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Michael Mccarty v. Marple Township Ambulance Corps

June 5, 2012


The opinion of the court was delivered by: Anita B. Brody, J.



Plaintiff Michael McCarty brings suit against Marple Township Ambulance Corps ("Marple Ambulance") alleging that Marple Ambulance terminated him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq . and that Marple Ambulance discriminated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e), and Section 1981 of the Civil Rights Act of 1866 ("§ 1981"), 42 U.S.C. § 1981. *fn1 The Title VII claims include unlawful termination and hostile work environment.*fn2 McCarty also brings disability and racial discrimination claims under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951. *fn3 In its motion for summary judgment, Marple Ambulance has countered that it fired McCarty for repeated tardiness and that it did not discriminate against him. For the reasons set forth below, I will deny Marple Ambulance's motion for summary judgment as to McCarty's Count I disability discrimination claim and Count IV PHRA disability discrimination claim. *fn4 I will grant Marple Ambulance's motion for summary judgment as to McCarty's Count II Title VII claim for unlawful termination and hostile work environment, Count III § 1981Claim for unlawful employment practices based on race, and Count IV PHRA racial discrimination claim.

Under the ADA, employers are prohibited from discriminating against "a qualified individual on the basis of disability 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). Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1).


Michael McCarty is an African American man who is a certified Emergency Medical Technician ("EMT") and who suffers from Attention Deficit Hyperactivity Disorder ("ADHD"). According to his psychiatric evaluation, McCarty has suffered from ADHD since he was three-years-old. Pl.'s Opp'n, Ex. A. As a result of his disorder, he has trouble thinking and concentrating. He also has trouble engaging in interpersonal relationships. The ADHD makes McCarty hyperactive, impatient, and prone to outbursts. McCarty Dep. 68:9-69:20, 268:19-271:7.

On September 11, 2006, Marple Township Ambulance Corps hired McCarty as a part-time EMT and ambulance driver. Marple Ambulance President Karen Standen and Division Chief Bill Downey informed McCarty that the job would lead to a full-time position and it did. During his interview, McCarty told Standen and Downey that he takes Adderall for his ADHD. McCarty Dep. 68:12-16. He informed them that his ADHD did not prevent him from doing anything but that his ADHD made him hyperactive and made it more difficult for him to concentrate. McCarty also told them that as a result of his disorder, he was not the "fastest at typing" and would need more time than others to learn the area's geography. McCarty Dep. 68:18-70:18. McCarty also told other employees about his ADHD, and the entire squad was aware of his disability. McCarty Dep. 131:19-20.

From 2006 until his termination in early 2008, McCarty responded to emergency calls with a partner. On some occasions he drove the ambulance, and he often had volunteers ride along with him. But he had trouble completing some of his tasks. Volunteers and co-workers also filed multiple complaints against him. On May 21, 2007, for example, a co-worker complained to Downey that McCarty had "a problem concentrating on and off calls." Downey Dep. 34:24-35:21. Downey forwarded the email to Standen and wrote: "Should we give [McCarty] another chance?". Downey Dep. 36:15-16.

McCarty was also subjected to a racial epithet by one of his co-workers. On November 17, 2007, around 7:30pm on a dark winter night, McCarty and his partner Phil were on duty at the secondary station in Newtown. They finished their shift and returned the ambulance to Carmen Lilick and Martin, who were working the overnight shift. Phil, however, forgot to change the ambulance's trash can, and Carmen was really angry that the ambulance was dirty. McCarty Dep. 176:11-178:11. McCarty and Phil were already running late since they had responded to a call towards the end of their shift. McCarty tried to calm Carmen down and explain that it was mostly Phil's fault. But Carmen "was just so angry" that he looked at McCarty and yelled: "I am not someone's f**king n*gger." *fn6 McCarty Dep. 181:22-182:3. McCarty was very upset and Carmen tried to apologize by saying that he was not referring to McCarty as a n*gger. Volunteer Steve Moist then approached the group. As Steve approached, McCarty asked him: "[W]hat's up? How you doing?". McCarty Dep. 195:6-10. Steve looked around and responded: "I don't see. All I can see is blackness." McCarty was really angry and went inside. McCarty Dep. 195:10-19.

Three days later, on November 20, 2007, McCarty wrote an email to Downey and Standen describing the incident. Def.'s Mot. Summ. J., Ex. G. McCarty took issue with Carmen's use of the "N-word" in his presence. In regards to Steve's comment, McCarty admitted that he had never heard Steve make racial comments in the past and that he did not think Steve could actually see him. McCarty also stated that he was the second African American at Marple Ambulance and that he had never had this problem in the past. He added that he loved his job and that he had "been treated for the most part very well from both of [his] boss[es]." Id. Downey forwarded the email to Standen with the message: "I think it's time to split the boys up . . . I'm not sure the legal end to this but if Carmen isn't fired he needs to move to a different shift." Id (emphasis added). McCarty alleges that he and Downey spoke numerous times as Downey investigated the matter. McCarty Dep. 217:13-14.

Marple Ambulance suspended Carmen for two days and switched his shift. Following the punishment, McCarty called Downey at night to express his outrage at what he perceived to be far too lenient of a punishment. Downey told him that the investigation was over and that the case was closed. McCarty responded that he would have to take matters into his own hands. Downey told him that he would report this conversation to the organization's board of directors ("Board"). McCarty Dep. 222:15-18; Def.'s Mot. Summ. J., Ex. H. On December 5, 2007, the Board held a special meeting to address the incident. McCarty attended and expressed his opinion that Carmen should have been fired. The Board responded that the matter was appropriately handled and that McCarty should not have called Downey late at night to yell and scream at him. McCarty Dep. 235:20-236:24; Def.'s Mot. Summ. J., Ex. J. McCarty alleges that the individuals at the Board meeting called him "crazy" and told him that he "needed help." Pl.'s Resp., App. 1.

McCarty also had a problem with tardiness. McCarty was late on December 2, 2007; December 5, 2007; February 5, 2008; and February 13, 2008. McCarty Dep. 238:6-239:24;

Def.'s Statement Undisputed Facts, Doc. No. 15. On February 14, 2008, McCarty received an official warning regarding his tardiness. *fn7 McCarty Dep. 240:4. On March 7, 2008, the entire squad received an email reminder regarding daylight savings time and the need to set clocks ahead one hour. Mot. Summ. J., Ex. N. McCarty read the email but forgot to change his clock. On Mach 9, 2008, McCarty woke up at 6:55am and called the Station to let someone know that he was running late. McCarty Dep. 254:1-256:11. Downey called McCarty back five minutes later and told him to turn around and go back home. Downey understood this to mean that he was being terminated. Standen later confirmed that McCarty was being terminated for tardiness.

McCarty Dep. 258:4-259:10. McCarty alleges that tardiness was a pretext for his firing and that Marple Ambulance really terminated him due to his ADHD disability. Since his termination, McCarty has worked as an EMT and/or driver for Novocare, Plymouth Ambulance, Transcare, Susquehanna EMS, Liberty Ambulance, BLS Ambulance, and Western Berks. Pl.'s Resp., App. 2.


Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.

The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The nonmoving party must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. However, the nonmoving party may not "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claims. Fireman's Ins. Co. of Newark, N.J. v. DuFresne , 676 F.2d 965, 969 (3d Cir. 1982).

In essence, the inquiry at summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251-52.


A. Analytical Framework for ...

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