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Mark S. Silver v. Philadelphia Gas Works

November 28, 2012


The opinion of the court was delivered by: Legrome D. Davis, J.


AND NOW, this 28th day of November 2012, upon consideration of Plaintiff's Motion for Summary Judgment (Doc. No. 13), Defendant's opposition thereto (Doc. No. 25), Defendant's Motion for Summary Judgment (Doc. No. 14), and Plaintiff's opposition thereto (Doc. No. 23), it is hereby ORDERED that Plaintiff's Motion (Doc. No. 13) is DENIED and Defendant's Motion (Doc. No. 14) is GRANTED. The Clerk of Court is directed to close this case for statistical purposes.


Plaintiff Mark Silver ("Plaintiff" or "Silver") began working for Defendant Philadelphia Gas Works ("Defendant" or "PGW") in 2001 as a telephone customer service representative. (Doc. No 13, Ex. A, at 12-13). Throughout his career at PGW, Plaintiff committed multiple violations of corporate policy, resulting predominantly from mistreatment of customers and unapproved absences. PGW terminated Plaintiff in August 2011, which Plaintiff alleges constitutes unlawful discrimination and retaliation in violation of the American with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. ("ADA"), the Family Medical Leave Act, as amended, 29 U.S.C. § 2601 et seq. ("FMLA"), the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. ("FLSA"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA").

Plaintiff's reoccurrence of disciplinary issues at PGW started on March 17, 2008, when Plaintiff, a telephone service representative, refused to transfer a customer's call to a supervisor despite the customer's twelve requests. (See Doc. No. 16, at Ex. K). On April 14, 2008, PGW held a disciplinary hearing regarding the incident with Plaintiff and his union representatives present. After listening to a taped recording of the phone conversation at the hearing, Plaintiff's supervisor, Steve Jordon, described Plaintiff's tone as "condescending." PGW informed Plaintiff that his mistreatment of the customer violated the Corporate Discipline Policy.*fn1 In lieu of termination, PGW suspended Plaintiff for ten days without the right to grieve the suspension. (Id.).

Less than one month after the first incident, Plaintiff re-violated PGW's Corporate Discipline Policy when he mistreated another customer on the telephone. Upon listening to the recording, Jordon described Plaintiff's interaction with the customer as "smug and condescending" and inappropriate behavior from a customer service representative. (Id., at Ex. J). On May 1, 2008, which was Plaintiff's first day back after serving his ten day suspension, PGW held a disciplinary hearing regarding Plaintiff's second customer-mistreatment incident. Plaintiff and his union representatives were present at the hearing. As a result of the incident, Plaintiff received another ten day suspension. Thereafter, Plaintiff filed an internal complaint with PGW, alleging that his supervisor, Mr. Jordon, discriminated against him based on his race, color, religion, disability and the exercise of his FMLA rights.*fn2 (See Doc. No. 13, Ex. G). PGW investigated the allegations and concluded they were unfounded. (See id., at Ex. J).

On October 1, 2008, Plaintiff's disciplinary issues continued when he missed work without providing a certified doctor's note. Pursuant to PGW's absence policy, employees who exhaust their annual FMLA entitlement and paid sick days are subject to termination if they do not submit a certified doctor's note on the day they return to work. (See Doc. No. 16, Ex. G). In 2003, Plaintiff had received intermittent FMLA leave for health conditions related to anxiety. Believing Plaintiff had exhausted all of his FMLA leave prior to missing work on October 1, 2008, PGW fired Plaintiff for violation of its absence policy. Following a grievance filed by Plaintiff through his union, PGW later determined that Plaintiff had not actually exhausted his FMLA leave, and thus never violated the absence policy. On February 19, 2009, PGW rehired Plaintiff with full seniority and backpay. (Doc. No. 15, at ¶ 55; Doc. No. 24, at ¶ 55; Doc. No. 16, Ex. LL). PGW also compensated Plaintiff for lost overtime. (Doc. No. 15, at ¶ 56; Doc. No. 24, at ¶ 56; Doc. No. 16, Ex. KK).

On April 29, 2009, PGW fired Plaintiff for a second time after he refused to provide a urine sample for a drug test in violation of PGW's drug and alcohol policy. (Doc. No. 15, at ¶ 58; Doc. No. 16, at ¶ 58; Doc. No. 16, Ex. CC, at 22 ¶ J; Doc. No 18, at 138). Plaintiff was subject to the drug test in 2009 because he had failed a prior, random drug test in January 2007. (Doc. No. 18, Ex. 3, at 27). Plaintiff provided a sufficient amount of urine for the test in January 2007. (Id., at 31). On May 13, 2009, Plaintiff was reinstated with backpay when PGW determined that Plaintiff's inability to provide a sufficient urine sample was caused by a medical condition known as paruresis (commonly referred to as a "shy bladder"). (Doc. No. 16, at ¶ 63; Doc. No. 24, at ¶ 63; Doc. No. 18, at 97). According to PGW, Plaintiff provided no indication that he suffered from paruresis prior to the drug test.

When Plaintiff returned from his suspension he filed another internal complaint alleging hostile work environment and retaliation. (Doc. No. 13, at 6). After an investigation, PGW concluded the complaint was unsubstantiated. (See Doc. No. 13, Ex. R, S). Nonetheless, on May 1, 2010, PGW transferred Plaintiff from customer service to the supply chain department, where Jordon was no longer his supervisor. (Doc. No. 15, at ¶ 69; Doc. No. 24, at ¶ 70).

After being transferred to his new department, Plaintiff developed issues with getting to work on time. Steven Kernaghan, Plaintiff's new supervisor, he offered to help Plaintiff become more punctual. Kernaghan provided his phone number to Plaintiff so he could call if running late, offered to give Plaintiff "wake-up calls" in the morning, and even offered to change Plaintiff's working hours. (See Doc. No. 18, Ex. 8, at 8-9). Plaintiff never afforded himself of these opportunities, and by February 2011, his frequent tardiness became what PGW considered a "lateness problem." (See Doc. No. 14, at 10).

On February 9, 2011, PGW held a hearing in the presence of Plaintiff and his union representative regarding his fourth lateness within a rolling twelve month period. (See Doc. No. 16, at Ex. MM). At the hearing, PGW discussed its lateness policy and reiterated to Plaintiff that he must "make every effort to report to work on time the days he is scheduled." (Id.). A few weeks after the hearing, Plaintiff requested and received intermittent FMLA to care for his father.

(Doc. No 15, at ¶ 73; Doc. No. 24 at ¶ 73).

By June 3, 2011, Plaintiff had exhausted all of his paid sick leave he had earned during his ten years of employment. In the presence of Plaintiff's union representatives, PGW informed Plaintiff that because he had exhausted his paid sick leave, any future absence may result in disciplinary action. (Doc. No. 15, at ¶ 74; Doc. No. 24, at ¶ 74; Doc. No. 13, Ex. HH). On June 23, 2011, Plaintiff filed another internal complaint, alleging disability discrimination, FMLA retaliation and FLSA issues.*fn3 (Doc. No. 13, at 7).PGW investigated the complaint and once again determined the allegations were unfounded. (Doc. No. 13, Ex. V).

On July 21, 2011, Plaintiff received a six day suspension for "failing to call out sick/late before his starting time." (Doc. No. 13, Ex. 37; Doc. No. 15, at ¶ 75; Doc. No. 24, at ¶ 75). Pursuant to the suspension, Plaintiff was ordered to return to work on August 1, 2011. Plaintiff informed PGW that he had a custody hearing for his daughter on August 1, 2011, and requested to be excused from work that day. (Doc. No. 13, Ex. 37; Doc. No. 16, Ex. FF; Doc. No. 24, Ex. D). PGW explained that because Plaintiff had used all of his paid leave, ...

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