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MERIT v. SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY

April 30, 2004.

JOZY J. MERIT, Plaintiff
v.
SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY, Defendant



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Jozy J. Merit alleges that her former employer, Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"),*fn1 discriminated and retaliated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, 12203, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq. Presently before the Court is SEPTA's Motion for Summary Judgment. For the reasons below, SEPTA's Motion is granted.

I. BACKGROUND

  SEPTA hired Plaintiff as a Vehicle Equipment General Helper on November 25, 1991. In June 1992, Plaintiff was laid off, but on April 12, 1993, SEPTA rehired her as a Vehicle and Equipment Mechanic, 3rd Class. On April 24, 1994, Plaintiff injured her back while cleaning the inside of a bus. After her injury Plaintiff filed two complaints with SEPTA's Equal Employment Opportunity/Affirmative Action ("EEO/AA") office claiming SEPTA discriminated against her and harassed her on the basis of her gender while working at SEPTA's Callowhill Depot. The ultimate disposition of these complaints is unclear from the record.

  Plaintiff collected workers' compensation benefits from April 1994 until October 1999. On October 4, 1999, pursuant to its Alternative Duty Program,*fn2 SEPTA offered and Plaintiff accepted a light-duty position working as a cashier on the "Market Frankford El" train line.

  In addition to her back injury, Plaintiff suffers from asthma and migraine headaches. The cashier position required that Plaintiff work in an enclosed, unventilated cashier booth. Contrary to SEPTA rules, some employees smoked cigarettes in the cashier booth, and for reasons not apparent on the record, SEPTA was unable to prevent this recalcitrant conduct. The secondhand smoke aggravated Plaintiff's asthma, causing her to become nauseous and to cough violently, and sometimes triggered migraine headaches. When Plaintiff attempted to open the door to the booth or step outside to get fresh air, her supervisor told her to stop or she would be fired. On May 18, 2000, Plaintiff grieved these conditions in a complaint filed with SEPTA's EEO/AA office. She subsequently withdrew the complaint.

  On June 20, 2000, Plaintiff submitted a medical note from her doctor to SEPTA's Medical Department stating that Plaintiff was unable to work under these conditions because cigarette smoke and chemical odors triggered her asthma and migraines. In response, SEPTA medically disqualified Plaintiff from working as a cashier. On June 21, 2000, SEPTA offered and Plaintiff accepted another light-duty position working as a Vehicle Readiness Coordinator ("VRC") in the Bus Operations Division.

  In July 2000, Plaintiff began working as a VRC at SEPTA's Comly District Maintenance Shop. Plaintiff accepted the VRC position in part because it was close to her home and was "double-shifted," meaning Plaintiff worked alongside another SEPTA employee who shared her duties and could assist Plaintiff if she had a problem related to her physical limitations. The VRC position also required Plaintiff to work in an enclosed booth, known as a "blockers booth," but unlike the cashier booth, the blockers booth was above ground and had some ventilation.

  Despite instructions to the contrary from SEPTA's Director of Maintenance at Comly, William Cook, SEPTA employees smoked cigarettes in the Comly blockers booth, which aggravated Plaintiff's asthma and migraine headaches. At some point, one employee ("Phil") posted on the wall of the blockers booth a note stating:
Just as you have a right to file a complaint so do I about how you do not clean the booth, do not turn in all your paper work and destroy SEPTA property by writing on the windows and wall. You expect us to stand out in the cold to smoke, just like you tried on Market Street. We heard about your little notes. I plan to smoke but not in the cold while you are not here and if it stinks bring air freshners with you. We all have rights also. Do your job right first before threatening someone. Only a few more weeks until the picking so you can pick elsewhere. Phil.
(errors in original).

  In September and October 2000, Plaintiff requested certain job modifications to accommodate her back injury. First, Plaintiff began using a reaching/grabbing device while performing her duties. Other VRCs stood inside the blockers booth and reached up to passing buses to collect "trouble cards" from bus drivers. Raising her arms over shoulder height aggravated Plaintiff's back injury, so she fashioned and utilized a reaching device (consisting of a clothespin affixed to a stick) to retrieve the cards. Mr. Cook instructed her not to use the reaching device. If she was unable to reach up, he told her, she should come out of the blockers booth as a bus enters the facility and walk around the bus to collect the card from the bus driver. Failure to comply with these directives, Mr. Cook said, would result in her termination. A TWU representative also instructed Plaintiff not to use the reaching device.

  Plaintiff complained that coming out of the blockers booth to collect the form would require that she frequently go up and down the steps leading to the booth, which also aggravated her back injury. Accordingly, Plaintiff requested that a chair be placed outside the blockers booth for her use. (This request also may have been an effort to avoid cigarette smoke in the blockers booth.) Plaintiff's supervisor, Sandy Johnson, and Mr. Cook both denied this request. When Plaintiff sat on the ground outside the blockers booth, Mr. Cook and Ms. Johnson told her she was not allowed to sit outside the booth and would be fired if she persisted.

  Finally, Plaintiff requested that she be excused from SEPTA's requirement that VRCs wear steel-tipped boots, whose added weight aggravated her back injury. On at least one occasion Plaintiffs supervisor cited her for wearing improper footwear (sandals). Plaintiff contends that no other SEPTA employees were required to wear steel-tipped boots, and that SEPTA singled her out in order to harass her.

  Plaintiff claims that SEPTA denied her requests for these "reasonable accommodations," and that SEPTA retaliated against her by changing the work schedule so that Plaintiff was no longer double-shifted. Believing that she was the subject of harassment and retaliation, Plaintiff requested that SEPTA transfer her to another position, but no positions were available. In September or October 2000, Plaintiff spoke with Ms. Melica Blige in SEPTA's EEO/AA office and complained about harassment, intimidation and retaliatory changes to her work duties, and asked for accommodations for her physical limitations. After complaining to other SEPTA offices as well, Plaintiff learned that she could submit her work modification requests, along with a note from her doctor, at SEPTA's monthly meetings concerning job modifications. Plaintiff also complained to Ms. Johnson and Mr. Cook that she was subject to discrimination and retaliation as a result of her complaints and requests for accommodation, but it is not clear when she spoke with them.

  On October 13, 2000, Plaintiff saw Dr. Barry Schnall to discuss her physical limitations and their impact on her ability to perform her duties as a VRC. Dr. Schnall concluded that he could not justify taking her out of her position based on its physical demands. However, he opined that Plaintiff could better perform her duties with some reasonable changes in the conditions of Plaintiff's job, including use of the reaching device, a chair outside the blockers booth, and an exemption from wearing steel-tip boots. Dr. Schnall also provided Plaintiff with a note expressing his view that SEPTA should permit these accommodations. By this time, however, it was too late to submit Dr. Schnall's note for the October meeting. Plaintiff was never informed of the November meeting date, and in any event SEPTA fired her before she could have submitted the request.*fn3

  On October 25, 2000, in response to an internal SEPTA posting, Plaintiff applied for a position as a maintenance manager. Plaintiff was told she would be interviewed within the next five weeks. On November 6, 2000, Plaintiff was working in the blockers booth alongside her foreperson, Ms. Johnson. Plaintiff alleges that Ms. Johnson, in retaliation for Plaintiff's repeated requests for accommodations, started smoking cigarettes in the booth with the door and windows closed. Plaintiff began to experience a migraine headache, the left side of her face became numb, and she became concerned that an asthma attack might ensue. Plaintiff requested an injured-on-duty ("IOD") report from Ms. Johnson and Michael E. Himes, another SEPTA maintenance foreperson, explaining that she had swollen blood vessels in her head. Plaintiff stated that she expected to be out of work for two to three weeks. Mr. Himes told Plaintiff she was describing a sickness, not an injury. Plaintiff received the IOD form but Mr. Himes and Ms. Johnson refused to sign it. Plaintiff took an Imitrex pill, one of her prescribed medications for alleviating migraine headaches, and asked Mr. Himes to call for medical assistance. Emergency personnel transported Plaintiff to the hospital, but she received no medical treatment.

  The next day, November 7, 2000, Plaintiff called out sick from work. Cowanis Duckett, Mr. Cook's successor as SEPTA's Director of Maintenance, directed Plaintiff via letter to report to SEPTA's Medical Department on November 13, 2000 for a physical examination. Mr. Duckett instructed Plaintiff to bring with her a report from her doctor outlining the nature of her illness and the length of time it was anticipated she would be out of work. Plaintiff met with Dr. Richard Press, SEPTA's Medical Director, as scheduled but failed to bring any documentation from her own doctor. Dr. Press cleared Plaintiff to return to work.

  On November 18, 2000, Paul [last name illegible], Plaintiff's supervisor, reported Plaintiff for causing "service interruptions." Based on Paul's account, Plaintiff submitted an IOD form claiming she was injured by chemicals in cigarette smoke. Plaintiff apparently remained at work because a half-hour later she told Paul there would be delays in servicing the buses due to inadequate "prep time." She further explained that several bus engines would not start, but upon Paul's inquiry could not identify the inoperative buses. When questioned about other available buses, Plaintiff stated that those buses lacked working radios. Paul directed the drivers to use the buses anyway, but then Plaintiff told the drivers not to use the buses. Plaintiff also told Paul that another bus was blocked by a parked car. Upon investigation, Paul found that no buses were blocked by a parked car. A "street supervisor" eventually intervened and assisted Paul in getting the buses out of the depot on schedule. Paul concluded that "this all happened intentionally because of spite by J. Merit for the Authority and her fellow employees."*fn4 This incident gave rise to Plaintiff's sixth disciplinary citation in less than four months.

  On November 19, 2000, Mr. Duckett informed Plaintiff and another VRC working at Comly, Madelaine Caldwell, that they would be transferred temporarily to work at SEPT A's Frontier District on November 24, 2000. Plaintiff was not familiar with the Frontier District location, but after traveling there the next day, Plaintiff told Mr. Duckett that the commute was too long given her physical limitations. Specifically, she complained that commuting to the Frontier District added six to eight hours to her workday, and that the frequent stops and starts (i.e.. "jerking") during the long ride would aggravate her back injury. She also told Mr. Duckett that she believed SEPTA was transferring her in retaliation for seeking disability accommodations. Plaintiff requested that she be permitted to work at a location closer to her home. In response, Mr. Duckett instructed Plaintiff to report to SEPTA's Medical Department for another evaluation.

  Dr. Press re-evaluated Plaintiff on November 22, 2000. Plaintiff did not bring any medical documentation or a note from her doctor regarding her ability to travel to the Frontier District. She told Dr. Press that the commute to the Frontier District was too long and asked him to approve a location accommodation. Dr. Press refused, saying she should take the issue up with management and that "work location assignments are not a Medical Dept matter."*fn5 Dr. Press cleared Plaintiff to work as a VRC at the Frontier District and reminded her that refusing to report for duty is a dischargeable offense.

  Immediately thereafter Plaintiff was directed to meet with John Jamison, SEPT A's labor relations manager. Even though she complained that the lengthy commute would aggravate her physical conditions, Mr. Jamison told Plaintiff that she must report to the Frontier District on November 24, 2000, and that the transfer could last for a few days or a few months. If she was not feeling well, Mr. Jamison told her, "you can always call out sick, but you have to go to Frontier."*fn6 Mr. Jamison then called William Bethel, SEPTA's Director of Maintenance at the Frontier District, and told him that Plaintiff would likely attempt to call out sick rather than report to work on November 24, 2000. He suggested that in those circumstances Mr. Bethel should give Plaintiff a "direct order" to report to SEPTA's Medical Department.*fn7

  Just as Mr. Jamison predicted, Plaintiff did not report to the Frontier District on November 24, 2000. Instead, she called the maintenance manager at Frontier, Larry Marsaglia, and asked him to enter her name in the "sick book." Pursuant to previous instructions from Mr. Bethel, Mr. Marsaglia refused to enter Plaintiff's name in the sick book and instead gave her a direct order to report to SEPTA's Medical Department. Plaintiff told Mr. Marsaglia that she was too sick to travel to the Medical Department.*fn8

  Plaintiff then contacted a foreman working at Comly and asked him to enter her name in the sick book. He agreed to do so, although he reminded Plaintiff that she was no longer assigned to Comly. In addition, Plaintiff contacted a TWU representative and asked that TWU file a grievance on her behalf regarding Mr. Marsaglia's refusal to enter Plaintiff's name in the sick book. Finally, Plaintiff contacted SEPTA's EEO/AA office and Linda Yoxtheimer, SEPTA's Assistant Director of Vocational Rehabilitation, to complain that the transfer to Frontier ...


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