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Conto v. Norfolk Southern Corp.

December 11, 2007


The opinion of the court was delivered by: Judge Nora Barry Fischer


Plaintiff Brian P. Conto ("Plaintiff") filed this civil action against Defendant Norfolk Southern Corporation ("Defendant"), alleging violations of the Americans with Disabilities Act, Title I, 42 U.S.C. §12117(a), incorporating by reference Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5; 28 U.S.C. §§1331 ("ADA") and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §955(a) et seq. ("PHRA"). At the time of filing, this case was assigned to Judge Hardiman. (Docket No. 1). Defendant filed a Motion for Summary Judgment on September 12, 2006, and the Court held oral argument on February 9, 2007 at which time the case was taken under advisement. (Docket No. 23, 32). This case was then reassigned to Judge Nora Barry Fischer on April 6, 2007. On June 6, 2007, the Court ordered additional briefing concerning the issues in the pending Motion for Summary Judgment given the age of the initial briefing. (Docket No. 36). Accordingly, Defendant's Motion for Summary Judgment was not fully presented to this Court until the additional briefing was received on June 21, 2007. (Docket No. 38).


Plaintiff, Brian Conto, age 41, is a mechanic with education through the high school level.*fn1 On October 21, 2004, Plaintiff submitted an application for employment with Defendant. (Docket No. 27 at ¶ 7). When Plaintiff applied for the position with Defendant, he was working as an automotive mechanic at #1 Cochran Robinson Township location. Id. at ¶8. Plaintiff had worked for Cochran since February, 2003. Id. at ¶ 9. In all, he had worked as an automotive mechanic for approximately ten years by the time he applied to Defendant. Id. at ¶ 10. As a mechanic, he works with power tools and is required to work at heights to diagnose problems with automobiles. Id. at ¶ 11. Plaintiff contends that this is similar to the work he would have performed for Defendant. Id. at ¶ 11. For five years prior to when he became a mechanic, Plaintiff worked as a common laborer. Id. at ¶ 12. Plaintiff applied to Defendant because he wanted better working conditions than what he had at Cochran and other locations where he worked as an automotive mechanic. Id. at ¶ 13. Specifically, Plaintiff wanted to get away from the "flat rate" bidding system that was customary at the automotive garages where he had worked. Id. at ¶ 14. This bidding system could result in Plaintiff being required to be in the garage all day but receive no work and consequently not be paid for that day. Id. at ¶ 15.

At the time Plaintiff applied for a position with Defendant, he had a significant medical history. Id. at ¶16. In 1989, Plaintiff underwent a liver transplant necessitated by the fact that he suffered from BuddChiari Syndrome.*fn2 (Docket No. 24 at ¶ 3). Plaintiff has a history of back pain for which he began treatment in 2000, initially as the result of a motor vehicle accident. Id. at ¶ 5). In addition, Plaintiff also suffers from ulcerative colitis, hypertension, and migraine headaches. Id. at ¶ 8. At the time of Plaintiff's deposition on April 20, 2006, he was taking two narcotic pain medications, MS Contin or Oramorph and Vicodin, and four additional medications as a result of his liver transplant, namely Cyclosporin, Coumadin, Prednisone, and Trimeth-Sulfo. Id. at ¶ 4. Despite all of his medical conditions, Plaintiff claims that he is not substantially limited in major life activities. Id. at ¶ 9. In fact, Plaintiff avers in his Complaint that he had worked as a machinist for more than twelve years. (Docket No. 10 at ¶ 6). He also avers that he was capable of performing all functions of the position he sought from Defendant without accommodation. Id. at ¶ 16. Since returning to work from his liver transplant, Plaintiff has had no period of disability or period of time when he was unable to work because of his health. (Docket No. 27 at ¶ 22). Moreover, his back pain has not prohibited him from functioning or working as a mechanic. Id. at ¶ 50. He also avers that he was capable of performing all functions of the position he sought from Defendant with or without accommodation. Id. at ¶ 16.

The application that Plaintiff filled out was dated October 21, 2004 and contained the following statement:

I understand that my application for employment may be rejected or if I am then an employee that my employment may be terminated if it is determined at any time through investigation or otherwise that any untrue or misleading statements were made in this application or material information is omitted. If offered a position I understand that I must successfully complete a medical examination including a drug screen, before employment and a classification as a regular employee depends upon successfully completing a probationary period.

Id. at ¶ 11.

Plaintiff attended Defendant's hiring session in Greentree, Pennsylvania on November 12, 2004*fn3, at which time the process for selection of machinists*fn4 was explained. Id. at ¶¶ 12,14. Scott McGrain (a former employee of Defendant) was employed as a consultant at that time and was among the human resources individuals conducting the hiring session attended by Plaintiff. Id. at ¶ 15. McGrain testified that those conducting the hiring session followed an orientation "script" in explaining the selection process. Id. at ¶ 16.

Defendant maintains that the hiring session "script" included clear directions that successful applicants at the session would be given conditional offers of employment, contingent upon them subsequently passing, in addition to a background check, a preplacement medical examination and a drug screen. (Docket No. 24 at ¶ 17). Specifically, the script stated "those applicants whom we wish to hire will receive a call within 3 to 5 business days of this session with a job offer conditional on passing a company physical, including a drug test and a police background check." Id. at ¶ 18. Despite the same, Plaintiff argues that it was never explained to him that successful applicants at the hiring session would be given conditional offers of employment. (Docket No. 27 at ¶ 17). Plaintiff further disputes that the employment script Defendant cites is the same script used during Plaintiff's hiring session since it's specific to conductors, a position for which Plaintiff did not apply and a position for which Defendant was not seeking applicants at the Greentree hiring session. (Docket No. 27 at ¶18). Moreover, the script Defendant cites makes no mention of an employee needing to undergo a sweeping medical inquiry like the one to which Plaintiff was subjected, but rather states that the applicant will need to pass a hearing test, a color blindness test and a drug screen during the physical examination. Id. at ¶ 18.

After taking a series of written tests on the day of the session, Plaintiff was interviewed by two individuals, Tony Stuart, and an individual whose name Plaintiff could not remember, but who was, in fact Scott McGrain.*fn5 (Docket No. 24at ¶¶ 21-22). According to Plaintiff, Mr. Stuart told him if we are interested in you, we will call you. Id. at ¶ 22. He was hoping he would get a call to continue the hiring process. (Docket No. 24-2 at p. 22). Mr. Stuart called him back a few days later and indicated that if he was still interested in working for Defendant, he would be required to undergo a police background check, a drug screen, and a physical examination. Id. at ¶ 23. At no time was Plaintiff ever told when he would actually start working for Defendant. (Docket No. 27 at ¶ 74). Defendant insists that Tony Stuart made a contingent job offer on the same day as the interview when he told Plaintiff that, as long as he completed all three steps successfully (drug screen, background check and preplacement physical), Stuart would like Plaintiff to come to work. (Docket No. 24 at ¶ 24). Further, Plaintiff's name appeared on the list of new hires scheduled for preemployment physicals, New Hire Preemployment Physicals.*fn6 Id. at ¶25. Plaintiff admits that Stuart claims he made Plaintiff an offer, but argues that this offer never occurred. Further, Scott McGrain who participated in the interview does not recall Plaintiff being given a contingent job offer. (Docket No. 27 at ¶ 24).

Defendant also avers that it followed a corporate procedure concerning the employment and placement of agreement employees entitled Corporate Procedure 318.1. Pursuant to this policy, once an applicant is identified as someone that the railroad wants to hire, he or she is referred to the employing officer who makes a contingent offer of employment, then a form 4300 in an electronic database would be initiated as well as a form MED-15 for the applicants to take to a company authorized physician. (Docket No. 24 at ¶ 19). Again, Plaintiff disputes that the policy to which Defendant cites is the policy Defendant followed with respect to Plaintiff since Plaintiff was never made a contingent offer of employment by Tony Stuart, the employing officer. (Docket No. 27 at ¶19).

Subsequent to a call from Mr. Stuart, Plaintiff reported to Defendant's offices on November 17, 2004 and met with a police officer as part of the background check and went, as previously instructed, to the Heritage Valley Medical Center in Hopewell for a preplacement physical examination. (Docket No. 24 at ¶¶ 26-27). As part of Defendant's medical examination, Plaintiff was required to fill out an extensive medical history where Defendant inquired into whether Plaintiff had a history with respect to twenty-four broad categories of illness and/or injuries. (Docket No. 27 at ¶ 85). This questionnaire was contained in Section E on page 81 of Defendant's form MED-15. Id. at ¶ 86. Plaintiff filled out Section E of the Norfolk Southern Corporation Medical Services form MED-15 at the Heritage Valley Center, and indicated that he had "back pain slight from leaning over vehicles to work on engines" and that "he was taking Oramorph and Vicodin when passing kidney stone", not for chronic back pain. (Docket No. 24 at ¶¶ 28-31).

Plaintiff signed the form MED-15 right below the paragraph that reads in part "If I am an applicant for employment, I acknowledge that an offer of employment, contingent on satisfactory completion of this medical examination, a urine drug screen and a background investigation, has been made to me." (Docket No. 24 at ¶ 32). Plaintiff agrees that he signed the form MED-15, but states that he did not read the above described statement above his signature to which Defendant refers because it was a medical document and Plaintiff is accustomed to just signing medical documents due to his long history of having to sign such documents. (Docket No. 27, Response at ¶ 32). Plaintiff also testified that he did not understand he was offered a job when he signed. (Docket No. 24-2 at p. 27).

In regard to Section F of the MED-15 form completed by Dr. Moon and the note she made "rare sore back pain- no TX or WC", Defendant states that Dr. Moon made this notation because Plaintiff told her that he was not being treated for his back pain. (Docket No. 24 at ¶¶ 33-34). Plaintiff argues that Dr. Moon never asked him during the examination if he was being treated for his back pain and that he disclosed that he was on narcotic medication at the time he talked to her. (Docket No. 27 at ¶¶ 34-35). Plaintiff also discussed with Dr. Moon that he had kidney stones within the past few days. Id. at ¶ 99. Dr. Moon performed a physical examination of Plaintiff's back and found the results to be normal. Id. at ¶ 100. Based on the information conveyed by Plaintiff at the time of Dr. Moon's exam on November 17, 2004, Dr. Moon recommended Plaintiff as qualified. (Docket No. 24 at ¶39).

As part of Defendant's preplacement procedures, Plaintiff provided a urine sample on November 17, 2004 for the purposes of a drug screening, which in turn was tested by Quest Diagnostic and was returned as positive for morphine. Id. at ¶¶ 40-41. The results were faxed by Quest Diagnostic to Defendant's Medical Department. Id. at ¶ 42. Plaintiff was then notified by the Defendant of the need to contact a Medical Review Officer concerning the urine drug test collected on November 17, 2004. Id. at ¶43.*fn7

Defendant next asserts that Plaintiff spoke with Dr. Lina in her capacity as a Medical Review Officer on December 14, 2004 and that during this conversation, Plaintiff was advised that he had tested positive for morphine and that Plaintiff then explained that he was taking prescription MS Contin for kidney stones. (Docket 24 at ¶ 44). Plaintiff argues that Dr. Lina only told him that he had tested positive for an opiod or morphine derivative and inquired into whether he had a valid prescription for it, which Plaintiff replied that he did. (Docket 27, Response at ¶ 44). Plaintiff states that he was then instructed to send the prescription to Defendant's Medical Department; however, the reason why Plaintiff was taking the morphine derivative was never addressed during the conversation. Id. at ¶ 44. Plaintiff promptly complied. A copy of the prescription written by Dr. Cook for MS Contin/Oramorph was then faxed to Defendant's Medical Department on December 14, 2004, and as a result, the drug test was marked "negative". Id. at ¶¶ 45-46.

Contrary to what Dr. Moon allegedly told Plaintiff (Docket No. 27 at ¶ 112), each MED-15 form completed by a physician in the field, such as Dr. Moon, is sent to Defendant's Medical Department for review. (Docket No. 24 at ¶ 47). Sally Heath, one of Defendant's medical standard coordinators was the first person to review Plaintiff's form MED-15. (Docket No. 27 at ¶ 113). Heath reviews the form to ensure whether it's completed, and checks whether there are any "medical issues" with the applicant. Id. at ¶ 114. Heath notes any medical issues or problems she discovers on a post-it note in order to call the issue to the attention of the occupation nurse she works with, in this case, Beverly Dozier. Id. at ¶ 115. Dozier reviews any medical condition noted on the form MED-15 by the applicant. Id. at ¶ 116. With respect to Plaintiff, Heath wrote a note to Dozier stating "back pain. He's on transplant meds, liver transplant 1989, blood pressure recommendation letter." Id. at ¶ 117. Heath usually notes when any applicant has back pain because it's a medical problem. Id. at ¶ 118. Likewise, Heath noted the liver transplant for Dozier's attention because it's a past medical problem. Id. at ¶ 119. Although the form MED-15 specifically mentioned that Plaintiff had a recent issue with kidney stones, Heath did not note such an issue, even though, she also considers kidney stones a medical problem. Id. at ¶ 120.

One of Dozier's primary duties is assisting the Medical Director and Associate Medical Director in determining fitness for service and reviewing medical records for employees and applicants. (Docket No. 24 at ¶ 48). In the performance of those duties, she will review MED-15 forms as well as MED-14 forms and often make a determination that additional information is needed for a thorough medical review. Id. at ¶ 49. Based on her review of Plaintiff's MED-15 file, Beverly Dozier had Sally Heath, Medical Standards Coordinator, send one of a number of standard letters requesting additional information to Plaintiff. Id. at ¶ 50. Dozier wanted all medical records regarding Plaintiff's back pain, including any medications, as well as a statement from his doctor that his back pain and conditions related to his liver transplant were stable or had resolved, and advising of any recommended work restrictions and/or accommodations. (Docket No. 27 at ¶¶ 123, 124).

In that letter, which went out under Dr. Prible's signature, Plaintiff was asked to provide Defendant's Medical Department with all medical records related to his back pain and have his treating physician provide a written statement indicating that his back pain was stable and has resolved; he was asked to have his treating physician provide a written statement indicating that the condition related to his history of liver transplant was stable; and was advised that his blood pressure of 134/92 exceeded Defendant's Medical Department Guidelines and was encouraged to follow up with his personal physician for a further evaluation, treatment, and control of his blood pressure. (Docket No. 24 at ¶ 51). Notably, this letter does not indicate anything regarding Plaintiff having a contingent job offer. (Docket No. 27 at ¶ 126). Rather, it informs Plaintiff "to allow continued processing of your application for employment with Defendant you must [have your physician provide detailed medical information and records regarding your history of back pain]. Id. at ¶ 127. Further, the letter informed Plaintiff if you are unable to provide the necessary documentation within this time period, "your candidacy for employment will no longer be active." Id. at ¶ 128.

In response to that request, Dr. Cook sent a letter to Defendant's Medical Department dated January 3, 2005 wherein he enclosed copies of recent health records concerning Plaintiff.(Docket No. 24 at ¶ 52). Further, Dr. Cook informed Defendant's Medical Department that Plaintiff was "extremely stable" with respect to his post-liver transplant condition. (Docket No. 27 at ¶ 132). Dr. Cook also explained that Plaintiff had no liver problems and his medications were working well. Id. at ¶ 133. Accordingly, he believed that the liver condition would not affect Plaintiff's ability to work. Id. at ¶ 133. Dr. Cook then addressed Plaintiff's history of back pain describing it as: "some history of chronic back pain." Id. at ¶ 134. Dr. Cook explained that Plaintiff needed a low dosage of narcotic medication to treat his back pain, but that Plaintiff had been remarkably stable for the past several years. Id. at ¶ 135. Dr. Cook further explained that Plaintiff had not missed a single day of work in the past year due to back pain and that Plaintiff had not shown any signs of over-dependency on the medication. Id. at ¶¶ 136-137. Dr. Cook also indicated that since Plaintiff currently works as a mechanic that the back pain and narcotic medication would not limit his ability to work. Id. at ¶138. Dr. Cook concluded his letter stating that he would see no reason that Plaintiff's health problems would limit his abilities to perform job functions involving mechanics or engine analysis. Id. at ¶ 139.

Dozier reviewed the MED-15 form and results of the drug screen and the information that came in from Dr. Cook, and drew certain aspects of those records to Dr. Lina's attention on January 4, 2005. She noted that the records indicated regular use of narcotics for chronic back pain although that had not been described accurately by Plaintiff. Id. at ¶ 54. Dr. Lina reviewed the medical information concerning Plaintiff that was brought to her attention, and her review raised a number of concerns, such as whether or not Plaintiff could perform the essential functions of the job of machinist for which he applied. Id. at ¶¶ 55-56. To further address these concerns, Dr. Lina discussed the essential functions of the machinist job with Rick Hill, a supervisor at Conway Yards on January 5, 2005. Id. at ¶ 58. Mr. Hill confirmed that the job involved working at heights or elevated platforms, working around moving locomotive engines, moving in and out of the shop and in and out of outdoor fueling areas, operating and controlling the movement of locomotive engines, and, at times, driving company vehicles, mounting and dismounting locomotives; the use of a variety of hand and impact tools; and requiring the machinist to maintain alertness and concentration at all times to avoid injuring himself or others. (Docket No. 24 at ¶ 59). Plaintiff agrees that Hill provided a list of job functions to Dr. Lina, but disputes that these are the essential functions of the machinist job at the Conway shop since Defendant has no written job description for machinists and Dr. Lina did not attempt to determine what the functions were of the machinist position until after it had all of Plaintiff's medical information in its possession. (Docket No. 27 at ¶ 59). Dr. Lina also spoke with Dr. Moon, the examining physician, advising Dr. Moon of the job description and Plaintiff's history of chronic low back pain which had been confirmed by the records from Dr. Cook. (Docket No. 24 at ¶ 60).

After Dr. Lina spoke with Dr. Moon and advised her of the job description and Plaintiff's chronic history of back pain, Defendant asserts that Dr. Moon agreed with Dr. Lina that Plaintiff was not qualified to work as a machinist and she added that plaintiff was not honest with her during the exam. (Docket No. 24 at ¶ 61). Plaintiff disputes this interpretation and adds that during Dr. Moon's deposition, she testified that she had been aware that Plaintiff was on narcotic medication and people in a safety sensitive position were not allowed to work for Defendant on narcotics. (Docket No. 27 at ¶ 61). She would have wanted Plaintiff to undergo a functional capacity test, with an alertness component, to see if he was capable of doing the job. Id. at ¶ 61. Moreover, Dr. Moon testified that she told Dr. Lina that she believed Plaintiff "may" not be qualified to work as a machinist, however, she would have wanted additional information. Id. at ¶ 61.

Defendant states that Dr. Lina also spoke with Dr. Cook at which time she discussed Plaintiff's job duties and Dr. Cook clarified Plaintiff's medication use. (Docket No. 24 at ¶ 62). She advised Dr. Cook that based upon the narcotics used by Plaintiff, he did not meet the Defendant's Medical Guidelines for the machinist position, and further advised that for Plaintiff to medically qualify in the future, Plaintiff would need to provide documentation of a substantial time period of stability and control of his pain condition while on a non-narcotic medication program. Id. at ¶ 62. Plaintiff admits that Dr. Lina talked to Dr. Cook, but disputes the substance of their conversation. (Docket No. 27 at ¶ 62). Instead, Plaintiff maintains that Dr. Lina told Dr. Cook that Defendant did not allow anyone using narcotic medication to work on their engines, and then Dr. Cook tried to explain that Plaintiff was on a low dosage of narcotic and it would not affect his ability to work. (Docket No. 27 at ¶ 62). In fact, Plaintiff avers that Dr. Cook informed Dr. Lina that Plaintiff could perform all the essential functions of the position with or without reasonable accommodations, despite his history of back pain and liver transplant. (Docket No. 10 at ¶ 12).

However, Dr. Lina concluded that Plaintiff was not medically qualified for the job of machinist as of January 5, 2005. Id. at ¶ 63. Moreover, Dr. Lina concluded that Plaintiff had been dishonest in providing medical information, specifically that Plaintiff was misleading about the treatment required for his chronic back pain and that he had not indicated that his chronic back pain condition required treatment in the form of narcotic medication such as Morphine or Vicodin. Id. at ¶ 64. In light of her conclusion that Plaintiff had not been honest with her and with Dr. Moon when providing medical information, Dr. Lina referred the ...

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