The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
In September of 2005, Charles Sysko's status of unescorted access at the Susquehanna Steam Electric Station, a nuclear power facility, was revoked and he was reassigned to a position that did not require unescorted access. Plaintiff's new position on the loading docks was compensated at the same salary as he received for the Instrument and Controls Technician job he held at the time of the reassignment. Plaintiff was returned to his former position and his unescorted access status was reinstated in early 2006, about six months after the reassignment. Mr. Sysko brought this action against Defendants PPL Corporation and PPL Susquehanna ("PPL"), asserting that the reassignment violated his rights under the Americans with Disabilities Act ("ADA") and the Pennsylvania Human Relations Act ("PHRA"). Defendants have moved for summary judgment. (Dkt. 64.)*fn1 Because there was ample justification to revoke Sysko's unescorted access status, which rendered Mr. Sysko unqualified to work as an Instrument and Control Technician, Defendants' summary judgment motion will be granted.
"Plaintiff is currently employed as an Instrument and Controls ("I&C") Tech Level II in the Maintenance Department of the Nuclear Power Station known as the Susquehanna Steam Electric Station ("SSES")." (Defendants' Statement of Undisputed Material Fact, ("DSUMF"), Dkt. 66, at ¶ 8.)SSES is maintained by Defendants.
"As a company that operates a nuclear power station, PPL is required to abide by the applicable federal regulations implemented by the Nuclear Regulatory Commission ("NRC") regarding nuclear facilities, including the requirement that it have a Fitness for Duty Procedure through which it determines which individuals are suitable to have unescorted security access to the facility." (Id. at ¶ 1.) "NRC regulations state that a company's unescorted access authorization program must include '[b]ehavioral observation, conducted by supervisors and management personnel, designed to detect individual behavioral changes . . . .'" (Id. at ¶ 2 (quoting 10 C.F.R. 73.56(b)(2)(iii); see also 53 Fed. Reg. 7534 ("Each individual granted unescorted access shall be subject to a CBOP [continual behavioral observation program] . . . that provides for management/supervisory personnel responsibility for observing personnel for behavioral traits and patterns that may reflect adversely on their trustworthiness or reliability and reporting those observations to appropriate utility management")).
PPL's Fitness for Duty/Behavior Observation Program ("BOP") "requires that all company supervisors be vigilant in identifying any changes in employees' behavior and complete a Behavioral Observation Referral form ("BOR") upon detecting a change in behavior." (DSUMF, Dkt. 66, at ¶ 3.) "PPL provides its supervisors with Behavior Observation Questions -- a list of examples of behaviors that should be reported." (Id. at ¶ 6.) In addition to the BOR, supervisors also complete an Annual Supervisory Review ("ASR"), which serves as an evaluation of each employee over the past year. (Id. at ¶ 5.)
On Saturday, September 17, 2005, at 11:04 a.m., Robert Southerworth, a PPL employee, sent Plaintiff's supervisor, Joseph Redinski, Jr., an e-mail entitled "Annual Supervisor Review (ASR) Sysko." (Southerworth E-Mail, Dkt. 72-2, at 25.) The e-mail stated: "You have been assigned as FFD/BOP Supervisor for Charles Sysko. Please complete the ASR in your inbox for Sysko. Please call if you have any questions." (Id.)
Redinski submitted the ASR on September 22, 2005. In this form, Redinski noted several changes in Plaintiff's work, social interaction, and personal behavior. (Id. at ¶ 9.) Redinski did not consult with anyone or receive any assistance in completing the ASR, but did discuss its contents with Violet DeAngelo from Human Resources after he completed it but before he submitted it. (Redinski Dep., Dkt. 72-2, at 11.)*fn2 Redinski did not discuss any of his concerns with Plaintiff.
The ASR indicated that there had been changes in the quality and quantity of Plaintiff's work; numerous absences from work; failure to adhere to company policies; changes in Plaintiff's sociability, speech, and behavior; fatigue; and nervousness. (ASR, Dkt. 68-7, at 2-3.) In describing these changes, Redinski noted:
1. CHANGES IN WORK BEHAVIOR
a. Quantity of work lower. Package walk downs late. I provided report card to all crew members to help meet requirements and show progress but he is still late. Shows little interest in work.
e. Excessive time off, over 250 hours for the year claimed by a bad hip, all the same occurrence. He can't sleep at night, sometimes only an hour or so. Arrives late for work on numerous occasions due to sore hip in the morning or just plain tired from lack of sleep. Can't get thru gatehouse due to metal hip replacement. We requested he look into FMLA. Also requested he leave from home earlier to be on time, but he claims its security's job to get him in the gatehouse on time. Over the course of the year, missed various training courses due to sickness.
f. Property damage occurred in May to computer and he admitted to it after investigation
g. Rebellious toward leader's directions. He requested union business rep in.
2. Changes in Social Interaction Behavior
a. and b. Poor eye contact. When speaking to management. Holds grudges against union members and management members. Seems isolated from crew. Numerous occasions the crew has requested [if] they can perform the work without him. My observation is that crew members are reluctant to sit near or socialize with him. I can not get facts from the techs why this is.
c. Overreacts to imagined criticism.
e. I have observed a change in speech over the past 6 months. He raises his voice and has a facial twist while bobbing his head. His voice is load (sic) and slows when asked a question, looking away and sometimes talking out of the side of his mouth. f Chuck is complaining more about a bad hip. The pain at times at night is severe to keep him up and only produce 1 or 2 hours sleep. Sometimes he needs massaging to ease the pain and it's hard for him to come in to work on time. He has informed me he has refused the doctor's advice for a pain killer to sleep better.
3. CHANGES IN PERSONAL HEALTH BEHAVIOR
A. seems nervous and has constant leg bouncing when at tailboard meetings. Awful fidgety when asked questions directly.
e. Disinterested in work, seems he is not getting enough sleep due to hip problem. Chuck seems preoccupied with other matters, constantly on computer e-mailing people. On occasion, his eyes look tired. He says ...