United States District Court, D. New Jersey
Francienna Grant, Pro Se Cape May Court House, N.J.
Lori Anne Jablczynski, Esq., Timothy D. Speedy, Esq., JACKSON LEWIS, P.C., Morristown, N.J. Attorney for Defendants.
JEROME B. SIMANDLE, Chief District Judge.
In this employment litigation, pro se Plaintiff, Francienna Grant (hereinafter, "Plaintiff"), generally alleges that her former employer, Defendants Revera Inc./Revera Health Systems,  Premier Therapy Services, and Priscilla Miller (hereinafter, "Defendants") engaged in an array of discriminatory and retaliatory conduct as a result of Plaintiff's "work-related" injury. (See generally Compl. [Docket Item 1], ¶¶ 4-41.) Plaintiff's Complaint specifically alleges that Defendants: (1) failed to accommodate her disability; (2) failed to accommodate her religion; (3) failed to intervene in the face of workplace harassment; (4) subjected Plaintiff to unequal terms and conditions of employment; (5) wrongfully terminated and retaliated against Plaintiff in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12112-12117; (6) breached Plaintiff's employment contract; and (7) committed fraud by terminating Plaintiff under "false allegations." (See generally id.)
Defendants deny that Plaintiff's injury and/or her request for accommodation motivated their employment decisions with respect to Plaintiff. (Defs.' Answer [Docket Item 10].) Rather, Defendants assert that an array of workplace misconduct, namely, insubordination, falsification of Plaintiff's time-records, and noncompliance with medical protocol, prompted Plaintiff's termination after less than eight (8) months of employment. (Id.)
Discovery is completed in this two-year old case. The parties now cross-move for summary judgment. [Docket Items 78 & 79.] In their motion, Defendants assert that no evidence proffered by Plaintiff reflects any discriminatory motive, and therefore contend that no genuine issue of material fact precludes summary disposition of Plaintiff's ADA claim. (Defs.' Br. [Docket Item 79].) Defendants assert that Plaintiff's remaining claims similarly require dismissal principally on the grounds that Plaintiff failed to first exhaust administrative remedies, that Plaintiff's allegations fail to state a claim for relief, and due to the expiration of the applicable limitations periods. (Id.) Plaintiff, by contrast, asserts that the undisputed evidence instead demonstrates Plaintiff's entitlement to judgment on her ADA claim. (Pl.'s Br. [Docket Item 78].) In addition, Plaintiff asserts that Defendants destroyed documents concerning the purported grounds for Plaintiff's termination, and therefore seeks, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), the "dismissal of all claims" related to such documents. (Id.)
The primary issue before the Court is whether genuine issues of disputed fact concerning the basis for Plaintiff's termination preclude the summary disposition of this action in Defendants' favor. For the reasons that follow, the Court will grant Defendants' motion for summary judgment, and will deny Plaintiff's motion for summary judgment in its entirety.
A. Rule 56.1 Statements
Defendants filed a proper statement of material facts not in dispute, as required by Local Civil Rule 56.1(a). Plaintiff failed to furnish a counterstatement of material facts in connection with Defendants' motion for summary judgment. Nor did Plaintiff file a statement of material facts in support of her own motion for summary judgment. Rather, Plaintiff filed an untimely nine (9) page supplemental submission setting forth erratic citations to various deposition transcripts, in addition to her numbered "response" to Defendants' statement of material facts. (Pl.'s Supp. Br. [Docket Item 86].) Plaintiff's "response, " however, substantially fails to respond to Defendants' statement and to provide detailed citations to affidavits and/or other documents in order to substantiate the statement's factual basis. (Id.) Rather, the "response" either denies, without support, various portions of Defendants' statement (see id at 8 ("false" and "Defendant is making false assumptions"), or nebulously refers to large swatches of partially mischaracterized deposition testimony. (Id.; see also Defs.' Reply to Pl.'s SMF [Docket Item 90], 1-8 (disputing Plaintiff's incomplete, inaccurate, and/or misleading recitations of record in this litigation).)
In addition, much of Plaintiff's "response" concerns the legal relevancy of such facts, the inclusion of which the Court finds inappropriate in connection with a Rule 56.1 statement. (See, e.g., id. at 7 ("This suggesting retaliation").) See also L. CIV. R. 56.1(a) ("Each statement of material facts shall be a separate document (not part of a brief) and shall not contain legal argument or conclusions of law."). Where, as in this case, a party fails to respond to the movant's statement of undisputed material facts with a point-by-point indication whether the stated fact is undisputed or, if disputed, with a precise citation to the factual record where contrary evidence exists, then the Court assumes that the opponent has no evidence raising a genuine dispute with the movant's stated fact. Consequently, Plaintiff's submission will be disregarded to the extent it states legal arguments or conclusions of law, and to the extent Plaintiff failed to make clear any dispute with respect to the material facts set forth in Defendants' statement. Rather, any such fact will be deemed undisputed for purposes of the pending motions. See L. CIV. R. 56.1(a) ("[A]ny material fact not disputed shall be deemed undisputed for purposes of the summary judgment motion.").
B. Factual Background
By letter dated July 7, 2008, Defendant Premier Therapy Services (hereinafter, "Premier") extended Plaintiff an offer of employment as a full-time physical therapist, subject to the terms and conditions of Premier's Colleague Handbook. (Speedy Cert., Ex. 5.) The Colleague Handbook, attached to Plaintiff's initial offer letter, advised Plaintiff of the policies applicable to her employment, including Premier's "Standards of Conduct" for all employees, Premier's disability accommodation policy, and its requirements for timely and accurate submission of payroll records. (Id. at Ex. 8 at 2-4.)
On July 14, 2008, Plaintiff accepted the position of physical therapist at Premier's Linwood Care Center. (Speedy Cert., Ex. 5.) In connection with such acceptance, Plaintiff acknowledged Defendants' policy of at-will employment, and her concomitant understanding that such employment could be terminated "at any time" with or without cause. (Id. at Ex. 9.) Plaintiff further confirmed her receipt and understanding of the employment policies set forth in the Colleague Handbook, but recognized that the Colleague Handbook constituted "neither a contract of employment nor a legal document." (Id. at Ex. 9.) Plaintiff's work as a physical therapist commenced shortly thereafter. Plaintiff's performance evaluation for her introductory period, or first 90 days of employment, however, reflected an overall rating of "2" or "Partially Meets Requirements[, ]" noting that Plaintiff "often question[ed] directives[, ]" caused "some frustration" to her peers, and maintained a productivity level 58% below standard. (Speedy Cert., Ex. 19 at 3, 5.)
During a "patient transfer" on November 24, 2008,  Plaintiff purportedly suffered an injury to her right shoulder, neck, and mid-back. (Compl. at 2; Speedy Cert., Ex. 15.) On December 1, 2008, Plaintiff reported her alleged injury to Defendant Priscilla Miller (hereinafter, "Ms. Miller"), the Rehabilitation Director of Premier's Linwood facility, and completed an employee workers' compensation incident report. (Grant Dep. at 221:3-1; Speedy Cert., Ex. 15.) In accordance with Premier's policy, Ms. Miller then forwarded the report to the Human Resources Department, and arranged for Plaintiff to receive a workers' compensation medical examination from Employee Health. (Grant Dep. at 195:21-24.)
At her initial workers' compensation assessment on December 3, 2008, Dr. Stephen A. Nurkiewicz diagnosed Plaintiff with a "shoulder sprain[, ]" but determined Plaintiff "able to work" subject to certain modifications. (Speedy Cert., Ex. 16.) Dr. Nurkiewicz specifically directed that Plaintiff lift no more than 15 pounds and limit the use of her right arm. (Id.) Despite Dr. Nurkiewicz's determination, Plaintiff declined to return to Defendants' facility. (Grant Dep. at 145:15-20, 200:20-24.) Nor did Plaintiff immediately report the status of her condition, or any follow-up appointments, to Premier. (McConnell Dep. at 53:17-23.) Rather, Plaintiff continued to seek medical treatment, and "just didn't come to work[.]" (McConnell Dep. at 53:22-23; Pl.'s Br. at 2.)
Dr. Nurkiewicz conducted a follow-up examination on December 10, 2008. (Pl.'s Br., Ex. 2 at 3.) Though Plaintiff reported pain of 8 on a 1-10 scale, Dr. Nurkiewicz observed a "partial improvement" in Plaintiff's swelling and rotation, and found Plaintiff able to work on "Limited Duty" and with physical therapy. (Id.) On December 17, 2008, Dr. Nurkiewicz performed a final workers' compensation medical evaluation, at which time Plaintiff reported pain of 1 on a 1-10 scale. (Pl.'s Br., Ex. 2 at 1.) Dr. Nurkiewicz, however, found that Plaintiff's symptoms demonstrated "no improvement" and he, accordingly, directed that Plaintiff be referred to an orthopaedic specialist for any additional evaluations and/or treatment. (Id.) At Plaintiff's orthopaedic assessment, however, Dr. John R. McCloskey cleared Plaintiff for "modified duty, " with "no patient lifting." (Id. at Ex. 18.)
In light of Dr. McCloskey's determination, Ms. Miller, then informed of Plaintiff's diagnosis, directed Plaintiff to immediately return to work on December 23, 2013 under "lightduty" (Grant Dep. at 209:19-211:6), and with an accommodated schedule. (Miler Dep. at 64:3-22; Grant Dep. at 143:12-15.) Despite the physicians' undisputed indication that Plaintiff need only limit the use of her right arm, however, Plaintiff took the position that she could "hardly" perform any tasks. (Grant Dep. at 142:18-143:4.) Rather, Plaintiff declined, on her own volition, to perform any tasks that required the use of her right arm, opting instead to place her right arm in a sling or to leave her right hand in her pocket. (Id. at 142:18-144:8, 230:25-231:17.)
Despite Plaintiff's position, Premier attempted, on multiple occasions, to accommodate Plaintiff in accordance with her doctors' expressly delineated medical limitations. (Defs.' SMF at ¶ 48.) Indeed, Premier proposed that Plaintiff conduct assisted therapy evaluations in order to avoid any physical lifting and/or conduct supervisory visits that require only the completion of certain documentation. (Willey Dep. at 217:24-219:14.) Moreover, in light of the discrepancy between the medical evaluations and her own professed limitations, Ms. Miller sought additional documentation from Plaintiff, in addition to observing, firsthand, Plaintiff's limitations. (Grant Dep. at. 256:1-258:23.) Despite these documented efforts, however, Plaintiff deemed her arm functionally inoperable, and largely refused to perform any work, modified or otherwise. (Willey Dep. at 217:14-16; Grant Dep. at 142:18-144:8; McConnell Dep. at 88:2-8.)
Indeed, Plaintiff conducted only one evaluation from the time she returned to Defendants' facility to her suspension on January 16, 2014. (Grant Dep. at 144:20-145:2.) Rather, Plaintiff filled portions of her workday with personal physical therapy appointments, coded as "Administration" time in her "CareTrack" hand-held time-keeping device. (Defs.' SMF at ¶ 69; Grant Dep. at 167:9-171:12.) Specifically, Plaintiff logged the following hours as "worked/administrative time: December 30, 2008, 96 minutes; January 2, 2009, 90 minutes; January 5, 2009, 95 minutes; January 7, 2009, 104 minutes; [and] January 9, 2009, 89 minutes." (Defs.' SMF at ¶ 70.)
As a result of Plaintiff's improper recordation of her physical therapy time as compensable, administrative time, Ms. Miller issued Plaintiff a written warning dated January 13, 2009 for an array of performance and compliance issues. (Speedy Cert., Ex. 24.) The written warning specifically indicated that Plaintiff: failed to clock out for her therapy treatments for a total of 11 hours from December 26, 2008 through January 12, 2009; failed to communicate with Ms. Miller; and that Plaintiff failed to comply with the orthopaedist's orders for only modified duty by refusing to use her right upper extremity during the day. (Id.) In addition, the written warning directed Plaintiff to "clock out for therapy time" and to complete an 8hour day, and advised that any infraction in the next thirty (30) days might result in termination. (Id.)
On the morning of January 16, 2009, Plaintiff met with Ms. Miller and Bruce Schaffer, one of Premier's Human Resources Officers, in order to discuss the "time deficit" associated with Plaintiff's miscoded physical therapy time. (Defs.' SMF at ¶¶ 80-81.) Ms. Miller specifically asked Plaintiff to "make-up" such time by working one and/or both of the following Saturdays, January 17, 2009 and January 24, 2009. (Id.) Plaintiff stated that religious obligations prevented her from working on January 17, 2009, but, despite several requests, provided no indication concerning her availability on January 24, 2009. (Id.; Grant Dep. at 176:13-177:7; Speedy Cert., Ex. 26.) Nor did Plaintiff return Ms. Miller's follow-up voicemail concerning Plaintiff's schedule for January 24, 2009. (Speedy Cert., Ex. 26; Grant Dep. at 177:14-179:7.) Rather, Plaintiff provided an untimely response on January 19, 2009, after Ms. Miller finalized the relevant work schedule. (Speedy Cert., Ex. 25 (letter from Plaintiff dated January 16, 2009); Grant Dep. at 178:1-5 (noting that Plaintiff deposited the January 16, 2009 letter on January 19, 2009).)
In light of Plaintiff's behavior, including her recalcitrance in scheduling, Defendants suspended Plaintiff on January 19, 2009 for "Continued Insubordination" and "Poor Communication." (Speedy Cert., Ex. 26.) On January 21, 2009, Chelsea Chen-Gornick, Premier's Human Resources Director, contacted Plaintiff in order to schedule an in-person meeting concerning Plaintiff's suspension for January 22, 2009. (Defs.' SMF at ¶ 90; Pl.'s Br. at 3.) Ms. Chen-Gornick then advised Plaintiff, by separate ...