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MCCANN v. DELAWARE RIVER PORT AUTH.

October 13, 1982

Alvin McCANN
v.
DELAWARE RIVER PORT AUTHORITY



The opinion of the court was delivered by: GILES

 GILES, District Judge.

 This is an employment discrimination case in which plaintiff, a black male, claims that his discharge was based upon considerations of race in violation of Title VII of the Civil Rights Act of 1964, as amended, ("the Act"), 42 U.S.C. § 2000e et seq. (1976). For the reasons which follow, judgment shall be entered in favor of defendant and against plaintiff. Pursuant to Fed.R.Civ.P. 52(a), the following constitute the court's findings of fact and conclusions of law.

 1. Plaintiff began working for the Delaware River Port Authority ("DRPA") on April 25, 1976 as a highway helper on the Betsy Ross Bridge, one of six bridges under the jurisdiction of the DRPA, forming traffic links between the Commonwealth of Pennsylvania and the State of New Jersey.

 2. As a member of the black race, plaintiff is a member of a group protected under the Act.

 3. Defendant is an employer within the meaning of the Act.

 3(a). Plaintiff was a member of a collective bargaining unit represented by Transport Workers' Union in a collective bargaining agreement with the employer dated November 1, 1977.

 4. Plaintiff was terminated from employment on September 7, 1979, the assigned reason being excessive use of sick leave in violation of the terms of a collective bargaining agreement between DRPA and the union.

 5. On December 6, 1979, plaintiff filed a timely charge of employment discrimination with the Equal Employment Opportunity Commission pertaining to his discharge on December 6, 1979 and received a "Right to Sue Letter" on September 1, 1981.

 6. With respect to sick leave, the union agreement provides, in pertinent part:

 
All permanent TWU-represented employees of the DRPA are entitled to Sick Leave time at the rate of fifteen (15) days per calendar year. There is a maximum of 200 days an employee may accumulate; however, reimbursement at the time of separation will be made on a maximum of 180 days. Employees will use Sick Leave credited in the current year before using any Sick Leave previously accumulated. Employees will normally accumulate all Sick Leave days not used in a given year, adding these to the previous total of accumulated and unused Sick Leave days, if any.
 
* * *
 
When an employee is ill and unable to report to work, his or her immediate supervisor should be advised of this fact on or before the normal starting time. Employees on shift work shall give notice at least one hour before their scheduled starting time to permit rearrangement of schedules.
 
* * *
 
A doctor's certificate is not normally required for illness causing absence for two (2) consecutive working days or less. A certificate is normally required for illness resulting in absence of more than two (2) consecutive working days. (Note: Sick Leave absence separated by a day off or days off for any reason is considered absence on consecutive work days.) The doctor's certificate must be presented to the employee's supervisor upon return to work.

 7. The sick leave provision was negotiated upon demand by the union that the defendant institute a uniform system for monitoring absenteeism. The collective bargaining agreement does not specify how the absentee policy is to be administered.

 8. Commencing approximately January, 1978, defendant's Maintenance Manager started a practice of monitoring absenteeism by obtaining a quarterly computer read-out listing all employees whose absenteeism exceeded the number of sick leave hours which were being earned and accrued under the labor agreement. Based on this information, the Maintenance Manager would ask the department supervisors the explanations, if any, for absences of employees whose sick leave appeared to be excessive. If no satisfactory explanation was given, that is, prolonged illness or accident requiring prolonged absence, the employee would be subject to progressive discipline such as warning letters, suspension and discharge.

 9. Beginning around March, 1977, plaintiff experienced ear infections which he believed were related to periodic spells of vertigo and dizziness. At times, these spells disabled him from performing his normal work duties as a general maintenance worker.

 10. Plaintiff complained to his department supervisor, Joseph Reiners, about his symptoms and related them to the noisy outdoor power equipment on or about which he sometimes worked. However, no physician ever rendered an opinion that the condition of which he complained was work related.

 11. Plaintiff's health difficulties were acute, not chronic, but persisted into 1978 and thereafter. As a result of his ear problems and the associated vertigo and dizziness, plaintiff was absent from work, usually for a day or two at a time. Upon his return to work he sometimes, but not always, submitted a physician's statement. The medical certifications did not always explain the reasons for the absence.

 12. The doctor's notes submitted by plaintiff were as follows: 6/8/76 -- "Patient under doctor's care. May return to work 6/10/76"; 8/30/76 -- "Patient under doctor's care for viral infection. May return to work 9/1/76"; 3/28/77 -- "May return to work 3/30/77 -- Nemin's syndrome"; 6/7/78 -- (illegible, but it appears to state that patient had vertigo and loss of balance and was being referred for further evaluation); 6/23/78 -- "Under doctor's care for ear problems and vertigo. Return to work 6/26/78"; 8/2/78 -- "Was seen in our office 8/2/78. May return to work 8/3/78"; 10/18/78 -- "Under doctor's care for URI. May return to work 10/20/78"; 1/26/79 -- "Above named under doctor's care for Upper Respiratory Inf." Return to work 1/29/79"; 3/2/79 -- "Treated at WJ Hospital 2/28/79 for ear infection and hearing loss. Under doctor's care 3/2/79 to 3/5/79. Return to work 3/5/79"; 7/23/79 -- "Under my care from 7/23 and is able to return to work 7/24/79. Follow up on condition."

 All of the certificates are from the same physician's group.

 13. After each absence, plaintiff was certified by his doctor as able to return to his normal duties.

 14. A number of the absences coincided with weekends.

 15. As a result of plaintiff's absences in 1977, he exceeded the fifteen (15) days accruable for sick leave annually. Thereafter, he was marked as absent.

 16. Unused sick leave time accumulates from year to year. Employees who exhaust their accumulated sick leave hours are marked absent though legitimately ill and are subject to discipline for excessive absenteeism, unless the absences are excused. However, employees whose absences for illness do not exceed accumulated sick leave time can not be disciplined unless there is an abuse of sick leave.

 17. Plaintiff asserts that he was the victim of disparate treatment because his recurring ear condition was not regarded by defendant as a chronic medical condition. He was subjected to disciplinary action, whereas, defendant found that certain white employees, who had sustained off duty injuries or ...


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