Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Conneen v. MBNA America Bank

June 27, 2003

MARGARET D. CONNEEN, APPELLANT
v.
MBNA AMERICA BANK, N.A.



On Appeal from the United States District Court for the District of Delaware (Dist. Ct. No. 00-cv-00944) District Judge: Hon. Gregory M. Sleet

Before: McKEE, Greenberg, Circuit Judges and LIFLAND,*fn1 District Judge

The opinion of the court was delivered by: McKEE, Circuit Judge.

As amended July 22, 2003.

MARGARET D. CONNEEN, APPELLANT
v.
MBNA AMERICA BANK, N.A.

On Appeal from the United States District Court for the District of Delaware (Dist. Ct. No. 00-cv-00944) District Judge: Hon. Gregory M. Sleet

Jeffrey. K. Martin, Esq. (Argued) Jeffrey K. Martin, P.A. 1509 Gilpin Avenue Wilmington, Delaware 19806 Attorney for Appellant

Benjamin N. Gutman, Esq. (Argued) Equal Employment Opportunity Commission 1801 L. Street, N.W., Washington, DC 20507 Attorney for Amicus-Curiae -eeoc

Sheldon N. Sandler, Esq. (Argued) Joanne C. Springer-messick Young Conaway Stargatt & Taylor, Llp The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Attorneys for Appellee

Before: McKEE, Greenberg, Circuit Judges and LIFLAND,*fn1 District Judge

The opinion of the court was delivered by: McKEE, Circuit Judge.

PRECEDENTIAL

Argued: November 7, 2002

OPINION OF THE COURT

Margaret Conneen *fn2 appeals the district court's dismissal of the suit she brought against MBNA America Bank, N.A., her former employer. She alleges that her termination from MBNA was a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 and 28 U.S.C. § 1343(a)(4) (the "ADA"), and a breach of obligations imposed on MBNA by the covenant of good faith and fair dealing implied under Delaware law. The district court granted summary judgment in favor of MBNA, and against Conneen, and this appeal followed. The court concluded that Conneen was not entitled to the protection of the ADA because she could not demonstrate that she could perform the essential functions of her job with or without an accommodation. Although we disagree with that conclusion, we nevertheless affirm the grant of summary judgment in favor of MBNA as there is no genuine issue of material fact that would allow a reasonable juror to conclude that MBNA terminated Conneen because of her disability or that MBNA failed to engage in the interactive process as required under the ADA.

I. BACKGROUND

Conneen was employed by MBNA from July 21, 1986 through June 25, 1998. During that time she rose to the position of Marketing Production Manager. She went on short-term disability leave in September of 1996, after she began suffering from clinical depression. Her treating psychiatrist, Dr. Alan Seltzer, diagnosed her as suffering from a "major depressive episode with severe psychotic symptoms." The medications he prescribed included Effexor, an antidepressant.

In December of 1996, Dr. Seltzer noted that Conneen was "in partial remission" and "no longer psychotic," and he removed her from all medications except Effexor. Shortly thereafter, on February 18, 1997, Conneen met with an MBNA Health Services nurse, who approved Conneen's return to work. The very next day, Conneen returned to work on a part-time basis, working four hours per day. In March of 1997, Conneen resumed her regular hours working full-time from 8:00 a.m. to 5:00 p.m. with no restriction or accommodation for her depression. However, Conneen continued to take Effexor pursuant to Dr. Seltzer's recommendation, and that medication purportedly resulted in "morning sedation," which made it difficult for her to function in the mornings.*fn3

John Miller, Conneen's manager at the time, expressed concern about Conneen's frequent tardiness, and suggested to Conneen that she speak with a representative of MBNA's Health Services unit if her tardiness was related to illness.

On June 5, 1997, Conneen met with an MBNA nurse. As a result of that conversation, MBNA agreed to accommodate Conneen by allowing her to begin work at 8:30 a.m. instead of 8:00 a.m.

In a subsequent visit on June 16, 1997, Dr. Seltzer concluded that Conneen's depression was in partial remission, and by October 28, 1997, Dr. Seltzer concluded that Conneen was "doing well." Nevertheless, sometime in 1997, Conneen was allowed to begin reporting to work at 9:00 a.m. and working until 6:00 p.m. rather than working from 8.00 a.m. to 5:00 a.m. However, in spite of this further accommodation, Conneen's punctuality was "substandard," sometimes arriving as late as 9:30 a.m. On November 4, 1997, MBNA gave Conneen a "final warning" because she had reported to work intoxicated two days earlier. In that warning, MBNA warned Conneen that she would be terminated for any further misconduct.

Conneen next visited Dr. Seltzer on January 20, 1998, and the doctor noted that she had been "doing well for six months." Nevertheless, the doctor decided against altering Conneen's dose of Effexor because she was then struggling through divorce proceedings and the doctor was concerned about the impact of those proceedings on Conneen's depression.

On January 30, 1998, Conneen met with her new manager at MBNA, Rose Behm, to discuss her schedule. Behm did not know that Conneen had an adjusted schedule nor was she aware of Conneen's history of depression or morning sedation resulting from her medication. Conneen told Behm that her schedule had been adjusted to allow her to start work an hour later, but she did not suggest that the adjustment was related to an accommodation for a medical condition. Behm asked Conneen if anything prevented her from returning to a normal 8:00 a.m. to 5:00 p.m. schedule. Despite the problems Conneen was continuing to have with punctuality, she assured Behm that there was no reason she could not resume reporting to work at 8:00 a.m. and working until 5:00 p.m. Conneen did not request continuation of the accommodation of a later starting time, nor did she give Behm any reason to believe that an accommodation may be necessary.

Accordingly, Conneen began reporting to work at 8:00 a.m. on February 9, 1998. However, Conneen's tardiness soon resurfaced and she was late for work on February 18, 19, 20, and 24, 1998. On February 24, 1998, Conneen's acting supervisor, Anne Casey,*fn4 and Fran Hahn, Casey's supervisor, met with Conneen to discuss the recurring tardiness. During this conversation, Conneen was asked once again if there was any reason why she (Conneen) was unable to report to work on time, and she once again said there was no reason she could not do so. Conneen was then warned that "continued excessive, unexcused tardiness would not be tolerated," Appellee's Br. at 6, and Conneen agreed to be on time in the future.

Despite that promise of punctuality, less than a week went by before Conneen was again late for work. She reported late on February 26 and 27 as well as March 2, 3, 4, and 5, 1998. On March 6, 1998, Conneen again met with Hahn, Casey, and Catherine Willey, a representative from MBNA's Personnel Department. At that meeting, Conneen was told that her continued tardiness could result in dismissal. Conneen then informed them for the first time that she had a medical condition that caused her to be late, and that she could provide documentation from her physician to justify her need for an accommodation. Conneen's managers requested the offered documentation and Conneen asked Dr. Seltzer to supply it.

In response to Conneen's request, Dr. Seltzer drafted a letter to MBNA in which he stated: "because of Ms. Conneen's condition, she will be generally unable to begin work before 9:00 a.m." App. at B3, B122. Based upon that documentation, MBNA allowed Conneen to work from 9:00 a.m. to 6:00 p.m. each day.

However, inasmuch as there was some question as to how long Conneen would need that accommodation, Nurse Patricia Peterson obtained Conneen's permission to contact Dr. Seltzer on behalf of MBNA to determine when Conneen could resume a regular schedule.*fn5 Nurse Peterson subsequently testified that, based upon the ensuing conversation with Dr. Seltzer on April 7, she concluded that Conneen's morning sedation was a temporary reaction to medication, that the dosage would be corrected, and that Conneen would be able to resume her regular schedule in a couple of weeks.*fn6

Dr. Seltzer also filled out an MBNA disability form in response to Nurse Peterson's request for documentation to support affording Conneen a later starting time. On the form, Dr. Seltzer described Conneen as suffering from "dysphoria." Dr. Seltzer did not, however, suggest that an adjusted schedule was necessary, nor did he affirm that Conneen's condition or medication interfered with her getting to work on time.

As a result of Nurse Peterson's conversation with Dr. Seltzer, Casey advised Conneen that she could continue to report to work at 9:00 a.m. through April 22, 1998, but that she must thereafter resume reporting at 8:00 a.m. Conneen testified at her deposition that she relied on Nurse Peterson's description of the contents of her conversation with Dr. Seltzer. However, Conneen also testified that she did tell Nurse Peterson that she was not comfortable with the change, and that she disagreed with the decision to remove the accommodation of an hour extra to report for work in the morning. Conneen nevertheless asserts that she felt that she had no alternative but to begin working at 8:00 as Peterson requested. Nevertheless, despite being allowed to report at 9:00 a.m. for a few more weeks, Conneen showed up for work after 9:00 a.m. on April 17.*fn7

On April 24, Casey and Willey met with Conneen yet again to remind her that she was to begin work at 8:00 starting on April 27, and Conneen agreed to resume starting at 8:00 a.m. She did not request continuation of the accommodation of the later start time of 9:00 a.m. Conneen explains her failure to ask for continuation of the accommodation at this meeting by arguing that she did not feel comfortable discussing her medical situation with her manager or anyone from the personnel department at MBNA. Appellant's Br. at 9. However, it is uncontested that she also failed to thereafter ask Dr. Seltzer to contact MBNA on her behalf or to suggest that Nurse Peterson have another conversation with Dr. Seltzer to confirm that she was ready to resume reporting to work at 8:00 a.m. Rather than attempting to have MBNA continue an adjusted work schedule or contact Dr. Seltzer before making a final decision in that regard, Conneen agreed to the resumption of her 8:00 a.m. to 5:00 p.m. schedule and assured Casey and Willey that she would be punctual.

However, Conneen's history was a more accurate predictor of her future performance than those assurances were. Despite the assurances of punctuality, Conneen arrived late on April 27, 28, and 29 as well as May 1, 1998. On May 1, Willey urged Conneen to speak with Nurse Peterson. Conneen did meet with Nurse Peterson and the two discussed Conneen's adjustment to her medication as well as concerns about Conneen's punctuality. During that meeting Conneen again failed to even suggest that her tardiness might be related to her medication or history of depression. Moreover, despite that meeting, Conneen's pattern of late arrivals continued and she was late for work again on May 6, 8, and 11, 1998.

On May 15, Conneen and Willey met and Willey offered Conneen a brief leave of absence with pay so that Conneen could consider whether she wanted to continue working as an officer at MBNA. Willey also offered Conneen the opportunity to transfer to a non-officer, non-manager position, which would have allowed her to work a different schedule. Finally, Willey told Conneen that in lieu of termination, she would accept her resignation if Conneen wished to pursue that path. On May 18, 1998, Conneen rejected each of those alternatives and told Willey that she would be on time each day.

Following that meeting, Conneen did begin to report for work on time, but her punctuality was again short lived. After reporting punctually at 8:00 a.m. for almost a full month, she lapsed back into tardiness and was late on June 16, 17, 18, and 22. Willey met with her once again on June 23 to discuss the situation. Amazingly, given her current claims under the ADA, Conneen still refrained from suggesting a link between her medication and her tardiness at the June 23 meeting despite warnings of termination and offers to accept her resignation. Conneen still requested no further accommodation. Rather than suggest a medicinal reason for her behavior or attempt to involve her treating physician, she attempted to explain her most recent tardiness by claiming: she had been "stuck in traffic," her dog "made a mess," and that she needed to give her mother a ride one day.*fn8

On June 25, 1998, MBNA finally terminated Conneen for her excessive tardiness. Immediately following her termination, Conneen contacted Dr. Seltzer, who informed her that he had never told Nurse Peterson that Conneen was ready to begin working at 8:00 a.m. Shortly after that contact with Conneen, Dr. Seltzer wrote a letter to MBNA in which he stated that Conneen needed to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.