The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Mildred E. Methvin (Doc. 52) filed May 18, 2012, which recommends that we grant the Defendants' Motion for Summary Judgment. (Doc. 37). Plaintiff Steven Cullison ("Plaintiff" or "Cullison") filed Objections, to which the Defendants have responded. (Docs. 56, 59). For the reasons fully detailed herein, we shall adopt the R&R in its entirety, grant the Defendants' Motion, and close this case.
A. Review of Magistrate Judge's Report and Recommendation
When, as here, objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.
II. FACTUAL AND PROCEDURAL HISTORY
Magistrate Judge Methvin undertook an extensive review of the material facts in this case at pages 4-12 of her R&R. (Doc. 52). Thus, we shall only endeavor summarize the undisputed material facts herein. In accordance with the standard of review applicable to a motion for summary judgment, these facts are derived from the record with all reasonable inferences drawn in favor of the non-moving party.
Plaintiff is a 60 year old man who was employed by Dauphin County for five years prior to his discharge on May 20, 2009. (Doc. 1 ¶ 7). Defendant, Dauphin County ("Defendant County" or "County") is a Pennsylvania municipality with its principle place of business at Harrisburg, Pennsylvania. (Id. at ¶ 8). Defendant Kelly Wolf ("Defendant Wolf" or "Wolf") is the Director of the County's Department of Solid Waste Management and Recycling and is being sued in her individual capacity. (Id. at ¶ 9). Likewise, Defendant Donna Miller ("Defendant Miller" or "Miller") is an employee of the County and is being sued in her individual capacity. (Id. at ¶ 10). Both individual Defendants served in a supervisory role over the Plaintiff during his employment. Id. ¶¶ 9-10).
On October 13, 2004, Plaintiff was hired as a part-time Recyclable Material Collector for Dauphin County. (Doc. 45-13 at 2). Prior to his hiring, he was interviewed by Defendant Wolf. (Docs. 45-2 at 10:22-25). During the interview Plaintiff disclosed to Wolf that he had "DVTs [sic] in both legs" as well as a "back condition," but he did not discuss with her how these conditions affected him. (Doc. 37-4 at 11). After working part-time for two years in the position of Recyclable Material Collector, Plaintiff was transferred to a newly-created full-time position of Recycling Maintenance Worker. (Docs. 39, 45 ¶ 33; 45-13 at 9). At this time, Plaintiff had no physical restrictions. (Docs. 39, 45 ¶ 37).
In September of 2006, Plaintiff experienced severe stomach pains when pushing barrels up an incline at work. (Docs. 39, 45 ¶ 65). Shortly thereafter, Plaintiff gave the County a note from his physician stating: "Please amend Mr. Cullison's profile to state 'Limited walking of steps and inclines' and 'no pushing over 100 lbs.'" (Doc. 45-13 at 20). Plaintiff was instructed by his supervisor to seek assistance to help with duties he was unable to perform. (Docs. 39, 45 ¶ 67). Plaintiff received assistance about three-quarters of the times he asked; otherwise he performed the duties in question himself without reporting to Defendants that the requested assistance never came. (Id. at ¶¶ 68-71).
In March 2008, Plaintiff told Wolf that he was unable to clean up a briar patch due to the DVT in his legs. (Id. at 72). As of March 4, 2008, Plaintiff was told not to come to work because of his medical condition. (Doc 45-6 at 12:15-13:7). Defendant Wolf denied having any hand in that decision (Doc. 45 at 172:21-173:6). Defendant Miller also denied making the decision to tell Plaintiff to not come to work, claiming it was Plaintiff's physician who made that decision. (Doc. 45-4 at 21:21-22:5).
The County instructed Plaintiff to not return to work until clarification was received as to his functional restrictions. (Doc. 45-4 at 22:9-15). As a result, Plaintiff did not work from March 4 to April 9, 2008, a total of 184 working hours. (Doc. 45-13 at 126). Plaintiff testified that no one from the County ever told him that he could take FMLA leave or that he could possibly apply for unemployment benefits during this absence. (Doc. 45-3 at 185:2-10).
Miller wrote Plaintiff a letter on April 9, 2008 stating that Plaintiff was required to wear personal protective equipment " at all times" while doing any outside garden or work "that could risk [his] health[.]" (Doc. 45-13 at 44). Plaintiff returned to work in the same position on April 10, 2008. (Doc. 45-13 at 126). Plaintiff contends that when he returned to work : "he was subjected to a series of [ongoing] harassment, including being denied pay, being subject to discriminatory comments, and eventually fired." (Doc. 45 ¶ 81). He further claims that he was the only employee in the Department forced to wear a Tyvek suit to protect him from poison ivy and that his employers refused to allow him to have a chair in the bathroom to help him change clothes. (Id. at ¶ 85, 88, 89).
On May 5, 2009, Plaintiff was driving his County-owned vehicle when an accident occurred that resulted in damage to the passenger-side mirror. (Docs. 39, 45 ¶ 106). Plaintiff submitted the reporting forms required by County policy later the same day. (Id. at ¶ 107). The form indicated the time of the accident, location, conditions, and a report of the circumstances that led to the accident. (Doc. 45-28 at 2, 3). Plaintiff reported that a "bird (Hawk) struck pass[enger] side mirror & broke it." (Docs. 39, 45 ¶ 109, Doc. 45-28, at 2). Plaintiff testified in his deposition that a fellow employee, Jeffery Karl, witnessed the accident and saw something fall to the ground from Plaintiff's vehicle. (Doc. 45-28, Exhibit 27).
Defendants conducted an investigation into the accident and came to the opinion that Plaintiff's account of the story was incomplete and could not be accurate. (Doc. 45-37 at 2). On May 20, 2009, the County sent a formal termination letter signed by "Kelly J. Wolf" as "Manager," and cited "providing false information" as the reason for termination. (Doc. 45-3 at 192:3-5).
After Plaintiff was terminated he was replaced by a 19 year old man with no disabilities. (Doc. 45-17 at 4, 5; Doc. 45-16 at 7, 9).
Plaintiff filed the instant action with this Court on April 2, 2010. (Doc. 1). The Complaint was amended on January 4, 2011 after Plaintiff received his right to sue letter from the EEOC. (Doc. 24-1, Doc. 51). The Plaintiff alleges that the Defendants, Dauphin County, Kelly Wolf and Donna Miller (1) interfered with Plaintiff's enjoyment of his rights under the Familiy Medical Leave Act (FMLA), 29 U.S.C. § 2601; (2) retaliated against Plaintiff for excercising his rights under FMLA; (3) discriminated against him based on his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. §§ 951-63; ...