Speziale v. Bethlehem Area School Dist., 266 F. Supp. 2d 366 (E.D. Pa. 2003)

*367 Donald P. Russo, Vanessa M. Nenni, Bethlehem, PA, for plaintiff.

Ellis H. Katz, Jason R. Wiley, Sweet, Tucker & Katz LLP, New Britain, PA, for defendants.

ANITA B. BRODY, District Judge.

On October 15, 2001, plaintiff Angelo J. Speziale, filed a complaint against defendants Bethlehem Area School District ("BASD") and Thomas J. Doluisio ("Doluisio"), the Superintendent of the BASD. On January 4, 2002, plaintiff filed an Amended Complaint. On January 31, 2002, plaintiff filed a Second Amended Complaint. On April 24, 2002, plaintiff *368 voluntarily dismissed Doluisio and the Second Amended Complaint. On May 9, 2002, plaintiff filed a Third Amended Complaint and, on July 29, 2002, the parties stipulated that Count V of plaintiffs Third Amended Complaint should be dismissed with prejudice. The central issue in all the complaints was whether BASD and Doluisio forced plaintiff to retire from his position with the school district. Those claims now before the court are: Count I, violation of 42 U.S.C. § 1983, procedural due process violations; Count II, violation of liberty interest in employment in violation of 42 U.S.C. § 1983; Count III, violation of anti-retaliation provisions of the Family and Medical Leave Act of 1993, 29 U.S.C. § 261(a) (1); and Count IV, violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701.

Defendant has moved for summary judgment. For the reasons addressed below, I will grant defendant's motion.

Plaintiff began working for BASD in November 1985 as Coordinator of Instructional Materials/Libraries. Compl. ¶ 5. During his employment, plaintiff received "above expected" ratings and pay raises every year. (Speziale at 57:12-20).^[2] During the period in question, plaintiffs immediate supervisor was first Tony Villani ("Villani") and, later, Monty Perfetti ("Perfetti"). Perfetti reported to Doluisio. (Speziale at 13:6-7; 184:6-21). Until about January 1996, plaintiff and Doluisio would occasionally socialize. These gatherings included getting drinks together at a Holiday Inn after school board meetings and meals which the men and their families would both attend. These interactions abruptly stopped sometime after January 1996. (Speziale at 27:10-17; 90:18-91:3).

In the mid-1990s, plaintiff approached Villani about the need to hire a full-time employee to work with the district-wide network. (Speziale at 13:3-7). Plaintiff suggested that Villani promote a computer specialist named Scott Garrigan ("Garrigan") to the new posit. (Speziale at 13:23-14:10). Shortly after Garrigan's appointment as network coordinator, plaintiff found that Garrigan was unable or unwilling to cooperate with plaintiff. (Speziale at 15:14-21). Plaintiff soon notified Perfetti of his concerns. (Speziale at 16:10-13). He also notified Doluisio. (Speziale at 17:3-5). Plaintiffs complaints about Garrigan's performance persisted up until plaintiff left his job. (Speziale at 16:16-19). In addition to his concerns about Garrigan's lack of teamwork, Plaintiff felt that Garrigan was attempting to supplant him by taking on responsibilities previously held by plaintiff. (Speziale at 39:4-10). It appears that Doluisio contributed to the tension between plaintiff and Garrigan, insofar as Doluisio gave duties previously held by plaintiff to Gijrrigan and permitted Garrigan to take over other duties initially assigned to plaintiff. (Speziale at 17:14-18:9; 39:12-15). In the summer of 1997, Perfetti also took away a responsibility that plaintiff had successfully performed throughout his employment: the preparation of purchase orders for instructional materials. (Speziale at 32:6-13). This move was a particular affront to plaintiff, who had, over his thirteen years with the school district, developed the instructional materials center into one of the most dynamic *369 centers of its kind in the state. (Speziale at 33:6-17).

This last restriction on his work load prompted plaintiff to send Doluisio and Perfetti a memo in March of 1999 protesting the perceived effort by the two supervisors to undermine his professional standing. (Speziale at 34:14-20; 35:12-14). In this memo, plaintiff asked "Are you trying to force me out?" (Speziale at 38:12-15). Around this time, plaintiff found that he was not permitted to schedule an appointment with Doluisio and that Doluisio would not return his phone calls. (Speziale at 58:10-14). Plaintiff consulted Perfetti to determine what weaknesses in his performance justified the steady erosion of his professional responsibilities, but Perfetti insisted that everything was fine. (Speziale at 59:15-60:8). At a dinner reception attended by both Doluisio and plaintiff, plaintiff requested sabbatical leave. Doluisio denied this request. (Speziale at 163:13-23).

In an effort to follow up on his March memo to Doluisio, plaintiff sent the superintendent another memo in April of 1999. (Speziale at 55:6-7). Doluisio, however, avoided plaintiff until September of 1999, when he scheduled and held a two-and-ahalf hour meeting with plaintiff. (Speziale at 66:6-15, 69:19-23). At this meeting, Doluisio said that plaintiff "was not offering anything to the organization and never [had]." (Speziale at 66:7-12). During the meeting, Doluisio "berated" plaintiff and asked plaintiff to provide him with a job description by December 1st. (Speziale at 69:13-16). At this meeting, Doluisio informed plaintiff that "The longer you delay your retirement, the more aggressive I'm going to be with your job description." (Speziale at 74:14-16). The two men also discussed a contract that plaintiff had with Wilkes University. Based upon the income he anticipated earning from this contract, plaintiff and his wife had taken out a loan. (Speziale at 74:24-75:6). Doluisio, despite allegedly having known about the contract for some time, informed plaintiff that he would not be allowed to do independent consulting in addition to his job with the school district. (Speziale at 75:6-19). When plaintiff protested about the economic consequences, Doluisio dismissed plaintiffs concerns with the words "I don't give a fuck about you or your family." (Speziale at 75:2-11). Plaintiff felt that this contentious meeting was an excuse to try and make plaintiff resign because, although the meeting was ostensibly set up to improve plaintiffs performance, none of his prior evaluations indicated any problem with his performance. (Speziale at 79:6-80:16). Moreover, after the meeting plaintiff asked Perfetti for more information regarding the new job description requested by Doluisio. Perfetti responded "I have no idea what the superintendent was talking about," adding that the job description "was never discussed with me." (Speziale at 84:4-12).

At the end of September, plaintiff took a three-week medical leave. (Speziale at 93:22-25). While on leave, plaintiff regularly consulted with his three secretaries. Each time he called, they told plaintiff that there were no problems to report. These responses contrasted sharply with plaintiffs prior experiencepreviously, the secretaries regularly paged and contacted plaintiff with problems even when he was engaged in activities where he was not to be disturbed. (Speziale at 198:14-199:18). After two weeks of silence, plaintiff told his secretaries, "Look, the handwriting's on the wall. I'm not going to call you anymore. If there's a concern or a problem that crops up, you call me, because this is embarrassing." (Speziale at 199:19-24).

*370 Plaintiff returned to work on October 18, 1999. Compl. ¶ 27. On October 27, 1999, plaintiffs father passed away. Compl. ¶ 28. After taking bereavement leave, plaintiff unsuccessfully sought clarification regarding Doluisio's request for a job description. {Speziale at 96:14-25). Around this time, Perfetti also informed plaintiff that "You fucking pissed me off for taking those three weeks." (Speziale at 97:19-25). After plaintiff returned to work, Perfetti deluged him with memos as a means of putting pressure on him. (Speziale at 99:2-19). Some of these memos accused plaintiff of failures for which he was not responsible. (Speziale at 99:20-100:8). Shortly after these events occurred, plaintiff took leave for the remainder of the 1999-2000 school year. (Speziale at 112:21-113:4). At least in the initial stages of his leave, plaintiff still envisioned returning to work the following year, at least with regard to the administration of a contract with Wilkes University that plaintiff had "[given] birth to." (Speziale at 122:11-22; 123:19-25, 124:8). At some point during his medical leave, however, plaintiff came to feel that he had been constructively discharged. (Speziale at 125:11-21). In a letter dated February 22, 2000, Plaintiff informed BASD that he planned to retire at the end of the school year. (Speziale 194:13-19). In order to maximize the amount of his pension, however, plaintiff formally retired in September of 2000. (Speziale at 112:21-113:2).

After plaintiffs retirement, he was surprised when no prospective employers called to enquire about his availability. Such calls were normal for well-respected retirees. (Speziale at 141:2-18). Also, in 1998 and 1997, superintendents from other school districts had expressed interest in retaining plaintiff as a consultant. (Speziale at 147:15-22). Plaintiff attributed this silence to rumors then circulating about him, some of which included allegations that BASD had asked plaintiff to leave. (Speziale at 143:6-14,150:8-10).

Plaintiffs ultimately unsuccessful effort to find work with a consultant named Ron Thompson ("Thompson") and the Pocono Mountain School District ("PMSD") suggested that rumors regarding his tenure with BASD were, in fact, circulating. In or before September 2000, Thompson had asked plaintiff if he were interested in doing consulting work. (Speziale at 153:18-154:11). That month, plaintiff called Thompson with a business proposal that they could present to the PMSD. (Speziale at 154:10-19). Plaintiff and Thompson met with the PMSD. The morning meeting went well and that afternoon Thompson called plaintiff to tell him that they had received the contract and were to begin working right away. During the telephone call, Thompson told plaintiff, "You know, the onlythe funny thing is, is that the only question they asked, of all the hundreds of questions they could ask regarding telephone and network systems, was they wanted to know what your role was if this contract is awarded." (Speziale at 155:20-156:13). Before ending the call, Thompson told plaintiff that he would get back to him. (Speziale at 157:12-13). Thompson never called plaintiff back after that telephone conversation. (Speziale at 156:22-24).

At no point during or after his employment with BASD did plaintiff request a hearing with the school board. (Speziale at 114:3-9). He did not request a hearing because he believed that the school board would never go against Doluisio's desire to be rid of plaintiff. (Speziale at 115:15-25). Plaintiff based this conclusion on his regular attendance at public board meetings for 13 years. (Speziale at 131:20-132:7).

During the fall of 1999 plaintiff struggled with depression. (Speziale at 194:22 *371 195:6). Perfetti was aware of plaintiffs disability and the district had documentation from plaintiffs treating physician testifying to his depression. (Speziale at 160:14-161:24; 194:22-195:6). Despite his potential eligibility, at no time before his retirement did plaintiff request leave time under the Family and Medical Leave Act. (Speziale at 106:19-21).

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A court must determine "whether the evidence presents a sufficient [factual] disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251^52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). At the summary judgment stage, the Court must view the evidence, and draw all reasonable inferences, in the light most favorable to the non-moving party. See Did v. Com. of Pa., 91 F.3d 542, 547 (3d Cir. 1996). However, when the nonmoving party "bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 258 n. 5 (3d Cir.1998) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998)).

Defendant has moved for summary judgment on all four remaining counts of plaintiffs complaint. These counts involve two alleged violations of plaintiffs procedural due process rights, one violation of the Family and Medical Leave Act ("FMLA"), and one violation of the Rehabilitation Act. In this same order, I will address whether plaintiff, via his response to defendant's summary judgment motion, has raised a genuine issue as to any material fact relating to these claims.

Plaintiff brings his procedural due process claims against defendant under the Fourteenth Amendment and 42 U.S.C. § 1983. To succeed, Fourteenth Amendment procedural due process claims must allege a state-sponsored deprivation of a protected interest in life, liberty, or property.^[4]See Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990). To establish a § 1983 claim, a plaintiff must show that a person acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States.^[5] Plaintiff *372 claims that BASD is a state actor that deprived him of his constitutional rights by violating his Fourteenth Amendment due process property and liberty interests. I will address these two interests separately.

The Supreme Court has held that a public employee has a protected property interest in his or her continued employment by the government. Cleveland Bd. of Educ. v. LoudermiU, 470 U.S. 532, 547-58, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Plaintiff alleges that BASD, by and through the actions of its employees, constructively discharged him and thereby deprived him of this interest. (Speziale at 125:11-21). He does not dispute, however, the fact that he retired. (Speziale at 128:15-18).

An employee's resignation or retirement from public employment is "presumed to be voluntary." Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir.1999). The Third Circuit has explained that:

This presumption remains intact until the employee presents evidence to establish that the resignation ... was involuntarily procured. If an employee retires [or resigns] of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights.

Id. Adopting the reasoning of an Eleventh Circuit opinion, Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir.1995), the Leheny court held that an employee's resignation will be considered involuntary only if: (1) the employer forces the resignation by using coercion or duress, or (2) the employee resigned because the employer deceived or misrepresented a material fact to the employee. Id. (citing Hargray, 57 F.3d at 1568). In determining whether the resignation is voluntary, the court considers all the circumstances surrounding the plaintiffs resignation. O'Connell v. County of Northampton, 79 F. Supp. 2d 529, 533 (E.D.Pa.1999). Because plaintiff has neither alleged nor presented evidence of deception or material misrepresentation by defendant, I will limit my analysis to the question of whether plaintiffs resignation resulted from duress or coercion.

It is unclear what standard a district court should use when determining whether a resignation resulted from duress or coercions. My colleague the Hon. Eduardo C. Robreno has listed five factors to consider in making such an inquiry. They are: (1) whether the employee was presented with an alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee had a reasonable time to choose; (4) whether the employee was permitted to select the effective date of his resignation; and (5) whether the employee had the advice of counsel. O'Connell, 79 F. Supp. 2d at 533 (citing Hargray, 57 F.3d at 1568).

The decision over whether or not to adopt the five-factor test employed in O'Connell and Hargray arises from the following circumstances: In Leheny, the Third Circuit approvingly cited the Eleventh Circuit's Hargray opinion when discussing which factual scenarios could rebut the presumption that a public employee's *373 resignation was voluntary, ultimately agreeing that these scenarios were limited to situations involving coercion/duress or material misrepresentation. Leheny, 183 F.3d at 227. The Leheny court did not, however, explicitly adopt Hargray's five factors as the test for detemining whether or not coercion or duress had caused the plaintiff to retire. The issue before the court was whether a material misrepresentation had occurred. Id. at 228. Prior to Leheny, two cases decided within this district had addressed the question of what standard to use for constructive discharge claims brought under the Fourteenth Amendment and § 1983. In the first case, the Hon. Louis H. Pollak, after noting that "[t]he elements required to establish a constructive discharge claim under the due process clause are not entirely clear," applied "the least demanding standard-Title VH's so-called `intolerable circumstances' standard" to determine whether the defendant had unlawfully denied the plaintiffs constitutional property interest. Desper v. Montgomery County, 727 F. Supp. 959, 964 (E.D.Pa.1990).^[6] The second case, decided between Desper and Leheny, also applied the "intolerable circumstances" test to a public employee's complaint that his employer constructively discharged him in violation of § 1983 and his 14th Amendment procedural due process property right. See Goldberg v. City of Philadelphia, No. 91-7575, 1994 WL 313030 (E.D.Pa. June 29, 1994). Neither Leheny nor O'Connell cited these two earlier cases, nor did they address the question of what legal significance attaches to the difference between the five-factor test and the "intolerable circumstances" test. Because Leheny did not discuss what standard should be used for defining coercion or duress, there is an unresolved split on this issue among the courts within this district.

It is not necessary for me to weigh in on this dispute today. Regardless of whether I adopt the O'Connell/Hargray test or the "intolerable circumstances" test, I find that plaintiff has failed to raise a material question of fact as to whether his resignation was involuntary or coerced. The discussion below examines why.

Under the five factors of O'Connell/Hargray, plaintiff has no evidence that his resignation was involuntary: First, plaintiff was presented with an alternative to resignation insofar as the school district never suggested that he resign and he was therefore free to continue with his employment. Although there is evidence that Doluisio pressured him to retire, there is no evidence that plaintiff had no choice about whether or not to accede to Doluisio's wishes. While unquestionably capable of rendering plaintiffs working environment unpleasant, Doluisio did not have the power to remove plaintiff from his position. Only the school board had that authority, and plaintiff never communicated with members of the school board about his employment. See 24 P.S. § 11-1122 (Purdon 1992). Thus plaintiff, technically, had a choice about whether to resign.

Second, plaintiff understood the nature of the choice before him. The record shows that plaintiff kept abreast of retirement options throughout his employment. (Speziale at 179:20-180:15). Plaintiffs preparations for retirement do not show that he planned to retire. They do, however, demonstrate that he was aware of the financial consequences of choosing *374 when to do so. Plaintiff was also aware of the emotional and medical consequences of retiring. (Speziale at 125:16-21; 126:20-127:24). Nothing in the record suggests that plaintiff did not understand the ramifications of choosing to retire.

Third, plaintiff had a reasonable amount of time in which to decide whether to retire. Plaintiff stated that when he initially took medical leave in October of 1999, he planned to return. There were approximately four months between when plaintiff left work in the fall of 1999 and when he sent BASD a February 2000 letter expressing his intent to retire. (Speziale at 194:13-19). During this time, plaintiff was away from the pressure allegedly applied by Doluisio and Perfetti, with a reasonable amount of time to decide whether to return to work.

Fourth, plaintiff had control over the effective date of his resignation. In the February 2000 letter that plaintiff sent to BASD, notifying them of his intention to retire, plaintiff described his plan to retire at the end of the 1999-2000 school year. (Speziale at 195:15-20). Ultimately, plaintiff chose to retire on September 22, 2000, so that he would not be penalized for retiring early. (Speziale at 196:6-17). In the correspondence between plaintiff, the Pennsylvania State Retirement System, and BASD that took place between plaintiffs sending his February 2000 letter and his September 2000 retirement, plaintiff successfully negotiated for a retirement date that allowed him not to return to work and to maximize his retirement benefits. This exchange demonstrates plaintiffs control over when to resign.

Finally, it does not appear that plaintiff had the advice of counsel. Plaintiff has not, however, presented evidence of how the advice of counsel would have altered his decision about retiring.

Having addressed the five factors considered in O'Connell and Hargray, I find there is no outstanding question of material fact as to whether defendant or its agents coerced plaintiff into retiring. Plaintiff appears to have chosen between two options: he could either continue working in an uncomfortable work environment or he could retire and lose the satisfaction of overseeing the instructional materials center that he helped develop and the potential to* retire with a larger pension. "Resignations obtained in cases where an employee Is faced with unpleasant alternatives are nevertheless voluntary because `the fact remains that plaintiff had a choice.'" Hargray, 57 F.3d at 1568 (quoting Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333 (1975)). Plaintiff has failed to present evidence that his choice between two imperfect options was not, in fact, a choice. He has therefore failed to rebut the presumption that his retirement was voluntary.

Plaintiff has also failed to raise a material question of fact as to whether he resigned due to coercion or duress under the "intolerable circumstances" test. The Third Circuit has defined this "objective" test as one that asks whether "the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Gray, 957 F.2d at 1079. Although plaintiff has presented evidence both that Doluisio may have pressured him to resign and that he might have suffered under this pressure, plaintiff has not presented evidence of circumstances so unpleasant that a reasonable person would forseeably resign. Asking an employee to prepare a job description is not an extraordinary measure, nor is failing to provide guidance as to what form the; description should take, nor is reassigning job duties. While *375 an ideal supervisor would provide guidance, respond to memos and telephone calls, demonstrate concern for an employee's financial situation, be understanding of health-related absences, and be unflaggingly supportive, the failure to do so does not amount to intolerable circumstances. In this case, even if all of plaintiffs allegations are true, there is no evidence establishing circumstances under which a reasonable person would feel compelled to resign and the defendants' actions thus did not constitute constructive discharge.

Because plaintiff has not presented evidence for why his retirement should not be presumed voluntary, I find he has failed to raise a material question of fact with regard to Count I of his complaint.

The Supreme Court has held that an individual has a legally-protected interest in his or her reputation. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971) ("Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential."). For government action to infringe the "reputation, honor, or integrity" of an individual, the government action must involve a publication that is "substantially and materially false." Ersek v. Township of Springfield, 102 F.3d 79, 84-85 (3d Cir. 1996) (citing Codd v. Velger, 429 U.S. 624, 627-29, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977)). The government action must also harm the plaintiff. Id. at 84.

In this case, plaintiff argues that BASD is responsible for unidentified rumors that may or may not have reached PMSD officials. These rumors, plaintiff believes, led PMSD to influence Thompson in such a way that plaintiff was excluded from the possible contract between PMSD and Thompson. {Speziale at 158:7-159:24). The Third Circuit has held that harm to future employment possibilities may show sufficient stigma to allow a claim for a violation of a liberty interest. See McKnight v. Southeastern Pa. Trans. Auth., 583 F.2d 1229, 1236 (3d Cir.1978). The possible existence of harm to plaintiffs reputation is not dispositive of the question now before me. Rather, to get past summary judgment, the court must also find that there is a genuine question of fact as to whether false statements were made that caused the harm. Ersek, 102 F.3d at 84. Plaintiff has presented no evidence of any statements made by defendant. Thus, I cannot even begin to determine whether these statements were potentially false, nor can I ascertain whether these statements caused plaintiff harm. Although there is circumstantial evidence that PMSD heard something negative about plaintiff, based on plaintiffs hearsay evidence regarding what Thompson reported that administrators at PMSD had said, there is no evidence that BASD made any of these statements. There is also no evidence that BASD made statements that were false. In support of his position, plaintiff can only conjecture that the rumors upon which PMSD personnel might have relied might have been that BASD asked him to leave. Hypotheses, however, are not evidence. For these reasons, I find that plaintiff has failed to raise a material question of fact with regard to whether BASD denied him his constitutionally-protected liberty interest in his reputation, honor, and integrity. I will therefore grant defendant's motion for summary judgment for Count II.

Count III of plaintiffs complaint alleges that defendant violated the antiretaliation *376 provision of the FMLA. The FMLA requires an employer to grant 12 weeks of leave to qualifying employees. 29 U.S.C. § 2612(a) (1). Plaintiff suggests that he would have qualified for these twelve weeks of leave under § 2612(a) (1) (D), which protects employees whose "serious health condition[s]" render the employee "unable to perform" their job functions. 29 U.S.C. § 2612(a) (1) (D). The FMLA also makes it unlawful for an employer to interfere with, restrain, or deny the exercise, or the attempt to exercise, any right provided under the FMLA. 29 U.S.C. § 2615(a) (1). Similarly, an employer may not discriminate against an individual who opposes a practice that the FMLA forbids. 29 U.S.C. § 2615(a) (2).

Plaintiff specifically states that he did not exercise a right provided by the FMLA: despite possibly qualifying for FMLA leave, he did not ask for leave under this federal statute. (Speziale at 106:19-21). In fact, plaintiff stated that the FMLA "was the least of [his] concern." (Speziale at 106:24). Furthermore, plaintiff has not testified that he opposed a practice made unlawful by the FMLA. Under these circumstances, it is difficult to see how plaintiff can bring an FMLA claim for retaliation. Plaintiff has presented no caselaw to support the proposition that an employee who did not take leave under the FMLA can sue for retaliation for the exercise of an FMLA right. Absent such a decision, the statutory language is controlling. Cf. Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 170 (3d Cir.1997) (holding that, without evidence of contrary Congressional intent, "a word in a statute must be given its `ordinary or natural' meaning'') (quoting Bailey v. United States, 516 U.S. 137,116 S. Ct. 501,133 L. Ed. 2d 472 (1995)). Because plaintiff neither exercised nor considered exercising a right under the FMLA, defendant cannot have interfered with plaintiffs exercise of his FMLA right, nor can it have retaliated against him for exercising it. I will therefore grant summary judgment with respect to Count III of plaintiffs complaint.

In Count TV of his complaint, plaintiff alleges that BASD violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), by constructively diischarging him due to his mental impairment. Compl. W! 92, 95. Section 504 of the Rehabilitation Act provides, in pertinent part, that "no otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. 794(a).

To establish a prima facie case of discrimination under § 504, an employee must demonstrate: (1) that she or he has a disability; (2) that she or he is otherwise qualified to perform the essential functions of the job, with or vrithout reasonable accommodations by the employer; and (3) that she or he was nonetheless terminated or otherwise prevented from performing the relevant job duties. Donahue v. Consolidated Rail Corp., 224 F.3d 226, 229 (3d Cir.2000) (quoting Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)).

Plaintiff has raised material questions of fact with regard to the first two elements of the prima facie case: there is evidence that his depression constitutes a disability and that he was otherwise qualified to perform the essential functions of his job. Plaintiff has not, however, raised a material question of fact with regard to whether he was terminated or otherwise prevented from performing his job. As discussed above, I find that plaintiff has failed to provide evidence that he was constructively *377 discharged. These findings are supported by plaintiffs deposition:

Q. So how is it that in November of 1999 you believed that you could return to work, if you assert in your complaint that you believe you had been discharged in October of 1999.

A. I believe it was not, in fact, a discharge.

Q. Pardon me?

A. I believed that, but I was not effectively discharged.

Q. What do you mean by that, you were not effectively discharged?

A. Nobody told me you're fired.

(Speziale at 123:2-14). By plaintiffs own testimony, BASD did not terminate him. Plaintiffs testimony on when and whether BASD constructively discharged him is inconsistent. Regardless, having previously examined the totality of the circumstances in which plaintiff chose to retire, I reiterate my finding that he has failed to present evidence that his discharge was involuntary. If plaintiff cannot present any evidence that BASD terminated or constructively discharged him, he cannot make out a prima facie case. Therefore, I will grant defendant's motion for summary judgment on Count IV of the complaint.

Plaintiff has presented evidence that his working conditions at BASD were at times far from pleasant. He has not, however, presented evidence that the conditions were so intolerable that a reasonable person would forseeably resign or retire if forced to work in those same circumstances. For better or worse, the role of the federal courts in policing the workplace is not to ensure that employees are treated with civility, compassion, or reason. Rather, it is to ensure that those rights protected by the Constitution and federal law are respected and enforced. Plaintiff has failed to present evidence that his resignation from BASD was obtained through unlawful means. For this reason I will grant defendant's motion for summary judgment of plaintiffs Third Amended Complaint.

[1] In deciding this motion for summary judgment, all reasonable inferences must be drawn, and conflicting evidence resolved, in favor of plaintiff, who is the nonmovant. See Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir.1994)

[2] Citations to deposition transcripts are made in the following format: ([Deponent's name] at [page number]:[line number])

[3] In plaintiff's response to defendant's Motion for Summary Judgment, counsel raises an argument regarding plaintiff's substantive due process rights and the deprivation of plaintiff's property interest in his continued employment. Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 15. As mentioned earlier, plaintiff's counsel submitted a series of complaints and amended complaints. The Third Amended Complaint on which I now rely alleges only "procedural due process violations." Plaintiff's counsel cannot reasonably expect to amend the complaint after the close of discovery merely by raising new arguments in the responsive papers. I will therefore not address plaintiff's substantive due process arguments.

[4] This amendment provides that no state "shall deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1.

[5] The statute provides in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivations of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to party injured in an action at law...." 42 U.S.C. § 1983.

[6] In Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir.1992), the Third Circuit defined the "objective test [for] determining whether an employee was constructively discharged from employment [as] whether `the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign.'" 957 F.2d at 1079.