The opinion of the court was delivered by: Joyner, C. J.
Before this Court are Defendant's Amended Motion for Summary Judgment (Doc. No. 23), Plaintiff's Response in opposition thereto (Doc. No. 30), Defendant's Reply in further support thereof (Doc. No. 33), Plaintiff's Sur-Reply (Doc. No. 36) and Defendant's Sur Sur-Reply (Doc. No. 39). For the reasons set forth in this Memorandum, the Court will grant Defendant's motion in part and deny it in part.
I. FACTS & PROCEDURAL HISTORY
Patrick Melilli ("Plaintiff" or "Melilli") worked for the Southeastern Pennsylvania Transportation Authority ("Defendant" or "SEPTA") since 1987 as a body mechanic until he was discharged in 2008. During his employment with SEPTA, the Plaintiff had a number of attendance issues. In 2004, he entered into a last chance agreement which required that he not accumulate attendance violations or other disciplinary infractions for two years or be discharged. He successfully completed the agreement. Then, in January 2008, the Plaintiff was dropped from SEPTA's rolls due to attendance issues. He was eventually reinstated via a priority recall list.
SEPTA maintains a Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., policy that is applicable to the Plaintiff. The policy uses a "rolling calendar" method by which a worker is eligible for FMLA leave if they have worked 1250 hours in the past twelve months. SEPTA contracts with AmeriHealth to administer its FMLA program. AmeriHealth makes the FMLA eligibility determinations for SEPTA. When an employee seeks to use an FMLA day, they phone SEPTA to inform their supervisor of their absence and then phone AmeriHealth to inform them that they are using FMLA leave. Prior to the events currently at issue, the Plaintiff used FMLA on several occasions.
In January 2008, the Plaintiff's wife had surgery to remove a polyp near an artery. She was directed by her doctor to do no heavy lifting for ten days. The Plaintiff requested FMLA leave to care for his wife during this time, but this request for FMLA leave was not finally approved. The Plaintiff testified that he was told by a supervisor that his wife did not have a serious medical condition, as required under the FMLA. Instead, the Plaintiff called out sick on a number of those days and was then dropped from the rolls.
In August 2008, the Plaintiff requested and received FMLA leave on an intermittent basis due to his own serious health condition. He was suffering from panic and anxiety disorders. AmeriHealth, after receiving a medical certification from the Plaintiff's doctor, approved the Plaintiff for three to five days of intermittent leave per month through February 2009. According to AmeriHealth, in August 2008, one of the Plaintiff's supervisors at SEPTA called AmeriHealth and told them that the Plaintiff "is an abuser" and has no sick time left, and asked them to "watch for patterns."
In September 2008, the Plaintiff used four days of FMLA leave.*fn1 On September 23, 2008, after the Plaintiff reported to work at his usual time, the Plaintiff began to feel the onset of his illness, and requested to leave work. He contacted AmeriHealth to ascertain the procedure for taking FMLA leave after he had already come to work, and AmeriHealth told him he could leave, but should contact his supervisor. The Plaintiff's immediate supervisor, Vince Davis, told him to go home. After the Plaintiff left, he received a call from Mr. Davis who told him: "Get your f-ing ass back here. Tommy Hoffman said you have no sick time and you're not able to leave. You have to call in before your shift with FMLA. You can't leave while you're already into your shift. If you don't get back here, I'm going to put you in the book sick and you have no sick time, you will be fired." So the Plaintiff returned to work, punched back in, and finished the work day. Thomas Hoffman acknowledged that he told Mr. Davis to tell the Plaintiff not to leave, because it was his understanding that a worker could not take FMLA leave after his shift had already begun. Mr. Hoffman never informed the Plaintiff of his mistake.
In October 2008, the Plaintiff used several days in a row of FMLA leave. On October 16, 2008, while at work, the Plaintiff contacted AmeriHealth to see whether FMLA would be granted if he exceeded his approved five days per month. He was advised to get his medical certification revised to allow more FMLA days per month. That same day, the Plaintiff was found sleeping, or assuming the position of sleep, on top of a bus. After this incident, the Plaintiff punched out and then was told to go back to work and so he punched back in.
Mr. Hoffman and another supervisor filed a report regarding the sleeping incident, and a hearing was scheduled regarding the offense. On October 21, 2008, an informal hearing was conducted where the proposed resolution was discharge. The Plaintiff, represented by the Local 234 union, requested a formal hearing. The formal hearing was held on October 28, 2008, and on October 31, the Assistant Chief Officer, Michael Wright, determined that the Plaintiff would be discharged. In his report, Mr. Wright first discussed the incident where the Plaintiff was found on top of a bus, and the numerous rules that this action violated. Mr. Wright then wrote in justifying the discharge decision: "When taking into consideration the serious nature of these charges and the consequences that could follow it should be noted that Mr. Melilli has a less than stellar work record...For an employee to commit these rule violations, with a seriously flawed attendance/performance record, demonstrates a disregard for their employment."
The Plaintiff had continued working between the event on October 16, 2008 and his last day of work was October 31, 2008. A Labor Step hearing was held on December 3, 2008 to address the Plaintiff's grievance. The hearing officer upheld the termination writing: "Sleeping on duty and gross negligence involving safety are each dischargeable offenses. Combined with the other charges and Mr. Melilli's overall record, discharge was the appropriate penalty."
The Plaintiff commenced this action by filing a Complaint in federal court on October 29, 2010.
Summary judgment is proper "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). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 535 (3d Cir. 2007); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party cannot rely on "bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. ...