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Joseph v. Albertsons

July 29, 2008

KATHY ANN JOSEPH PLAINTIFF
v.
ALBERTSONS N/K/A SUPERVALU ACME MARKETS CARL JABLONSKI DIANE APA-HAUSER AND JAMES FARNHAM DEFENDANTS



The opinion of the court was delivered by: Wolfson, United States District Judge

OPINION

Pro Se Plaintiff Kathy Ann Joseph ("Plaintiff" or "Joseph") was an employee of Acme Markets, Inc. ("Acme") from 1995 to 2005. Defendant Albertsons n/k/a SUPERVALU INC. ("SUPERVALU") is Acme's parent company. Defendant Carl Jablonski was the President of Acme during Plaintiff's employment. Defendant Diane Hauser was Acme's Director of Labor Relations and Employment Counsel from September 2001 until February 2007. Defendant James Farnham ("Farnham") was Acme's Store Director and Plaintiff's supervisor from February 2001 until July 2004. Joseph brings this action claiming that her rights under the American with Disabilities Act ("ADA"), the New Jersey Law Against Discrimination ("NJLAD"), and 42 U.S.C. § 1983 were violated. Defendants seek summary judgment on all claims. For the reasons discussed below, Plaintiff's federal claims are dismissed, and her state law claims are dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).*fn1

Factual Background

Defendant Acme is a retail grocery store with locations in Delaware, Maryland, New Jersey and Pennsylvania. (Defendant's Statement of Undisputed Facts, ¶ 2. . Plaintiff worked as a part-time clerk at Acme's store in Morrisville, Pennsylvania beginning on October 27, 1995.

Id. at ¶¶ 1, 15. During her employment with Acme, Plaintiff was a member of the United Food and Commercial Workers Union ("UFCW") Local 1360. Id. at ¶ 7. Acme and the UFCW have a Collective Bargaining Agreement ("CBA") which contains terms and conditions of employment for Acme employees including Plaintiff. Id. at ¶ 8.

Sometime in early 1997, Plaintiff was diagnosed with Epstein Barr Virus, and she requested that her hours be less sporadic to accommodate her condition. Id. at ¶¶ 16,17. Judy Russo, Acme's Manager of Human Resources, asked Plaintiff to provide a note from a doctor. Id. at ¶ 17. On March 19, 1997, Plaintiff provided a note from her doctor stating that she has been diagnosed with Epstein Barr Virus. Id. Shortly thereafter, Plaintiff requested to work the night shift, and Acme granted the request. Id. at ¶ 18.

On July 31, 1997, Plaintiff requested daytime hours again. This time, she provided Acme, in writing, with a proposed schedule of the days and hours she would work. Id. at ¶ 19. Acme began scheduling Plaintiff in accordance with this request in September of 1997. Id. at ¶ 20. Plaintiff's new schedule turned out to be short-lived, and her hours were reduced somewhat by a process known as "bumping". Id. at ¶ 22. "Bumping" is a method by which a senior employee can take hours assigned to a less senior employee if the less senior employee is scheduled more hours than the CBA guarantees. Id. at ¶ 23. Some of Plaintiff's hours were "Bumped" by Hazel Marshall, a more senior employee. Id. at ¶ 22. Plaintiff filed a complaint against the UFCW with the Pennsylvania Human Relations Commission alleging that by bumping, Acme violated her accommodation agreement. Id. at ¶ 24. It is unclear what resulted from the complaint, but the bumping stopped in 1998 when Hazel Marshall died. Id. at ¶ 26. Plaintiff had no complaints about her schedule after this point continuing throughout her employment at the Morrisville store. Id. at ¶ 26. Then, in 1999, Plaintiff requested a transfer to Acme's store in Lawrenceville, NJ, which was granted. Id. at ¶ 27.

The specifics of Plaintiff's schedule at the Lawrenceville store are unclear in the record, but Plaintiff worked there without incident until early 2002.*fn2 At some point, Plaintiff's hours were altered. Plaintiff's Answer to Undisputed Facts of Defendant ("Plaintiff's Facts"), ¶ 30. On February 3, 2002, Plaintiff filed a grievance with the UFCW against store director Defendant Farnham for harassment and discrimination because she was scheduled outside of her proposed schedule. (Def.s Facts, ¶ 30). On February 18, 2002, Acme held a meeting to discuss Plaintiff's scheduling issues. Id. at ¶ 32.

On February 22, 2002, Defendant Hauser, wrote a letter to Plaintiff asking for medical documentation of Plaintiff's medical condition. Id. at ¶ 33. In the letter, Hauser requested that Plaintiff provide her with current information since the previous communication from Plaintiff's doctor was four years old. This letter requested the documentation to be sent to Acme by March 22, 2002, and indicated that Acme would continue to schedule Plaintiff in accordance with her requested hours until the letter was received. Id. Plaintiff provided a note from her doctor dated March 18, 2002, which said that Plaintiff was under his care for chronic fatigue syndrome with Epstein Barr Virus. Id. at ¶ 35. In addition, the doctor requested that Acme "take Plaintiff's health needs into consideration when scheduling her hours." Id. Hauser responded on March 21, 2002, by sending a letter directly to Plaintiff's doctor requesting specific information about her condition and limitations created by it. Id. at ¶ 36. The doctor did not respond to this request for 18 months. Id. at ¶ 37. In addition to this letter to Plaintiff's doctor, Hauser sent a letter to Plaintiff requesting similar documentation. Id. at ¶ 38. This letter gave Plaintiff 30 days to respond. Id. Plaintiff did not respond for over a year. Id.

On May 10, 2002, Plaintiff took a leave of absence. Id. at ¶ 45. On June 17, 2002, while on leave, Plaintiff filed a complaint with the National Labor Relations Board ("NLRB") against Defendant Farnham for alleged violations of the CBA. Id. at ¶ 46. On October 20, 2002, Plaintiff returned to work. Id. at ¶ 45. Defendant Hauser, Defendant Jablonski, and Plaintiff exchanged multiple letters in an attempt by Acme to determine if Plaintiff had any medical restrictions on her job functions. Id. at ¶¶ 48-52. No clear resolution of this issue was reached, and Plaintiff was assigned to cashier duty. Id. at ¶ 53.

On February 18, 2003, Plaintiff submitted a note from her doctor concerning an ankle injury she sustained. Id. at ¶ 55. Acme responded by assigning Plaintiff to a position in general merchandise. Id. Acme also sent Plaintiff a letter asking her to have her doctor complete an enclosed form for the purpose of allowing Acme to determine an appropriate job for Plaintiff with her medical condition. Id. at ¶ 56. Plaintiff returned the form with the following doctor's recommendations: Plaintiff was "1) unable to stand in one spot more than 5% of the time, 2) unable to life more than 20 pounds and 3) unable or seldomly able to push and pull stock carts." Id. at ¶ 58. Acme considered these limitations and determined that there was no work available which Plaintiff could perform. Id. at ¶ 59. As a result, on March 21, 2003, Acme removed Plaintiff from the work schedule. Id. Several letters were exchanged between Plaintiff and Acme about the situation, but no resolution was reached. Id. at ¶¶ 60-66.

On April 15, 2003, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") claiming that Acme violated the Americans with Disabilities Act ("ADA") by failing to provide her a reasonable accommodation. Id. at ¶ 68. On August, 13, 2003, the EEOC dismissed the charge and issued a right to sue notice. Id. at ¶ 69.

On September 16, 2003, Plaintiff provided Acme with a letter from her doctor which stated that Plaintiff was capable of performing any job duties except cashier and cart return. Id. at ¶¶ 72-73. In this letter, Plaintiff asked to return to work on September 21, 2003. Id. After receiving this letter, Defendant Hauser advised Plaintiff that Acme would require Plaintiff to undergo an independent medical evaluation. Id. at ¶ 76. At some point in Fall of 2003, Plaintiff was evaluated by foot specialist Dr. Petolillo, and Dr. Petolillo submitted a report on December 8, 2003. Id. at ¶¶ 79-80. In the report, Dr. Petolillo concluded that Plaintiff's body mechanics were such that she was unable to do the type of standing required for cashier duty. Id. at ¶ 80. As a result, on December 28, 2003, Acme returned Plaintiff to work as a "non-checker qualified clerk" position with a lower hourly rate. Id. at ¶¶ 82-83.

On April 26, 2004, Plaintiff requested to be cross trained for the positions of Customer Service Representative and Self-Check Cashier Assistant. Id. at ΒΆ 84. Acme denied Plaintiff's request because the position of Customer Service Representative includes occasional cashier duty and the position of Self-Check Cashier Assistant is not a position separate from that of cashier-qualified clerk. Id. at ...


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