G, at 187-88.[1]) Albright would often text Davis to explain his tardiness. For example, on September 23, 2016, he texted Davis at 8:08 AM: “I'm on way but going to be past the 10 minutes [grace period], had [yoga] class this morning.” (Albright-Davis Text Messages, Ex. F, at 157, ECF No. 20-3.) On September 29, 2016, Albright was late again, this time texting Davis at 8:04 AM: “I forgot my phone so had to turn back to get it. See you 815.” (Id.) Additional texts offer a slew of reasons to explain Albright's tardiness, including facing traffic delays, waiting for stalled buses, having to pull his car over because he felt ill, getting lost in the hospital's surgery center, and grabbing coffee before coming up to the clinic. See (id. at 157-66).

         Davis met with Albright in the fall of 2016-without the intervention of human resources (“HR”) personnel-to discuss his tardiness and consider solutions to the problem. (Davis Dep. 42:7-43:6.) Albright asked to modify his start time to 8:30 AM and to work exclusively at the University City location. (Id.) Davis granted these requests and implemented them in January of 2017. (Id. 50:8-52:5.) Davis also suggested that Albright take advantage of the University's Employee Assistance Plan (“EAP”), which he did. (Albright Dep. 79:14-23.) Albright was granted eight EAP counseling sessions with Diane Hunt, a licensed professional counselor, which began on September 20, 2016. (EAP Intake Form, Ex. D, ECF No. 23-2.) Hunt's notes from the sessions indicate that Albright was “feeling physical manifestation[s] of stress” and experiencing sleep deprivation. (Id.) Albright met with Hunt again on October 25, 2016, September 7, 2017, and September 21, 2017. (Id.)

         In 2017, even with the adjusted schedule in place, Albright continued to arrive late. (Attendance Log, Ex G., at 189-90.) On January 3, 2017, he texted Davis at 9:02 AM: “I am running late, am 5 min away. I got up super early to be there before my new shift-dressed and ate breakfast, then sat down on my couch watching the news which I never do and must have dozed off.” (Id. at 168.) Then on January 11, 2017, Albright texted Davis that he was running late because of a delayed train, and on January 26, February 2, and February 24, Albright blamed traffic jams for his tardiness. (Id. at 169-70; 175.) According to Albright, he told Davis that the modified schedule was not working but admits that he never specifically asked for a different start time or other changes. (Albright Dep. 148:11-18.)

         On January 18, 2017, Albright visited a nurse practitioner (“NP”). (Patient Progress Note, Jan. 18, 2017, Ex. E, ECF No. 23-2.) The NP's medical notes indicate that Albright felt depressed and had difficulties falling asleep and waking up. (Id.) Albright also scored a PHQ-9 on a depression screening scale, which the NP interpreted as mild depression. (Id.) According to Albright, he never expressly told Davis that he suffered from depression; instead, he testified that in early 2017 he told her about feeling stressed and having suicidal thoughts. (Albright Dep. 111:16-24.) He called his condition a “problem, ” an “event, ” and “being discombobulated.” (Davis Dep. 167:14-17; 170:3-4.) Albright also claims that he experienced anxiety attacks at work, (Albright Dep. 127:9-12), but Davis stated she was not aware of them. (Davis Dep. 41:7-13.) Davis testified that she asked Albright multiple times if he had a medical issue precluding him from getting to work on time, but he always answered “no.” (Davis Dep. 54:7-15.) However, Davis was concerned that something was amiss, because Albright was shaky at work and had been falling asleep during shifts. (Davis Dep. 119:3-8.)

         Albright's chronic tardiness and failure to abide by the call-out policy prompted Davis to email the University's HR department on March 29, 2017 to initiate a formal performance improvement plan.[2] (March 29, 2017 Email, Ex. H, ECF No. 20-3.) The University's performance improvement plan proceeds as follows: Coaching, First Written Warning, Second Written Warning, Final Written Warning, and Termination. (Performance Improvement and Progress Steps Policy, Ex. C, P-5, ECF No. 20-3.)

         Davis issued a Coaching-the first step in the performance improvement plan- to Albright on April 6, 2017 for his “excessive lateness.” (Albright Dep. 82:1-17; Coaching, Ex. C, P-7, ECF No. 20-3.) On July 10, 2017, Davis issued a First Written Warning because Albright arrived more than three hours late on June 30, 2017 without abiding by the call-out policy. (Albright Dep. 98:8-99:2; First Written Warning, Ex. C, P-9, ECF No. 20-3.) After the First Written Warning, Davis suggested that Albright consider applying for FMLA leave. (Davis Dep. 134:7-11.)

         The Second Written Warning was issued on Aug. 10, 2017 because Albright arrived to work approximately two hours late without notifying Davis in advance. (Albright Dep. 107:19-108:10; Second Written Warning, Ex. C, P-11, ECF No. 20-3.) Albright received his Final Written Warning on September 7, 2017 for late arrivals on August 18, 2017 and September 1, 2017. (Albright Dep. 115:18-116:19; Final Written Warning, Ex. C, P-14, ECF No. 20-3.) By the time Albright received his Final Written Warning, he had begun paperwork for FMLA leave but had not yet submitted it. (Albright Dep. 116:20-24.)

         Shortly after receiving the Final Written Warning, Albright had a follow-up appointment with his NP, who noted that Albright's anxiety was “deteriorating, ” but he declined to start anxiety medication that day. (Patient Progress Note, Sept. 15, 2017, Ex. E, ECF No. 23-2.) Four days later, on September 19, 2017, EAP counselor Hunt sent the University's Department of Disability Management a medical certification in support of the Albright's FMLA leave. (FMLA Certification of Healthcare Provider, Ex. C, P-11, ECF No. 20-3.) Hunt wrote that Albright's medical diagnosis was “F41.1” (generalized anxiety disorder) and she recommended a psychiatric evaluation and assessment for medication. (Id.)

         The University approved Albright's intermittent FMLA leave on September 25, 2017, allowing him two, three-hour absences per week. (FMLA Approval Letter, Ex. C, P-15, ECF No. 20-3.) The approval letter stated that Albright was “expected to follow the regular call-out procedures for [his] department, ” and when calling out, “to make clear that the time off” was for FMLA. (Id.) Yet Albright recalls that when he met with an HR employee, he was told he only needed to tell Davis he was using FMLA, “because [his disability] would not allow [him] to call in” before 7:00 AM. (Albright Dep. 118:18- 25.)

         Albright first attempted to use FMLA leave on September 26, 2017. At 8:49 AM, Davis texted Albright: “Are you on your way? Your patient is waiting.” (Albright-Davis Text Messages, Ex. G, at 183.) Davis responded: “I'm using [FMLA] this morning.” (Id.) Once Albright arrived at work at 9:40 AM, Davis told him that he still needed to comply with the 7:00 AM call-out policy, even when using FMLA leave. Albright followed up with HR later that day to confirm whether he had to comply with the 7:00 AM call-out procedure; HR told Albright he could still be held accountable for failing to follow his department's policy. (Sept. 26, 2017 Email, Ex. C, P-16, ECF No. 20-3.) No. formal employment action was taken for Albright's late arrival that day; rather, the University applied his FMLA leave retroactively. Later that day, Davis also sent a department-wide email reminding employees to text her by 7:00 AM if they would be late or absent from work. (Sept. 26, 2017 Email, Ex. I, ECF No. 20-3.)

         On November 29, 2017, Albright once again arrived late to work-this time, at 11:28 AM-without informing Davis in advance. (Albright Dep. 124:15-125:4; Attendance Log, Ex. G, at 190.) He did not attempt to invoke FMLA leave that day. See (Albright Dep. 126:3-8). As a result, the University terminated Albright on December 6, 2017. (Termination Letter, Ex. C, P-17, ECF No. 20-3.)

         II

         Summary judgment is appropriate “if 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.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the plaintiff. Id. at 252. “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         When ruling on a motion for summary judgment, the Court may rely only on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 94 (3d Cir. 1999). A court must view the facts and draw all reasonable inferences in favor of the nonmoving party. See In re Flat glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). “An inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).

         III

         The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a). Albright alleges two theories of discrimination: disparate treatment and failure to provide reasonable accommodations.[3]

         A

         1

         Discrimination claims based on allegations of indirect discrimination are analyzed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Albright must first establish a prima facie case of discrimination under the ADA. See Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 761 (3d Cir. 2004) (superseded by statute on different grounds). Once he does so, the burden shifts to the Defendants “to articulate some legitimate, nondiscriminatory reason for the [adverse action].” McDonnell Douglas, 411 U.S. at 802. “The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the Defendants meet the “relatively light burden” of articulating a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the plaintiff to show that the employer's explanation is mere pretext. Id.

         To establish a prima facie case of discrimination under the ADA, Albright must show that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) he suffered from an adverse employment action as a result of the discrimination. Gaul v. Lucent Tech., Inc., 134 F.3d 576, 580 (3d Cir. 1998). The parties dispute all three elements of the prima facie claim.

         2

         To determine whether an individual is disabled under the ADA, the statute “shall be construed in favor of broad coverage of individuals . . . to the maximum extent” permitted by law. 42 U.S.C. § 12102(4)(A). A “disability” is defined by the ADA as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” Id. § 12102(1)(A)-(C). Albright's Complaint only alleges that his clinical depression and anxiety disorders constitute a physical or mental impairment that substantially limits a major life activity. (Compl. ¶ 12; Oct. 10, 2019 Hr'g Tr. 49:22-50:5.)

         “[I]t is well-established that a particular diagnosis, no matter how severe (or severe-sounding to the layperson), standing alone, is not sufficient to establish ‘disability.'” Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 513 n.5 (3d Cir. 2001). The disability must also substantially limit a major life activity. The ADA provides a nonexhaustive list of major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking . . . concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). EEOC regulations provide that an individual's impairment constitutes a disability if it “substantially limits the ability of an individual to perform a major life activity as compared to most people in the ...


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