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PHILLIPS v. SOUTHEASTERN PENNSYLVANIA TRANSP. AUTH.

United States District Court, E.D. Pennsylvania


April 5, 2004.

ANTONIO PHILLIPS Plaintiff,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant

The opinion of the court was delivered by: CLARENCE NEWCOMER, Senior District Judge

ORDER

AND NOW, this ___ day of April, 2004, upon consideration of Defendant's Motion for Summary Judgment (Doc. 7), Plaintiff's Answer, and Defendant's Motion to File a Reply (Doc. 9) it is hereby ORDERED that Defendant's Motion for Summary Judgment is DENIED, and Defendant's Motion to File a Reply is GRANTED. The Court's reasoning follows.

Defendant argues that Plaintiff is foreclosed from challenging the validity of his termination for a July 12, 2002 lateness because a grievance proceeding involving Plaintiff and Defendant is binding pursuant to Dykes v. SEPTA, 68 F.3d 1564 (3d Cir. 1995). Plaintiff concedes that, if he was late on July 12, 2002, he was subject to termination. Plaintiff's Memorandum of Law at 21. After entering into a Worker Resumption Agreement, a kind of last-chance, sudden-death contract, Defendant was allegedly late for work on July 12, 2002. On July 14, 2002, Defendant called in sick. For his July 12 lateness Plaintiff was given five disciplinary points, and for his July 14 sick turn-in he was given two. It is the Court's understanding that, under his Work Resumption Agreement, Plaintiff could be terminated upon the accrual of any disciplinary points. On July 23, Defendant moved to terminate Plaintiff for lack of compliance with the Work Resumption Agreement in an informal hearing. On July 30, 2002, Plaintiff requested protection under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), for his July 14 sick turn-in. At some point after that, Plaintiff's FMLA request was granted and his two sick turn-in points were removed (apparently on August 20, 2002). A formal hearing was held on August 12, 2002, in which Plaintiff's termination was approved. It is not clear from the record whether Plaintiff's two sick turn-in points had yet been removed; therefore, it is not clear what evidence the formal hearing considered.

  Although a finding that Plaintiff was late for work on July 12, 2002, will apparently be a substantial, if not insurmountable bar to his recovery in this action, and despite the fact that Plaintiff will have an exceedingly difficult time demonstrating causation, the Court finds that the facts before it do not fit into the Dykes analysis. Dykes is not appropriate here because the record before the Court does not demonstrate that the grievance proceedings explicitly contemplated whether Plaintiff was late on July 12, 2002 in reaching its conclusions. It is unclear when Plaintiff's request for FMLA leave was granted, and when his sick turn-in points were removed. Plaintiff requested FMLA leave on July 30, 2002. SEPTA granted Plaintiff's FMLA request, but the dates on the approval documents vary. Defendant's Exh. 19 is a document requesting the signature of a supervisor, confirming that Plaintiff's FMLA leave has been granted. The Document further requests that the supervisor provide the employee (Plaintiff) with final notice of FMLA approval. The supervisor signed the document, and dated it "8-20-02" — eight days after Plaintiff's formal hearing. The document states that Plaintiff's FMLA leave was approved on August 5, 2002 — but the Court is not clear when the sick turn-in points were actually removed, and thus whether they were considered at the formal hearing. Further, neither Party has seen fit to include the date that Plaintiff's sick turn-in points were removed in their Briefs. At the very least, the points could not have been removed before the July 15, 2002 informal hearing, as Plaintiff did not apply for FMLA protection until July 30, 2002. It is therefore unclear to the Court, on the record before it, when exactly Plaintiff's sick turn-in points were revoked. The informal and formal hearings, to which Defendant (properly) attaches so much weight, are not explicitly limited to the alleged July 10, 2002 lateness. Without an explicit indication that the issue at the core of this dispute was addressed during the grievance hearings, it is inappropriate to rule, as a matter of law, that Plaintiff was discharged in accordance with the Work Resumption Agreement. See Tyler v. SEPTA, 2002 U.S. Dist. LEXIS 25647, *9 (E.D. Pa. 2002) (involving a case with somewhat similar law, Judge Davis rejects the defendant's argument that Dykes preemption is called for). Defendant's Motion must be denied.

  AND IT IS SO ORDERED.

  ORDER

  AND NOW, this ___ day of April, 2004, upon consideration of Defendant's Motion in Limine (Doc. 11), apparently unopposed, it is hereby ORDERED as follows:

1. Testimony and evidence regarding Plaintiff's Acquired Immune Deficiency Syndrome status and sexual orientation is prohibited unless it becomes necessary for independent reasons during the course of trial. Such testimony is irrelevant to any of the facts or law in this case, and its introduction could confuse and mislead the jury.
2. As the Family Medical Leave Act of 1993 does not provide a remedy for non-economic compensatory damages, Plaintiff is precluded from offering testimony or evidence regarding his mental state following his termination by Defendant. Such testimony and evidence is irrelevant, and could confuse and mislead a jury.
AND IT IS SO ORDERED.
20040405

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