Parker v. Verizon Pennsylvania, Inc. , 309 F. App'x 551 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-4-2009
Parker v. Verizon PA Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4829
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Parker v. Verizon PA Inc" (2009). 2009 Decisions. Paper 1924.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1924
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4829
RAY A. PARKER; CAULETTE PARKER
v.
VERIZON PENNSYLVANIA, INC.;
KIMBERLY K. ONESKO;
GEORGE ONESKO
Ray A. Parker,
Appellant
Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 07-00435)
District Judge: The Honorable Arthur J. Schwab
Submitted Under Third Circuit LAR 34.1(a)
December 2, 2008
Before: AMBRO and GREENBERG, Circuit Judges
O’NEILL * , District Judge
*
The Honorable Thomas N. O’Neill, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
(Opinion filed February 4, 2009)
OPINION
O’NEILL, District Judge
Appellant Ray A. Parker appeals from an order granting summary judgment in
favor of appellee Verizon Pennsylvania Incorporated on his employment discrimination
and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101, et seq., and his interference and retaliation claims under the Family Medical
Leave Act (FMLA), 29 U.S.C. §§ 2601, et seq.1 For the following reasons, we will
affirm.
I.
Because we write only for the parties, our factual summary is brief. These facts
are viewed in the light most favorable to Parker, who was hired in November 2003 to
work in Verizon’s Robinson Township Call Center as a Customer Sales and Service
Consultant. His primary job duty was to answer telephone calls from Verizon customers
with service or billing issues and enter the relevant information into a computer.
In August 2004, Parker’s treating physician, Dr. Kamlesh B. Gosai, diagnosed him
with sarcoidosis, an autoimmune disease causing inflamation of the lungs, and pulmonary
fibrosis, the formation of scar tissue in the lungs creating an inability to exchanges gases
1
The District Court dismissed without prejudice Parker’s state law claim of trespass but
the dismissal of this claim is not an issue on appeal.
2
resulting in hypoxemia. This condition affected Parker’s ability to breathe and talk.
This same month, he began his first of three short-term disability leaves. He
returned in December 2004 to the same job. He began his second short-term disability
leave shortly thereafter and returned to work in February 2005.
Prior to Parker’s return in February 2005, Dr. Gosai sent a letter to Verizon 2
recommending that: (1) Parker be permitted to work a shorter work week and work day;
(2) Parker be assigned work that does not involve talking on the telephone; (3) Parker’s
commute be shortened; and (4) Parker initially work three days per week with one day off
in between each day. Onesko, an absence administrator, spoke to Parker about the
requested accommodations. Parker was given a reduced schedule of fewer hours each
day instead of working three days with a day off in between. Parker was placed in an
“off-line” position where he was required to input customer information into a database
but no external or internal customer contact was required. Verizon did not transfer Parker
to Verizon’s Greensburg or Uniontown facilities to accommodate a shorter commute
because it deemed the request unrelated to Parker’s ability to perform his job.
Parker requested a transfer to a less physically demanding job in the spring of
2005. In May 2005, Parker learned of a position in the Greensburg office for employees
with medical restrictions that allowed customer contact but no sales. Parker contacted Dr.
2
As explained by appellants, Verizon contracts with MetLife to administer all employee
disability and restriction claims. Verizon defers to MetLife’s decisions with regard to any
restrictions which are placed on the employee’s ability to perform his or her job. Verizon
employees with medical problems are referred to MetLife, and MetLife gathers information on
the employee’s medical problem and conveys the employee’s restrictions to Verizon.
3
Gosai, who changed Parker’s restrictions to allow customer contact with no sales. Parker
testified that this change was due to a slight stabilization of his condition.
In November 2005, Parker was denied a scheduled pay raise. He filed a grievance
and received the pay raise.
In December 2005, Parker began his third leave of absence and returned to work in
February 2006 with restrictions; he was not to talk on the telephone or to have customer
contact. Upon his return, Parker claims that Broggi yelled at him in front of co-workers
after learning of his restrictions and tried to force him to resign. Parker alleges that
Broggi yelled that “this is a call center and if you can’t take calls then we have nothing
for you to do.” He claims that Broggi repeatedly asked him if he was telling her that he
was resigning. When Parker told her that he did not intend to resign, Parker alleges that
Broggi said “if you’re not taking calls there’s no work for you to do here so you must be
telling me that you’re resigning.” Parker was again restricted from having customer
contact or sales.
The next day Parker was assigned to the “off-line” group of restricted employees
that had been transferred to Verizon’s Washington, Pennsylvania facility, which was
closer to his home. A February 2006 email from non-decisionmaker Onesko to
decisionmaker Broggi and Nelson stated: “I see - attached below - that [Parker] has his
restrictions back. I really hate to send him to the Washington office, because he lives in
Bentleyville.” Onesko admitted that she made this comment because she was frustrated
4
with Parker.
In July or August 2006, Parker purchased and was constructing a ranch-style
modular home because of his difficulty in climbing stairs. During the construction,
Parker lived with his aunt whose home was three blocks from the site of his new home.
On September 14, 2006, Parker called in sick at 7:45 a.m. He testified that he had
taken his medicine the night before and had nausea and diarrhea through the night.
Parker went to the construction site of his new home. His wife, Caulette Parker, had
taken a half-day off from work and construction workers and Caulette Parker’s father
were scheduled to be working on the house that day.
Andrew Roberts saw Parker at the construction site and called his wife, Verizon
manager Debra Roberts, to inform her that he saw Parker unloading materials from a van.
Parker denied helping to move materials or doing work on the house. Debra Roberts
communicated her husband’s observations to Onesko and Susan Nelson, another absence
administrator. Onesko and Nelson decided that Onesko would conduct a home visit, and
Onesko asked her husband George Onesko to accompany her. Onesko observed Parker at
the construction site, and after conferring with Verizon Labor Relations Manager Cindy
Marinari decided to approach him. Onesko claims that she heard an electric saw being
used in the basement and that Parker came up from the basement perspiring and wiping
his hands on a rag. Onesko prepared a typed memorandum of the events that noted that
“[a]t this point the saw stopped running.” In their conversation, Parker told Onesko that
5
he was feeling better but not well enough to go into work.
On September 15, 2006, Parker was suspended from employment pending further
investigation of potential falsification of his medical condition. On September 26, 2006,
management employees Susan Nelson, Cindy Marinari, Rori Broggi and Michael Billups
decided to discharge Parker based on his misrepresentation of his health condition in
violation of Verizon’s Code of Business Conduct. Verizon’s Code of Business Conduct,
Section 3.3.1 Company Benefits, states:
Verizon’s benefits plans and programs are provided as compensation and
must be used honestly. You must not misrepresent your health status, your
covered members, your beneficiaries, or any other facts, including reasons
for absence, in order to claim benefits to which you, or someone else, are
entitled.
Parker disagrees that he misrepresented his health condition. He also testified in his
deposition that he could not “think of any” instance where Verizon personnel refused to
discuss any reasonable accommodations with him.
Parker filed a complaint with the United States District Court for the Western
District of Pennsylvania. On November 30, 2007, the District Court granted summary
judgment in favor of Verizon on all claims. The District Court held that Parker failed to
establish a prima facie case of disability discrimination under the ADA. The Court held
that Parker arguably established that he was disabled and a qualified individual but that he
“presented no evidence to create a material issue of fact that he suffered an adverse
employment action as a result of discrimination” by Verizon’s termination of his
6
employment, its failure to accommodate his disability or its failure to engage in the ADA
interactive process in good faith. Despite finding that Parker failed to make a prima facie
showing, the District Court alternatively found that Parker failed to present sufficient
evidence that Verizon’s reason for discharging him was pretextual. The Court also held
that Parker failed to establish a prima facie case of retaliation because he failed to present
sufficient evidence of a causal link between his protected activity and his termination.
The Court held that Parker’s FMLA interference claim failed because he presented no
evidence that Verizon interfered with his FMLA rights and Verizon was more than
reasonable in its accommodation of his conditions. Finally, the Court dismissed the state-
law trespass claim without prejudice.
Parker thereafter timely appealed.
II.
The District Court had jurisdiction over this diversity action under 28 U.S.C.
§ 1331. We have jurisdiction over the final order of the District Court pursuant to 28
U.S.C. § 1291.
We exercise plenary review over the District Court’s decision to grant summary
judgment. NBT Bank Nat’l Assoc. v. First Nat’l Comm. Bank, 393 F.3d 404, 409 (3d
Cir. 2004). “Affirming the grant of summary judgment is proper where there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law.” Id. (citation omitted). We resolve all factual doubts and draw all reasonable
7
inferences in favor of the nonmoving party. See DL Res. Inc. v. FirstEnergy Solutions
Corp., 506 F.3d 209, 216 (3d Cir. 2007).
III.
Parker alleges that Verizon discriminated against him under the ADA by
discharging him and by failing to engage in the interactive process 3 and under the FMLA
by interfering with his rights when it terminated him rather than restoring him to his
position after he took FMLA leave. Parker also alleges that Verizon discharged him in
retaliation for engaging in protected activity under the ADA and FMLA.
A. Parker’s Discrimination and Retaliation Claims Involving his Termination
We apply the familiar burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to discrimination and retaliation claims under the
ADA and the FMLA. Under this scheme: (1) plaintiff bears the burden of establishing a
prima facie case of discrimination; (2) the burden of production then shifts to defendant
to articulate a legitimate, nondiscriminatory reason for the adverse employment action;
and (3) if defendant meets its burden of production, plaintiff must prove by a
preponderance of the evidence that defendant’s proffered reason was a pretext for
3
Parker has not appealed the District Court’s grant of summary judgment in favor of
Verizon for his ADA discrimination failure to accommodate claim. His brief does not argue this
claim. Instead, the ADA discrimination section of his brief argues only that Verizon failed to
engage in the interactive process in good faith and that his termination was pretextual.
Therefore, this issue has been waived on appeal and we need not consider it. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993), holding that a failure under Federal Rule of
Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a) to set forth
the issues raised on appeal and to present an argument in support of those issues in an opening
brief results in waiver of the issues on appeal.
8
discrimination. McDonnell Douglas, 411 U.S. at 802.
Assuming that Parker established a prima facie case for his ADA and FMLA
discrimination and retaliation claims involving his employment termination,4 Verizon met
its burden of demonstrating a legitimate, nondiscriminatory justification for Parker’s
discharge with evidence that Parker was terminated for misrepresenting his health status
in violation of Verizon’s Code of Business Conduct. See McDonnell Douglas, 411 U.S.
at 802; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Parker argues that this
justification is pretext for discrimination.5 McDonnell Douglas, 411 U.S. at 804.
4
Although the District Court found that Parker did not establish a prima facie case for
these claims, for Parker’s ADA discrimination claim it alternatively considered whether Parker
established that Verizon’s reason for Parker’s termination was pretextual. Parker alleges that the
evidence of pretext he produced for his ADA discrimination claim also applies to his other
claims. Because the District Court would have been justified in granting summary judgment on
each claim involving his termination on the ground that Parker failed to establish proof of
pretext, we will address these claims together at the pretext stage. See Dorsey v. Pittsburgh
Assoc., 90 Fed. Appx. 636, 637 (3d Cir. 2004), affirming the District Court’s opinion but on
alternative pretext grounds, not the failure to establish a prima facie case grounds the District
Court found. Parker’s FMLA interference claim and ADA failure to engage in the interactive
process claim will be addressed separately, as these claims do not concern Parker’s termination.
5
Parker argues that Verizon waived its right to move for summary judgment on his ADA
retaliation claim because it was raised for the first time in Verizon’s reply brief to the District
Court. Parker concedes that the same evidence of pretext applies to his ADA retaliation claim as
his FMLA retaliation claim and therefore he has not been prejudiced even if Verizon’s motion
did not clearly argue the ADA retaliation claim when it moved for summary judgment on all of
his claims. Moreover, Parker filed a sur-reply brief which addressed this issue. See Salazar v.
City of Phila., 2007 WL 1847402, at *1 n.5 (E.D. Pa. June 25, 2007), holding that even having
the opportunity to file a sur-reply is sufficient to allow consideration of a claim first briefed in a
reply.
Additionally, Parker’s claim that the District Court did not properly address this claim in
its opinion fails. In discussing retaliation, the District Court mentioned that Verizon “had been
accommodating Parker’s alleged disabilities for approximately two years prior to his
9
To show pretext, Parker must present “some evidence . . . from which a factfinder
could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.” Fuentes, 32 F.3d at 764-65; see also Torre
v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994). To discredit the proffered reason, Parker
cannot simply show that the employer's decision was wrong or mistaken but must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of credence” and hence infer
that the employer was not actually motivated by its proffered nondiscriminatory reason.
Fuentes, 32 F.3d at 765, citing Ezold v. Wolf, Block, Shorr & Solis-Cohen, 983 F.2d 509,
531 (3d Cir. 1992). To show that discrimination was more likely than not a motivating or
determinative cause of Verizon’s action, Parker “must point to evidence with sufficient
probative force” for a factfinder to make this conclusion; i.e. that Verizon has previously
discriminated against him, that Verizon has discriminated against other persons within
Parker's protected class or within another protected class or that Verizon has treated more
favorably similarly situated persons not within the protected class. Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998).
termination.” Although the retaliation section’s analysis was brief and the ADA retaliation claim
appears to be integrated with the FMLA retaliation claim, Parker offered identical evidence for
both claims and the overall opinion from the District Court therefore establishes that Parker’s
ADA retaliation claim fails.
10
Parker agues that the following evidence supports his contention that Verizon’s
justification is pretext for all of his claims: (1) his denial that he misrepresented his
health on September 14, 2006 or did any work on his home that day; (2) the inconsistency
between Onesko’s accounts of events in her memorandum after the incident and in her
deposition testimony regarding when the saw stopped running; (3) the decisionmakers not
having specific information regarding Parker’s illness to know whether he misrepresented
his health and not consulting any health care providers on the issue; (4) the policy that he
was expected to stay home while on FMLA leave never being communicated to him; (5)
the admission by Onesko in her deposition that she stated that she “hated” to transfer
Parker to the Washington office because she was frustrated with Parker’s restrictions; (6)
the alleged incident where Broggi yelled at him and tried to force him to resign because
of his restrictions in February 2006; and (7) the scheduled pay raise denied to him after he
disclosed his condition which he had to file a grievance to get.
First, Parker attempts to discredit Verizon’s reason for discharging him by denying
that he misrepresented his health condition on September 14, 2006 and that he did any
work at the construction site of his home. However, the question is not whether
Verizon’s decision was wrong or mistaken but whether Verizon acted with discriminatory
animus. Geddis v. Univ. of Del., 40 Fed. Appx. 650, 652 (3d Cir. 2002). Parker’s
continued denial that he misrepresented his health is insufficient to discredit Verizon’s
reason for firing him; he must instead demonstrate weaknesses, implausibilities,
11
inconsistencies, incoherencies or contradictions in this reason to permit a reasonable jury
to find Verizon’s justification unworthy of credence. Fuentes, 32 F.3d at 765. He has not
presented such evidence. His denial that he preformed any work while at the construction
site does not contradict Verizon’s decision that he misrepresented his health by claiming
he could not be at work but could be at the construction site of his home. Parker does not
deny being at the construction site on September 14, 2006. Thus, his denial that he
misrepresented his health condition and that he worked at the construction site is not
sufficient evidence to discredit Verizon’s reason for his termination. Any material issue
that the evidence of his denial creates goes solely to whether the decision was wrong, not
discriminatory.
Second, Parker argues that Verizon proffered “inconsistent” justifications for his
discharge because Onesko’s account of when the saw stopped running in her
memorandum differed from her deposition testimony. Parker alleges that in the typed
memorandum after the incident Onesko stated the saw stopped running after Parker came
up from the basement and that in her deposition Onesko stated the saw stopped running
before Parker came up from the basement. While it is true that inconsistency in the
employer’s reason is indicative of pretext, see, e.g., Fuentes, 32 F.3d at 764, Verizon's
justification has not been inconsistent. When Verizon fired Parker, it provided the
justification that it was because he misrepresented his health condition in violation of
Verizon’s Business Code of Conduct. Parker took FMLA leave because he was too ill to
12
work but spent the day at a construction site with his wife, father-in-law and contractors.
Verizon has never provided a different reason; the reason has remained consistent.
Parker argues that, even if Verizon’s reason was not inconsistent because of
Onesko’s alleged inconsistent statements, Kowalski v. L & F Prod., 82 F.3d 1283 (3d Cir.
1996), supports his contention that Onesko’s alleged inconsistent statements made
Verizon’s reliance on Onesko’s observations to justify Parker’s termination pretextual. In
Kowalski, this Court held that the “facial accuracy and reliability of the [investigative]
report is probative of whether [the employer] acted in good faith reliance [on its]
conclusions: the less reliable the report may appear, the greater the likelihood that [the
employer’s] reliance on it to justify” the adverse action was pretextual. See Kowalski, 82
F.3d at 1290. This Court found that there were “very serious questions regarding the
reliability of the investigator’s report” that raised a genuine issue of material fact
regarding whether the reason for Kowalski’s termination was pretextual. Id. Here, the
alleged inconsistency between Onesko’s accounts of when the saw stopped did not exist
at the time Verizon made its determination to discharge Parker; the allegedly inconsistent
statement arose from Onesko’s deposition which was after Verizon made the decision to
terminate Parker. Because Parker fails to show any inconsistencies in the alleged facts on
which Verizon relied to make its determination that casts doubt on Verizon’s reasoning,
this argument fails to support his contention that Verizon’s reasoning was pretextual.
Third, Parker argues that Verizon’s reason should be discredited because none of
13
the decisionmakers had specific information regarding Parker’s illness sufficient to
determine whether he misrepresented his health and they did not consult any health care
providers on the issue. Parker does not allege that the decisionmakers had no knowledge
of his health condition. Detailed information was not required for Verizon to determine
that Parker misrepresented his health condition by claiming that he was too sick for work
and then spending the day at the construction site of his home. Even if Parker showed
how more specific information would have demonstrated that Verizon’s decision was
wrong, no evidence exists that the decision was discriminatory. See Fuentes, 32 F.3d at
765. Thus, this evidence is insufficient to allow a reasonable jury to find Verizon’s
reasoning unworthy of credence.
Fourth, Parker claims that Verizon’s reason is pretextual because an alleged
unwritten policy that he was expected to stay home during FMLA leave was never
communicated to him. However, Parker was discharged for violating Verizon’s Business
Code of Conduct by misrepresenting his health condition, not for leaving his home while
on FMLA leave. Thus, any failure to inform him of such a policy cannot establish pretext
because it is immaterial in determinating whether the policy he was fired for violating
was pretext for discrimination. Thus, this argument fails to support a claim that Verizon’s
reason was pretextual.
Parker’s fifth, sixth and seventh claims shift his focus from discrediting Verizon’s
justifications to suggesting “invidious discriminatory reason[s that] more likely than not”
14
motivated Verizon’s decision. Fuentes, 32 F.3d at 764. His fifth claim argues that
Onesko’s admission in her deposition that she stated in a February 2006 email that she
“hated” to transfer Parker to the Washington office, which was closer to his home
because she was frustrated with Parker’s restrictions, is sufficient evidence of pretext.
Parker’s sixth claim argues that his alleged exchange with Broggi in February 2006, in
which she yelled at him and tried to force him to resign because of his restrictions, also is
sufficient evidence of pretext.
In considering whether stray remarks, such as the comments made by Onesko and
Broggi, are probative of discrimination, this Court has considered the following factors:
“(1) the relationship of the speaker to the employee and within the corporate hierarchy;
(2) the temporal proximity of the statement to the adverse employment decision; and (3)
the purpose and content of the statement.” Ryder v. Westinghouse Elec. Corp., 128 F.3d
128, 133 (3d Cir. 1997); see also Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1112 (3d Cir. 1997). “Stray remarks by non-decisionmakers or by decisionmakers
unrelated to the decision process are rarely given great weight, particularly if they were
made temporally remote from the date of decision.” Fuentes, 32 F.3d at 767, quoting
Ezold, 983 F.2d at 545.
Assuming that the remarks by Onesko and Broggi were made as Parker alleges, the
remarks occurred seven months before his termination and did not directly relate to the
decision. Additionally, three other Verizon managerial employees were involved in the
15
decisionmaking process with Broggi and there is no evidence that these three managerial
employees demonstrated discriminatory animis. In the months after the remarks and
before Parker’s termination, the record shows that Verizon continued to accommodate
Parker’s disability and his need for intermittent FMLA leave. For example, Verizon
allowed Parker to take intermittent leave, transferred him to the Washington office,
permitted reduced work hours and provided an off-line position for him while
maintaining his rate of pay and benefits. Even viewing the facts in the light most
favorable to Parker, we decline to depart from the principle that such stray remarks are
rarely given great weight when made temporally remote from the decision to terminate
Parker. See Keller, 130 F.3d at 1112, holding that where plaintiff's manager commented
during a meeting five months prior to the termination that plaintiff should hire additional
assistant managers if he was getting too old to travel, manager's comment could not
“reasonably be viewed as sufficient to prove by a preponderance of the evidence that age
was a determinative cause of Keller's subsequent termination”; Ezold, 983 F.2d at 545.
The record as a whole does not support that two stray comments made months before
Parker’s discharge, and followed by continued accommodations, support that Verizon’s
decision to discharge Parker was actually motivated by discriminatory intent and not the
reason proffered.
Parker further argues that these stray comments support his contention that those
with discriminatory animus influenced or participated in the decision with the other
16
managerial employees. It is true that, “[u]nder our case law, it is sufficient if those
exhibiting discriminatory animus influenced or participated in the decision to terminate.”
Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d. Cir. 2001),
citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). However, unlike the
cases on which he relies, Parker failed to develop evidence that the people who
influenced or participated in the decision to terminate him exhibited discriminatory
animus. As discussed above, a stray comment from Onesko and one from Broggi do not
sufficiently establish discriminatory animus as to find that Broggi’s involvement, or any
influence that Onesko may have had, tainted the decision to terminate Parker’s
employment for misrepresenting his health condition.
Finally, Parker argues that his denial of a scheduled pay raise after he disclosed his
condition is sufficient evidence of pretext. The denial occurred in November 2005 and he
subsequently received the pay raise after filing a grievance. Parker has not provided
evidence to show that this denial was connected to his disability, let alone evidence to
establish that the denial shows a discriminatory animus that caused him to be terminated a
year later. Verizon was aware of restrictions that Parker requested in February 2005 and
was continuing to accommodate him in November 2005. Moreover, the accommodations
made by Verizon and the FMLA leave approved in the period between this denial and his
termination suggest the contrary. Therefore, this evidence, even when considered with
Parker’s other evidence, lacks the probative force to show that Verizon’s justification is
17
pretextual.
Parker presented insufficient evidence for a reasonable factfinder to conclude that
Verizon's legitimate, nondiscriminatory justification for his dismissal was pretextual.
Without evidence indicating that Verizon’s decision was based on a discriminatory
motive, its decision will not be judged even if the decision is wrong. See Ezold, 983 F.2d
at 527. In any event, Parker has not provided sufficient evidence for a reasonable
factfinder to discredit Verizon’s justification for Parker’s termination or to find that a
discriminatory animus was more likely than not a motivating factor in Verizon’s decision.
We will affirm the District Court’s dismissal of these claims on the alternative ground of
failing to provide sufficient evidence that Verizon’s legitimate, nondiscriminatory
justification for his discharge was pretextual.
B. Parker’s ADA Failure to Engage in the Interactive Process Claim
Parker alleges that the District Court erred in finding that he did not establish a
prima facie case that Verizon failed to engage in the ADA interactive process in good
faith. The District Court held that Parker did not present evidence to establish that
Verizon failed to engage in the interactive process and that in fact evidence of the
accommodations afforded to Parker supported the contrary.
The ADA prohibits “covered employers from discriminat[ing] against a qualified
individual with a disability because of the disability of such individual in regard to . . .
hiring, advancement, or discharge[.]” 42 U.S.C.A. § 12112. As we noted in Jones v.
18
United Parcel Service, 214 F.3d 402 (3d Cir. 2000), the EEOC’s interpretive guidelines
state that once the qualified employee “has requested provision of a reasonable
accommodation, the employer must make a reasonable effort to determine the appropriate
accommodation . . . through a flexible, interactive process that involves both the employer
and the [employee].” Jones, 214 F.3d at 407, citing 29 C.F.R. Pt. 1630, App. § 1630.9, at
361. As previously noted, discrimination claims under the ADA are evaluated under the
McDonnell Douglas burden-shifting framework. 411 U.S. at 802.
To establish a prima facie case “that an employer failed to participate in the
interactive process, a disabled employee must demonstrate: (1) the employer knew about
the employee's disability; (2) the employee requested accommodations or assistance for
his or her disability; (3) the employer did not make a good faith effort to assist the
employee in seeking accommodations; and (4) the employee could have been reasonably
accommodated but for the employer's lack of good faith.” Taylor v. Phoenixville Sch.
Dist., 184 F.3d 296, 319-20 (3d Cir. 1999). “Employers can show their good faith in a
number of ways, such as taking steps like the following: meet with the employee who
requests an accommodation, request information about the condition and what limitations
the employee has, ask the employee what he or she specifically wants, show some sign of
having considered employee's request, and offer and discuss available alternatives when
the request is too burdensome.” Id. at 317.
Parker argues that the following evidence supports that Verizon failed to engage in
19
the interactive process: (1) Verizon supervisors’ refusal to permit Parker to transfer to a
permanent position unless his restrictions were lifted; (2) Broggi’s alleged comment that
Parker had to resign after returning from leave with restrictions; (3) Verizon’s denial of
his request to park his car in a space located closer to the office; and (4) Parker and/or his
physician’s exclusion from a conversation that Onesko, Broggi and Nelson had regarding
the possibility of “downgrading Parker or having him undergo a functional capacity
evaluation.”
When Parker requested accommodations to conform with the restrictions noted by
Dr. Gosai, Verizon accommodated him. Although Verizon did not conform with the
exact restrictions, it worked with Parker to provide accommodations and he challenged
only Verizon’s failure to limit his commute. However, Verizon’s failure to accommodate
Parker by limiting his commute was not required. See Kvorjak v. Maine, 259 F.3d 48, 53
(1st Cir. 2001), holding that “the [employer’s] decision to reject an accommodation based
on [the employee’s] commute does not demonstrate a disregard for its obligations under
the ADA”; LaResca v. AT&T, 161 F. Supp.2d 323, 333 (D. N.J. 2001), holding that
“commuting to and from work is not part of the work environment that an employer is
required to reasonably accommodate.”
Parker claims that Verizon’s failure to accommodate him with a transfer to a
permanent position shows their bad faith in the interactive process. Verizon reassigned
Parker to an off-line position in consideration of his request for accommodation and the
20
position did not change his benefits or pay. Verizon even stated it would work with
Parker to find a permanent position despite not being required under the ADA to provide
him with a permanent position when it found a temporary position to accommodate him
while his restrictions existed. See Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614
(3d Cir. 2006), holding that “[t]he ADA does not require an employer to create a new
position in order to accommodate an employee with a disability, or transform a temporary
light duty position into a permanent position.” By maintaining his salary and benefits
while providing him a position that addressed his restrictions, Verizon sufficiently
accommodated his needs and engaged in the interactive process with him to do so. Thus,
Verizon’s failure to transfer Parker to a permanent position fails to provide evidence for a
reasonable jury to find that Verizon failed to interact in good faith.
Parker also argues that Broggi yelling at him, and stating that he had to resign
because there were no available positions for him with his restrictions, demonstrate
Verizon’s failure to engage in the interactive process. However, this single comment was
made immediately before Verizon transferred him to a position in the off-line group at the
facility closer to his home and therefore does not provide evidence for a reasonable jury
to conclude that Verizon failed to engage in the interactive process in good faith.
Further, Parker argues that refusing him a parking space closer to the office
demonstrates Verizon’s failure to engage in the interactive process. Parker admitted that
he never made a request to park closer to the building to his managers. It appears he
21
made the request to a temporary supervisor who did not refuse to discuss the request and
explained that the parking spaces were not for consultants. He had requested and
received accommodations before and therefore knew what needed to be done to make
such a request. Parker admitted in his deposition that he could not identify any request
for an accommodation that Verizon failed to address. His brief states that, when Verizon
placed him on the Medically Restricted Plan in March 2005, Verizon interacted with him
and asked if he could suggest any reasonable accommodations. Thus, the evidence shows
that Verizon was willing to and did interact with Parker to determine appropriate
accommodations when he made such requests.
Finally, Parker argues that Verizon failed to engage in the interactive process by
not including him in a conversation about possible accommodations and evaluations.
However, nothing requires employers to include the employee and/or the employee’s
physician in every discussion of possible accommodations or evaluations as part of
engaging in the interactive process. Parker does not allege that Verizon excluded him
from other conversations. Because he alleges his exclusion from only this conversation
and fails to identify any request for an accommodation that Verizon did not address, this
argument fails.
After reviewing all the evidence in the light most favorable to Parker, we find that
no reasonable jury could find that Parker requested an accommodation to which Verizon
failed to make a good faith effort to engage in the interactive process. We will affirm the
22
District Court’s dismissal of this claim.
C. Parker’s FMLA Interference Claim
Parker alleges that Verizon interfered with his FMLA rights by failing to restore
him to his position after he took FMLA leave on September 14, 2006. The District Court
found that “Verizon [did not] in any way interfere[] with plaintiff’s exercise of his
benefits under the FMLA. To the contrary, [it found] that Verizon was more than
reasonable in its accommodation of plaintiff’s condition.”
The FMLA grants eligible employees the right to take up to twelve workweeks of
leave in any twelve-month period if a “serious health condition . . . makes the employee
unable to perform the functions of the position of such employee.” 29 U.S.C. §
2612(a)(1)(D). The FMLA also provides that it shall be unlawful for an employer to
interfere with, restrain or deny an employee's exercise of or attempt to exercise that right.
29 U.S.C. § 2615(a)(1). Following a qualified absence, the employee is entitled to be
reinstated to the former position or an alternate one with equivalent pay, benefits and
working conditions. 29 U.S.C. § 2614(a)(1).
To assert an interference claim, “the employee only needs to show that he was
entitled to benefits under the FMLA and that he was denied them.” Callison v. City of
Phila., 430 F.3d 117, 119 (3d Cir. 2005), citing 29 U.S.C. §§ 2612(a), 2614(a).6
6
“Under this theory, the employee need not show that he was treated differently than
others[, and] the employer cannot justify its actions by establishing a legitimate business purpose
for its decision.” Callison, 430 F.3d at 119-120. “An interference action is not about
discrimination, it is only about whether the employer provided the employee with the
entitlements guaranteed by the FMLA.” Id. at 120. “Because the FMLA is not about
23
However, as we noted in Holpp v. Integrated Communications Corp., 214 Fed. Appx. 176(3d Cir. 2007), the right to reinstatement
does not entitle a restored employee to a right, benefit or position to which the
employee would not “have been entitled had the employee not taken the leave.”
29 U.S.C. § 2614(a)(3)(B). Thus, for example, if an employee is discharged
during or at the end of a protected leave for a reason unrelated to the leave, there is
no right to reinstatement. 29 C.F.R. § 825.216(a)(1).
Id. at 178-179, citing Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135 (3d
Cir. 2004). To make out a claim for interference, a plaintiff must show that he is an
“eligible employee,” 29 U.S.C. § 2611(2), who took leave “for the intended purpose of
the leave,” 29 U.S.C. § 2614(a)(1), and whom the employer then denied a benefit as a
result of that leave, 29 U.S.C. §§ 2614(a)(3), 2615(a)(1). Thus, an employer can defeat
an interference claim by showing, among other things, that the employee did not take
leave “for the intended purpose.” See Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th
Cir. 2006). Nothing in the FMLA prevents employers from ensuring that employees who
are on leave from work do not abuse their leave. Callison, 430 F.3d at 121. The FMLA
does not shield an employee from termination simply because the alleged misconduct
concerns use of FMLA leave. See, e.g., Hoffmann v. Professional Med. Team, 394 F.3d
414 (6th Cir. 2005), holding that there was no FMLA violation where employee was
discharged for unprofessional conduct related to employer’s denial of FMLA leave. Just
as suspected fraud or violation of company policy would be a sufficient basis to discharge
discrimination, a McDonnell-Douglas burden-shifting analysis is not required.” Sommer v. The
Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006).
24
an employee not on FMLA leave, it is a sufficient basis to discharge one who misuses
FMLA leave. Id.; see also Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 681
(7th Cir. 1997); LeBoeuf v. New York Univ. Med. Ctr., 2000 WL 1863762, at *3 (S.D.
N.Y. Dec. 20, 2000), holding that “[w]here an employee is terminated because the
employer honestly believed that the employee was not using the leave period for its
intended purpose, an FMLA claim will not lie”; Connel v. Hallmark Cards, Inc., 2002
WL 1461969, at *2 (D. Kan. June 19, 2002), holding that employer who discharges
employee based on reasonable and honest belief that employee has been dishonest would
not be in violation of the FMLA even if its conclusion is mistaken.
Parker has not shown that he is entitled to FMLA benefits because he has not met
his burden of showing that there is a genuine issue of material fact over the reason he was
not reinstated. He alleges that Verizon interfered with his FMLA rights by terminating
him instead of restoring him to his position after he took FMLA leave on September 14,
2006. Verizon has demonstrated that Parker was not terminated for his use, but rather his
misuse, of medical leave in violation of its Code of Business Conduct, which could have
been the case for any employee who dishonestly used Verizon’s benefits. See Edwards v.
Harleysville Nat. Bank, 2008 WL 4589729, at *5 (E.D. Pa. Oct. 14, 2008). Regardless of
Parker’s denial that he actually misrepresented his health condition, Verizon’s honest
suspicion that Parker misused his leave prevents it from being found liable for violating
the FMLA; Parker was not entitled to the right of reinstatement if Verizon honestly
25
believed that he was not using FMLA leave for the intended purpose. Parker should not
automatically be granted a greater degree of protection from termination simply because
he happened to be using FMLA leave instead of sick leave. Id. The evidence shows that
Parker's employment would have been terminated because of his violation of company
policy regardless of the involvement of FMLA leave. See Holmes v. Pizza Hut of
America, Inc., 1998 WL 564433, at *7 (E.D. Pa. Aug. 31, 1998). Parker states that the
same arguments that he brought in his pretext claim apply to refute the reason that
Verizon provides for why he was not entitled to reinstatement. For the reasons stated
above, we also conclude here that none of Parker’s arguments create a genuine issue of
material fact that Verizon interfered with his right to reinstatement under the FMLA.
Thus, we will affirm the District Court’s dismissal of this claim.
For the foregoing reasons, after viewing the evidence in the light most favorable to
Parker, we will affirm the order of the District Court dismissing all of Parker’s claims
against Verizon.
26