The opinion of the court was delivered by: Conti, District Judge
In this memorandum order, the court considers the motion for summary judgment (Doc. No. 19) filed by defendants Walter Kuhns ("Kuhns") and Scott Eicher ("Eicher")(Kuhns and Eicher referred to collectively as "defendants") with respect to all claims asserted by plaintiff Craig A. Wilczynski ("Wilczynski" or "plaintiff") under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. § 951 et seq. ("PHRA") and the cross-motion for partial summary judgment (Doc. No. 29) filed by plaintiff with respect to his claim against defendants for interference under the FMLA. After considering the joint statements of material facts, the motions and briefs submitted by the parties with respect to each motion, the court will grant in part defendants' motion by granting summary judgment in favor of defendants with respect to plaintiff's claim for interference under the FMLA and will deny plaintiff's motion for summary judgment on that claim. Summary judgment will also be granted in part in favor of defendants with respect to plaintiff's claim for disability discrimination under the PHRA. In all other respects, defendant's motion for summary judgment will be denied.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Three Rivers Marine, LLC ("Three Rivers"), Metal Processing of America, LLC ("MPA") and Hiller Barge, LLC ("Hiller") were all subsidiaries of Wilhelm and Krouse ("Wilhelm"). Joint Statement of Material Facts to Defendants' Motion for Summary Judgment ("J.S.") ¶ 1. Three Rivers, MPA, and Hiller occupied the premises commonly known as 1800 Paul Thomas Boulevard, Brownsville, Pennsylvania. Id. ¶ 2. Three Rivers was the predecessor to MPA and Hiller. Id. ¶ 3. During the relevant time frame, MPA produced structured steel, while Hiller manufactured and repaired barges. Id. ¶ 3. Due to a bankruptcy petition filed by Wilhelm, MPA and Hiller filed for bankruptcy protection. Id. ¶ 4. In April 2002, Kuhns, Eicher, and Gabe Centofanti ("Centofanti") purchased the assets of Hiller from National City Bank and formed the entity HBC Barge, LLC ("HBC"). Id. ¶ 4.
In 1998, plaintiff began his employment with Three Rivers. Id. ¶ 5. Plaintiff later became an employee of MPA. Id. ¶ 5. Plaintiff's last day on the job was January 28, 2002. Id. ¶ 5. Plaintiff's work included cutting steel plates and tack welding, which required plaintiff to wear safety equipment such as a hard hat, gloves, and ear plugs. Id. ¶ 7. Plaintiff was provided a copy of the MPA Associate Handbook ("handbook") and "looked it over." Id. ¶ 6. The handbook addresses the need, if possible, for an employee to provide thirty days' notice of any FMLA leave. Id. ¶ 6.
In February 2000, Kuhns began as a vice president with Wilhelm. Id. ¶ 8. Kuhns later became a vice president for MPA and Hiller. Id. ¶ 8. Eicher was employed as a supervisor for MPA and Hiller. Id. ¶ 9. Michelle Eitner ("Eitner") was employed by MPA, then Hiller, in the area of human resources. Id. ¶ 10.
In January 2002, Eicher was a supervisor for MPA and reported to Kuhns. While Eicher conducted interviews and had input regarding the discharge of employees, decisions on employment decisions were ultimately made by Kuhns or Centofanti. Id. ¶ 11. Eicher admitted in the defendants' answers to paragraphs 20 and 21 of plaintiff's amended complaint that he was involved in the decision to terminate plaintiff and that he was "acting directly or indirectly in the interests of plaintiff's employer," although he now asserts that he did not participate in the decision to discharge Wilczynski. Pl. Amended Complaint (Doc. No. 12) ¶¶ 20, 21; Def. Answer (Doc. No. 13) ¶¶ 20, 21; J.S. ¶ 12.
As Hiller was considered a shipyard, and its employees worked on a waterway, Hiller was subject to federal regulations regarding drug testing as promulgated by the United States Department of Transportation and the United States Coast Guard. J.S. ¶ 13. Pursuant to the federal regulations, Hiller employees were subject to pre-employment drug testing and random testing while employed. Id. ¶ 14. The employees of MPA were not subject to as rigorous a drug testing program as the employees who worked on barges. Id. ¶ 15.
Plaintiff was treated for drug and alcohol problems in the early 1990's. Id. ¶ 16. After completing a drug treatment program at Cover Forge in Altoona, Pennsylvania, plaintiff remained drug free until October 1998. Id. ¶ 16. In October 1998 plaintiff began using marijuana and then cocaine. Id. ¶ 16. He informed his physician, Dr. Riad Saradar ("Dr. Saradar"), of his drug problem in 1999. Id. ¶ 16. Dr. Saradar advised plaintiff on several occasions to attend drug rehabilitation. Id. ¶ 17. Throughout their relationship, Dr. Saradar advised plaintiff of the dangers of drug use and told plaintiff he would refer him to either an inpatient or outpatient treatment facility at plaintiff's request. Id. ¶ 18. Despite Dr. Saradar's advice, plaintiff continued to use marijuana and cocaine on a regular basis throughout the summer of 2002. Id. ¶ 19. Plaintiff admitted that he did not pass a single urinalysis drug test during the summer of 2002. Id. ¶ 19.
Plaintiff's drug use negatively affected his work. Id. ¶ 20. At times, plaintiff missed work and was issued a disciplinary warning on January 28, 2002, for arriving to work late. Id. ¶ 20. Plaintiff, in reviewing the employee manual, knew that drug use was not permitted in the workplace. Id. ¶ 21. On January 29, 2002, plaintiff requested a referral from Dr. Saradar for outpatient drug rehabilitation. Id. ¶ 22.
The parties dispute when plaintiff disclosed his drug problem to his employer. Defendants claim that plaintiff did not disclose his drug use until January 28, 2002. Id. ¶ 23. Plaintiff denies that claim and argues that Eicher knew about his use of cocaine and marijuana prior to that date. Id.
On January 28, 2002, plaintiff disclosed his drug problem to his employer because he received a pink slip for arriving to work late. Id. ¶ 24. On January 28, 2002, plaintiff made an appointment with Dr. Saradar for January 29, 2002. Id. ¶ 25. Plaintiff was granted time off to attend an appointment with Dr. Saradar on January 29, 2002, and plaintiff requested a referral to a drug treatment program during the appointment. Id. ¶ 26. Plaintiff was also given additional time off to be evaluated by the Mon Valley Drug and Alcohol Program ("Mon Valley"). Id. ¶ 27. After the evaluation by Mon Valley, plaintiff asked permission to work the midnight shift so that he could attend outpatient drug treatment classes during the afternoon. Id. ¶ 28. Plaintiff's request was denied. Id. ¶ 29. After requesting leave, Kuhns said to plaintiff, "[b]ecause of you mother fuckers I had to piss in a cup in front of a woman." February 23, 2005 Deposition of Wilczynski (Doc. No. 24) at 244.
Plaintiff was informed that he could return to work after he passed a drug test. Id. ¶ 30. The parties dispute whether plaintiff was told that he had to complete a drug rehabilitation program prior to returning to work. Id. Eicher and Eitner believed that plaintiff was going to take time off to seek drug treatment. Id. at 31.
The parties dispute whether plaintiff asked for time off to seek drug treatment. Defendants claim that after plaintiff was told he could not work the midnight shift while attending drug treatment classes, plaintiff never requested a leave of absence to attend drug treatment and never indicated when he would return to work. Id. ¶ 32. Plaintiff claims that he did ask for time off work to seek drug treatment. Id. Plaintiff claims that Eitner and Eicher told him to take as much time as he needed for treatment. Id. Plaintiff testified that he asked to return to work only upon being informed by his health care provider that he could do so. Id.
Plaintiff continued to use drugs during the summer of 2002 and admitted that he would have been unable to pass a drug test in order to return to work at the time he requested to work the midnight shift. Id. ¶ 33. On May 8, 2002 plaintiff failed a drug test administered by the Fayette County Drug and Alcohol Commission ("Fayette Commission"). Id. ¶ 34. The parties dispute whether plaintiff failed another drug test on August 23, 2002. Id.
Plaintiff never completed a drug treatment program during his time as an employee of MPA. Id. ¶ 35. The parties dispute whether plaintiff quit the program at Mon Valley. Id. ¶ 36. Defendants argue that he did, while plaintiff claims he was forced to leave the program when he was discharged. Id.
Plaintiff's initial interview with the Fayette Clinic was on April 5, 2002. Id. ¶ 37. Plaintiff admitted to his counselor, Dorothy Spickler ("Spickler"), during his initial interview that he was attending the Fayette Clinic at the suggestion of an attorney. Id. ¶ 38. The parties dispute the reason for plaintiff's involuntary termination from the Fayette Clinic on September 24, 2002. Id.¶ 39. Defendants claim plaintiff was terminated because of sporadic attendance. Id. Plaintiff claims that he was terminated because he told Spickler he was no longer going to attend counseling sessions. Id. Plaintiff testified that Spickler told him that he would be involuntarily discharged even though he decided to leave on his own. Id. Spickler testified that plaintiff's prognosis for recovery was poor because he did not complete the program. Id. ¶ 40.
Plaintiff applied for unemployment compensation during the first week of February 2002. Id. ¶ 43. Plaintiff's application resulted in the Pennsylvania Bureau of Unemployment Benefits and Allowances ("Unemployment Bureau") sending a notice to plaintiff's employer stating that plaintiff quit his job due to health reasons. Id. ¶ 44. Defendants received the notice in early February 2002 and concluded that plaintiff had quit his job. Id. ¶¶ 45, 47-48. Kuhns believed that plaintiff was attempting to commit fraud by collecting unemployment compensation while maintaining his benefits as an employee of MPA or Hiller. Id. ¶ 46. Plaintiff was aware that the Unemployment Bureau informed his employer that he voluntarily quit his job and was told the same by his employer. Id. ¶¶ 49-50.
The parties dispute the facts surrounding the termination of plaintiff's employment. Id. ¶ 41. Defendant claims plaintiff was not terminated because he requested time to attend a drug rehabilitation program. Id. ¶ 41. Plaintiff disputes that assertion and argues that he requested time off work to seek substance abuse treatment. Id. Defendants argue that plaintiff was terminated because he applied for unemployment compensation. Id. ¶ 42. Plaintiff disputes this fact, but admits that Eicher, Eitner, and Kuhns all testified that plaintiff was terminated by reason of his applying for unemployment benefits. Id.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson, 477 U.S. at 247-48. In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing WRIGHT AND MILLER, FEDERAL PRACTICE§ 2721); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert.denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence") (emphasis added).
I. Summary judgment will be granted in favor of defendants with respect to plaintiff's claim for interference under the FMLA because plaintiff failed to give adequate notice and for that reason plaintiff's motion for partial summary judgment with respect to that claim shall be denied.
The FMLA was enacted by Congress in 1993, in part to address problems arising from "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(b)(1). The act was designed to provide a balance between "entitl[ing] employees to take reasonable leave for medical reasons" and "accommodat[ing] the legitimate interests of employers." 29 U.S.C. §§ 2601(b)(1-2); see Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005) (citing 29 U.S.C. § 2601(b)(1)) (holding that "the primary [purposes] of the FMLA are to 'balance the demands of the workplace with the needs of families'."). The FMLA grants eligible employees the right to take up to twelve work weeks of leave during a twelve-month period for any of the following reasons:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or ...