Bielich v. Johnson & Johnson, Inc.

• Decision Date: 20 March 2014
• Docket Number: Civil Action No. 11–1635.
• Citation: 6 F.Supp.3d 589
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: Norma BIELICH, Plaintiff, v. JOHNSON & JOHNSON, INC. t/d/b/a Ethicon, Inc., Defendant.

6 F.Supp.3d 589

Norma BIELICH, Plaintiff,

v.JOHNSON & JOHNSON, INC. t/d/b/a Ethicon, Inc., Defendant.

Civil Action No. 11–1635.

United States District Court, W.D. Pennsylvania.

Signed March 20, 2014.

James B. Lieber, Jacob M. Simon, Thomas M. Huber, Lieber Hammer Huber & Bennington, P.C., Pittsburgh, PA, for Plaintiff.

Martha Hartle Munsch, Richard L. Etter, Reed Smith LLP, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

CONTI, Chief Judge.

This is an employment discrimination case. Pending before the court is a motion for summary judgment (ECF No. 45) filed by defendant Johnson & Johnson, Inc. t/d/b/a Ethicon, Inc. (“Ethicon”) seeking judgment as a matter of law against plaintiff Norma Bielich (“Bielich”) with respect to all claims asserted in her first amended complaint. (ECF No. 14.) In her fourteen-count complaint, Bielich claims that Ethicon a) treated her less favorably due to her gender and disability, b) failed to accommodate her disability, c) subjected her to a hostile work environment based on her disability, and d) subjected her to retaliation based upon her request for an accommodation. Bielich asserts claims pursuant to Title VII, 42 U.S.C. §§ 2000e–2000e–17 (“Title VII”), the Americans with Disabilities Act, 42 U.S.C. § 12101–12117 (the “ADA”), the Rehabilitation Act, 29 U.S.C. § 701–718 (the “RA”), and the Pennsylvania Human Relations Act, 43 P.S. § 951–963 (the “PHRA”). Bielich seeks monetary relief, including punitive damages and attorneys' fees, as well as unspecific injunctive relief against Ethicon.

This court exercises subject-matter jurisdiction over Bielich's federal claims pursuant to 28 U.S.C. § 1331, and over her state-law claims under the PH RA pursuant to 28 U.S.C. § 1367(a) and 42 U.S.C. § 2000e–5(j)(3).

For the reasons set forth below, the court finds that Ethicon's motion for summary judgment must be granted, in part, and denied, in part. The only claims triable to a jury are the failure to accommodate claims Bielich asserts under the ADA and the PHRA.

I. Factual Background

The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to Bielich. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Other undisputed facts may be discussed in the context of each of Bielich's legal claims where appropriate.

A. Bielich's Employment and Performance History at Ethicon

Plaintiff was hired by Ethicon in 1998 as a field sales representative and was promoted to the position of professional education manager in 2006. (ECF No. 63 ¶ 1.) As a professional education manager, Bielich a) planned, coordinated, and facilitated professional education events, b) recruited, contracted, trained, and administered consultants, and c) attended meetings, provided status reports, and managed communications from sales personnel. ( Id. ¶ 2.) At the time she was hired, Bielich was qualified for the position. ( Id. ¶ 80.) It is disputed that Bielich remained qualified for the position if she suffered from the limitations that she articulates in the summary judgment submissions. ( Id.)

In May 2009, Michael Willick (“Willick”) became Bielich's supervisor. ( Id. ¶ 10.) Prior to this time, Willick had been Bielich's peer on the professional education team, and Andrew Hart (“Hart”) supervised them both. ( Id.) After Willick's promotion, the other members of Bielich's professional education team were Rick Summerlin (“Summerlin”) and, later, Timothy Mauri (“Mauri”). ( Id. ¶ 11.) In August 2009, Mauri joined the professional education team because the workload being carried by Summerlin and Bielich resulted in them both “working extraordinarily hard and long hours.” ( Id. ¶¶ 11, 72, 110.) All members of the team worked remotely from different locations throughout the country. ( Id. ¶ 12.) Bielich worked from her home in Pittsburgh, Pennsylvania. ( Id.) By July 2009, Bielich reported to Willick, Willick reported to Richard Merklinger (“Merklinger”), Merklinger reported to David Bourdeau (“Bourdeau”), the group director of Worldwide Professional Education, and Bourdeau reported to Sandra Humbles, the vice president of Global Education Solutions. ( Id. ¶ 15.)

On April 24, 2009, while still her supervisor, Hart gave Bielich an annual evaluation of her 2008 job performance. ( Id. ¶ 13.) During this evaluation, Bielich was told that she was not meeting expectations, that her performance was not acceptable, that she would be placed on a sixty-day performance development plan, and if she was still not meeting expectations would then be placed on a ninety-day performance improvement plan. ( Id. ¶¶ 13, 16; ECF No. 48–1 at 18; ECF No. 52 at 35–36.) Hart gave her a numerical rating of 4 out of 10 for her work in 2008. (ECF No. 63 ¶¶ 13, 90.) On Monday April 27, 2009, although she did not have an appointment, Bielich drove from Pittsburgh, Pennsylvania, to the company's headquarters in Somerville, New Jersey, to meet with Bourdeau. ( Id. ¶ 14.) Bielich told Bourdeau she was shocked by her poor evaluation, apologized, and told him she would do her absolute best to improve her performance. ( Id.) During this meeting Bielich told Bourdeau that she was confused and exhausted and that she had been struggling, but did not know how to explain it; she did not tell Bourdeau that she was unable to do her job for medical reasons, and did not ask for an accommodation for any disability. ( Id. ¶¶ 14, 92.)

On June 19, 2009, Willick, who had recently become Bielich's supervisor, sent the sixty-day development plan to her vi a email. ( Id. ¶ 20.) Bielich reviewed, signed, and faxed back a copy of the plan to Willick on June 22, 2009. ( Id.) The sixty-day plan identified two areas where management believed Bielich demonstrated a need for improvement: “sense of urgency” and “collaboration and teaming.” ( Id. ¶ 21.) Willick and Bielich had several bi-weekly telephone calls during the term of the sixty-day plan to discuss Bielich's progress as compared to the objectives of the plan. ( Id. ¶ 24.) During the sixty-day plan period, Bielich received both positive and negative feedback: Willick complimented Bielich on completing certain tasks, but two internal customers and an employee in a different Ethicon department expressed concerns with Bielich's timeliness in completing other tasks and responding to inquiries. ( Id. ¶¶ 25–28.)

Bielich met with Willick, in Dallas, Texas, on September 10, 2009, to discuss her performance under the sixty-day plan. ( Id. ¶ 33.) Willick informed Bielich that she failed to satisfy the objectives of her sixty-day plan, shared with her negative feedback about her performance that had been submitted by internal customers, and told her that she would be placed on a ninety-day performance improvement plan (“PIP”). ( Id. ¶¶ 33, 36.) Internal customers also submitted positive feedback about Bielich during the sixty-day plan period, although Willick did not review positive comments during the meeting. ( Id. ¶ 112.) Willick asked Bielich to develop and submit the objectives for her PIP, which Bielich did. ( Id ¶ 37.) Bielich submitted her PIP objectives, with relevant deadlines, to Willick via email on October 8, 2009. ( Id. ¶¶ 37, 40.) In response, Willick asked Bielich if she “felt comfortable with this plan ... that it can be accomplished,” to which Bielich answered “It HAS to be accomplished!” ( Id. ¶ 38.) Willick reviewed the objectives, along with the deadlines established by Bielich, and approved the PIP. ( Id. ¶ 39.) Shortly after the approved PIP was transmitted to Bielich, she extended some of the deadlines, for various reasons, to which Willick did not object. ( Id. ¶ 41.) The PIP stated that Bielich's employment could be terminated prior to expiration of the ninety-day review period if, for example, significant and sustained progress was not being made. ( Id. ¶ 145.)

During the course of the PIP, Bielich and one of her supervisors, either Willick or Merklinger, met weekly via telephone to review her progress, and Bielich submitted weekly written reports to Willick. ( Id. ¶ 42.) Willick sent multiple reminders of deadlines and assignments to Bielich during her PI P, and both Merklinger and he provided Bielich with positive reinforcement during her PIP. ( Id. ¶ 46.) It is undisputed that Bielich missed various deadlines set forth in her PIP, and missed deadlines otherwise set by management during this time period for various tasks. ( Id. ¶¶ 48–58, 125, 147–51.) Willick was responsible for notifying upper management whether or not Bielich met the requirements of her PIP. ( Id. ¶¶ 132–33.)

Willick emailed Merklinger and Lena Tai (“Tai”), a member of Ethicon's human resources department, on December 22, 2009, with a draft letter for terminating Bielich's employment. ( Id. ¶¶ 60, 120.) He requested a termination date of January 19, 2010. ( Id.) In the draft termination letter, Willick wrote that Bielich was being terminated for continuing performance deficiencies with respect to demonstrating a “sense of urgency” with respect to meeting deadlines, attaining goals, and for violating Ethicon's standards by discussing personal issues with other employees and making “purely emotional comments” after being directed by management not to do so. ( Id. ¶ 127; see sections I.B. and I.C., below.) On January 5, 2010, Willick emailed Tai to finalize arrangements for Bielich's termination and to suggest January 21, 2010, as the date of termination. ( Id. ¶ 61.) Violating Ethicon's standards does not appear as a reason for termination in the revised termination letter emailed by Willick to Tai on that date, or in the final termination memorandum. ( Id. ¶ 131.)

Willick, Merklinger, and Tai met with Bielich on January 21, 2010, in the Hyatt Hotel at the Pittsburgh Airport to notify Bielich about her termination, effective that date. ( Id. ¶ 63.) Willick gave Bielich a memorandum regarding her...