The opinion of the court was delivered by: Judge Sylvia H. Rambo
This case arises out of dispute over Defendant David H. Martin Excavating, Inc.'s ("DHM") reasons for terminating Plaintiff Rodney Barthalow. Plaintiff has asserted violations of the Americans with Disabilities Act ("ADA"),*fn1 the Pennsylvania Human Relations Act ("PHRA"),*fn2 and the Family Medical Leave Act ("FMLA"),*fn3 and a claim of wrongful termination alleging retaliation for a workers' compensation claim.*fn4 Presently before the court is DHM's Motion for Summary Judgment (Doc. 20). For the reasons that follow, the court will grant the motion in part and deny it in part. The court will deny the motion with respect to Barthalow's FMLA claim and grant it in all other respects.
The following facts are undisputed, except where noted.*fn5 DHM is an excavation company that performs commercial and residential work. Barthalow was employed by DHM as a general laborer and buggy operator, beginning in 1997. Barthalow later operated a skid steer and a hydraulic drill. Barthalow asserts that the change in job responsibilities was a promotion, but DHM disputes that fact. DHM terminated Barthalow in December, 2003. DHM maintains that it terminated Barthalow because of poor job performance and habitual absenteeism. Barthalow maintains that his personnel file contains no record of poor job performance.
Jessica Barthalow, Plaintiff's wife, has required and continues to require frequent, unpredictable emergency hospitalization due to medical problems she has had since she was twenty-one years old. Jessica received a pacemaker in 2000. DHM was flexible with regard to Barthalow's requests for time off from work, including permitting Barthalow's absence when he called in after the work day had begun, due to a family emergency. In addition, Barthalow was not denied use of vacation time.
Barthalow concedes that neither he, nor Jessica, provided DHM with excuses from a medical provider, or any medical documentation. Barthalow also admits that no medical provider ever provided him with any such written excuses. However, the parties dispute whether Barthalow made DHM aware of Jessica's significant medical problems when he was hired. Furthermore, Barthalow contends that his offer to provide medical documentation to DHM was rejected. In any event, Barthalow did not speak to a DHM supervisor or owner to request any proposed reasonable accommodation.
DHM maintains that during Barthalow's employment a poster setting forth employees' FMLA rights was posted on a wall in a garage/maintenance area at DHM's facilities that was accessible by all employees and open during DHM's regular business hours. Barthalow disputes whether the poster was hung in a conspicuous location because he never saw it, although he entered the garage at times.*fn6 The parties dispute whether DHM made Barthalow aware of the FMLA information or the poster at the time he was hired. It is undisputed that Barthalow did not request Family Medical leave. However, Barthalow attributes his failure to do so from his lack of knowledge and the lack of notice provided to him regarding the FMLA.
Barthalow commenced this action by filing the complaint (Doc. 1) on December 15, 2005. On May 2, 2006, the court granted DHM's unopposed motion to dismiss (Doc. 4) the emotional distress claims alleged in Counts V and VI. (See Doc. 7.) DHM subsequently filed its answer (Doc. 11) on May 15, 2006. Discovery closed on May 31, 2007. On June 14, 2007, DHM filed the instant motion for summary judgment (Doc. 20). The parties have briefed the issues and the motion is ripe for disposition.
II. Legal Standard -- Motion for Summary Judgment
Summary judgment is proper when "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); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex, 477 U.S. at 324. Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted 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 at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must ...