SEAN J. McLAUGHLIN, District Judge.
Plaintiff Mary Wolski commenced this civil action under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12117(a), and related provisions of the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, § 951 et seq., following her termination from employment as a firefighter with the City of Erie.
Summary judgment is proper only where the moving party has established "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "To demonstrate that no issue is in dispute as to any material fact, the moving party must show that the non-moving party has failed to establish one or more essential elements of its case on which the non-moving party has the burden of proof at trial." McCabe v. Ernst & Young, LLP, 494 F.3d 418, 424 (3d Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
To survive the motion, the non-moving party must go beyond its pleadings and point to specific facts which demonstrate that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548. An issue is considered "genuine" only if there is a sufficient evidentiary basis such that a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the action under governing law. Id. In adjudicating a Rule 56 motion, we view the underlying facts and all reasonable inferences arising therefrom in the light most favorable to the party opposing the motion—here, the Plaintiff. McCabe, 494 F.3d at 424; Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005).
Wolski was hired as a firefighter by the City of Erie in 1997. After initially working as a suppressionist, putting out fires, she eventually became a fire truck driver and performed her duties satisfactorily over the years.
In 2005, Wolski's mother became ill and Plaintiff took extended periods of approved leave from her job in order to care for her mother up until her death on December 24, 2005. The death of her mother caused Wolski significant grief and resulted in her taking additional approved leave time for much of 2006. During these extended absences, city officials maintained contact with Wolski in order to determine that she was receiving proper treatment and to encourage her return to work. No effort was made during this period to terminate, demote, or discipline Wolski as a result of her absences and, in fact, she received numerous sympathetic and supportive contacts from her co-workers.
In conversations with the City's benefits coordinator, Colleen Faytek, Wolski disclosed that she was seeing a psychiatrist, was on medications and was receiving counseling. Wolski eventually agreed to return to work on a part time basis, performing two half-days of light duty per week beginning December 12, 2006.
When December 12, 2006 arrived, however, Wolski did not report to work and the City was unable to contact her. Consequently, Fire Chief Anthony J. Pol sent his deputy, Vance Duncan, to Wolski's residence in order to check on her and assess her well-being. Deputy Chief Duncan's report of the encounter states, in relevant part:
(See Pl.'s Ex. F [23-8].) After leaving Wolski's house, Deputy Chief Duncan contacted City Hall and related the foregoing events to Chief Pol and Colleen Faytek. He also left a message for Connie Cook and then completed his written report of the incident.
On December 27, 2006, Wolski's immediate supervisor, Lt. Darren Hart, telephoned to check on Wolski in light of it being the anniversary of her mother's death. Wolski advised Lt. Hart that she was "freaking out, but I have my family with me, so I'll be okay."
The following day, Wolski went to the vacant home of her father (who was then hospitalized) and attempted to commit suicide. Inside the house, Wolski disconnected the smoke alarms and disassembled the furnace flue pipe in an attempt to produce carbon monoxide within the residence. She then ingested an overdose of her father's medications. When these suicidal measures failed, Wolski ignited some clothing in the bathtub of the house. Her intent was to create a smoky fire that would result in her death through carbon monoxide poisoning. After lighting the fire, she inflicted several cuts to her neck with a buck knife.
After family members discovered Wolski, City firefighters were dispatched to the scene via a 911 call. At that point, the fire was no longer engaged, but the firefighters sprayed down some areas with water to ensure that any hot spots would not reignite. Plaintiff was taken to the hospital by paramedics and later flown to Pittsburgh for emergency treatment relative to her overdose of medication and smoke inhalation.
In the wake of these developments, the City of Erie commenced a criminal investigation into the events of December 28, 2006. After determining that the fire had been intentionally set, law enforcement officers entered into discussions with the District Attorney about the possibility of filing criminal charges against Wolski. During this time, Wolski was represented by counsel and offered very little in the way of information about the fire.
Meanwhile, in March of 2007, while the District Attorney's office was still evaluating whether to file criminal charges, Wolski approached Fire Chief Pol at a retirement party and inquired about what she
After Wolski's sick leave time expired, Chief Pol advised her that she was being placed on a paid administrative leave effective April 3, 2007 "pending the completion of the investigation on a legal matter concerning you." (Pl's Ex. G [23-9] at p. 5.) Ultimately, the District Attorney declined to file charges based on the anticipated reluctance of the victim (Wolski's father) to participate in the prosecution, the relatively minor damage to his property, the possible difficulty in proving the necessary mens rea, and the mitigating factors involving Wolski herself.
On April 11, 2007, Chief Pol signed a letter of termination directed to Wolski. In relevant part, the letter stated:
(Defs.' Ex. A [19-2] at pp. 4-5). It is undisputed that present counsel for the City, Gerald Villella, Esq., drafted the letter, and that Chief Pol, Connie Cook, and the Mayor of the City of Erie all had input into the decision to terminate Wolski's employment.
Before sending the letter, Chief Pol contacted Wolski's attorney to inform him of the decision. According to Wolski, her lawyer advised her that same day that there was "good news and bad news," to wit: although no criminal charges were going to be filed against her, she was going to lose her job with the City. (Pl.'s Ex. D [23-6] at p. 12.)
After she was terminated from her job, Wolski unsuccessfully pursued a grievance procedure pursuant to her collective bargaining agreement. During this process, Wolski was represented by counsel and, because she anticipated pursuing a further administrative appeal to the City's Civil Service Commission, she offered very little information concerning the events of December 28, 2006. Among other things, she would not admit to having set the fire and refused to release her full mental health history.
At some point during this general time frame but after (June 26, 2007), Wolski submitted to the City a letter from Lance Besner, M.D, a treating psychiatrist. This letter, dated June 26, 2007, consisted of one sentence indicating that Wolski had been medically cleared to return to work as of March 15, 2007.
Wolski subsequently submitted another letter from Dr. Besner dated August 6, 2007 which purported to summarize Wolski's mental status, both past and present, as well as her medication trials. This letter was received by the City on August 28,
As set forth in Dr. Besner's August 6 letter, Wolski in November of 2006—approximately one month prior to her attempted suicide—had displayed a depressed and "mildly anxious" mood. Her affect was "mildly to moderately depressed," but appropriate to thought content. Her range of affect was "mildly restricted" and thought processes were goal directed. She showed no flight of ideas, loosening of associations, delusions, paranoid thoughts, or hallucinations, and she was denying any homicidal or suicidal thoughts. Her insight and judgment were thought to be fair. (Pl.'s Ex. K [23-13].) In fact, though it was not referenced in Dr. Besner's report, Wolski had attempted to take her own life on two other occasions prior to December 28, 2006.
As of August 6, 2007, Dr. Besner found Wolski's mood to be good and her affect euthymic and appropriate to thought content. Her range of affect was normal, and her thought process was goal directed. She exhibited no flight of ideas, no loosening of associations, no delusions, no paranoid thoughts, and no hallucinations. She denied any suicidal or homicidal thoughts, and her insight and judgment were felt to be "fair to good." (Pl.'s Ex. K [23-13].) As of August 6, Wolski was on a regimen of Wellbutrin, Seroquel, Restoril, and Ativan. (Id.)
On August 30, September 27, and November 20, 2007, the City's Civil Service Commission convened for hearings relative to Plaintiff's challenge of her termination. As provided under Pennsylvania law, Pa. Stat. tit. 53 § 39870, the Commission was charged with determining whether the City had established "just cause" to fire Wolski. In the course of the hearing, both Connie Cook and Chief Pol testified to the circumstances surrounding Wolski's termination.
As to the reasons he did not want Wolski back on the force, Chief Pol told the Commission the following:
(Def.'s Ex. 3 [19-3] at pp. 82-83.)
Chief Pol spoke to the fact that the City did not receive Dr. Besner's June 26, 2007 letter until after Wolski had already been fired from her job, despite Dr. Besner having cleared her to work as of March 15, 2007. When asked what might have been different, had Wolski presented the letter before being placed on administrative leave, Chief Pol responded:
(Def.'s Ex. 3 [19-3] at p. 84.)
Asked why he thought Wolski might be an ongoing risk in the future, Chief Pol responded:
(Def.'s Ex. 3 [19-3] at p. 91.)
Chief Pol further commented on concerns about the possibility of future incidents:
(Def.'s Ex. 3 [19-3] at pp. 91-93.)
On cross-examination, Wolski's counsel engaged in the following exchange with Chief Pol:
(Def.'s Ex. 3 [19-3] at pp. 96-97.)
At the civil service hearing, Connie Cook testified as to Wolski's previous refusal to disclose mental health treatment records and the City's concern that there had been no improvement in her mental state since the December 28, 2006 fire. (Pl.'s Ex. G [23-9] at pp. 3-4.) Ms. Cook was asked to comment on the extent to which the City "would [still] want those records and have the same concerns," had Wolski merely attempted suicide by drug overdose with no accompanying fire. Cook responded:
(Pl.'s Ex. G [23-9] at p. 4.) Ms. Cook further explained the basis for concerns about firefighters on medication:
(Pl.'s Ex. G [23-9] at p. 4.) With regard to the April 11, 2007 termination letter, which referenced the City's presumption that Wolski was an ongoing threat, Cook explained that the basis for that presumption was that Wolski was "still on medication" and, therefore, "not completely stable." (Id. at p. 6.)
Following three days of testimony, the Commission rendered an adverse decision on December 11, 2007, stating the following:
(Defs.' Ex. [19-1] at p. 1.)
Plaintiff appealed the Board's decision to the Erie County Court of Common Pleas on March 10, 2009 but withdrew the appeal shortly thereafter, rendering the decision of the Civil Service Commission final for purposes of state law. Wolski then unsuccessfully pursued an employment discrimination claim with the EEOC and was advised of her right to file a civil action. This action followed.
Title I of the ADA prohibits covered employers from discriminating against qualified individuals with disabilities because of their disabilities with regard to "terms, conditions, and privileges of employment" including, among other things, job application procedures and the hiring, advancement, or discharge of employees. See 42 U.S.C. § 12112(a). The Act defines a "qualified individual with a disability" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The term "disability" is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (B) a record of such impairment, or (C) being regarded as having such impairment. See 42 U.S.C. § 12102(2). Here, Wolski claims that the City violated the provisions of the ADA by intentionally discharging her because of her perceived disability, by violating the provisions of 29 C.F.R. § 1630.2(r) pertaining to employees who pose a "direct threat" in the workplace, and/or by failing to offer her a reasonable accommodation.
The City's first basis for seeking a summary judgment is premised on the doctrine of collateral estoppel, otherwise known as issue preclusion. More specifically, the City argues that Wolski is collaterally estopped from contesting the decision of the civil service commission which, it claims, "determined [that Wolski's] termination resulted solely from her own offensive actions." (Br. in Supp. of Def.'s Mot. for Summ. Judg. [19] at p. 5.) In support of this argument, the City cites Jones v. United Parcel Service, 214 F.3d 402 (3d Cir.2000).
Jones, however, does not support the application of collateral estoppel in the case at bar. In Jones, the plaintiff was an employee who had been injured on the job and had been receiving workers' compensation benefits. Some two years after the accident, the employer, UPS, filed a petition to terminate workers' compensation benefits on the ground that Jones had recovered from his injury. A workers' compensation judge agreed with UPS, and the matter was appealed to the Pennsylvania Workers' Compensation Appeal Board, which affirmed the termination of benefits. Jones then further appealed to the Pennsylvania Commonwealth Court, which affirmed the Appeals Board's ruling. The Pennsylvania Supreme Court subsequently denied Jones' request for further review of the matter.
In the meantime, while the state court workers' compensation litigation was still ongoing, Jones had filed a lawsuit in federal district court, claiming that UPS had
The City contends that a similar result should obtain here because Wolski had a full and fair opportunity to litigate, before the Civil Service Commission, her bases for disputing the termination of her employment. This Court does not agree that these circumstances justify application of collateral estoppel in the case at bar.
In Jones, the court's analysis was premised on its application of 28 U.S.C. §1738, which states, in relevant part, that the "judicial proceedings of any court of any ... State" shall be given "the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken." 28 U.S.C. §1738. See Jones, 214 F.3d at 406 ("We are therefore required by 28 U.S.C. §1738 to consider Jones's ADA claim in light of the irrefutable fact that as of December 1990 Jones had fully recovered from his work-related injury and was able to return to his position as a package car driver.") Section 1738, however, speaks specifically of giving full faith and credit to state court proceedings, and it therefore has application with respect to the decisions of state administrative agencies only when those decisions have been reviewed by state courts. See McLaughlin v. Fisher, 277 Fed.Appx. 207, 214 (3d Cir.2008) (Under 28 U.S.C. § 1738, federal courts must give state court judgments the same preclusive effect as would courts of the rendering state, and they must also give state administrative decisions that have been reviewed by a state court preclusive effect); Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir.1993) ("Decisions of state administrative agencies that have been reviewed by state courts are also given preclusive effect in federal court.") Because the decision of the workers' compensation judge in Jones had been litigated before the Pennsylvania Commonwealth Court—and had therefore been reduced to a state court judgment, the parties in that case conceded (as they would have had to) that the WCJ's findings should be afforded the same preclusive effect in district court as would be given by Pennsylvania courts. That is not the situation in this case, however, because the ruling by the Civil Service Commission was not the subject of any ruling or judgment in state court. Jones, therefore, is inapposite to the case at bar, and provides no basis for applying the "full faith and credit" mandate of 28 U.S.C. § 1738 in this case.
Moreover, the Supreme Court has held that unreviewed state administrative proceedings may not be given preclusive effect in Title VII cases, see Univ. of Tenn. v. Elliott, 478 U.S. 788, 796, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), or ADEA cases, see Astoria Federal Savings & Loan v. Solimino, 501 U.S. 104, 110-114, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), in light of the remedial statutory schemes established by these Acts. Although neither the Supreme Court nor the Third Circuit has yet addressed this issue in the context of ADA cases, numerous other federal courts have extended the holdings of Elliot and Astoria Federal Savings & Loan to ADA cases, holding (or suggesting in dicta) that
Based on the foregoing persuasive authority, this Court likewise concludes that no preclusive effect should be given to the unreviewed decision of the City's Civil Service Commission. Accordingly, Plaintiff is not collaterally estopped from contesting in this civil action the basis of the City's decision to terminate her employment.
The City alternatively moves for summary judgment on the grounds that Plaintiff cannot demonstrate the existence of a genuinely disputed issue of fact relative to pretext.
Claims of pretextual employment discrimination under the ADA follow the familiar burden-shifting paradigm outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir.1996), abrogated
If the plaintiff successfully makes out a prima facie case of discrimination, the employer may nevertheless prevail by articulating a legitimate, non-discriminatory reason for the adverse employment action. Sever v. Henderson, 220 Fed.Appx. 159, 161 (3d Cir. 2007) (citing Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.1998)) (citation omitted). To survive summary judgment at this stage, the plaintiff must produce evidence from which a fact finder could reasonably either disbelieve the employer's articulated legitimate reasons or believe that a discriminatory reason was more likely than not a cause of the employer's action. Id.
We assume for present purposes that Wolski has established a prima facie case of discrimination by showing that: (1) she was regarded as disabled by the relevant decision-makers and therefore "disabled" within the meaning of the Act; (2) she was qualified to perform her previous job; and (3) she suffered an adverse employment action when her employment was terminated.
In support of her case, Plaintiff argues that "a jury could find that the Plaintiff was terminated for reasons other than having burned some clothes in a bathtub to create smoke, namely that the City had an unexamined and generalized fear that an employee who attempts suicide automatically poses a direct threat" to others. (Pl.'s Mem. in Opp. to Mot. for Summ. Judg. [19] at p. 11.) Plaintiff further argues that the City violated the Act by failing to make an individualized assessment to determine whether she in fact posed a direct threat to others.
Plaintiff's theory as to the City's alleged failure to engage in an "individualized assessment" derives from a particular theory of liability under the ADA—namely, 42 U.S.C. § 12112(6), which defines discriminatory acts under the Act to include:
42 U.S.C. § 12113(a). The regulations go on to specify that "qualification standards" refer to "the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. § 1630.2(q).
For purposes of § 12113(a), the term "qualification standards" may include a requirement that an individual not pose a "direct threat" to the health or safety of other individuals in the workplace. 42 U.S.C. at § 12113(b). See also 29 C.F.R. § 1630.15(b)(2). A "direct threat" means "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Id. at § 1630.2(r). Where a perceived "direct threat" is invoked as a qualification standard, however, any determination that an individual poses a direct threat must be based on an "individualized assessment of the individual's present ability to safely perform the essential functions of the job." Id. Moreover, the regulations state that such an assessment "shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence." Id. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
Further guidance is provided by the EEOC's enforcement handbook relative to psychiatric disabilities, which states, in relevant part:
(EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at p. 219 ([23-1] at p. 17) (footnotes omitted).)
The EEOC's enforcement guide also speaks directly to the issue of attempted suicide:
(EEOC Enforcement Guide at Question 35, p. 220 ([23-1] at p. 18).)
In its reply brief, the City counters that there was no need for it to perform a "direct threat" analysis in this case because Wolski was subject to termination on the basis of her past misconduct. As the City points out, the same EEOC enforcement guidelines referenced by Wolski state that an employer may, without violating the ADA, discharge an employer for past misconduct which violates a workplace standard conduct:
(EEOC Enforcement Guide at Question 30, p. 217 ([23-1] at p. 15) (footnotes omitted).)
(EEOC Enforcement Guide at Question 31, p. 218 ([23-1] at p. 16) (footnotes omitted).)
Moreover, in a recent publication dealing more specifically with performance and conduct related standards, the EEOC has reiterated that Title I of the ADA "generally do[es] not impinge on the right of employers to define jobs and to evaluate their employees according to consistently applied standards governing performance and conduct." (Attachment 1 to Def.'s Reply Br. [25], The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities at p. 1 [25-1] at p. 1.) Under both the ADA and the Rehabilitation Act, "employees with disabilities must meet qualification standards that are job-related and consistent with business necessity and must be able to perform `essential functions' of the position, with or without reasonable accommodation." Id. Thus, if an individual's disability causes or results in the violation of a work conduct rule, the employer may discipline the individual, provided that the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. (See id. at p. 8 ([25-1] at 2) ("The ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability.").)
Case law supports the conclusion that, consistent with the foregoing principles, the ADA does not preclude employers from disciplining or even discharging their employees for past misconduct, even
For purposes of the "qualification standards" defense, it appears that the critical factor in determining whether future accommodation and/or an individualized assessment is required is whether the termination was premised upon past misconduct that violated a workplace standard or, rather, upon perceived safety or performance concerns going forward. Here, the City insists that the "individualized assessment" regulations pertaining to employees who pose a "direct threat" are inapplicable because Wolski was terminated solely on the basis of her past misconduct. However, this assertion merely begs the question whether in fact a jury would be required to find, as a matter of law, that Wolski's termination was premised solely on her own past misconduct or whether, on the contrary, a jury would be justified in finding that her termination was at least partly motivated by the City's generalized concerns relative to her perceived psychiatric disability. On this record at least, we cannot say that the record is so one-sided that a reasonable fact-finder would be precluded from finding that Wolski's perceived disability was a motivating factor in the City's decision to discharge her. Accordingly, the City's motion for summary judgment as to the ADA claim will be denied.
Although they are not bound to do so, Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts, among them the ADA. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.1998) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996)). This is due in part to the substantial
In doing so, we conclude that this record gives rise to a genuine dispute regarding whether or not Wolski's disability was a motivating factor in the City's decision to terminate her employment. For this reason, the Defendant's motion for summary judgment will be denied as to Wolski's claim under the PHRA.
Based upon the foregoing reasons, the Defendant's motion for summary judgment will be denied. An appropriate order follows.
AND NOW, this 25th Day of February, 2011, for the reasons set forth in the accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Motion for Summary Judgment in Behalf of Defendant City of Erie [17] be, and hereby is, DENIED.
Nevertheless, whether the City violated any terms of the civil service laws is not at issue in this case, nor does the City's compliance with those laws preclude the possibility that Wolski was a victim of disability-related discrimination. At issue here is not whether the City had legal grounds (i.e., "just cause") to fire Wolski, but whether, in fact, those grounds were the actual reasons relied upon by the City in terminating her employment to the exclusion of other, unlawful (i.e., disability-based) reasons. To establish the City's liability under a pretext theory, Wolski will ultimately have to prove that her disability was a motivating or determinative factor in the City's decision to fire her. Unlike the City, I do not believe that the Civil Service Commission's decision constitutes conclusive evidence that the relevant decision-makers in this case—i.e., Chief Pol, Connie Cook, and Mayor Sinnott—based their decision to discharge Wolski solely on her past misconduct. Again, whatever evidentiary support the Commission's decision may provide in this regard, it does not conclusively settle the issue.