Bequeath v. L.B. Foster Co.

367 F.Supp.2d 779

Cheryl BEQUEATH, Plaintiff, v. L.B. FOSTER COMPANY, Defendant.

No. CIV.A. 3:03-228J.

United States District Court, W.D. Pennsylvania.

April 25, 2005.

Joel S. Sansone, Esq., Pittsburgh.

Ralph A. Finizio, Esq., Jeffrey R. Gordon, Esq., Houston, Harbaugh, P.C., Pittsburgh.

MEMORANDUM OPINION AND ORDER

GIBSON, District Judge.

This case comes before the Court on L.B. Foster Company's (hereinafter "Defendant") Motion for Summary Judgment (Document No. 22) pursuant to Federal Rule of Civil Procedure 56. In consideration of the Defendant's Motion for Summary Judgment, Cheryl Bequeath's (hereinafter "Plaintiff") Response to Motion for Summary Judgment (Document No. 31), the Defendant's Reply Brief in Support of Defendant's Motion for Summary Judgment (Document No. 35), and the record in the case sub judice, the Court shall deny the Defendant's Motion for Summary Judgment for the following reasons.

JURISDICTION

Jurisdiction is proper in the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1331 based on federal question jurisdiction. Specifically, the Plaintiff has brought a claim at Count I under the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 623, et seq. This Court is empowered to exercise pendent jurisdiction of the Plaintiff's claims set forth in Count II under the Pennsylvania Human Relations Act (hereinafter "PHRA"), 43 P.S. § 951, et seq. pursuant to 28 U.S.C.A. § 1367. Jurisdiction is also invoked pursuant to 28 U.S.C.A. § 1343(4) and a notification of dismissal and right to sue letter was issued by the Equal Employment Opportunity Commission on or about July 16, 2003. (Document No. 1).

FACTUAL BACKGROUND

The Plaintiff was employed by the Defendant from December 10, 1979 until August 21, 2002. (Document No. 1). Initially, the Plaintiff was hired as a secretary at the Defendants' Bedford facility¹ (Document No. 23); however, throughout Plaintiff's employment she held various positions within the Defendant company, "the last of which was office administrator." (Document No. 1). At the time Plaintiff's employment with the Defendant ended the Plaintiff was fifty-seven years of age. Id.

In July of 2002, Mr. Jerry Oxford, assumed the position of Acting Plant Manager of the Bedford facility. (Document No. 23). When Mr. Oxford was hired, he also assumed the role of the Plaintiff's immediate supervisor and maintained that role from August 1, 2002 until the Plaintiff's employment with the Defendant ended, on or about August 21, 2002. (Document No. 1).

On or about August 11, 2002, the Plaintiff's husband, Alan Bequeath, contacted Fred Rose, who was then a foreman at the Bedford facility, to notify the Defendant that the Plaintiff would not be at work on Monday, August 12, 2002. (Document Nos. 1 & 23). Thereafter, on August 12, 2002, Mr. Rose contacted Mr. Oxford to relay Mr. Bequeath's message regarding the Plaintiff's absence from work. Id.

On August 12, 2002 the Plaintiff contacted her physician, Dr. Vincente Mendez, in order to obtain an excused medical absence. (Document No. 32, Foor Deposition, pp. 22-24). However, because Dr. Mendez was not in the office, the Plaintiff spoke to Ms. Nancy Foor, one of Dr. Mendez's staff members. Id. Ms. Foor stated to the Plaintiff that she would speak to Dr. Mendez regarding her request. Id.

Later on August 12, 2002, Dr. Mendez, authorized Ms. Foor to send a facsimile to the Defendant regarding the Plaintiff's absence. (Document No. 32, Affidavit of Dr. Mendez). Specifically, Dr. Mendez approved an unsigned medical authorization releasing the Plaintiff from work. Id. The facsimile consisted of a handwritten note from the office of Dr. Mendez on Dr. Mendez's prescription pad. (Document No. 23). The note stated the following: "Sheryl Bequeath to be off work for medical reasons from 8-12-02 to 8-28-02." Id. at 5. However, the authorization was unsigned because Dr. Mendez was not in the office on August 12, 2002. Id.

Dr. Mendez maintains that although he did not personally examine the Plaintiff on August 12, 2002, Dr. Mendez consulted with Mr. Timothy Grant, a mental health care provider associated with Dr. Mendez's office. Id. Based upon Mr. Grant's recommendation to approve the Plaintiff's medical leave of absence, Dr. Mendez approved the facsimile that was transmitted to the Defendant on August 12, 2002. Id.

On August 13, 2002, Mr. Oxford contacted Dr. Mendez's office and discovered that Dr. Mendez was not in the office on August 12, 2002. (Document No. 23). Specifically, Ms. Foor told Mr. Oxford that Dr. Mendez did not see the Plaintiff on August 12, 2002. (Document Nos. 23 & 32).

On August 13, 2002, Mr. Oxford also contacted the Plaintiff and "indicated to her that the submission of the note from Dr. Mendez's office was not an acceptable excuse." (Document No. 23, p. 6). Plaintiff responded that "she understood that", and she then requested to take some vacation days. (Document No. 25, Bequeath Deposition, p. 74). Mr. Oxford permitted the Plaintiff to take vacation days for the remainder of the week of August 12, 2002; however, Mr. Oxford requested the Plaintiff to return to work on Monday, August 19, 2002. (Document No. 23).

On August 19, 2002, the Plaintiff met with Mr. Oxford at the Bedford facility. (Document No. 23). During the meeting, Mr. Oxford explained to the Plaintiff that the submission of the unsigned medical excuse on August 12, 2002 was unacceptable under the Defendant's policy for excused medical absences. Id. Furthermore, Mr. Oxford told the Plaintiff that the unsigned excuse constituted fraud, and the Defendant had a right to terminate the Plaintiff for its submission. Id.

On August 20, 2002, the Plaintiff met with Mr. Oxford and Tim Pace, the Defendant's General Manager for Bridge Products. (Document Nos. 23 & 31). During this meeting, Mr. Oxford presented the Plaintiff with a "last chance agreement". Id. (Document No. 25, Bequeath Deposition, p. 92.) The agreement² addressed the Defendant's "strict policy regarding attendance and reporting to work." (Document No. 24). The agreement also set forth the Defendant's strict policy against "falsification of records and providing misleading information". Id. Additionally, the agreement acknowledged the Plaintiff's alleged misconduct which violated the Defendant's policies. Id. For example, the last chance agreement presented to the Plaintiff included claims that "over the past several years, [Plaintiff's] attendance, dependability and hours of work have been far below acceptable", (Document No. 31), and that the Plaintiff "fax[ed] a [d]octor's note that was not signed nor authorized by the doctor." (Document No. 24).

In spite of the Plaintiff's alleged misconduct, the Plaintiff's "long service and candor ... encouraged [the Defendant] to offer [the Plaintiff] a last chance." (Document No. 24). Accordingly, the Defendant would not terminate the Plaintiff at that time, yet the "last chance ... [would] depend upon the sincerity of [the Plaintiff's] regret and ... pledge to dramatically improve [her] attendance and dependability and to avoid even the appearance of any impropriety and unprofessional judgment and conduct in the future." Id. Accordingly, Mr. Oxford presented the last chance agreement for the Plaintiff's signature, and the Plaintiff was informed that she could write whatever she wanted on the agreement. (Document No. 23). If the Plaintiff refused to sign the last chance agreement, then she would be immediately dismissed from her employment with the Defendant. (Document No. 24). The Plaintiff refused to sign the last chance agreement.

The Plaintiff refused to sign the agreement because she believed that the agreement contained inaccuracies regarding her work performance history and the current alleged misconduct. (Document No. 31). Specifically, the Plaintiff refused to sign the agreement because she claimed that she never exhibited an attendance or dependability problem during her employment with the Defendant. (Document Nos. 23, 25 & 31). Indeed, the Plaintiff stated to Mr. Oxford during the August 20, 2002 meeting that she had never been verbally warned about attendance or absenteeism as referenced in the last chance agreement. (Document No. 23).

Another reason that the Plaintiff refused to sign the agreement was her denial that she had committed a fraudulent act. (Document No. 25, Bequeath Deposition, p. 93). The Plaintiff asserts that she sought a doctor's excuse for legitimate personal reasons. (Document No. 31). Although Mr. Oxford asked the Plaintiff to explain the reason for her absence during the prior week, the Plaintiff did not elaborate on the reasons for her absence. Id. In fact, Mr. Pace told the Plaintiff during the meeting that she was not required to give specific information regarding the personal reasons for her absence. Id.

Later on August 20, 2002 after the Plaintiff refused to sign the last chance agreement, Mr. Oxford contacted Mr. Walt Miles, the former Plant Manager of the Defendant's Bedford facility. (Document Nos. 23 & 31). Mr. Miles indicated that he "never specifically warned [the Plaintiff] about absenteeism or attendance during the time he was her supervisor." (Document No. 23, p. 8). Thereafter, based upon Mr. Miles' statements, Mr. Oxford removed the following language from the last chance agreement: "You have been verbally warned about this behavior..." and "As this is your second infraction ..." Id.

On August 21, 2002, Mr. Oxford and the Plaintiff met again at the Bedford facility. (Document No. 23). Mr. Oxford explained to the Plaintiff that he had spoken with Mr. Miles regarding the Plaintiff's employment history. Id. Mr. Oxford also stated that he revised the last chance agreement to remove references regarding verbal warnings or infractions. Id. However, Mr. Oxford still intended for the Plaintiff to sign the last chance agreement based upon the...