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VALENTIN v. PHILADELPHIA GAS WORKS

March 29, 2004.

KENNY R. VALENTIN
v.
PHILADELPHIA GAS WORKS, ET AL



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Plaintiff has brought this action for racial discrimination in employment pursuant to 42 U.S.C. § 1981 against his former employer, Philadelphia Gas Works ("PGW"). Before the Court is Defendant's Motion for Summary Judgment. For the reasons which follow, Defendant's Motion is granted.

I. BACKGROUND

  Plaintiff, who is Hispanic, began working for PGW as a laborer in 1984. (Compl. ¶ 8.) He was injured on November 8, 1999 and worked on light duty jobs until he was fired on February 4, 2002. (Compl. ¶ 9.) He claims that he has been subject to disparate treatment and harassment because of his race since his injury, culminating in his termination in February 2002.*fn1 Plaintiff claims that he was treated differently than similarly situated white employees as follows: 1) he was harassed in connection with requests for his medical records following his placement on light duty; 2) he was subjected to investigations of his residency; 3) Page 2 his claim for workers' compensation benefits was denied; 4) he was terminated for sick leave fraud; 5) he was not notified of his termination within 20 working days as required by PGWs collective bargaining agreement with his union; and 6) he was refused reinstatement after his termination.

  A. Request for Medical Records

  Plaintiff alleges that he was treated differently than other, white, employees because PGW harassed him with respect to the provision of updated medical records supporting his light duty status. PGW has an Employee Utilization Committee ("EUC") which reviews the work status of employees who are absent for more than 30 days, temporarily disabled, and on long-term light duty. (Lewis Dep. at 29-31; Stewart Dep. at 33-34.) The EUC is comprised of PGW's Medical Director, Vice-President of Labor and Business, Director of Labor, Director of Risk Management, Director of Safety, and Director of EEO and Affirmative Action. (Lewis Dep. at 33, Stewart Dep. at 31.) PGW's Medical Director notifies the EUC when a particular employee's medical records are not current. (Id. at 36-39.) When the Medical Director informs the EUC that an employee's medical records are not current, the EUC has the manager or director of the employee's unit send the employee a letter requesting that he or she provide the medical department with updated medical information. (Id. at 41.) If the employee does not provide the requested information, the EUC may direct his or her department manager to write a letter to the employee stating Page 3 that, if he or she does not provide medical information by a specific date it will result in termination. (Id. at 45.) PGW does not have a written policy to that effect, however, the EUC will threaten termination if the employee had not provided information when previously requested and is not cooperating. (Id. at 45, 47.) The manager or director of the unit has input into what the letter requesting medical information says. (Id. at 48.) PGW maintains that these letters are sent at the direction of the EUC to "PGW employees regardless of their race, color, national origin, age or sex. As such, these letters are sent to white employees in addition to black employees and Hispanic employees." (Stewart Aff. ¶ 7.) The record before the Court indicates that, over the past three years, the EUC has directed that these letters be sent to twenty-five (25) white employees, thirty-one (31) black employees and seven (7) Hispanic employees. (Id. at ¶ 3.)

  On September 28, 2001, Robert Barlow, M.D., PGW's Medical Director, sent Plaintiff a letter by certified mail to his address at 4961 Whitaker Avenue in Philadelphia, informing him that PGW had asked his physician to provide updated information with respect to the extent of his injury and asking Plaintiff to provide that information by October 12, 2001. (Pl.'s Ex. 4.) Plaintiff did not receive the letter and his doctor did not provide the requested information. On October 17, 2001, Joseph Sullivan, Plaintiff's supervisor, had a copy of the letter hand delivered to Plaintiff and spoke about it with him on the telephone. (Pl.'s Ex. 5.) Page 4 Sullivan wrote to Plaintiff on December 14, 2001, asking him to provide the medical information requested in the previous letter, which had not been provided, and notified him that "[f]allure to provide this information by December 28, 2001 will result in your termination of employment from PGW." (Pl.'s Ex. 6.) On December 18, 2001, Plaintiff resubmitted information to the Medical Department which he had previously provided in May 2001. (Pl.'s Ex. 9.) Sullivan sent Plaintiff another letter on December 18, 2001, asking him to comply with the December 14, 2001 letter requesting updated medical information. (Id.) The December 18, 2001 letter repeated the statement that "[f]allure to provide this information by December 28, 2001 will result in your termination of employment from PGW." (Id.) The EUC subsequently extended the deadline for provision of this information until January 7, 2002. (Pl.'s Ex. 10.)

  B. Investigation of Plaintiff's Residency

  Plaintiff maintains that he was discriminated against and harassed by PGW in connection with his residency. PGW has had a policy since 1983 that all union employees hired after that date must reside in the City of Philadelphia. (Sullivan Aff. ¶ 3.) Plaintiff maintains that he has resided continuously in Philadelphia. PGW began an investigation into Plaintiff's residency on October 17, 2001, after he told Sullivan that he had not received the first letter requesting medical documentation, although he still lived at 4961 Whitaker Avenue in Philadelphia. Page 5 (Pl.'s Ex. 13 at 1.) Sullivan was suspicious that Plaintiff was not being truthful and checked the gas account for that address. (Id.) Sullivan discovered that the gas account for 4961 Whitaker Avenue had not been in Plaintiff's name since September 3, 1999. (Id.) Albert D'Attilio, Director of Labor Relations, Safety and Security for PGW, then requested a residency investigation of Plaintiff. (Id. at 2). Two resulting investigations did not turn up any evidence that Plaintiff resided outside of Philadelphia. (Pl.'s Exs. 12, 14.)

  In late 2001, Jane Lewis, PGWs Director of Risk Management, who was reviewing Plaintiff's pending worker's compensation claim, was told by a PGW employee that Plaintiff had taken a job at Today's Man in Cherry Hill, New Jersey. (Lewis Aff. 11 3-4.) Lewis instructed outside counsel to subpoena Valentin's employment records from Today's Man. (Id. ¶ 4.) In November 2001, in response to the subpoena, she received a copy of Plaintiff's employment application with Today's Man and a copy of the Federal W-4 form that Plaintiff filed with Today's Man. (Id. 1 5.) These documents both show that Plaintiff's address is in Blackwood, New Jersey. (Id., Exs. 1 & 2.) Lewis provided those documents to Sullivan on January 29, 2002, as well as the results of surveillance performed by Wes Davis Detective Agency on January 25-26, 2002. (Sullivan Aff. 1 4, Sullivan Dep. at 110.) The investigator for Wes Davis Detective Agency followed Plaintiff to an apartment on Woodhaven Road in Philadelphia. (Pl.'s Ex. 16.) Page 6

  Sullivan questioned Plaintiff about his residency on January 29, 2002, Plaintiff stated that he did not live in New Jersey. (Sullivan Aff. ¶ 7.)

  C. Denial of Plaintiff's Worker's Compensation Benefits

  Plaintiff claims that after August 13, 2000, when he returned to work from his shoulder injury, PGW refused to pay for his physical therapy or ongoing doctor treatments. Plaintiff also claims that PGW used his failure to continue physical therapy to contest the permanency of his disability. Plaintiff's worker's compensation case was ...


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