O'Malley v. Dowd Mktg., 3:17-CV-01419
| Decision Date | 02 March 2020 |
| Docket Number | 3:17-CV-01419 |
| Parties | EUGENE O'MALLEY, Plaintiff, v. DOWD MARKETING, INC., Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
On August 10, 2017, Plaintiff Eugene O'Malley brought suit against Sundance Vacations, Inc.1 Plaintiff filed an Amended Complaint (Doc. 8), a Second Amended Complaint (Doc. 16) and, with leave of Court (Doc. 25), a Third Amended Complaint.
Defendant Dowd Marketing, Inc. ("Dowd") moved to dismiss Plaintiff's Third Amended Complaint (Doc. 26). Plaintiff's Third Amended Complaint alleged ten counts: Count One for "Interference with Plaintiff's Rights Under the Family and Medical Leave Act"; Count Two for "Retaliation in Violation of the Family and Medical Leave Act"; Count Three for "Interference in Violation of the Family and Medical Leave Act"; Count Four for "Retaliation in Violation of the Family and Medical Leave Act"; Count Five for "Failure to Accommodate in Violation of the Americans with Disabilities Act"; Count Six for "Failure to Accommodate in Violation of the Pennsylvania Human Relations Act"; Count Seven for "Unlawful Retaliation in Violation of the Americans with Disabilities Act"; Count Eight for "Unlawful Retaliation in Violation of the Pennsylvania Human Relations Act"; Count Nine for "Unlawful Discrimination in Violation of the Americans with Disabilities Act"; and Count Ten for "Unlawful Discrimination in Violation of the Pennsylvania Human Relations Act." (See Doc. 25).
On November 15, 2018, Magistrate Judge Carlson issued a Report and Recommendation ("R&R") (Doc. 46) wherein he recommended that Counts One and Three of Plaintiff's Third Amended Complaint be dismissed but that Dowd's Motion be denied in all other respects. This Court adopted the R&R by Order dated December 3, 2018 (Doc. 47) and accordingly, Counts One and Three of Plaintiff's Third Amended Complaint were dismissed.
On April 10, 2019, Defendant Dowd filed a Motion for Summary Judgment (Doc. 53). The Motion has been fully briefed and is ripe for disposition.
For the following reasons, the Court will grant in part and deny in part the Defendant's Motion.
Plaintiff Eugene O'Malley was hired in 2013 to work at Dowd Marketing as a computer programmer (Def's. Statement of Material Facts ("DSOMF"), Doc. 54, at ¶ 1). The Plaintiff was promoted to the position of Project Manager in 2015. (Id. at ¶ 2).
Mr. O'Malley received a $10,000 salary increase in April 2015 in relation to his promotion to Project Manager. The raise was made retroactive to the date that Mr. O'Malley began serving as Project Manager. (Id. at ¶ 5).
Defendant's Statement of Material Facts states:
At the suggestion of a representative of Dowd Marketing's human relations department, on October 21, 2015, Mr. O'Malley requested leave under the Family and Medical Leave Act ("FMLA") to be with his father who was sick. Dowd Marketing's Human Resources Manager, Kelly Valovich, forwarded to Mr. O'Malley a copy of the FMLA request form to complete and told him that "you are approved for FMLA unless told otherwise." Mr. O'Malley never returned the completed form because his father passed away a short time after he received the blank form.
(Id. at ¶ 6)(internal citations omitted). Plaintiff's response to this SOMF "admits in part and disputes in part the statements contained therein." (Plaintiff's "Counter-Statement of Facts" ("PCSOF"), Doc. 60 at ¶ 6). While Mr. O'Malley states that he "disputes the suggestion that he took this leave 'at the suggestion of' Dowd or its agents", he admits the other statements of fact set forth in Defendant's SOMF ¶ 6, specifically, that Dowd's human resources manager forwarded to him a copy of the FMLA request form to complete and told him that he was approved for FMLA unless told otherwise. (PCSOF, at ¶ 6).
Plaintiff O'Malley received a salary increase in the amount of $2,000 in December of 2015 in connection with his year end review. (DSOMF, at ¶ 7).
Mr. O'Malley received a written performance review on December 11, 2015. Therein, he was rated as having met or exceeded expectations in all categories listed on the form, including attendance. There were no deductions or deficiencies in his evaluation and Mr. O'Malley did not challenge any of the entries on the form. (Id. at ¶ 8). Although Plaintiff states that "he disputes" the statements in the DSOMF ¶ 8, his deposition testimony presents admissions of the facts set forth in this SOMF. Mr. O'Malley, when deposed, testified as follows:
(O'Malley Dep., at 39:6-40:5; 40:21-25).
Plaintiff O'Malley "admits that he requested that he be permitted to work from home in early 2016." (PCSOF, at ¶ 9; see DSOMF, at ¶ 9). In his response, Mr. O'Malley asserts that he "suffers from chronic, severe back pain that began with an automobile accident in 2008." (PCSOF, at ¶ 9). He further asserts that he "requested flex time and the ability to work from home due to his disability from the beginning of his employment" and that the Defendant provided these "accommodations" from "approximately 2013 to 2016." (Id.). Mr. O'Malley admits that "Defendant adopted a policy in or about 2016 that forbid employees from working from home except for a company 'emergency' or a 'critical event.'" (Id.).
Plaintiff O'Malley admits the facts set forth in DSOMF ¶ 10 which states:
Mr. O'Malley had previously asked Anna Pugliese in Dowd Marketing's Human Resources Department about working from home. Ms. Pugliese advised Mr. O'Malley via email on June 29, 2015 that her understanding is that "no one is allowed to work from home." In his email to Ms. Pugliese, Mr. O'Malley references having custody of his kids and wanting to be able to "work extra . . . from home."
(DSOMF, at ¶ 10)(internal citations omitted).
In response to ¶ 11 of DSOMF, Mr. O'Malley "admits that Defendant's policy forbidding employees to work from home was applicable to all employees, regardless of whether (as was the case with Mr. O'Malley) the request was made as an accommodation for a disability." (PCSOF, at ¶ 11).
Mr. O'Malley's performance review for 2016 states that he met expectations in all categories, including attendance. Mr. O'Malley received a $3,500 raise effective December 12, 2016. (DSOMF, at ¶ 12; PCSOF, at ¶ 12).
Although Mr. O'Malley denies that he was never disciplined for missing time or for coming in late or leaving work early (PCSOF at ¶ 13), Mr. O'Malley's deposition testimony is to the contrary. Plaintiff testified that in 2017 he was told by Marvin Metzger that he missed "too many days" and that he needed to "be here." (O'Malley Dep., at 89:1-10).
Mr. O'Malley testified, however:
(Id. at 90:9-11). Mr. O'Malley also testified that: (Id. at 88-89:2).
In response to ¶ 14 of DSOMF, O'Malley, while denying that he was upset on April 27, 2017 when he learned that he would remain in the office to which he had been assigned and would not be moving to a larger office at the rear of the IT room, acknowledges that he "complained because he had been moved to [a] smaller, unheated office that he described as a 'closet'.'" (PCSOF at ¶ 14).
With respect to ¶ 15 of Dowd's SOMF, Mr. O'Malley responds by denying the statements contained therein, specifically that he gave notice to his supervisor, SuAnn Ritter, that he decided to leave Dowd Marketing and was looking for another job. (Id. at ¶ 15). Here again, however, Plaintiff's counsel's denial is at variance with Plaintiff O'Malley's deposition testimony. Plaintiff O'Malley testified as follows with respect to what he told Ms. Ritter:
When Mr. O'Malley left Dowd Marketing, Inc. in May of 2017, he had available vacation time. (DSOMF, at ¶ 19; PCSOF, at ¶ 19).
Plaintiff O'Malley admits that he missed work on May 2, 2017 due to a "stomach issue." (PCSOF, at ¶ 20). Otherwise, Plaintiff's response to Dowd's SOMF ¶ 20 neither admits nor denies the specific statements therein. Specifically, O'Malley does not admit or deny whether he left early on April 24, 2017 because he was "tired" or that he "took April 28, 2017 off because he was 'still not feeling good.'" (See DSOMF, at ¶ 20; PCSOF, ¶ 20). Plaintiff's refusal to admit or deny these paragraphs when obligated to do so under Fed. R. Civ. P. 56 and Middle District of Pennsylvania Local Rule 7.6 is not proper and these statements will be deemed admitted. See Rau v. Allstate, -- F. App'x -- 2019 WL 6358755, at *2 (3d Cir. 2019).
On May 8, 2017, Mr. O'Malley sent an email to Mr. Dowd asking, without an explanation, "do you mind if I work from home this afternoon?" Mr. Dowd in turn responded:
You and I discussed this issue previously. You are welcome to take the time off you need but we do not want to have you working from home. Hopefully you understand and respect my position on...
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