Opinion
Civil No. 3:16-CV-1837
07-18-2018
SUSAN C. ASHELMAN, Plaintiff v. GEISINGER HEALTH SYSTEM FOUNDATION, Defendant
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
In this civil action, Susan Ashelman has sued her former employer, the Geisinger Health System Foundation, for discrimination and retaliation under the Family Medical Leave Act and the Americans with Disabilities Act. In a nutshell, Ms. Ashelman alleges that Geisinger, through supervisory employees, interfered with her right to take leave from work to deal with mental health issues, discriminated against her on the basis of those real or perceived disabilities, retaliated against her for availing herself of her rights under federal law, and ultimately constructively discharged her from her employment. The parties have concluded discovery into Ms. Ashelman's claims, and the defendant has moved for summary judgment. The motion has been referred to the undersigned for purposes of preparing a report and recommendation.
Following review of the parties' briefs and the evidence submitted by both sides, it will be recommended that the motion be granted because we find insufficient evidence to support the plaintiff's discrimination and retaliation claims under the theories alleged. At most, the evidence shows a strained relationship between the plaintiff and her employer, and particularly her primary supervisor. However, even taken in the light most favorable to the plaintiff, the evidence does not support the plaintiff's contention that the defendant discriminated or retaliated against in violation of the ADA or FMLA, and it does not support her related claim that she was discriminated against on the basis of her alleged disability of anxiety or other mental-health issue. Moreover, and significantly, the plaintiff's request for the accommodation of being reassigned to a different supervisor was unreasonable as a matter of law, thus further undermining her claims under the ADA.
II. BACKGROUND
Susan Ashelman began her employment with Geisinger on or about August 1, 2011, as a "floating" secretary in the Geisinger Interim Staffing Department. (Def. SMF ¶ 1; Deposition of Susan Ashelman ("Ashelman Dep.") at 17:20-23.) In November, 2012, Ms. Ashelman applied for and was awarded the position of part-time secretary in the Endocrinology Department at a Geisinger clinic in Wyoming Valley, Pennsylvania. (Def. SMF ¶2, Am. Compl., ¶25.) In March, 2015, the plaintiff became a full-time secretary in the same department. (Def. SMF ¶3; Ashelman Dep. at 19:9-20.) At all times during her employment, Ms. Ashelman was supervised by Stacey Walsh, the Clinic Supervisor. (Dep. of Stacey Walsh ("Walsh Dep.") at 7:3-8, 8:4-9.) Ms. Walsh was supervised by Julie Bordo, the Operations Manager. (Def. SMF ¶5; Dep. of Margaret Heffers ("Heffers Dep.") at 23:23-24:4.)
Other staff members in the clinic include Drs. Brian Jameson and Ronald Harris. Bethanne Deangelo was a part-time secretary in the Endocrinology Department who worked alongside Ms. Ashelman starting in September, 2015. (SMF ¶¶ 6-7; Dep. of Bethanne Deangelo ("Deangelo Dep.") at 6:16-19, 7:15-21, 10:9-18.) Lisa Dematteo was the Director of Human Resources of the Wyoming Valley clinic. (Def. SMF ¶ 8; Dep. of Lisa Dematteo ("Dematteo Dep.") at 7:11-13.) Margaret Heffers was the Vice President of Human Resources. (Def. SMF ¶ 9; Heffers Dep. at 5:6-9.)
The plaintiff attested that her work in the Endocrinology Department was "very busy" and one of the physicians described it as an "extraordinarily intense practice." (Ashelman Dep. at 44:4-9; Dep. of Ronald Harris ("Harris Dep.") at 9:21-10:4.) According to Stacey Walsh, at some point in March, 2015, after the plaintiff had been hired into the full-time secretary position, her work began to suffer, with one of the doctors describing it as "not satisfactory". (Walsh Dep. at 100:2-12; Harris Dep. at 3:21-4:8.) In May, 2015, Ms. Walsh gave the plaintiff a performance review that was somewhat critical and included low marks in a number of areas. The review was later modified to give the plaintiff a higher overall score of 2.93 out of 4, apparently in a calculated effort to encourage the plaintiff to improve. (Ashelman Dep. at 22:22-24:11, 28:1-29:10.) The plaintiff's score was modified after she complained to Dr. Jameson about it, and the plaintiff has attested that this is the point when her relationship with Ms. Walsh began to become strained, and the point at which the plaintiff believes Ms. Walsh decided to begin harassing, discriminating, and retaliating against her. (Ashelman Dep. at 31:16-32:6.) Notably, this predates the time when the plaintiff alleges that she began suffering from disabling mental health conditions.
Following the May, 2015 review, Ms. Walsh began to conduct regular meetings with the plaintiff in order to provide additional training. (Def. SMF ¶ 19.) During these weekly sessions, Ms. Ashelman's progress and training were memorialized in a document titled "Secretary Benchmarks." (Def. SMF ¶20; Ex. E, DEF 504-509.) For instance, the week of June 8, 2015, the plaintiff received additional training in the importance of prioritizing phone calls and messages, with Ms. Walsh's notes stating:
[Ms. Ashelman] will check patient calls AM & PM to assure patients are called back ASAP. Questions will be directed to me. . . . Biggest Concern: Timeliness of message completion. Susan will check in basket 2 daily to assure calls are completed in a timely fashion. If she is not comfortable calling a patient or taking care of a message she will seek me or a nurse out for assistance. Reinforced importance of timely documentation in regard to patient care. She voiced her understanding.(Ex. E, at DEF504; Ashelman Dep. at 55:22-57:11.) The plaintiff initialed each area where she received additional training identified in the progress note. (Id.)
One week later, the plaintiff had additional training that focused on how to prioritize phone calls and messages, with the progress note indicating that Ms. Walsh had addressed with the plaintiff three instances of delayed response, and the plaintiff agreeing to check the voicemail box daily before leaving the clinic. (Ex. E, at DEF507; Ashelman Dep. at 58:3-11.) As before, Ms. Ashelman initialed each of the areas identified in the note memorializing the training and areas of focus. (Id.)
The spring of 2015 was a stressful time for the plaintiff, in part because she was going through a divorce. (Heffers Dep. at 24:8-15.) Perhaps owing to this strain, in the summer of 2015 Ms. Ashelman began exhibiting certain unusual tendencies and behavior at work that stood in marked contrast from her prior demeanor. For example, she had developed a habit of muttering under her breath and out of the side of her mouth when people would talk with her. On at least one occasion during this time the plaintiff appeared for work with her clothes inside-out. (Ashelman Dep. at 277:1-278:7; Walsh Dep. at 97:3-24.)
Following what had been an unsatisfactory employment review, and the notable changes in the plaintiff's behavior and appearance at work, Julie Bordo and Stacey Walsh consulted with Lisa Dematteo, the Director of Human Resources, and the decision was made collectively to meet with the plaintiff to discuss the issues. Additionally, the plaintiff was directed to seek counseling through Geisinger's Employee Assistance Program ("EAP"). (Ashelman Dep. at 277:1-278:7, 282:1-20; Walsh Dep. at 97:3-24; Dematteo Dep. at 7:11-13, 71:4-17.) Ms. Ashelman reluctantly agreed to seek counseling through EAP, and in fact disagreed that she had an emotional condition that warranted counseling. (Dematteo Dep. at 71:20-72:4; Pl. SMF ¶32; Doc. 11, Am. Compl., Ex. B ("The decision to have me go to counseling was gratuitous and an imputation of an emotional condition which I did not have.").) Nevertheless, during discovery in this case, Ms. Ashelman conceded that it was reasonable, based upon the changes observed in her behavior, for the staff at Geisinger to ask her to seek counseling. (Ashelman Dep. at 277:1-278:7.)
On June 29, 2015, the plaintiff was issued a written warning for failing to address an emergent patient voicemail concerning low blood sugars, with the warning specifically noting that Ms. Ashelman had previously been counseled about the need to take care to route patient calls to a provider. (Def. SMF ¶34; Ex. F, DEF250-52.) Plaintiff made no comments to dispute this first written warning. (Id.)
The plaintiff applied to utilize FMLA leave from July 9, 2015, through July 30, 2015. (Def. SMF ¶ 37; Ex. S, DEF67-73.) Following this period of leave, on August 5, 2015, Ms. Walsh met with the plaintiff to discuss "transition back to work, workload, and documentation concerns." (Ex. G, DEF363.) During this meeting, two performance issues were specifically addressed: (1) the failure to route a call to a physician on August 3, 2015, and (2) the failure to address patient voicemail messages that were left unaddressed when the plaintiff ended her shift on August 3. (Ex. G, DEF 353; Ashelman Dep. at 72:1-73:6.) In the fall of 2015, Dr. Harris sent a message to Stacey Walsh stating that "Susan should not be filling out these insurance forms; Jill Fabri was present. Patient is not on an insulin pump but on multiple injections. This is her first mistake, but I still think she is overwhelmed." (Def. SMF, Ex. H, DEF416.)
Additional performance deficiencies were noted in the tail end of 2015. On November 19, 2015, the plaintiff received a second written warning after it was discovered that she refused a pharmacy's electronic request for a prescription confirmation on November 11, and directed the pharmacist to have the patient call to make an appointment to be seen first. (Def. SMF, Ex. H, DEF80-82, DEF472-474.) In her written warning, it was specifically noted that "Susan had been previously counseled on 11/11/15 as well [as] several other times previously that she is not to refuse medications and to send it to the physician who could determine if the prescription should or should not be approved based on the patient's last office note." (Def SMF, Ex. I, DEF8082 and DEF472-474; Ashelman Dep. at 102:2-19.)
Under Geisinger's progressive discipline policy, the plaintiff could have been suspended for this second infraction, but Geisinger did not impose any formal sanction, since Ms. Walsh and Ms. Dematteo "were still wanting to work with Susan. [They] wanted to see her do well and felt that even though it was another patient safety issue, it warranted another shot." (Walsh Dep. at 123-125:2.) Ms. Walsh testified that she believed Geisinger was "generous" towards the plaintiff by proceeding in this way. (Id.)
On December 2, 2015, the plaintiff sent two text messages from her personal cell phone to Dr. Jameson's cell phone which contained patient information. The messages were unsecured and sent over an unsecured network. Once discovered, the messages were referred to Geisinger's Privacy Office to determine whether they constituted a violation of the Health Insurance Portability and Accountability Act ("HIPPA"). John Gildersleeve, Geisinger's Chief Privacy Officer, evaluated the matter and concluded that the messages did amount to a HIPAA violation, and reported that fact to Ms. Walsh. (Def. SMF, Ex. K, DEF105-108; Ashelman Dep. at 162:7-19; Ex. L, DEF 339; Walsh Dep. at 22:6-13; Heffers Dep. at 17:8-11.)
Geisinger's "Protection of Confidential Information and Sanctions" policy states that "[i]nappropriate use is inappropriate internal or external release, access, manipulation or Confidential Information or carelessness in protecting it," and lists as an example of inappropriate use of patient information the "[f]ailure to protect Confidential Information [including patient information] that has been copied, carried outside of GHS, or viewed through electronic sources where others may see this information." (Def. SMF, Ex. M, DEF480-484.) The policy further provides that Geisinger employees who violate this rule regarding the safeguarding of confidential information may be subject to disciplinary action, up to and including termination. (Id. at DEF482.)
Ms. Walsh referred Mr. Gildersleeve's finding to Ms. Dematteo, who recommended that Ms. Ashelman receive a three-day suspension based upon her prior disciplinary history and the next step in the company's progressive discipline process. (Walsh Dep. at 130:10-132:13.) On December 29, 2015, the plaintiff was given a three-day suspension, this being her third instance of workplace discipline. (Def SMF, Ex. K, DEF0105-108.) This was the final discipline that Ms. Ashelman received before she resigned her employment at Geisinger. (Id.)
At the center of this case is the plaintiff's allegation that she had a disability on the basis of mental health-related issues relating to anxiety. To address those issues, Ms. Ashelman availed herself of the opportunity to use leave time under Geisinger's FMLA policy. As noted above, the plaintiff took three weeks of leave from July 9 through July 30, 2015. (Def. SMF, Ex. S, DEF67-73.) In addition, the plaintiff took two weeks off of work from October 22 through November 6, 2015. (Def. SMF, Ex. T, at DEF95-101.) On December 16, 2015, the plaintiff applied for and was granted intermittent FMLA leave. (Ashelman Dep. at 180:5-22; Def. SMF, Ex. U, at DEF85-91.) Although this intermittent leave was approved, Ms. Ashelman never actually took it. (Id.)
Finally, the plaintiff applied for and was approved for nine additional weeks of FMLA leave beginning on January 29, 2016, and continuing until March 31, 2016. (Def. SMF, Ex. V, P44-47 and DEF 141.) The plaintiff did take this leave, and two weeks before she was expected to return to work she submitted a request for accommodation, specifically asking that she be transferred to a supervisor other than Stacey Walsh. Her request reads as follows:
I love my current position, but need reasonable accommodation since I am unable to return to that position because no one is able to help transfer me or switch me to a different supervisor. . . . I am a very hard worker, devoted to my patients, and have done everything I have possibly could [sic] in the past 3 plus years to make my supervisor happy but she will not stop antagonizing me.(Def. SMF, Ex. GG, DEF170-171.) The plaintiff supported her request with a note from her treating psychiatrist, Robert N. Gerstman, who wrote:
It is my belief a reasonable accommodation should be made to let this patient work anywhere else within the Geisinger System aside from the Geisinger Wyoming Valley Endocrinology Department. I feel that her treatment in that department particularly with specific supervisors is detrimental to her well being and her mental state. She has made attempts to fix this. . . . due to her not being able to have a change in her supervisor or a transfer, it has arrived to the point where she is physically and emotionally not able to return to work.(Id. at DEF171.)
There is no dispute that Dr. Gerstman never visited the plaintiff's place of employment, and instead based his belief and request exclusively upon information that Ms. Ashelman told him. (Ashelman Dep. at 202:4-16.) The plaintiff testified that at the time she made this request for accommodation, she was capable of performing all physical job duties required of her as a secretary in the Endocrinology Department. (Ashelman Dep. at 204:19-24.) For her part, Stacey Walsh testified that she was unaware that the plaintiff had made a request for an accommodation during any time that she was employed and working at Geisinger. (Walsh Dep. at 91:11-14.)
Geisinger denied the plaintiff's request for accommodation on or about March 12, 2016, but in doing so offered her the opportunity to use additional medical leave, stating in part as follows:
Following thorough consideration of your request, Geisinger has determined that such accommodation is not reasonable and, thus, cannot be granted . . . . Notwithstanding this conclusion, Geisinger has decided that you may retain your employment status while you remain on short term disability following the expiration of your available Family and Medical Leave Act ("FMLA") leave on March 31, 2016, and apply, during that time, for any open positions for which you are qualified. This opportunity is being offered to you despite the fact that employees are not normally permitted to transfer to open positions for at least six (6) months following the issuance of a Performance Improvement Plan or while on disability leave. You were placed on a Performance Improvement Plan on December 2, 2015. . . . I will provide [your personal email address] to our Recruiting Department with the instruction that they send you a weekly report of all internal openings. If you see any posting on the internal listing for which you would like to be considered, please email Debra . . . and she will coordinate your request with the Hiring Department. Please be advised, as you go through this process, that neither the Recruiting Department nor any other department in the Geisinger System has been advised of your medical condition or that you requested a transfer from your current supervisor. Such information will not be shared by Geisinger with anyone as you search for alternative employment within the System . . . .(Def. SMF, Ex. HH, P2.) Plaintiff retained her employment status with Geisinger until she resigned on May 25, 2016.
While the plaintiff was on FMLA leave, and before she resigned, on March 20, 2016, she applied for unemployment compensation. This request was denied, with the Unemployment Compensation Referee finding the plaintiff ineligible:
Although the claimant denies quitting her employment, the claimant did acknowledge that she was on an FMLA leave of absence and the claimant did not return from that leave of absence . . . . At hearing the claimant characterized her treatment by her supervisor as harassment. However, when the referee asked the claimant to explain . . . claimant testified that the supervisor was writing the claimant up and had given the claimant a warning and a 3-day suspension concerning the claimant's work performance. Additionally as part of her appeal, the claimant provided a letter from Mr. Martin that the claimant had been placed on a performance improvement plan . . . and did not rebut the employer's statement that she was on a performance improvement plan. . . . As the claimant's supervisor was not harassing the claimant but rather exercising her management duties to supervise the claimant and any other employees, the Referee finds and concludes that the claimant did not quit for a medical reason but rather quit for a personality conflict with the supervisor and the claimant had failed to take sufficient steps to maintain the employer/employee relationship.(Def. SMF, Ex. II, P137-140.)
Thus, in the final months of her employment with Geisinger, much of which was spent while utilizing FMLA leave, the plaintiff applied for and was denied unemployment compensation during a time she was actually employed, and although her single request to be reassigned to a position with a different supervisor was rejected, Geisinger offered her the opportunity to extend her leave and to apply for open positions that she would not otherwise have been eligible for in light of the fact that she was not only on leave but also on a performance improvement plan. The plaintiff declined that invitation, and instead resigned her employment before bringing this lawsuit, alleging that Geisinger had discriminated and retaliated against her on the basis of her medical condition and use of FMLA-qualifying leave, and asserting that her resignation from her employment was, in fact, a constructive discharge.
III. STANDARD OF REVIEW
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). In evaluating a motion for summary judgment, a court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A disputed issue is only "genuine" if there is a sufficient evidentiary basis upon which a reasonable factfinder could find for the non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is "material" only if it could affect the outcome of the suit under the governing law. Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York Papers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). The Court is not tasked with resolving disputed issues of fact, but only with determining whether there exist any factual issues that must be tried. Anderson, 477 U.S. at 247-49.
In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Macfarlan, 675 F.3d at 271; Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009). Where there exist factual issues that cannot be resolved without a credibility determination, the court must credit the non-moving party's evidence over that presented by the moving party. Liberty Lobby, 477 U.S. at 255. However, if there is no factual issue presented, and if only one reasonable conclusion could arise from the record with respect to the potential outcome under the governing law, the court must award summary judgment in favor of the moving party. Id. at 250.
The court must review the entire record, but in doing so must take care to "disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-51 (2000). The task for the court is to examine "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one- sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52.
Furthermore, in cases involving allegations of employment discrimination, such as this one, the foregoing standard of review is applied with special care because the intent and credibility of parties are typically crucial. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 325 n.9 (3d Cir. 2003); see also Doe v C.A.R.S. Prot. Plus, 527 F.3d 358, 369 (3d Cir. 2008) (observing that "summary judgment is to be used sparingly in employment discrimination cases"). In undertaking this review, the Court avoids making credibility determinations and does not weigh the evidence, and instead must take care to accept as true the non-movant's evidence and draw all inferences in her favor. Liberty Lobby, 477 U.S. at 255; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).
IV. DISCUSSION
The plaintiff claims that she was discriminated against, subjected to a hostile work environment, and retaliated against in violation of both the ADA and analog provisions of the Pennsylvania Human Relations Act ("PHRA"). In addition, she claims that Geisinger interfered with her right to take FMLA leave, and retaliated against her for using FMLA leave. We consider these claims, and the evidence offered in support of them, below.
The legal framework governing ADA and PHRA claims is substantially the same, and thus these claims will be considered and analyzed together. Wilson v. Iron Tiger Logistics, Inc., 628 F. App'x 832, 835-36 (3d Cir. 2015) ("The analytical framework used to evaluate a disability discrimination claim under the PHRA is effectively indistinguishable from that under the ADA, thus allowing courts to dispose of both ADA and PHRA claims on the same grounds.") (citing Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002)). --------
A. The Plaintiff's FMLA Interference Claim Has No Support in the Record.
At the outset, in Count III of the amended complaint, the plaintiff avers that Geisinger both interfered with her right to avail herself of her rights under the FMLA, and then retaliated against her after she used FMLA leave on multiple occasions. Geisinger has persuasively demonstrated that this claim is, as a legal matter, not one for interference under the FMLA, but for retaliation.
The FMLA provide for two theories of recovery: one for interference with FMLA rights pursuant to 29 U.S.C. § 2615(a)(1), and one for retaliation or discrimination pursuant to 29 U.S.C. § 2615(a)(2). With respect to interference claims, the Act provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the Act. 29 U.S.C. § 2615(a)(1). In order to assert an interference claim, "an employee must show that he was entitled to benefits under the FMLA and that his employer illegitimately prevented him from obtaining those benefits." Sarnowski v. Air Brroke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). The Third Circuit Court of Appeals has explained that interference claims are grounded in the contention that an employer denied a plaintiff substantive rights protected under the FMLA, whereas discrimination and retaliation claims stem from adverse employment action taken because of the plaintiff's invocation of FMLA rights. O'Donnell v. Passport Health Communications, Inc., No. 13-2607, 2017 U.S. App. LEXIS 5793, at *9 (3d Cir. Mar. 28, 2014).
The two benefits that an employer may not deny under the FMLA after an employee proves she is entitled to them are (1) the "right to 12 work-weeks of leave over any 12-month period because of, among other things, a serious health condition . . .", and (2) the right to reinstatement following the expiration of leave to the employee's former position or an equivalent position. Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006).
Given the well-settled and clear law in this field, the plaintiff's FMLA interference claim should be rejected. The plaintiff has at all times acknowledged that Geisinger granted her multiple FMLA leave requests, and there is no dispute that she availed herself not only of the 12 weeks of leave to which she was legally entitled, but actually took a total of 14 weeks off. There is no evidence that we can perceive to show that Geisinger stood in the way of the plaintiff taking the leave that she claims she needed to address her mental health conditions during her employment, and actually granted the plaintiff even more leave than she would have been entitled to under the statute.
It appears that the plaintiff may be arguing that Geisinger interfered with her rights under the FMLA by failing to accommodate her request that she be allowed to dictate a transfer in order to avoid being supervised by Stacey Walsh, who she believed was an antagonist and a major contributor to her stress and anxiety in the workplace. But the undisputed fact is that Geisinger did hold her job open for her upon the conclusion of her FMLA leave, and it was the plaintiff who refused to return to her job after Geisinger declined the plaintiff's requested accommodation - an accommodation that, as will be discussed below, has been held to be unreasonable as a matter of law. There simply is no factual basis in the record to support the plaintiff's contention that Geisinger interfered with her FMLA rights when it granted her multiple requests for leave, permitted the plaintiff to be out of work for 14 weeks, and held her secretarial position open for her at the conclusion of that leave.
B. Discrimination and Retaliation Under the ADA and FMLA
Ms. Ashelman also claims that Geisinger discriminated against her on the basis of her mental health disability, which appears to have been depression or anxiety, which allegedly stemmed from or was exacerbated by workplace stress. The plaintiff also argues that Geisinger retaliated against her for seeking reasonable accommodations for her disability, or because she look FMLA leave for self-care.
Geisinger argues that the evidence does not support any of these theories of liability, that the evidence instead shows that the plaintiff was appropriately disciplined for repeated workplace infractions that the plaintiff acknowledged, and that the decision to deny the plaintiff's sole request for accommodation was entirely permissible since the accommodation requested is unreasonable as a matter of law. Finally, Geisinger maintains that the plaintiff was not constructively discharged, but instead elected to resign her employment when Geisinger refused her unilateral demand that she be reassigned to a different supervisor, and after the plaintiff rejected Geisinger's offer to allow her to apply for different positions within the company - even allowing her to apply for jobs for which she would otherwise have been unqualified because she had been placed on a performance improvement plan just months earlier.
We agree that the plaintiff's claims fail under any of these theories.
1. ADA Discrimination and Retaliation
The purpose of the ADA is to "prevent employment discrimination of qualified individuals on account of their disability." Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 512 (E.D. Pa. 2012) (citing 42 U.S.C. § 12112(a)). The Act requires employers to make "reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the employer demonstrates that such accommodations would impose an undue hardship in the operation of their business." Id. (quoting Fleck v. WILMAC, Corp., No. 10-5562, 2011 U.S. Dist. LEXIS 54039, at *10 (E.D. Pa. May 19, 2011)).
In order to make out a prima facie claim for workplace discrimination under the ADA, a plaintiff must demonstrate that she is (1) disabled within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer, and (3) has suffered an adverse employment decision as a result of the discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010); see also Stadtmiller v. UPMC Health Plan, Inc., 491 F. App'x 334, 336 (3d Cir. 2012); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998).
If the plaintiff makes a prima facie showing under this three-part standard, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Id. If a legitimate, nondiscriminatory reason is given, then the plaintiff must present evidence to demonstrate that the defendant's reasons were pretext for its unlawful action. Id. The plaintiff may meet this burden by identifying evidence that allows a factfinder either to disbelieve the employer's articulated legitimate justification, or to conclude that an invidious discriminatory reason was more likely than not a "but for" cause of the employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). This "but for" standard of causation sets an exacting benchmark for these claim.
The ADA also prohibits employers from retaliating against employees who oppose an act or practice made unlawful by the ADA or because the employee has made a charge under the ADA. 42 U.S.C. § 12203(a); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) ("it is unlawful for an employer to retaliate against an employee based upon the employee's opposition to anything that is unlawful under the ADA."). Although requesting a reasonable accommodation does not appear to "fit[ ] within the literal language of the statute," Soileua v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), the Third Circuit has held that making a good-faith request for accommodation is protected activity for purposes of the ADA's anti-retaliation provision. Shellenberger, 318 F.3d at 191.
In order to make out a prima facie case of illegal retaliation under the ADA, 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 relationship between the protected activity and the adverse action. Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir. 2004); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). The same McDonnell Douglas burden-shifting framework described above with respect to ADA discrimination claims also applies to ADA retaliation claims. In all cases involving retaliation, a plaintiff must prove that retaliatory animus played a role in the employer's decision-making process and that it had a determinative effect on the outcome of the process. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997). That burden always remains with the plaintiff. Id.
The Third Circuit has summarized the showing that a defendant must make in order to obtain summary judgment on a claim of ADA retaliation:
[T]he employer must show that the trier of fact could not conclude, as a matter of law, (1) that retaliatory animus played a role in the decisionmaking process and (2) that it had a determinative effect on the outcome of that process. This may be accomplished by establishing the plaintiff's inability to raise a genuine issue of material fact as to either: (1) one or more elements of the plaintiff's prima facie case or, (2) if the employer offers a legitimate non-retaliatory reason for the adverse employment action, whether the employer's proffered explanation was a pretext for retaliation.
Id.
2. FMLA Retaliation
The FMLA also prohibits an employer from retaliating against a plaintiff who has used FMLA leave. This prohibition is found in the Act's regulations, specifically 29 C.F.R. § 825.220(c), which provides:
An employer is prohibited from discriminating against employees or prospective employees who have used
FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.See also Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004) (citing to the regulation and observing that FMLA retaliation claims arise under 29 C.F.R. § 2615(a), the interference provision of the FMLA). To be successful on an FMLA retaliation claim, a plaintiff must show that (1) she took FMLA leave, (2) she suffered an adverse employment decision, and (3) the adverse decision was causally related to her leave or exercise of rights protected by the Act. Id.
3. The Record Contains Insufficient Evidence to Support the Plaintiff's Claims that Geisinger Discriminated or Retaliated Against Her on the Basis of Disability.
In this case, Geisinger does not really dispute that Ms. Ashelman suffered some mental health impairment that would qualify as a disability under the ADA, and the defendant seems to take no issue with the plaintiff's right to use FMLA leave time, since the company repeatedly granted her requests to avail herself of this right. Instead, the defendant argues both that Ms. Ashelman was not qualified for the position in question, with or without an accommodation, and that she has failed to show that she suffered an adverse employment action or that she suffered retaliation for exercising her rights.
Although it may be tempting to consider whether Ms. Ashelman's admission in her disability paperwork that she was completely disabled should now preclude her from inconsistently claiming she was qualified for job as a secretary, we find it unnecessary to try to unpack that issue because it is clear from the record and Ms. Ashelman's admissions that there is insufficient evidence to show that any alleged adverse employment actions were causally related to Ms. Ashelman's mental health condition to support either a discrimination or retaliation claim.
The plaintiff has argued that she suffered discriminatory or retaliatory employment action in the form of counseling, disciplinary write-ups and being placed on a performance improvement plan, as well as being denied her requested accommodation of being permitted to return to work under a different supervisor. Regarding the disciplinary issues, it is undisputed that Ms. Ashelman was first counseled, and first disciplined for workplace infractions, before she alerted her employer of her alleged disability, and there is no evidence to show that supervisory staff was aware of a disabling condition at that time. Moreover, the plaintiff has been clear in her view that the only person who discriminated or retaliated against her was Stacey Walsh; yet in her deposition testimony she veers sharply away from claiming that Ms. Walsh acted out of animus towards her disability, and instead claimed that Walsh's animosity towards her stemmed from jealousy over the plaintiff's relationship with Dr. Jameson, and because Walsh was jealous that the plaintiff had more education than she did. She also testified that she believed Walsh was angry at her for going directly to Dr. Jameson to complain about Walsh's employment evaluation of her, thereby undermining her authority. (Ashelman Dep. at 31:16-32:6; id. at 210:22-211:8.)
Even if the plaintiff is right about the reasons for Walsh's animus towards her, which has only weak support in the form of the plaintiff's own supposition, it has nothing to do with the plaintiff's allegedly disabling mental health condition, which was at that time unknown to anybody at Geisinger. Moreover, the plaintiff does not dispute the fact that after this initial relatively poor performance review, she received additional training to ensure that patient calls were returned promptly, and she signed off on the training memoranda that was placed in her file regarding the additional training that was mandated after repeated instances where the plaintiff was found to have fallen short of what was expected to her, particularly with respect to forwarding patient messages to physicians, ensuring that prescription medications were refilled, and safeguarding patient health information. (Ashelman Dep. at 55:2-57:11.) One week after this initial retraining, the plaintiff received additional training in prioritizing phone calls and messages after Walsh found that she had delayed responding to three patient messages. (Def. SMF, Ex. E at DEF507; Ashelman Dep. at 58:3-11.)
The plaintiff weakly argues that even though she believes that Stacey Walsh was the lone Geisinger supervisory with animus towards her, and that this animus stemmed from jealousy and interpersonal conflict, a jury should still be permitted to infer that it is more likely than not that her mental health issues contributed to the adverse employment action she experienced at Geisinger. We do not agree that the record contains sufficient evidence that would allow a jury to make this conclusory leap, and note that courts have been hesitant to allow a plaintiff to establish a prima facie case of discrimination or retaliation where the evidence reveals that alleged problems between a plaintiff and her supervisors predated any onset of disability. See Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 699 (W.D. Pa. 2014) ("A personality conflict doesn't ripen into an ADA claim simply because one of the parties has a disability" and "[m]erely alleging that the 'harassment continued' after the protected activity is insufficient and too speculative" to establish causation).
In this case, the plaintiff was clear that her problems with Walsh occurred before Walsh or anyone else even arguably had a reason to believe that the plaintiff may have a disabling condition, and she has offered little besides her own speculative suggestion that Geisinger officials may have based their later disciplinary decisions on her alleged mental health condition.
Setting aside the lack of evidence to show a causal relationship between the plaintiff's disabling condition or requests for accommodation and adverse employment actions, and even assuming that the plaintiff had produced sufficient evidence to show this causal relationship, the record contains unrebutted evidence to show that Geisinger had legitimate, non-discriminatory and non-retaliatory reasons for disciplining her for ongoing performance shortcomings. An employer will satisfy this obligation "by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763. "The employer need not prove that the tendered reason actually motivated its behavior, as throughout the burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Id.
In this case, the defendant has offered multiple non-discriminatory, non-retaliatory reasons for disciplining the plaintiff at times during her employment, and in requiring that she undergo additional training or obtain counseling for unusual behavior observed in the workplace. As noted above, the first of these disciplinary steps were taken before anyone had an inkling of the plaintiff's later-claimed disabilities and mental health concerns, and the plaintiff not only acknowledged the training she received for certain shortcomings, but also has offered her own opinion that the real reason behind the discipline was not her disability, but a personality conflict between her and Walsh.
It is also undisputed that during the summer of 2015, the plaintiff was going through a stressful divorce and during this time began exhibited unusual behaviors, including muttering out of the side of her mouth when in earshot of others, and even coming to work with her clothes on inside-out, which impelled Walsh, Julie Bordo and Lisa Dematteo to have the plaintiff seek counseling through a Geisinger program designed to assist employees, something that the plaintiff agreed was "reasonable" under the circumstances. (Ashelman Dep. at 277:1-278:7, 282:1-20; Walsh Dep. at 97:3-24; Dematteo Dep. at 7:11-13 and 71:4-17.) At that time, the plaintiff did not indicate or specifically request that she be provided any kind of accommodation, and actually was reluctant to go to the counseling. Indeed, in her complaint the plaintiff disclaimed any need for any sort of assistance, averring that "[t]he decision to have me go to counseling was gratuitous and an imputation of an emotional condition which I did not have." (Doc. 11, at 4.)
There also is no dispute in the record that we can perceive regarding the legitimacy of the defendant's finding that the plaintiff had, on multiple occasions, fallen short of Geisinger's expectations of her work as a secretary. These included: failing to route voicemail messages to physicians; failing to address patient voicemail messages before leaving her shift; refusing to process electronic prescriptions for patients; violating HIPAA by sending patient information via a personal and unsecured cell phone to a physician, which was verified through an administrative review; frequent unjustified complaining about a co-worker resulting in needless interpersonal conflict; and sundry other deficiencies that were cataloged between November and December, 2015, which the plaintiff has not refuted. (Def. SMF, Ex. F, DEF250-252; Ashelman Dep. at 46:25-27:8; Ex. G, DEF 363; Ashelman Dep. 72:1-73:6; Ex. H, DEF416; Ex. I, DE80-82, DEF472-474; Ashelman Dep. at 97:22-25, 102:2-19; Ex. K, DEF105-108; Ashelman Dep. 162:7-19; Ex. L, DEF339; Walsh Dep. 22:6-13; Heffers Dep. at 17:8-11; Ashelman Dep. at 239:10-18.) These instances of Geisinger disciplining the plaintiff for numerous workplace violations, or otherwise taking issue with the plaintiff's workplace attitude and performance, are documented and easily satisfy the requirement that the defendant produce evidence of legitimate, non-discriminatory and non-retaliatory reasons for the discipline imposed.
Given the evidence of legitimate reasons for disciplining or counseling the plaintiff regarding problems that she had demonstrated at work, the burden returns to her to produce evidence that would allow a factfinder to conclude that the reasons proffered are actually mere pretext for invidious discrimination. Upon review of the parties' submissions, particularly the plaintiff's brief and counter- factual statement, we find that she has not presented sufficient evidence with which to clear this hurdle.
At the outset, we emphasize again that the plaintiff has largely undermined her own case through her own admissions. She has testified as to her belief that the only Geisinger employee with any animus towards her was her supervisor, Stacey Walsh, and she has testified that this animus - which allegedly revealed itself before the plaintiff's disabling condition occurred - was based upon Walsh's jealousy and personal dislike of the plaintiff for reasons having nothing to do with her mental health. Thus, with respect to her claims, Ashelman is actually the engine of her own destruction since here admissions thoroughly rebut the legal claims she now endeavors to make.
Furthermore, the paucity of evidentiary support for a finding of pretext is revealed in the plaintiff's own argument in her brief where she suggests that "[a] reasonable factfinder could extrapolate [and find pretext] from [the] testimony [of] people like Dr. Harris who complained about Plaintiff [and] thought her depression (disability) negatively impacted her ability to do her job." (Doc. 40, at 17-18.) Notably, this argument's invitation to "extrapolate" is not just speculative, but it ignores that the plaintiff's own testimony. Ashelman testified not only that Dr. Harris never discriminated, harassed, or retaliated against her for any reason, (Ashelman Dep. at 71:10-23), but also that Walsh was her sole antagonist during the plaintiff's employment at Geisinger, (id. at 213:10-13). Therefore, Ashelman's testimony now places her counsel in the awkward position of urging us to ignore his client's testimony in favor of a speculative theory of liability which Ashelman herself contradicts.
Furthermore, regarding Geisinger's decision to direct the plaintiff to the EAP counseling program in the summer of 2015, the plaintiff herself acknowledged that given her admitted change in demeanor and behavior during this time, it was reasonable for her supervisors to make the referral. Additionally, we find nothing other than rank speculation to support the plaintiff's suggestion that this referral was "an admission that the employer thinks the employee is disabled in some manner." (Doc. 40, at 20.) Essentially the plaintiff is asserting that any time an employee is directed to seek counseling based upon a change in her behavior, it would be an admission that its supervisory staff believed that the employee suffered from a disability. This is not only an unwarranted leap, but it does nothing to support the plaintiff's argument that the referral suggests the numerous instances of disciplinary infractions that were cataloged throughout the second half of 2015 were pretextual cover for invidious discrimination.
The plaintiff's suggestion also disregards the factual context surrounding it, where the plaintiff acknowledged changes in her behavior made it reasonable for her supervisors to suggest that counseling would be beneficial and even needed, and where Geisinger subsequently granted the plaintiff's request to use FMLA leave on multiple occasions to address her alleged disability, and then worked with her to search for new positions that may be available at Geisinger given the personality dispute between the plaintiff and Stacey Walsh - something that the plaintiff declined.
Furthermore, the evidence shows that Geisinger did not terminate the plaintiff's employment, constructively or otherwise; to the contrary, Geisinger held open the plaintiff's job position, and when she refused to return to it without being placed with a different supervisor, even offered her additional leave time and the opportunity to apply for jobs within the company that she would have been otherwise ineligible to receive. When these facts are considered as a whole and in context, and taken in the light most favorable to the plaintiff, there is no basis upon which a jury could "extrapolate" or make unwarranted inferences about the measured steps Geisinger took to address acknowledged shortcomings on the plaintiff's part regarding her job performance in 2015.
The plaintiff also attempts to show pretext by positing that because she had complained about Walsh's supervision and its alleged impact on her health and well-being, and because Walsh continued to be involved in her supervision and discipline, this is somehow suggestive of pretextual motive. (Doc. 40, at 21.) We agree with Geisinger that this argument is a non sequitur, particularly where the evidence shows that Geisinger investigated the plaintiff's complaints and requests to be transferred to a different supervisor because she believed that Walsh was biased against her. Again, this request seems not to have been rooted in a claim of mental-health disability, but is grounded upon Ashelman's belief that she and Walsh had an interpersonal conflict that arose after the plaintiff complained to a physician about Walsh's review of her.
Indeed, the evidence concerning what Geisinger did in response to these complaints further undermines the plaintiff's claims of discrimination or retaliation. The record shows that after the plaintiff complained to the Executive Assistant to the CEO, Lori Bradley, Ms. Bradley met with Margaret Heffers, the Vice President for Human Resources, and asked her to investigate the matter. (Heffers Dep. at 5:6-9.) Ms. Heffers met with the plaintiff in late November, 2015, and they discussed the plaintiff's concerns, including her request for a transfer. According to the record, the plaintiff did not indicate that her issues with Walsh related in any way to a disability, but instead focused on a conflict between the two women. (Heffers Dep. at 22:9-12.) The record further indicates that Ms. Heffers agreed to help the plaintiff look for different positions to which she could transfer, but this was unsuccessful because an open post had been filled by another employee. (Ashelman Dep. at 229:25-230:6.)
The evidence further shows that the plaintiff continued to complain about Stacey Walsh and her decision to impose discipline following the discovery that the plaintiff had committed a HIPAA violation, which triggered an internal process at Geisinger where a neutral individual was appointed to review the circumstances of the discipline imposed and to determine whether it was justified or appropriate. (Def. SMF, Ex. CC, DEF 239.) Mary Gildea, the Vice President of Nursing Services, was appointed to investigate the matter towards the end of 2015, and on January 8, 2016, concluded that the suspension was justified. (Def. SMF, Ex. DD, DEF245.)
At around the very same time, the plaintiff filed additional complaints about Stacey Walsh, accusing her of bullying. These complaints were again directed to Ms. Heffers, who conducted an investigation into this new matter, interviewing Walsh, Julie Bordo and Lisa Dematteo about the plaintiff's complaint, eventually finding on January 26, 2016, that the plaintiff's claim was unfounded. (Def. SMF, Ex. FF, DEF236-237.) The plaintiff has offered no evidence to show that any of the investigations that her complaints inspired were biased, or unreasonable, or that Geisinger did anything other than take seriously her complaints and investigate the issues before reaching a conclusion that the plaintiff disputed. There is nothing in the evidence regarding these investigations that is suggestive of bias or unfairness, and nothing about this evidence logically serves as evidence that the disciplinary issues that the plaintiff had in 2015 were discriminatory or retaliatory in nature.
In short, the plaintiff has failed to come forward with sufficient evidence to demonstrate a causal relationship between the multiple instances of discipline that she received and her alleged disability, and the record contains insufficient evidence that could allow a factfinder to infer that the discipline or other work-related matters that she complained about demonstrate pretext.
4. The Plaintiff's Requested Accommodation to be Transferred to a Different Supervisor is Unreasonable as a Matter of Law.
Finally, this claim founders upon one other, insurmountable obstacle: The accommodation sought by Ashelman, a new job with a new and different supervisor, was objectively unreasonable. In addition to the foregoing shortcomings in the plaintiff's case, we also agree with Geisinger that the plaintiff's sole request for an accommodation - namely, to be reassigned to a different position with a supervisor other than Stacey Walsh - is unreasonable as a matter of law and not required under either the ADA or the FMLA.
To assert a claim based upon a failure to accommodate under the ADA, a plaintiff must show that (1) she is a disabled person within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of her job, with or without a reasonable accommodation; and (3) she has suffered an otherwise adverse employment decision as a result of discrimination, which "in this context include refusing to make reasonable accommodations for a plaintiff's disabilities." Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004). The term " 'reasonable accommodation' further 'includes the employer's reasonable efforts to assist the employee and to communicate with the employee in good faith . . . .'" Id. at 761 (quoting Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir. 1997)).
We have already considered the core of the plaintiff's ADA and FMLA claims and found them wanting, but separately emphasize that the only requested accommodation made in this case was to be transferred to a different job under a different supervisor.
In Gaul v. Lucent Technologies, Inc., the Third Circuit Court of Appeals considered this very issue and held that transferring an employee to a different, less stressful position was not a reasonable accommodation to address the employee's depression and related anxiety disorders. In so ruling, the Court provided the following instructive analysis:
[First] [t]he only certainty for AT&T would be its obligation to transfer Gaul to another department whenever he becomes "stressed out" by a coworker or supervisor. It is difficult to imagine a more amorphous "standard" to impose on an employer.
Second, Gaul's proposed accommodation would also impose extraordinary administrative burdens on AT&T.
In order to reduce Gaul's exposure to coworkers who cause him prolonged and inordinate stress, AT&T supervisors would have to consider, among other things, Gaul's stress level whenever assigning projects to workers or teams, changing work locations, or planning social events. Such considerations would require far too much oversight and are simply not required under law.Gaul, 134 F.3d 576, 581 (3d Cir. 1998). This analysis in Gaul has been applied by numerous courts, including those in the Middle District of Pennsylvania, which have found that "a request to return to work under a different supervisor is . . . unreasonable." Dart v. County of Lebanon, Civ. No. 13-CV-02930, 2014 WL 4792135, at *10 (M.D. Pa. Sept. 23, 2014); see also Coulson v. The Goodyear Tire & Rubber Co., 31 F. App'x 851, 858 (6th Cir. 2002); Weiler v. Household Fin. Corp., 101 F.3d 519, 526 (7th Cir. 1996); Larson v. Virginia Dep't of Transp., Civ. No. 5:10-cv-0136, 2011 WL 1296510, at *2 (W.D. Va. Apr. 5, 2011) (compiling cases arriving at the same conclusion). Moreover, claims that the plaintiff's supervisor "was the alleged genesis of Plaintiff's disability does not distinguish this case from Gaul." Dart, 2014 WL 4792135, at 10; Larson, 2011 WL 1296510, at *2 (citing Coulson, 101 F.3d at 524-25) (observing that the plaintiff had asserted that her disabilities were caused by her supervisor).
Third, by asking to be transferred away from individuals who cause him prolonged and inordinate stress, Gaul is essentially asking this court to establish the conditions of his employment, most notably, with whom he will work. However, "[n]othing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.
In sum, Gaul does not meet his burden . . . because his proposed accommodation was unreasonable as a matter of law. Therefore, Gaul is not a "qualified individual" under the ADA, and AT&T's alleged failure to investigate into reasonable accommodation is unimportant.
In this case, the only accommodation that Ms. Ashelman and her treating psychiatrist, Dr. Robert N. Gerstman, requested was that she be transferred to a different position within Geisinger where she would not be supervised by Stacey Walsh. The plaintiff's letter requesting accommodation makes this clear:
I love my current position, but need reasonable accommodation since I am unable to return to that position because no one is able to help transfer me or switch me to a different supervisor. . . . [I] have done everything I have possibly could [sic] in the past 3 plus years to make my supervisor happy but she will not stop antagonizing me.(Def. SMF, Ex. GG, DEF 170-171.)
For his part, Dr. Gerstman wrote as follows:
It is my belief a reasonable accommodation should be made to let this patient work anywhere else within the Geisinger System aside from the Geisinger Wyoming Valley Endocrinology Department. I feel that her treatment in that department particularly with specific supervisors is detrimental to her well being and her mental state. She has made attempts to fix this. . . . due to her not being able to have a change in her supervisor
or a transfer, it has arrived to the point where she is physically and emotionally not able to return to work.(Id. at DEF171.)
In response, Geisinger rejected the plaintiff's requested accommodation, but continued to try to find a solution that would address the plaintiff's concerns in a manner that did not offend Geisinger policy, and extended the plaintiff special consideration:
Geisinger has decided that you may retain your employment status while you remain on short term disability following the expiration of your available [FMLA] leave on March 31, 2016 and apply, during that time, for any open positions for which you are qualified. This opportunity is being offered to you despite the fact that employees are not normally permitted to transfer to open positions for at least six (6) months following the issuance of a Performance Improvement Plan . . . You were placed on a Performance Improvement Plan on December 2, 2015.(Def. SMF, Ex. HH, P2.) Moreover, Geisinger indicated that it would provide the plaintiff's email address to the recruiting department with the instruction that they send a weekly report of all internal openings, and invited the plaintiff to apply by coordinating her request through the hiring department. As part of this effort to accommodate the plaintiff, Geisinger assured the plaintiff that neither the recruiting department nor any other department in the Geisinger system had been made aware of the plaintiff's medical condition or that she had requested a transfer away from her supervisor. (Id.)
The plaintiff rejected this offer, but remained in employment status until she resigned on May 25, 2016. (Id. at Ex. W, DEF361-362.)
Thus, the record shows that the plaintiff requested an accommodation that has repeatedly been found to be unreasonable as a matter of law, and that rather than terminating the interactive process at this point, Geisinger proposed alternatives to the plaintiff that she ultimately rejected. We find that this evidence shows that Geisinger continued its efforts to engage meaningfully with the plaintiff to find an accommodation that would suit her, but the plaintiff discontinued the process after finding Geisinger's proposals unacceptable. The law requires no more of Geisinger under these circumstances, and the plaintiff's claims fail as a matter of law to the extent they are based on Geisinger's refusal to allow the plaintiff to force a transfer to a new position and a new supervisor on her unilateral terms.
V. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the defendant's motion for summary judgment (Doc. 34) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge Dated: July 18, 2018