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DUBOSE v. DISTRICT 1199C

June 9, 2000

ROBERT DUBOSE, PLAINTIFF,
V.
DISTRICT 1199C, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, AFSCME, AFL-CIO, AND TEMPLE UNIVERSITY HOSPITAL, DEFENDANTS.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.

  MEMORANDUM

This lawsuit arises from the termination of plaintiff Robert Dubose ("Dubose") from his position as an environmental service attendant at Temple University Hospital ("Temple"). Dubose sued his former employer as well as his former collective bargaining representative, District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO ("Union"), alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"). Dubose also asserts claims under the Pennsylvania Public Employee Relations Act, 43 P.S. § 1101.101 et seq. ("PERA").

Presently before the Court is the motion of Temple for summary judgment (Document No. 40) and the motion of the Union for summary judgment (Document No. 41), the response of Dubose as well as the replies thereto. Also before the Court is the motion of the Union for sanctions (Document No. 48). Jurisdiction is proper pursuant to 28 U.S.C. § 1331 & 1367. Based upon the following analysis, the motion of Temple for summary judgement will be granted in part and denied in part. The motion of the Union for summary judgement will be granted in part and denied in part. The motion of the Union for sanctions will be denied as moot.

I. Background*fn1

Dubose was hired by Temple as an environmental service attendant in August of 1990. He was represented, for purposes of collective bargaining, by the Union. On September 28, 1992, Dubose suffered a workplace injury, tearing a ligament and injuring his right wrist. The injury caused him to miss approximately eight weeks of work. (Plaintiff's Exhibits In Opposition to Defendants' Motions for Summary Judgement ("Plt. Exh."), Tab 54, Deposition of Robert Dubose ("Dubose Dep.") at 15). In 1993, Dubose re-injured his wrist. The injury to his wrist, according to Dubose, limited his ability lift heavy objects. As a result, Dubose testified at his deposition that a Temple physician restricted him to "light duty." (Id.; see also Plt. Exh., Tab 41 at 21). According to Dubose, "light duty" meant that Temple should have given him less work than was assigned to other employees. (Dubose Dep. at 29-30). Again, according to Dubose, despite his complaints to his supervisors, Temple ignored his doctor's request that he be assigned to "light duty." (Id.). Dubose further asserts that instead of being assigned less work, he was in fact assigned more work. In support of this assertion, Dubose has submitted a few work assignment sheets on which he indicated that he was unable to complete the assigned tasks. The record, however, shows that, despite his injury and alleged inability to complete work assignments, Dubose did not missed any time from work due to his wrist injury nor did he seek medical treatment for his wrist after 1993. Nor was Dubose disciplined for poor work performance or an inability to perform assigned tasks. It is also undisputed that Dubose never filed a grievance with the Union complaining about his work load or that Temple was not accommodating his lifting limitation. Indeed, Dubose apparently never told anyone that he thought that he was doing more as opposed to less work and never submitted anything in writing that explained that he was being assigned too much work. (Id. at 31-32).

Dubose alleges that, in early December of 1996, he suffered some sort of mental breakdown which was caused by his excessive work load and Temple's refusal to honor his doctor's request that he be restricted to light duty. As a result, Dubose asserts that he was unable to report for work. He maintains, however, that he informed Temple of his condition and that he should have been accommodated or granted sick leave. Temple terminated Dubose on December 11th, in accordance with its policy of terminating employees who are absent for three or more days without an excuse.

It is undisputed that Dubose was absent from work on December 3, 1996, and that he notified Paul Jones, a Temple management official, that he would be absent. (Dubose Dep. at 71). Dubose claims that he told Jones that he was seeking medical help for a mental condition and that he made it clear to Jones that his absence would be indefinite. (Id.). Temple asserts, however, that Dubose only told Jones that he would be absent for one day and did not specify that he was suffering from a mental disorder. In a contemporaneous memo-to-the-file, Jones wrote "This afternoon Mr. Dubose called saying he was calling out sick for the day. I told Mr. Dubose that he had to bring in a Drs. note. He said ah-ok and hung up." (Exhibits Supporting Defendant Temple University Hospital's Motion for Summary [Judgement] and Request for Oral Argument ("Temple Exh."), Tab 13).

It is also undisputed that Dubose was absent from work on December 4th, 5th, 7th and 8th, his next four scheduled work days. It is also undisputed that Dubose did not call out on those days. (Dubose Dep. at 76-77). Temple terminated Dubose on December 9th, when according to Temple, Dubose had been absent without an excuse for four days. It is Temple's asserted policy to terminate employees who are absent for three or more days without an excuse.

The parties also differ in their account of an incident occurring on December 5th. It is undisputed that on December 5th, Dubose came to the Environmental Service office at Temple to pick up his paycheck. The parties dispute, however, what transpired during his visit. According to Dubose, the person who gave him his check asked why he had not shown up for work. Dubose responded that Paul Jones knew what was going on and did not want to discuss it. When asked whether he wanted to talk to Bernice Sierchio, the director of Environmental Services, Dubose said that he did not want to speak with her. (Plaintiff's Brief in Opposition to Defendant Temple University Hospital's and District 1199C's Motions for Summary Judgment ("Plt. Brief"), Affidavit of Robert Dubose, Exh. A ("Dubose Affidavit") at ¶ 12).

Temple, on the other hand, asserts that Dubose was told by his supervisor and Sierchio's secretary that Sierchio wanted to speak to him and that his refusal amounted to insubordination. However, a contemporaneous note handwritten by Sierchio's secretary states "I asked Mr Duobse what happened (in reference to his no call-no show on 1 2/4 and 12/5). He said `I can't talk to you about it. I asked Mr. Dubose if he wanted to speak to Mrs. Sierchio. He said, `I can't talk to he [sic] about it either.'" (Temple Exh., Tab 17). A later typewritten memo-to-the-file dated December 6th states that she told Dubose that Sierchio wanted to speak to him and that she asked Dubose to see Sierchio but that he declined, saying he would see her the next day. (Temple Exh., Tab 18). In any event, Dubose notes that Temple did not fire or discipline Dubose for insubordination. He was terminated for unexcused absences.

Dubose sought help for his mental condition at Mt. Sinai Hospital in Philadelphia, on an outpatient basis, commencing on or about December 3, 1996. While at Mt. Sinai, Dubose was diagnosed by Parviz Yeroushalmi, M.D., his treating physician, as suffering from "Major Depression Single Episode." (Motion for Summary Judgement of Defendant District 1199C, ("Union Mot."), Exh. C at 26; Exh. D at 000098). At his deposition, Dr. Yeroushalmi specifically noted that Dubose did not meet the diagnosis for "dysthmic disorder" because that disorder requires a manifestation of symptoms for at least two years. (Id., Exh. C at 50). Dr. Yeroushalmi further testified that Dubose had not been diagnosed as suffering from a "chronic major depressive episode" and expressed his opinion that Dubose's mental condition was not chronic. (Id. at 50-52).

The exact length of Dubose's treatment is unclear. The medical records from Mt. Sinai indicate that Dubose received treatment, at least intermittently, through July 1997. (Id., Exh. D). The records from Mt. Sinai reflect that Dr. Yeroushalmi initially predicted that Dubose would be well enough to resume working by January 20, 1997. (Id. at 000098). This predicted return date was subsequently pushed back. On April 16, 1997, Dr. Yeroushalmi completed a disability claims form that specified the return-to-work date as May 30, 1997. (Union Mot., Exh. C at 36; Exh. D at 000117).*fn2 However, on May 14, 1997, Dr. Yeroushalmi prepared notes indicating that Dubose "declare[d] that he doesn't have any intention to return to that job." (Id., Exh. C at 42; Exh. D at 000122). On June 11, 1997, Dr. Yeroushalmi noted in his patient file that Dubose "has continued to be very demanding and manipulative. He doesn't show any interest and motivation to return to work, despite the fact that his mental status has improved remarkably. He is unrealistic about medical leave and wanted to extend it beyond reasonable medical excuse." (Id., Exh. C at 43; Exh. D at 000123). As part of his legal argument, Dubose asserts both that he was able to return to work after January 17, 1997, and that he was able to return to work as of March 16, 1997. (Plt. Brief at pp. 26 & 29).

As previously mentioned, Dubose was terminated on December 9, 1996. Upon receiving his letter of termination on December 10, 1996, Dubose called Linda Fields, the Union Organizer at District 1199C to file a grievance. He was unable to reach her. Dubose, however, left her a message saying he had been terminated and wanted to file a grievance. Fields did not return Dubose's call. Dubose then went to the Union Hall. In the lobby, Dubose saw Henry Nicholas, President of District 1199C, and told him that he had been terminated and wanted to file a grievance. Nicholas directed Dubose to Fields who is the Union official responsible for filing grievances on behalf of Temple employees who are members of the Union. Not finding Fields in her office, Dubose again left a message for her. (Dubose Affidavit at ¶¶ 13-15).

The next day, December 11th, Dubose went to Mt. Sinai for treatment. At the hospital he met with the Director to the Partial Hospital Program, Dr. Warner. After apprizing Dr. Warner of his situation, Dr. Warner called the Union. Dr. Warner was able to reach Fields and discussed the Dubose's situation with her. Fields requested that Dr. Warner fax her a copy of the termination letter and a release signed by Dubose for her to obtain his medical records at Mt. Sinai. (Dubose Affidavit at ¶ 16). In his fax, Dr. Warner explained to Fields that he had a copy of Dubose's assessment of December 4, 1996, and that Dubose had been trying to start treatment since that date. (Plt. Exh., Tabs 6 & 38).

Dubose met with Fields on the following day, confirmed that she received the fax and was told by Fields that she would initiate a grievance proceeding with Temple. (Dubose Affidavit at ¶ 17). It is uncontested, however, that Fields never initiated a grievance. It is also uncontested that Fields avoided Dubose and consistently advised Donna Ford, the Executive Vice President of District 1199C, that she was assisting Dubose with his need for a medical leave of absence, omitting that Temple had terminated Dubose and that she had not filed a grievance. (Dubose Affidavit at ¶ 17; Plt. Exh., Tab 58 at 38-43, 60-65, 70-75, and 76-82).

In January of 1997, Fields requested that Dr. Warner provide her with information about when Dubose would be able to return to work. (Plt. Exh., Tab 46; Dubose Affidavit at ΒΆ 17). On January 6, 1997, Dr. Warner wrote to Fields advising her that Dubose would be able to return to work ...


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