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January 18, 1995


Donetta W. Ambrose, U. S. District Judge

The opinion of the court was delivered by: DONETTA W. AMBROSE



 Plaintiff John Harding ("Harding") filed this action against his former employer, Duquesne Light Co. ("Duquesne Light" or "Company"), seeking to recover severance pay and certain other employee benefits that were denied to him when he was discharged from his employment after testing positive for marijuana in a random drug test. Pending before the Court are cross-motions for summary judgment. For the following reasons, the motion filed by Duquesne Light will be granted. The motion filed by Harding will be denied, but Harding will be allowed to amend his Complaint to assert a cause of action under section 502(a)(1)(B) of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1132(a)(1)(B).


 The following facts are undisputed. Harding was a Senior Engineer working in the Nuclear Division at Duquesne Light's nuclear power plant located in Shippingport, Pennsylvania. (Harding Dep. at 24-25.) He had been employed by the Company since January 1982 and had never had any discipline problems noted in his file.

 Duquesne Light's nuclear operations are governed by regulations issued by the Federal Nuclear Regulatory Commission. See 10 C.F.R. Part 26. These regulations mandate that an employer establish a drug and alcohol testing program and set forth minimum actions to be taken by the employer if an employee is found to have used a proscribed substance. Id. §§ 26.24(b) and 26.27. In accordance with the federal regulations, Duquesne Light implemented a written "Fitness-For-Duty" program entitled Nuclear Group Directive 45 ("NGD 45") that sets forth both the Company's policy regarding illegal drug use as well as its guidelines for alcohol and drug testing. (Exh. C to Def. Mot. for Summ Judg. at V.) According to NGD 45, all Duquesne Light employees were required "to abstain from the use, sale or possession of illegal drugs at all times." (Id. at 34.) NGD 45 states that employees who possess or use drugs off the job may be subject to "disciplinary action up to and including discharge and immediate withdrawal of unescorted access authorization." (Id. at 37.)

 Duquesne Light also provided its employees with access to a confidential Employee Assistance Program ("EAP") as a source of assistance to those employees who were experiencing problems such as alcoholism and drug addiction that could potentially jeopardize the operation of the plant and affect employee morale. Employees were encouraged by the Company president to refer themselves to EAP if they felt they needed assistance. (Def. Exh. N.) Employees were also provided extensive training regarding NGD 45 and the federal guidelines regarding illegal drug usage, and Harding does not dispute that use of drugs off the job constituted a violation of Company policies.

 Nonetheless, Harding concedes that he used marijuana a total of 12 times over the Christmas holidays in 1992, with his last usage during that time period occurring on December 31, 1992. (Harding Dep. at 83-84.) Harding also placed a call to the EAP on December 31 to report a problem with alcohol. *fn1" Harding spoke with an EAP staff person and set up an appointment for 10:30 a.m. on January 7, 1993, for an initial consultation and assessment.

 Several days after he called the EAP, on the morning of January 7, Harding's supervisor advised him that he had been selected for random drug testing and that he was to report to the Company's medical personnel to present a urine sample for testing. (Harding Aff. P 5.) Harding confessed to his supervisor that he had used marijuana several days earlier and that he was concerned that the test results would be positive. (Harding Aff. P 6.) Harding also told his supervisor that he had begun participation in EAP and that he had a scheduled appointment with EAP later that morning. (Harding Aff. P 6.) His supervisor advised Harding that, notwithstanding his EAP appointment, he was required to present himself for drug testing but that he could try to keep his appointment with EAP after the drug test was complete. (Harding Dep. at 76.) Harding did report for drug testing but was unable to keep his appointment with EAP and subsequently rescheduled it. (Harding Aff. P 8.) Harding's urine sample did in fact test positive for marijuana. (Harding Dep. at 100.) Harding was immediately suspended and ultimately discharged "for violating Nuclear Directive 45" on the basis of his positive drug test. (Def. Exh. O.)

 After he was terminated, Harding attempted to collect employee benefits he claimed were owed to him under Company policies. These benefits included severance pay and outpatient services, which Harding claimed were due him under the Company's Severance Allowance Policy; payment for 13 days of vacation earned but unused in 1992 and 1993; and payment for exercise of his Stock Appreciation Rights, which he claimed was owed to him pursuant to the Company's Long Term Incentive Policy. *fn2" Duquesne Light denied Harding's request for these benefits on the basis that Harding's termination for violation of NGD 45 by testing positive to marijuana rendered him ineligible under the relevant policies to collect these benefits.

 Harding initiated this action by filing a Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, seeking to recover the severance pay, as well as payment for the value of outpatient services, unused vacation and the stock appreciation rights. The Complaint alleged that Duquesne Light breached its employment contract with Harding when it denied him these benefits. Harding brought these claims pursuant to the Pennsylvania Wage Payment Collection Law ("WPCL"), 43 P.S. §§ 260.1 - 260.45.

 Duquesne Light subsequently removed the action to this Court on the grounds that Harding's claim for severance pay was a suit to recover from an employee welfare benefit plan pursuant to ERISA. *fn3" Removal was thus based on this Court's original jurisdiction under 28 U.S.C. § 1331 on the severance pay claim and on this Court's supplemental jurisdiction under 28 U.S.C. § 1367 on the claims for vacation pay and stock appreciation rights.

 One more procedural aspect of this case should be noted. Although the Complaint purported to raise only state law claims, Paragraph 20 of the Complaint also alleged that Duquesne Light's termination of his employment "violated public policy, specifically Section 503 of the federal Rehabilitation Act of 1973, the PA Human Relations Act, City of Pittsburgh Code (Ch. 659.02) and the Americans with Disabilities Act of 1990." (Compl. P 20.) Duquesne Light interpreted this paragraph as stating a common law claim for wrongful discharge and moved to dismiss the claim. Based in part on Harding's representations to the Court that he was seeking only his contractual rights to the employee benefits at issue, the Court held that Harding had not stated a claim for wrongful discharge. See Order dated March 2, 1994. This lawsuit, therefore, does not address whether Harding was wrongfully discharged under federal or state law when he was fired because of a first positive drug test after he allegedly began participating in the EAP. The central issue in this lawsuit is whether Harding was contractually entitled to certain employee benefits upon his termination.


 Summary judgment may only be granted 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 judgment as a matter of law. Fed R. Civ. Proc. 56(c). The Court, after adequate time for discovery and upon motion of a party, must grant summary judgment against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which ...

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