Mascioli v. Arby's Restaurant Group, Inc., Civil Action No. 06-1655.

• Decision Date: 16 March 2009
• Docket Number: Civil Action No. 06-1655.
• Citation: 610 F.Supp.2d 419
• Parties: Joedi M. MASCIOLI, Plaintiff, v. ARBY'S RESTAURANT GROUP, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

610 F.Supp.2d 419

Joedi M. MASCIOLI, Plaintiff, v. ARBY'S RESTAURANT GROUP, INC., Defendant.

Civil Action No. 06-1655.

United States District Court, W.D. Pennsylvania.

March 16, 2009.

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Gregory T. Kunkel, Kunkel & Fink, LLP, Pittsburgh, PA, for Plaintiff.

Douglas B. Schnee, McDonald Hopkins, Cleveland, OH, for Defendant.

MEMORANDUM OPINION

CONTI, District Judge.

In this memorandum opinion, the court considers the motion for summary judgment filed by defendant Arby's Restaurant Group Inc. ("Arby's" or "defendant") pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. (Doc. No. 22.) Defendant seeks summary judgment in its favor with respect to all claims asserted by plaintiff Joedi Mascioli ("plaintiff" or "Mascioli"). In her complaint, plaintiff asserts claims for (1) interference with protected rights under the Family Medical Leave Act ("FMLA"), U.S.C. §§ 2601 et seq. (count one), (2) retaliation in violation of the FMLA for requesting FMLA-protected leave (count two), (3) disability discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (count three), (4) retaliation in violation of the ADA for requesting leave due to her disability (count four), (5) disability discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS.STAT.§§ 951 et seq. (count five), and (6) retaliation in violation of the PHRA for requesting leave due to her disability (count six).

After considering defendant's motion for summary judgment (Doc. No. 22), plaintiff's response (Doc. No. 32), the joint statement of material facts ("J.S.") (Doc. No. 37), and the parties' other submissions, the court will grant defendant's motion for summary judgment with respect to plaintiff's claims of FMLA interference and ADA and PHRA disability discrimination. Defendant's motion for summary judgment will be denied in all other respects.

Background

Plaintiff was born on December 13, 1974, and resides in Acme, Pennsylvania. (Mascioli's Deposition ("Mascioli Dep.") at 9.) On July 9, 2004, defendant offered plaintiff a position. (Plaintiff's Joint Statement of Undisputed Facts ("J.S.Pl.") ¶ 1¹; Mascioli Dep. Def.'s Ex. 2.) She accepted and was hired as an assistant manager. (Defendant's Joint Statement of Undisputed Facts ("J.S.Def.") ¶ 1; Brian Cassidy's Deposition ("Cassidy Dep.") at 32-33.) The offer stated plaintiff's anticipated start date was August 2, 2004. (Mascioli Dep., Def.'s Ex. 2.) Plaintiff did not start orientation, however, until August 12, 2004. (J.S.Pl. ¶ 3; Mascioli Dep. at 28-29, Def.'s Ex. 1.) Plaintiff suffered from epilepsy, but did not mention her condition to the hiring officers because she feared that she would be discriminated against. (J.S.Pl. ¶ 4; Mascioli Dep. at 99-100.) After training, plaintiff began working as a co-manager at defendant's restaurant located in Mt. Pleasant, Pennsylvania. (J.S.Def. ¶ 3; Mascioli Dep. at 33.) Plaintiff was later transferred to a restaurant under construction located in Latrobe, Pennsylvania, where she was designated as the general manager. (J.S.Def. ¶ 4; Cassidy Dep. at 35-37; Mascioli Dep. at 35.) Arby's considered plaintiff a "good" employee and the best qualified individual for the Latrobe general manager position. (Cassidy Dep. at 35-37.) She worked as the general manager at the Latrobe location until defendant terminated her on August 22, 2005. (J.S.Def. ¶ 5; Mascioli Dep. at 31, 34.)

Plaintiff was diagnosed with epilepsy when she was twelve or thirteen years old. (J.S.Pl. ¶ 9; Mascioli Dep. at 5-8.) She typically has grand mal seizures. (J.S.Pl. ¶ 12; Mascioli Dep. at 68-69.) When she has a seizure, she falls down and shakes and loses consciousness. (Id.) During the seizures, plaintiff cannot speak, walk or hear. (Mascioli Dec. ¶ 8.) Plaintiff cannot walk immediately after the seizure, but can walk the next day. (Mascioli Dep. at 91.) Plaintiff experiences memory problems after a seizure. (Mascioli Dec. ¶ 8.) Her seizures are triggered by stress and fatigue. (J.S.Pl. ¶ 13; Mascioli Dep. at 72-73.) She takes medication, Depakote, which mitigates the effects of her disorder, but she still suffers from breakthrough seizures. (J.S.Pl. ¶ 10; Mascioli Dep. at 6-9.) The medication has side effects such as fatigue. (Id.) Mascioli estimates that she has suffered approximately ten to one hundred seizures in her life and suffered seizures on October 29, 2007 and May 25, 2008. (J.S.Pl. ¶¶ 13, 15, 16; Mascioli Dep. at 7-9; Mascioli Declaration ("Mascioli Dec.") ¶ 6.) Plaintiff can cook, do household chores, work in her yard, care for her personal hygiene, and walk and exercise at times. (Mascioli Dep. at 90-91.) She must limit her exposure to stress and fatigue, and cannot work excessively long hours, must eat meals at regularly scheduled intervals, cannot work at heights, and must have at least eight hours of sleep at night to avoid fatigue. (Mascioli Dec. ¶ 8.) Plaintiff regularly worked in excess of forty hours per week. (Mascioli Dec. ¶ 10.) Plaintiff was on the roof of the Mt. Pleasant Arby's store during her training. (Mascioli Dep. at 89.)

On August 2, 2005, plaintiff suffered a seizure when she was off work. (J.S.Pl. ¶ 17; Mascioli Dep. at 63-64, 94-95.) She took off the following day of work. (Id.) When she returned to work, she explained to her managerial team that she had epilepsy and that she had suffered a seizure. (J.S.Pl. ¶ 18; Mascioli Dep. at 97-98; Cassidy Dep. at 57-63.) The director of operations, Brian Cassidy ("Cassidy"), came to the Latrobe restaurant on a regularly scheduled visit during the week after the seizure. (Mascioli Dep. at 63; Cassidy Dep. at 57-63.) Cassidy wanted to "visit her and talk to her to make sure she was okay." (Cassidy Dep. at 56.) Plaintiff informed him that she had epilepsy and suffered a seizure. (Cassidy Dep. at 57-59.) During a conversation with plaintiff, he admitted he was concerned about her ability to continue working. (J.S.Pl. ¶ 19; Cassidy Dep. at 56.) Although Mascioli could not remember Cassidy's exact statement, Mascioli alleged that Cassidy made a comment to the effect that when he thinks of epilepsy, he thinks of someone in a wheelchair. (J.S.Pl. ¶ 20; Mascioli Dep. at 73.) He expressed concern with her driving on company time. (J.S.P. ¶ 21; Mascioli Dep. at 74-75.) He inquired if he needed to hire an assistant manager to help with the Latrobe restaurant. (Cassidy Dep. at 61.) Mascioli answered that she did not need an assistant. (Id.) Plaintiff was not under investigation for any misconduct at the time Cassidy went to talk to plaintiff about her condition. (Cassidy Dep. at 56.)

Cassidy asked plaintiff if she would need additional time off from work. (J.S.Def. ¶ 20; Mascioli Dep. at 75-83.) Plaintiff informed Cassidy and area supervisor, John Mangone ("Mangone"), that she would need time off work to undergo testing and that depending on the results of her testing, she may need additional time off work for treatment. (J.S.Pl. ¶ 22; Mascioli Dep. at 75-83.) Although plaintiff told Cassidy and Mangone that she would need time off for testing and possibly for treatment, plaintiff never asked for any particular day or particular period of time off. (Mascioli Dep. at 83.) Other than informing Cassidy and Mangone that she may need to take time off, plaintiff did not ask for or otherwise indicate a need for any work accommodation. (J.S.Def. ¶ 21; Mascioli Dep. at 75-83.) In the time between the seizure and her termination, plaintiff did not undergo any medical testing. (J.S.Def. ¶ 22; Mascioli Dep. at 81, 84.)

Shortly after plaintiff met with Mangone and Cassidy, it came to defendant's attention that the assistant manager, Christina Stofko ("Stofko"), had been receiving complaints that plaintiff had been making employees work off the clock without paying them. (J.S.Def. ¶¶ 33, 34; Stofko's Deposition ("Stofko Dep.") at 18-26.) Stofko allegedly received the complaints starting in August 2005. (J.S.Def. ¶ 33.)

Arby's distributed a RESPECT (respect quality, sexual harassment, pay issues, communication and teamwork) policy to all employees during orientation. (J.S.Def. ¶ 8; Mascioli Dep. at 85.) Working off the clock violated Arby's RESPECT policy, which specifically required that employees were to be paid "for all hours worked." (J.S.Def. ¶ 10, Mascioli Dep. at 85, Def.'s Ex. 5 at 39, 43). Plaintiff was aware of the RESPECT policy and reviewed it during training sessions. (J.S.Def. ¶ 11; Mascioli Dep. at 84-86.) Stofko was never personally forced to work off of the clock nor did she ever witness plaintiff forcing an employee to perform and work off the clock. (J.S.Pl. ¶ 25; Stofko Dep. at 19-20.) Cassidy asked Stofko to obtain allegations in writing from employees who worked off the clock. (J.S.Def. ¶ 36; Stofko Dep. at 29-30.) Stofko instructed every employee who alleged that plaintiff forced him or her to work off the clock to write a statement that included the dates that plaintiff forced him or her to work off the clock and the tasks plaintiff forced him or her perform off the clock. (J.S.Def. ¶ 37; Stofko Dep. at 35-36.) Six employees submitted written statements. (J.S.Def. ¶¶ 39-44; Def.'s Exs. 6-11.) Stoner's written statement is dated August 18, 2005. (Def.'s Ex. 9.) The other written statements are not dated. (Def.'s Exs. 6-8, 10, 11.) Schmucker's written statement alleges plaintiff required her to work until 4:30 p.m. on August 10, 2005 although she clocked out at 3:35 p.m. that day. (Def.'s Ex. 7.) On or around August 18, 2005, Stofko faxed the written statements to Mangone. (J.S.Def. ¶ 45; Stofko Dep. at 45.)

Plaintiff alleges that when Cassidy initially interviewed the employees who provided written statements, all the employees denied that they were forced to work off the clock. (J.S.Pl. ¶ 26; Mascioli Dep. at 136-38.) The day after the initial...