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FREDERICK v. SEPTA

February 29, 1996

CHRISTOPHER FREDERICK
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 29, 1996

 STANDARD OF REVIEW

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 FACTS

 Most of the facts involved in this case are uncontested. The facts that are in dispute largely concern what was said at certain meetings and the legal import of those meetings. It is, for example, undisputed that Frederick was initially hired by SEPTA in 1987 as a bus operator. In 1992, SEPTA administered a random drug and alcohol test to Frederick, which he failed. Frederick exercised his rights under a labor agreement known as the Integrated Program to receive drug abuse treatment. After he successfully completed the treatment he returned to work as a bus driver. In addition, he signed a document agreeing that he would be subject to unannounced drug testing for the next twelve months and announced tests for eighteen following months. He also agreed that if he tested positive for drugs in any one of those tests, he would be subject to discharge.

 Over the next year, Frederick passed fourteen unannounced tests. However, on March 24, 1993, a SEPTA doctor, Dr. Parchuri, received the results of a test administered to Frederick on March 18, 1994 that was positive for marijuana metabolites. Dr. Parchuri immediately "held" Frederick from work and directed Frederick's Supervisor, Amato Berardi, to send Frederick to SEPTA's Medical Department the next day. It is uncontested that at that meeting, Dr. Parchuri informed Frederick that he had failed the urine test. Frederick signed a Notice of Positive Test at that time and requested a retest.

 Frederick has testified that during their meeting, Dr. Parchuri told him that he was discharged and that he was not given an opportunity to be heard before this termination. SEPTA denies that Dr. Parchuri terminated Frederick at this meeting. Its evidence is that Dr. Parchuri had no authority to terminate any SEPTA employee. Further, Dr. Parchuri has testified that although he does not specifically recall meeting with Frederick, he normally does not discuss terminations at this type of meeting. Further, Frederick testified that after he was told he had failed the drug test, he demanded a retest and explained that he had taken certain medications prior to the test.

 On April 2, 1993, Dr. Parchuri received the results of the drug retest, which still indicated the presence of marijuana metabolites. He sent a memo with the retest results to Berardi on that day. Then, a few days before April 6, 1993, possibly still on April 2, 1993, Berardi called Frederick at his home and requested a meeting. Frederick suggested it take place that day and the two met in Berardi's office. Frederick agrees that he knew the meeting had something to do with his livelihood. At that meeting, Berardi told Frederick that he had failed a drug test and that, according to Frederick, he was terminated. Berardi also told Frederick to return on April 6, 1993 with a union representative for another meeting. Frederick asserts that he was not given an opportunity to be heard before Berardi told him he was discharged, but there is no evidence that he was prevented from speaking.

 At the April 6, 1993 meeting, Berardi read documents aloud to Frederick and his union representative that related to the failed drug test. He then announced that Frederick was being terminated under the Integrated Program and issued Frederick a Report of Disciplinary Action. Frederick testified that although no one told him he could not speak, he did not because he felt speaking would be futile because the decision to terminate him had already been made.

 According to SEPTA records, Frederick was formally discharged on April 6, 1993. That is also the date it began the process to terminate Frederick's health insurance benefits. Frederick agrees that he was not formally discharged until that date, but maintains that he was informally discharged twice before then. Finally, Frederick ...


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