The opinion of the court was delivered by: J. Rambo
Plaintiff, Dannie L. Stephenson, commenced this action bringing interference and retaliation claims under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Presently before the court is Defendants' motion for summary judgment. (Doc. 24.) The parties have briefed the issues and the motion is ripe for disposition. For the reasons that follow, the court will grant Defendants' motion on both counts.
Defendant JLG Industries, Inc. ("JLG") is a designer, manufacturer and marketer of access equipment, including aerial work platforms such as boom lifts and scissor lifts. (Doc. 26, Def.'s Statement of Material Facts ("SMF"), ¶ 1.) Defendant Larry Etchison is the former human resources director at JLG's Shippensburg facility. (Doc. 1, Compl. ¶ 4.) Defendant Kevin Wilson is the Head Supervisor of the Machine-Made Line at the JLG Shippensburg facility. (Id., ¶ 5.) Plaintiff, Dannie L. Stephenson, is a former full-time employee at the JLG Shippensburg facility. (SMF, ¶ 2; Doc. 29, Pl.'s Response to SMF, ¶ 2.)
The following facts are drawn from the parties' statements of material fact, and the exhibits and affidavits attached thereto, and are undisputed except where noted.
On February 19, 2007, Plaintiff was hired as a full-time employee at JLG's Shippensburg facility. (SMF, ¶ 2; Doc. 29, Pl.'s Response to SMF, ¶ 2.) Plaintiff was provided with a copy of JLG's Team Member Handbook, which includes a policy on drug and alcohol use. (SMF, ¶ 2.) JLG's Drug and Alcohol Policy prohibits employees from possessing, using, or consuming alcohol during work hours or while engaged in company business. (Id., ¶ 3.) Being intoxicated during work hours is also prohibited. (Id.) For current employees, drug and alcohol screening tests are performed following workplace accidents and based on reasonable suspicion. (Id.) An employee who refuses to undergo testing is discharged.*fn2 (Id.)
In October 2007, Plaintiff approached Julie Pharo, a human resources representative, with questions regarding FMLA leave. (Id., ¶ 6.) On November 19, 2007, Plaintiff submitted an FMLA request and other required papers. (Id., ¶ 7.) On February 19, 2008, Plaintiff requested intermittent FMLA leave in order to allow him to assist with his wife's medical treatment. (Id.) Etchison approved Plaintiff's FMLA request. (Id.) Etchison also told Plaintiff that he would "work with" Plaintiff to accommodate his scheduling needs. (Id., ¶ 8.) Plaintiff claims, however, that despite this offer, Etchison continued to write him up for missed time. (Pl.'s Response to SMF, ¶ 8.)
On February 29, 2008, Defendant Etchison was informed by Plaintiff's co-workers that Plaintiff intended to use FMLA leave for reasons other than his wife's medical care treatment. (Etchison Dep. 125:1-20; Doc. 25-21, Ex 20.) For instance, Etchison heard from one of Plaintiff's co-workers that Plaintiff intended to take his car to Naugle Motors to have it repaired during a scheduled FMLA absence.*fn3
(Etchison Dep. 125:1-20.) In response, Etchison investigated to determine whether Plaintiff was using FMLA leave for unintended purposes. (SMF, ¶ 13.) Etchison spoke to a representative of Naugle Motors and was told that Plaintiff brought his truck in for repairs on the morning of March 3, 2008, one of Plaintiff's FMLA leave days. (Id.) Etchison also called and left a message with the therapy center at Chambersburg Hospital to determine whether Plaintiff had taken his wife for her treatment scheduled that day. (Id.) Upon returning to work on March 4, 2008, Etchison confronted Plaintiff about his use of FMLA leave. (Id., ¶ 14.) Plaintiff responded that he was home taking care of his wife. (Id.) Plaintiff received no disciplinary action related to this incident. (Id.)
On March 14, 2008, three individuals working in Plaintiff's immediate vicinity observed that Plaintiff smelled of alcohol. (Id., ¶ 15.) Pharo, the human resources representative, reported this information to Etchison who in turn informed Wilson. (Id.) Wilson and Etchison confirmed with the three individuals that they smelled alcohol on Plaintiff's breath. (Id.) At approximately 10:30 a.m., Plaintiff was taken into an office at which point Pharo also detected the smell of alcohol. (Id.,¶ 16.) Etchison informed Plaintiff that because four JLG team members reported smelling the odor of alcohol on him, he would be required to take a drug and alcohol test based on reasonable suspicion in accordance with company policy. (Id.) Plaintiff originally consented to the test saying "let's do it, let's go now." (Stephenson Dep. 241:16). However, Plaintiff objected to the test when he was informed that he would be immediately driven to the testing facility because he was suspected of being under the influence of alcohol. (Id. at 241:19-245:4.) Plaintiff claimed that he would get tested later that day after he went on FMLA leave, which was scheduled to begin at noon. (Id. at 155:3-6.) Plaintiff planned to take his wife to her appointment at 2:15 p.m. and he told Etchison he would get tested at that time because the testing facility is located in the same building. (Id. at 241:19-245:4.) During this confrontation, Plaintiff argued with Etchison that there was no point in having him leave immediately to get tested, come back to work, and then leave to go back to the same facility. In explaining himself, Plaintiff testified at his deposition as follows:
[I]'m not wasting gas that way. I'm falsely being accused of something I did not do. I'm not going to change my personal life because somebody wants something. If it was during work hours, that would have been one thing. No, you're not going to come to me and have me go to your doctor, go take a pee test and come back on my own free will. Like I told them in that tape, I will do it under my own free will. (Id. at 155:6-13.)
Look at what time it is. It's lunchtime. There is no way you are going to run me for I don't know who is going to drive me, to drive me that in that time limit down there in lunch hour traffic, sit there, Lord knows how long you would sit there until they pee you, just for me to come back to work. That's if I'm back in time to leave by 12. But if not, I'm not coming back to work and then leave at 12. I will do this under my own free will when I leave this facility. (Id. at 155:15-156:1.)
Q: Okay. And then [Etchison] asked you again, are you refusing to get the testing. Correct?
Q: Okay. And then you said, Then I will, I will refuse to go, you'd go at your own free will, you'd have to -- you'd do it when you were free to do it at 12:00. You weren't going to run down, come back work and leave at 12:00, that's [b.s.].
A: True. (Id. at 244: 9-17.)
After determining that Plaintiff's actions constituted a refusal to be tested, Plaintiff was immediately suspended pending termination. (SMF, ¶ 19.) Plaintiff was ...