The opinion of the court was delivered by: Magistrate Judge Blewitt
The Plaintiff, John Bell, originally filed this employment discrimination action on June 4, 2005, against sole Defendant Mericle Development Corp., pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., Count I, and the Family Medical Leave Act ("FMLA") 29 U.S.C. §§ 2601, et seq. (requires employers to allow an employee to take unpaid leave to care for his serious health condition and prohibits retaliation by employer for doing so), Count II. (Doc. 1). Defendant filed its Answer to the original Complaint on June 28, 2005. (Doc. 4). Subsequently, Plaintiff filed an Amended Complaint on November 21, 2005 (Doc. 12), in which he retained his two stated original claims and asserted two new counts under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. §§ 951, et seq., one as against the original Defendant, and one against a new Defendant, Tina Rothery, a supervisor of Defendant Mericle. (Counts III & III (sic) of Amended Complaint, Doc. 12).*fn1
On December 14, 2005, Defendant Mericle Development Corp. ("Defendant Mericle") filed a Motion to Dismiss the Plaintiff's Amended Complaint. (Doc. 15)*fn2 . Defendant argued that Plaintiff did not exhaust his administrative remedies with the PHRC before he filed this action, and thus his PHRA claims must be dismissed. On January 31, 2006, we issued a Memorandum and Order denying Mericle's Motion to Dismiss, and directed both Defendants to file their responses to the Amended Complaint.*fn3 (Doc. 20). Defendants Mericle and Rothery jointly filed their Answer to the Amended Complaint on February 10, 2006. (Doc. 22). Discovery then ensued.
On July 31, 2006, Defendants jointly filed a Motion for Summary Judgment. (Doc. 31). Also on July 31, 2006, Plaintiff filed a Motion for Partial Summary Judgment. (Doc. 32). The Motions have been briefed by the parties, exhibits have been submitted, and Statements of Material Facts ("SMF") have been filed. (Docs. 26-30, 33-35, 38-44).*fn4 Both parties responded to each other's SMF. (Docs. 32 & 39, 34 & 42).
Presently ripe for disposition are the Summary Judgment Motions of the parties. (Docs. 31 & 32). Defendants argue that they are entitled to summary judgment with respect to all counts of the Plaintiff's Amended Complaint since there is no genuine issue of material fact that Plaintiff's claims fail as a matter of law. Plaintiff argues that he suffered an illness at work, i.e. "seizure," on June 3, 2004, he was taken to the hospital by ambulance, he asked for leave due to his medical condition on June 14, 2004, and he was terminated and not given 12 weeks of FMLA. leave.
This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 and § 1367(a).
II. Motion for Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or nonexistence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule56, summary judgment must be entered where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Allegations of the Amended Complaint
The Plaintiff alleges that he began working for Defendant Mericle in October 2002 as a construction worker, that he is 30 years old, and that he has a seizure disability. Plaintiff avers that he suffered a seizure on June 3, 2004 and passed out while he was working for Defendant at a job site. Plaintiff was taken to the hospital by ambulance. Due to this condition, Plaintiff took the next day off of work. Plaintiff returned to work the following Monday, June 7, 2004, and informed his supervisor that he required time off to treat his medical condition. Defendants contacted him on this day to discuss his medical restrictions. Thereafter, Plaintiff had to leave work on June 10 and 11 for medical appointments and tests, and Defendants were aware of these appointments. On June 14, 2004, Plaintiff called off work due to a recurring headache since his June 3 seizure, and was then terminated. (Doc. 12, ¶'s 11.-22.).
Plaintiff also alleges that Defendants knew he had a disability, that he was significantly limited in major life functions due to his disability, and that he requested reasonable accommodation for time off for medical treatment, but Defendants refused to allow it. (Id., ¶'s 23.-25.). Thus, Plaintiff alleges that on June 14, 2004, he was terminated from his position due to his disability.
The Plaintiff avers that he has filed a claim of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). (Id., ¶ 4. a.). The EEOC issued a Notice of Right to Sue on May 31, 2005. (Id., ¶ 4. b.).
In Counts I & III, Plaintiff alleges that Defendant Mericle discriminated against him due to his medical condition and failed to accommodate him regarding his condition in violation of the ADA and the PHRA, respectively. Also in Count III, Plaintiff alleges that Defendant Rothery aided and abetted the stated violations of the PHRA by Defendant Mericle. In Count II, Plaintiff alleges that Defendant Mericle interfered with his rights under the FMLA and retaliated against him regarding his rights under the FMLA.
As stated, since both parties have flied their SMF and have responded to each other's SMF, we shall not repeat the SMF's that are admitted and shall incorporate them herein by reference. We first consider Plaintiff's SMF.
Plaintiff passed out at work on June 3, 2004, and was taken by ambulance to the Hazleton General Hospital. The ER doctor at the hospital said to Plaintiff that he suffered a seizure. Plaintiff was given a CAT scan and a urine test. Plaintiff left the hospital on June 3, 2004 against medical advice ("AMA"). (Doc. 41, Ex. 1). The risk noted regarding Plaintiff's leaving the hospital AMA was "worsening seizure, collapse, stroke, etc." Plaintiff was directed not to drive a car "for now." Plaintiff's diagnosis was "seizure." (Id.).
Subsequently, Plaintiff was seen by his doctor, Dr. Weinberger, and a neurologist after the June 3 incident. Plaintiff called off sick on June 14, 2004, by leaving a voice message on the phone of his supervisor, Joe Powles. Plaintiff only called off for that day. (Docs. 33 & 42, Plaintiff deposition, NT 113-114, 69). Plaintiff did not specifically ask for FMLA leave on June 14. (Id., NT 127). Plaintiff was terminated on June 14, 2004, eleven (11) days after he passed out at work and was taken to the hospital by ambulance.
The following SMF's of Defendants are admitted by Plaintiff (Docs. 34 & 42):*fn5 ¶ 1; ¶'s 3-5; ¶'s 6-9, Plaintiff performed a variety of tasks as a laborer and any day he could be assigned to do any tasks, including grade trenches with stone, use hand tools, use a backhoe, and manually connect pipes in trenches and use a whacker to compact the trenches; ¶ 10; ¶ 12, Plaintiff used a trench loader, rock truck and backhoe; ¶ 13, Joe Powles was Plaintiff's supervisor with the excavating division during both of Plaintiff's terms of employment with Mericle; ¶ 14, Plaintiff does not recall why he left Mericle during his first term of employment in 2002; ¶'s 16-22; ¶ 23, Plaintiff had three (3) discretionary/sick days per year during his second term of employment with Mericle; ¶ 24; ¶'s 25-27, Plaintiff experienced headaches during both terms of his employment with Mericle and only passed out during his second term of employment; ¶'s 28-29; ¶ 30, at times Plaintiff would be able to continue to work when he had a headache, but not on June 3, 2004; ¶ 31, Plaintiff would get an upset stomach from his headaches but never vomited; ¶'s 32-36; ¶ 37, on June 3, 2004, Plaintiff passed out and hit his head on the backhoe, the ER doctor told him he had a seizure; ¶'s 38-43; ¶ 44, Plaintiff's face was black and blue and his tongue was swollen due to having passed out and hitting his head on the backhoe; ¶ 45, Plaintiff did not have another seizure after June 3, but still had headaches; ¶ 46, on June 7, 2004, Dr. Weinberger signed a note indicating that Plaintiff could return to work on June 7 limited to light duty (Doc. 41, Ex. 3); ¶ 48, Plaintiff thought that light duty probably included running a backhoe; ¶ 49; ¶ 50, during work the week of June 7, 2004, Plaintiff had no concerns about becoming dizzy while operating a backhoe; ¶ 51; ¶ 52, Plaintiff saw a neurologist on June 7, 2004; ¶ 53, Plaintiff gave all of his doctor's excuses to Mericle, including the June 7, 2004 light duty note of Dr. Weinberger to Joe Powles; ¶ 55; ¶ 56, there is no evidence that anyone contacted PennDOT about Plaintiff's June 3, 2004 incident; ¶ 57, and Plaintiff continued to have headaches after June 3;*fn6 ¶ 59; ¶ 60, Plaintiff left work early on June 10, 2004 to see Dr. Weinberger; ¶ 61, there is nothing in the record to show that anyone at Mericle objected to Plaintiff's early departure from work on June 10; ¶ 62, Plaintiff attended time trials at Pocono Raceway on June 11,2004, and felt like garbage this weekend; ¶'s 63-64; ¶ 65, on June 14, 2004, Plaintiff left a voice message on Joe Powles's phone to call off sick due to his headache (Doc. 33, Ex. 1, NT 87-88); ¶ 66, Plaintiff testified that when he called off sick on June 14, he did not have any days left (Id., NT 89). Rothery testified that at this time, Plaintiff had one discretionary day left (Doc. 33, Ex. 2, NT 40-41) ; ¶ 67, Plaintiff attended the race at Pocono Raceway on June 13, 2004, Sunday, but he felt like garbage; ¶ 68, Rothery called Plaintiff on June 14, 2004, around 4:30 to 4:45 p.m. and terminated his employment; ¶ 69, Rothery told Plaintiff he was terminated because he missed too much time in June 2004; ¶ 70, Plaintiff testified that during the week of June 7, 2004 he was standing around at work, taking it easy, but he wanted to be in the backhoe but a supervisor would not let him (Doc, 33, Ex. 1, NT 82-83); ¶ 71; ¶ 74; ¶ 75, Plaintiff testified that he believed he received Mericle's Employee Guide but also stated that he really did not know if he got one (Id., NT 107, 127)*fn7 ; ¶ 77, Plaintiff could at times work through his headaches when they were not severe, not when they were bad; ¶ 80, Plaintiff stated that he never heard of anyone at Mericle speak badly about his June 3 incident, but was sure that they all laughed about his termination (Id., NT 117-118); ¶'s 81-83; ¶ 90; ¶ 97, according to Defendants' records, Plaintiff took as vacation days Friday January 12, March 12, May 14, 2004 (Doc. 27, Ex. 10).
Plaintiff disputes ¶'s 91-104 of Defendants' SMF. Thus, we shall not accept these paragraphs of Defendants' SMF as undisputed.
Defendants Mericle and Rothery move for summary judgment with respect to the Plaintiff's Amended Complaint. As stated, Plaintiff raises three claims, Count I, under the ADA, Count II, the FMLA, and Count III, the PHRA.*fn8 Defendants argue that Plaintiff has failed to establish a genuine issue of material fact with respect to his claims under the stated statutes.*fn9
Plaintiff filed his Amended Complaint on November 21, 2005 (Doc. 12), pursuant to the ADA, 42 U.S.C. §§ 12101, et seq., alleging that Defendant Mericle discriminated against him and failed to accommodate him regarding his seizure and headaches disability, Count I.*fn10 In Count II, Plaintiff alleges that Defendant Mericle interfered with his right to take intermittent leave and retaliated against him for taking leave in violation of the FMLA. In his claim under the FMLA, as relief, Plaintiff requests back pay and front pay, as well as damages for emotional distress and humiliation.*fn11
In Count III, Plaintiff alleges that Defendant Mericle discriminated against him due to his stated disability and failed to accommodate him in violation of the PHRA, 43 Pa. C.S.A. §§ 951, et seq. Plaintiff alleges that he had a disability, that it significantly limited him in his major life functions, and that he requested a reasonable accommodation for time off for treatment but Defendant Mericle failed to provide him reasonable accommodations for his seizure and headache impairments. Plaintiff also alleges that Defendant Rothery, as HR supervisor, aided and abetted Mericle when it discriminated against him based on his disability and when it failed to provide him with a reasonable accommodation.
In Count I of his Complaint, Plaintiff asserts an ADA discrimination claim, seemingly pursuant to 42 U.S.C. § 12112(a), in which he contends that "Defendant Mericle discriminated against Plaintiff based on his disability." (Doc. 12, ¶ 27.).*fn12
As stated, in Count II, Plaintiff alleges that Defendant Mericle interfered with his right to take intermittent leave and retaliated against him for taking leave in violation of the FMLA.
In Count III, Plaintiff raises a PHRA discrimination and failure to accommodate claim against Defendant Mericle, and alleges Defendant Rothery aided and abetted Mericle's disability discrimination against him.*fn13
Presently ripe for disposition are the Defendants' and Plaintiff's cross-Motions for Summary Judgment. (Docs. 31 and 32).*fn14
The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. §12112(a). (emphasis added). It is the Plaintiff's position that he was terminated from his employment as a laborer with Mericle due to his disability (seizure and headaches) and that the reasons offered by the Defendant for his dismissal are a pretext for discrimination. He also alleged a cause of action for failure to accommodate under §12112(a) of the ADA. (Doc. 12, Count I, ¶'s 26.-28.). As noted, Plaintiff did not assert a cause of action for retaliation under 42 U.S.C. § 12203(a) of the ADA.
There are three steps in the analysis of pretext discrimination cases. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the Plaintiff must establish a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). Upon such a showing by the Plaintiff, the burden shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for the adverse decision. Id. Once the Defendant satisfies this burden, the burden of proof falls back onto the Plaintiff to show, by a preponderance of the evidence, that the Defendant's explanation is a mere pretext for discrimination. Id.
Defendants argue that Plaintiff has not established a prima facie case under the ADA since he has not produced evidence that he is a "qualified individual with a disability." Plaintiff contends that he had a disability of which Mericle was aware and that he was substantially limited in his major life activities.
The Court in Bjorklund v. Phila. Housing Auth., 118 Fed. Appx. 624, 625-626 (3d Cir. 2004), stated that Plaintiff must prove the following elements in an ADA action:
(1) he [plaintiff] was a qualified individual with a disability or who was regarded as having a disability; [FN1] and (2) that he suffered an adverse employment action as a result of his disability or perceived disability. Tice v. Centre Area Transp. Auth., 247 F.3d 506, 511-12 (3d Cir. 2001); see also Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002).
The ADA defines a "qualified individual with a disability" as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires.
In order for a Plaintiff to establish a discrimination claim under the ADA, he must show that he was a "qualified individual with a disability" at the time the adverse employment actions were taken. Bjorklund, supra. Plaintiff seeks both prospective and retrospective relief since he requests both back pay and front pay. (Doc. 12, ¶'s 26.-28.). The prospective relief that Plaintiff seeks is front pay. The retrospective relief that Plaintiff seeks also involves damages. In order to maintain a claim for retrospective relief under the ADA for Mericle's allegedly discriminatory acts, Plaintiff must establish that he was a "qualified individual with a disability"during the applicable time. Felix v. N.Y. City Transit Auth., 154 F.Supp. 2d. 640, 652 (S.D. N.Y. 2001). In order to maintain a claim that he is entitled to prospective relief, Plaintiff must establish that he is presently a "qualified individual with a disability."
We again note that Plaintiff's amended pleading does not raise a claim under the ADA retaliation provision, 42 U.S.C. § 12203(a); rather, it raises an ADA discrimination claim under 42 U.S.C. § 12112(a) and a failure to accommodate claim.
A Plaintiff establishes a prima facie case under the ADA by demonstrating: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) he has suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998), citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).*fn15 Under the ADA, as the Thompson Court stated, a person has a disability if:
The ADA defines the term "qualified person with a disability" as follows:
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
42 U.S.C. § 12112(8). 42 U.S.C. § 12102(2) sets forth three possible definitions of disability for purposes of the ADA: "The term 'disability' means, with respect to an individual - - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 371 F. Supp. 2d at 671-672 (Citation omitted).
Defendants argue that even if Plaintiff had an impairment as a result of having passed out at work on June 3, 2004, and having headaches once every two weeks, there is no evidence that he had any major life activity that has been substantially limited. (Doc. 38, p. 8). In his amended pleading, Plaintiff alleges that he is "significantly limited in the major life functions of, including but not limited to, caring for oneself, concentrating, thinking, remembering, and working." (Doc. 12, ¶ 24.).
The Court in Strayer v. New Enterprise Stone & Lime Co., Inc., 2006 WL 2773479, *4-*5 (W.D. Pa.), stated as follows:
[P]laintiffs claiming a physical impairment under the ADA must demonstrate "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs; respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine[.]" 29 C.F.R. § 1630.2(h)(1). The major life activities that the impairment must substantially limit are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
29 C.F.R. § 1630.2(i). Such an activity is "substantially limited" if the individual is "[u]nable to perform a major life activity that the average person in the general population can perform," or if she is "[s]ignificantly restricted as to the condition, manner or duration under which [the] individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(J)(1)(i)-(ii).
The following factors should be considered in determining whether an individual is substantially limited in a major life activity:
(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long ...