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Michael J. Brudnak v. Port Authority of Allegheny County

September 12, 2012


The opinion of the court was delivered by: Conti, District Judge.



Pending before the court is the motion for summary judgment (ECF No. 39) filed by the Port Authority of Allegheny County ("defendant" or "Port Authority") seeking judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56 against Michael J. Brudnak ("plaintiff" or "Brudnak") with respect to all claims asserted in plaintiff's complaint (ECF No. 1.) Plaintiff's claims are asserted under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA"), alleging unlawful discrimination and retaliation in the workplace. This court exercises subject-matter jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), and over plaintiff's state claims pursuant to 28 U.S.C. § 1367(a) (supplemental jurisdiction). For the following reasons, defendant's motion for summary judgment will be GRANTED.


Plaintiff began working for the Port Authority of Allegheny County (the "Port Authority") in June 1999. (Joint Statement of Material Facts of the Parties (ECF No. 49) ("J.S.") at 2.) He was a member of Local 85, Amalgamated Transit Union. The union had a collective bargaining agreement with the Port Authority that governed the terms of plaintiff's employment. (Id.) The collective bargaining agreement required an employee such as plaintiff to bid on jobs available within the Port Authority if he or she wished to transfer. The jobs were awarded based upon a seniority system. (Id.)

Plaintiff initially worked as a garage attendant following his hiring. (Id.) Between 1999 and 2004, plaintiff bid back and forth between the positions of garage attendant and wheel changer. (Id.) Plaintiff's primary position after 2004, and immediately prior to his termination, was as a wheel changer. (J.S. at 2, 12.) He also spent brief periods following 2004 doing light duty work, i.e., working as a vehicle cleaner. (Id.) The light duty work, however, followed periods of plaintiff being off the job due to a need for physical therapy and a surgical procedure on his right shoulder. (Id.)

As a wheel changer, plaintiff worked at the Port Authority's Collier Garage, approximately forty hours per week, typically between 7:00 a.m. and 3:30 p.m. (J.S. at 5.) His duties included physically inspecting and changing tires on the Port Authority's bus fleet. (Id.) When a tire needed to be changed, plaintiff used a sixty-pound air gun to loosen the bolts holding the tire. (Id.) He would then dislodge the tire from the bus by hitting it with a sledgehammer. (Id.) These tools were not required to perform any other tasks essential to plaintiff's position. (Id.) Each tire weighed approximately two hundred and sixty pounds, and plaintiff would need to wheel the tire around the garage for service and repair before placing the tire back onto the bus. (J.S. at 6.) He would change anywhere from twenty-four to thirty-six tires during every shift. (Id.)

The Port Authority maintained a Drug and Alcohol Policy and a Performance Code, both of which governed the terms of plaintiff's employment. (J.S. at 3-4.) The policies dictated how drug testing was performed, under what circumstances it was performed, and the consequences of failure to pass a test. (Id.) Plaintiff received, and was aware of, these policies upon beginning his employment with the Port Authority. (J.S. at 4-5.) Plaintiff's job as a wheel changer was classified by Port Authority policy as a "safety sensitive position," and plaintiff was aware of this classification. (J.S. at 5.) Such a position is subject to random drug and alcohol testing. (Id.)

While working as a wheel changer on February 28, 2003, plaintiff was subject to a random drug test. (J.S. at 6.) On March 4, 2003, plaintiff's test sample returned positive results for the presence of a prohibited drug. (Id.) A disciplinary hearing was conducted on March 6, 2003 -- pursuant to Port Authority policy -- and plaintiff was to submit for an evaluation by a substance abuse professional. (J.S. at 7.) On March 12, 2003, plaintiff again attended a required disciplinary hearing, at which time the Port Authority agreed to reinstate plaintiff if he signed an "Agreement for Reinstatement and Conditions of Continued Employment for Employees" ("Last Chance Agreement" ("LCA")). (Id.)

The LCA stated that in order to retain his employment, plaintiff was to remain free of drugs and alcohol for the duration of his time with the Port Authority. (Id.) Failure of another test could result in further discipline, including termination. (Id.) In addition to any drug testing already required by his safety sensitive position, plaintiff was required to submit to additional drug testing for purposes of monitoring compliance with the LCA. (Id.) Plaintiff was also to follow and complete a recommended aftercare treatment/rehabilitation plan, and provide the Port Authority with documentation thereof. (J.S. at 7-8.) Failure to follow any LCA terms could result in discipline or termination. (J.S. at 7.) Plaintiff was cleared to return to work by Port Authority's contracted physicians ("Concentra") on March 5, 2003, after completing a rehabilitation program. (J.S. at 8.) On May 8, 2003, plaintiff returned to work. (Id.)

On May 6, 2004, plaintiff reported to the Port Authority that he had injured his right shoulder after swinging a sledgehammer to remove a tire from one of the authority buses. (Id.) He did not receive medical attention, and did not feel that the injury was serious. (Id.) By September 10, 2004, however, plaintiff had reported a second injury to his shoulder following the same type of activity. (Id.) A Concentra physician ordered an x-ray, but did not find any injury. (Id.) Nonetheless, plaintiff was placed on temporary light duty, requiring no lifting over ten pounds, pushing or pulling over fifteen pounds, or reaching above shoulder level, and plaintiff was instructed to engage in physical therapy. (Id.) Plaintiff returned to work on September 14, 2004 in the light duty vehicle cleaner position. (J.S. at 9.) Plaintiff was required to clean the inside of the authority's buses at the Collier Garage. (Id.) Plaintiff acknowledged his new duties by signing a list of expectations and requirements for light duty employees. (J.S. at 10.) The vehicle cleaner work hours began at approximately 10:00 p.m. and ended around 6:30 a.m. (J.S. at 9.) Plaintiff continued to work forty hours per week, and his pay did not change. (Id.)

After a brief period of time, plaintiff was cleared to return to the wheel changer position by a Concentra physician. (J.S. at 10.) Plaintiff returned to the wheel changer position on September 22, 2004. (Id.) Between that time and November 22, 2005, plaintiff contacted Concentra physicians on five occasions to complain about right shoulder pain experienced when operating the air gun and sledgehammer. (Id.) It was again recommended that plaintiff return to light duty work and engage in physical therapy. (Id.) Plaintiff did neither, because he did not prefer the vehicle cleaner schedule and he did not wish to use his personal time to go to physical therapy. (J.S. at 11.)

Plaintiff instead sought an outside opinion on his shoulder injury. (J.S. at 12.) Orthopedic surgeon, Dr. Jon Tucker, evaluated plaintiff's condition and concluded that surgery was required to repair plaintiff's shoulder. (Id.) Plaintiff was placed on disability leave on November 22, 2005, and following his surgical procedure, was unable to work until January 17, 2006. (Id.) Dr. Tucker released plaintiff to return to light duty work on January 23, 2006, and to regular duty on April 25, 2006. (J.S. at 13.) At that time, plaintiff returned to work in the wheel changer position. (Id.) Plaintiff worked that position alongside co-worker Joe Danalo through July 2007. (Id.) Mr. Danalo had bid for plaintiff's open wheel changer position while plaintiff was on disability leave. (Id.) Mr. Danalo later transferred after bidding for another open position. (Id.)

Despite receiving assistance from Mr. Danalo in the performance of his job duties, plaintiff wished to leave the wheel changer position after approximately one week. (J.S. at 13-14.) Plaintiff felt that the job was too difficult, and requested that Kirsten Fadelle -- a Port Authority employee responsible for identifying positions open for bidding -- disqualify plaintiff from eligibility for the wheel changer position. (J.S. at 14.) Plaintiff felt that his age and shoulder condition made performance as a wheel changer impossible. (Id.) Ms. Fadelle informed plaintiff that he could not disqualify himself, and that if he wished to transfer to another position, he would have to bid according to the collective bargaining agreement. (J.S. at 14-15.) Despite having an opening, plaintiff did not bid for a position as a garage attendant due to a lower pay rate and less desirable hours. (J.S. at 15.) Plaintiff also refused to return to light duty vehicle cleaner work offered by the Port Authority, because of the less desirable hours. (Id.)

Plaintiff remained voluntarily in the wheel changer position. (J.S. at 16.) On September 3, 2007, he was required to submit for a random drug and alcohol screening. (Id.) Plaintiff tested positive for cocaine. (Id.) A disciplinary hearing was conducted on October 2, 2007, at which time he was found to be in violation of his LCA and relevant Port Authority policies, and was terminated. (Id.) Plaintiff appealed the termination, claiming that the testing company had a questionable chain of custody -- thereby implicating the reliability of the test results. (J.S. at 17.) At an arbitration hearing between the Port Authority and plaintiff's union, it was agreed to allow plaintiff another chance under a new LCA. (Id.) The LCA was signed, and plaintiff was reinstated on March 25, 2008. (Id.) As with the original LCA, subject to further discipline or termination, plaintiff was required to participate in treatment with substance abuse professionals, remain abstinent from the use of drugs and alcohol, and agree to submit to drug tests beyond those required for his position. (J.S. at 17-18.)

Plaintiff completed treatment, submitted to a physical evaluation and was cleared to return to work as a wheel changer on May 22, 2008. (J.S. at 18.) Upon his return to work, plaintiff informed his foreman that due to his age and shoulder condition, he may be unable to perform all the required functions of his position. (Id.) The foreman told plaintiff that if an activity was causing him pain, he should stop. (Id.) Plaintiff was advised to tell his foreman if he required help performing his job. (Id.) Subsequently, plaintiff only did the work he felt able to do, and was never asked to do more by the Port Authority. (J.S. at 19.)

A random drug screening was conducted on August 18, 2008, at the Collier Garage, and plaintiff's sample returned positive results for the presence of cocaine on August 20, 2008. (J.S. at 19-21.) Plaintiff requested a retest, which was administered, and which also returned positive results for the presence of cocaine. (J.S. at 21.) Each of plaintiff's samples had been independently tested at different facilities. (Id.) A disciplinary hearing was held on September 17, 2008, at which point plaintiff was found to be in violation of his latest LCA, as well as applicable authority policies, and was terminated. (J.S. at 21-22.) Plaintiff questioned the validity of these test results, due to errors in documentation kept by the testing companies.

Following his termination, plaintiff timely cross-filed charges with the United States Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). (ECF No. 1 at 2; ECF No. 5 at 2.) He also applied for social security disability benefits in October 2008, claiming an inability to engage in full-time employment of any sort. (J.S. at 23.) Within ninety days of receiving a right to sue letter from the EEOC, plaintiff filed a complaint in this court on September 23, 2009. (ECF No. 1 at 2; ECF No. 5 at 2.) The Port Authority's answer was filed on December 4, 2009. (ECF No. 5.) In September 2010, plaintiff was awarded disability benefits from the Social Security Administration -- benefits which he collects to this day. (J.S. at 23-24.) On November 2, 2011, the Port Authority filed its present motion for summary judgment. (ECF No. 39.) The matter has been fully briefed.


Federal Rule of Civil Procedure 56 provides in relevant part:

(a.) Motion for Summary Judgment or Partial Summary Judgment.

A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment 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. ...

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