Hair v. Fayette Cnty. of Pa.

Decision Date13 September 2017
Docket Number2:15cv341
Citation265 F.Supp.3d 544
Parties Julia HAIR, Plaintiff, v. FAYETTE COUNTY OF PENNSYLVANIA, Jeffrey Whiteko, Individual, Dominick Carnicella, Individual, Defendants.
CourtU.S. District Court — Western District of Pennsylvania

Jeremy Donham, Donham Law, Dellslow, WV, for Plaintiff.

Marie Milie Jones, Michael R. Lettrich, JonesPassodelis PLLC, Pittsburgh, PA, for Defendants.


David Stewart Cercone, United States District Judge


Plaintiff, Julia Hair ("Hair" or "Plaintiff") filed an Amended Complaint alleging: (1) Discrimination, Hostile Work Environment and Retaliation under the Rehabilitation Act against Defendant, Fayette County (the "County"); (2) Discrimination, Hostile Work Environment, and Retaliation under the Pennsylvania Human Relations Act (the "PHRA"), 43 PA. CONS. STAT. ANN. § 955 et seq. , against Defendants, Jeffrey Whiteko ("Whiteko") and Dominick Carnicella ("Carnicella"); (3) Hostile Work Environment, Discrimination and Retaliation under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. , against the County; (4) Interference and Retaliation under the Family and Medical Leave Act (the "FMLA"), 29 U.S.C. § 2601 et. seq ., against Whiteko and Carnicella; (5) violation of Civil Rights under 42 U.S.C. § 1983 against Whiteko and Carnicella; and (6) Intentional Infliction of Emotional Distress against Whiteko and Carnicella. Hair filed a Motion for Partial Summary Judgment on her FMLA claims and the County Defendants filed a Motion for Summary Judgment. Responses have been filed and the motions are now before the Court.


Hair began employment with Fayette County on January 15, 1997, as a legal secretary in the Office of the Public Defender (the "Public Defender's Office" or the "Office"). Defendants' Concise Statement of Undisputed Material Facts ("Def. CSUMF") ¶ 1; Plaintiff's Concise Statement of Material Facts ("Pl. CSMF") ¶¶ 6 & 91 . The Public Defender's Office is located in the Fayette County Courthouse in Uniontown Pennsylvania. Def. CSUMF ¶ 2. Hair was a member of the Service Employees International Union, Local 668, AFL-CIO (the "Union"). Def. CSUMF ¶ 4.

The Union entered into a Collective Bargaining Agreement ("CBA") with the County on January 1, 2010, and January 1, 2014. Def. CSUMF ¶ 5. Pursuant to the CBA, Hair's work schedule was from 8:30 a.m. until 4:00 p.m. with a one (1) hour lunch break from 12:00 p.m. until 1:00 p.m. and two (2) fifteen (15) minute breaks throughout the day. Def. CSUMF ¶ 6. The CBA provides that an employee must notify the office before the start of the employee's regularly scheduled workday when the employee would be using sick leave. Def. CSUMF ¶ 7.

In October of 2008, Hair was diagnosed with breast cancer

, which was treated and was in remission in or around the spring of 2013. Def. CSUMF ¶ 11; Pl. CSMF ¶ 15. On September 23, 2013, Hair was examined Dr. Paul E. Means ("Dr. Means") for severe sunburn on her back and shoulders. Def. CSUMF ¶ 14; Def. Appdx. Ex. G. During the appointment, Dr. Means completed a form for intermittent leave under the FMLA because of recurring abdominal pain and Diabetes Mellutis Type II. Def. CSUMF ¶ 15; Def. Appdx. Ex. I; Pl. CSMF ¶ 20. The application provided no schedule for the requested intermittent leave. Id.

The procedure for obtaining FMLA leave in Fayette County required the requesting employee to provide a physician certification for review to determine if the condition was eligible for FMLA leave. Def. CSUMF ¶ 16. After the review, Human Resources would certify the FMLA request and meet with the requesting employee's manager to discuss accommodating the request. Id.

On October 10, 2013, Hair and her Union representative, Dennis Hull ("Hull"), met with Carnicella, the County's Human Resources Director, Public Defender Whiteko, and Office Coordinator, Debbie McGee ("McGee"). Def. CSUMF ¶ 17. The meeting was to discuss Hair's requested intermittent FMLA leave, attendance and attitude issues, and to request that Hair notify the office as far in advance as possible regarding when she would be using her FMLA leave. Id. ; Pl. CSMF ¶ 22. At the meeting, Hair was also asked to return to her physician for clarity as to what her FMLA leave would entail. Def. CSUMF ¶ 18.

On October 15, 2013, Dr. Means supplemented the physician certification stating that Hair that Hair could be as late for work as 9:30 a.m. up to two (2) days per week and could be absent from work up to two (2) times per week. Def. CSUMF ¶ 19. Dr. Means then wrote a letter dated November 6, 2013, stating that Hair was "experiencing recurrent symptoms" which could cause her to be late for work "up to 9:30 a.m. and up to 5 days per week. She could also miss work...up to 2 days per week." Def. CSUMF ¶ 20; Def. Appdx. Ex. L.

By letter dated November 12, 2013, Carnicella notified Hair that she was approved for FMLA leave effective September 23, 2013. Def. CSUMF ¶ 21; Def. Appdx. Ex. M. Hair's intermittent leave was approved to the extent indicated by Dr. Means, that she "could be as late for work as 9:30 a.m. up to 5 days per week depending on [her] symptoms and that [she] could miss up to 2 days of work per week due to this condition." Id. Carnicella's FMLA approval letter also provided:

the County, for purposes of managing the operation, needs to be aware of when you will be coming to work. Since you have not requested a set schedule but rather hours or days which could differ every day of the week, the days which you are reporting to work after 8:00 am or will not be reporting at all, you are required to call the Office Coordinator or in her absence the Department Clerk 1, at 8 am and inform her if you will coming to work that day and if so, approximately when you will be arriving. If you are calling prior to 8 am for this purpose, instead of contacting the Office Coordinator, contact the Chief Public Defender on his cell phone...and leave him a message with the above required information...
Regarding time off work for doctor appointments, please inform the Chief Public Defender in writing in as far as advance as possible of any upcoming work time that you need off for appointments and if they are pertaining to your FMLA or not. You must also provide me with verification from the treating physician of your attendance at these appointments.

Def. CSUMF ¶¶ 22 & 26; Def. Appdx. Ex. M.

On November 22, 2013, Jennifer Kondrla ("Kondrla"), a legal secretary in the Public Defender's Office, and Assistant Public Defender Mary Spegar ("Spegar") were involved in an incident with Hair. Def. CSUMF ¶ 31. Kondrla and Segar were looking for a file in the storage area of the office, often referring to the file by name, when after several minutes, Hair said "I can't make you suffer anymore," and told them where the file was located. Id. Kondrla and Hair then exchanged words about allowing Kondrla and Spegar to waste time looking for the file, about Hair's attitude and about employees snubbing each other in the office. Id. Kondrla told Hair that she was going to report her attitude problem to Human Resources, and Hair told Kondrla to just "sit in her hole" and "shut up". Id. ; Def. Appdx. Exs.Q, R, S & T. Kondrla and Hair filed complaints with Human Resources against each other over the incident. Def. CSUMF ¶ 32.

On November 25, 2013, Hair met with Carnicella regarding the FMLA approval letter and indicated that she did not believe she had to verify her attendance at her doctor's appointments or to call when she will be late as required in the approval letter2 . Def. CSUMF ¶ 35. On November 26, 2013, Whiteko sent Hair a memo reminding her of the policy that required her to call in no later than 8:00 am if she was going to be late or absent. Def. CSUMF ¶ 36. Whiteko also indicated that if she would not abide by this guideline, he would write her up. Id. Whiteko, further, told Assistant Public Defender, Charity Krupa, that Hair was a "cancer

in the office, constantly disrupting." Pl. CSMF ¶ 31.

On December 5, 2013, Whiteko issued Hair a verbal warning for failing to abide by the requirements of the office attendance policy by arriving late without notifying the office on several dates prior to her FMLA leave. Def. CSUMF ¶ 37; Def. Appdx. Ex. X. Whiteko also issued Hair a written warning on that same day for arriving late for work on several days after the commencement of her FMLA leave and failing to notify the office that she would be late. Id. Whiteko counseled Hair that she must "inform [him] in as far in advance as possible if [she was] going to be late or need to leave early, but no later than the beginning of that work day." Id.

Hair filed a Union grievance regarding the warnings issued by Whiteko on December 5, 2013, concerning her failure to notify the office when she would be late. Def. CSUMF ¶ 40. Hair contended that she was not counseled in a timely manner, and was not given an opportunity to correct the issues prior to receiving progressive discipline steps. Id.

On the morning of December 6, 2013, Hair stepped out of the Public Defender's Office, and McGee and Kondrla spotted a camera that they believed was set up by Hair to record them in the office. Def. CSUMF ¶ 38. Kondrla made a complaint to Whiteko contending that Hair had a video recorder on her desk which violated the confidentiality required in the Public Defender's Office with regard to their clients. Def. CSUMF ¶ 39. Whiteko forwarded Kondrla's complaint to Human Resources, and on December 9, 20133, Hair was suspended with pay pending an investigation of the video recorder incident. Def. CSUMF ¶¶ 41 & 42.

On December 13, 2013, Carnicella notified Hair that her use of a video recorder on December 6, 2013, may have violated County policy and the Pennsylvania Wire Tap Law. Def. CSUMF ¶ 44. Further, Carnicella indicated that her comments made to Kondrla on November 22, 2013, also may have violated County policy. Id. The County, therefore, would hold a...

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