Abror v. Pa. Dep't of Labor & Indus. Office of Vocational Rehab.

FRANK ABROR, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABORAND INDUSTRY OFFICE OF VOCATIONAL REHABILITATION, Defendant.

1:17-cv-02221

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

June 28, 2019

Hon. John E. Jones III

MEMORANDUM

In the instant case, Plaintiff alleges that he was discriminated and retaliated against by his former employer and that he was constructively discharged. Presently pending before the Court is Defendant's motion for summary judgment, (Doc. 18), seeking summary judgment as to all counts in Plaintiff's complaint. The matter has been fully briefed, (Docs. 23, 24, 25), and is ripe for disposition. For the reasons that follow, Defendant's motion shall be granted.

I. BACKGROUND

Frank Abror ("Plaintiff" or "Abror") was employed by the Pennsylvania Department of Labor and Industry ("Defendant" or "Department") from January 1997 until his retirement on October 21, 2016. (Doc. 20-1 at 18:10-14). Plaintiff is African American, visually impaired, and hearing impaired. (Doc. 24 at 9). From his hire until 2009, Plaintiff was subject to only minimal discipline, including counseling, an oral reprimand, a written reprimand, and a one-day suspension without pay. (Doc 20-1 at 22:5-14). The one-day suspension, however, was eventually appealed and overturned. (Id. at 22:8-18; Id. at 13:10-12).

Relevant to the instant motion, at the Department, disciplinary action begins with counseling. In the event counseling is ineffective, a supervisor is entitled to escalate the matter using oral reprimands, written reprimands, suspensions of one, two, or three days without pay, and, if all else fails, termination. (Id. at 36:13-37:6). To be clear, however, neither counseling, nor oral reprimands, nor written reprimands impact an employee's pay or benefits. (Id. at 37:7-38:8).

Notwithstanding his disciplinary history, in May 2009, Plaintiff was promoted to Vocational Rehabilitation Supervisor. (Id. at 30:14-18). In an employee review filed on December 22, 2014, Plaintiff received all satisfactory ratings.¹ (Doc. 20-2, Exh. 2).

In January 2016, Plaintiff visited the emergency room where he was diagnosed with "stressful workplace environment," and subsequently informed the Department of his diagnosis. (Doc. 20-1 at 119:17-120:24). Nonetheless, in February 2016, Plaintiff alleges that he was temporarily assigned an increased caseload as a "placeholder" for cases supervised by recently-retired workers. (Doc. 20-7 at 51:1-18).

In an employee review for the period of December 22, 2015 through March 21, 2016, Plaintiff received six "unsatisfactory" ratings and two "needs improvement" ratings. (Doc. 20-3). In an employee review from March 22, 2016 through June 21, 2016, Plaintiff received six "unsatisfactory" ratings and two "needs improvement" ratings. (Doc. 20-4). Plaintiff's supervisor, Nicole Wade ("Wade"), clarified in these reviews that Plaintiff was not finishing assignments, was not attending meetings, and was sleeping during meetings. (Doc. 20-7 at 81:4-13).

On February 9, 2016, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") alleging discrimination.² (Doc. 1 at 14). Defendant received the complaint on February 24, 2016. (Id. at ¶ 34).

On April 19, 2016, Plaintiff received an oral reprimand from Wade for failing to complete assignments. (Doc. 20-5). Notwithstanding his inability to maintain his current workload, Plaintiff contends that Wade assigned him even more work and instructed him to personally call all of the Department's clients in a certain region to check in with them—a significant task. (Doc. 20-7 at 53: 13-19).

On July 26, 2016, Plaintiff attended a fact-finding meeting to discuss with Wade his failure to complete assignments. (Doc. 20-1 at 44:19-24). At the meeting, Plaintiff stated that he did not have the necessary updated equipment to accommodate his disabilities and that, as a result, he was overloaded with assignments. (Id. at 44:19-46:9). On August 24, 2016, Plaintiff received a written reprimand for failure to complete assignments, which was included in his personnel file. (Doc. 20-6). According to Plaintiff, when he was presented with his reprimand, he cried. (Doc. 20-1 at 47:20-48:5).

On September 30, 2016, Wade sent an email to Elizabeth Yarnell³ stating that she had spoken with Plaintiff about office safety, particularly his use of his white cane in the office. (Doc. 24-1).

On October 6, 2016, Plaintiff sent an unsolicited email to Adrienne Kuhn⁴ stating:

I am proud to announce my twenty years of service to the Commonwealth. I am very excited my long AWAITED twenty (20) years of service is here which qualifies me to retire with health benefits. I would therefore like to notify you of separation of my employment from the Commonwealth effective October 22, 2016. My last day of work therefore is Friday, October 21, 2016.

(Doc. 20-8) (capitalization in original).

On December 4, 2017, Plaintiff filed a complaint in this Court. (Doc. 1). In Counts I and II, Plaintiff alleges racial discrimination under Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act ("PHRA"). (Id. at ¶ 14-29). Plaintiff alleges that he was discriminated against and treated differently than similarly situated colleagues as a result of his race and that this difference in treatment resulted in loss of future pay, loss of career opportunities, and other damages. (Id. at ¶ 24). In Counts III and IV, Plaintiff alleges that he was unlawfully retaliated against in violation of Title VII and the PHRA. (Id. at ¶ 31-47). Plaintiff avers that his increased workload, his unsatisfactory reviews, and his written and oral reprimands were retaliation for filing his PHRC and EEOC complaint. (Id. at ¶ 33-40). In Count V, Plaintiff alleges that Defendant's actions amounted to a constructive discharge in violation of the PHRA. (Id. at ¶57-58). Plaintiff alleges that his increase in workload as well as Wade's reprimands, unsatisfactory reviews, request that he use his white cane, and refusal to update his adaptive computer to accommodate his disability left him no choice but to resign.(Id. at ¶ 51-57). Defendant filed an answer on February 16, 2018 denying Plaintiff's allegations. (Doc. 9 at ¶ 16-60).

On February 1, 2019, Defendant filed a motion for summary judgment, (Doc. 18), and a brief in support thereof on February 15, 2019. (Doc. 23). The matter has now been fully briefed, (Docs. 23, 24, 25), and is ripe for disposition. For the reasons that follow, Defendant's motion shall be granted.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the moving party establishes "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). A dispute is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is "material" only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1). A plaintiff that fails to dispute a genuine issue of material fact as to any of the elements of his or her prima facie case has not met his or her initial burden and summary judgment is properly granted for the defendant. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

In the instant case, Defendant seeks summary judgment as to all of Plaintiff's claims, contending that Plaintiff has failed to make out a prima facie case of discrimination, retaliation, or constructive discharge. Because Plaintiff relies upon his constructive discharge as one of the adverse employment actions upon which his discrimination and retaliation claims are based, we first review Defendant's motion for summary judgment as to constructive discharge. We then review Defendant's remaining arguments seriatim.

a. Count V - Constructive Discharge

In his complaint, Plaintiff alleges that he was constructively discharged. Specifically, Plaintiff argues that his poor performance evaluations and reprimands, his continuously increasing work-load, and his supervisor's continued increase of his workload even after...