ANDREW D. LATTA, Plaintiff,
U.S. STEEL-EDGAR THOMPSON PLANT, Defendant.
MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE F. McVERRY, District Judge.
Now pending before the Court is UNITED STATES STEEL CORPORATION'S MOTION FOR SUMMARY JUDGMENT (ECF No. 20), with brief in support. Plaintiff Andrew D. Latta ("Latta") filed a response and brief in opposition to the motion and U.S. Steel filed a reply brief. The parties have thoroughly developed their respective positions regarding the Concise Statement of Material Facts ("CSMF") and submitted numerous exhibits. The motion is ripe for disposition.
Factual and Procedural Background
This is an employment discrimination case. The facts must be viewed in the light most favorable to Plaintiff. Latta began working for U.S. Steel on September 11, 2000 in the Basic Oxygen Process ("BOP") department of the steelmaking process at the Edgar Thomson Works near Pittsburgh, Pennsylvania. Latta has never been discharged or disciplined by U.S. Steel and remains employed there. Latta is a member of the United Steelworkers Union and his employment is governed by a Basic Labor Agreement ("BLA"). Until March 2013, Latta was employed as a Labor Grade 2 Utility Person.
Latta works in the immediate vicinity of the steel ladle. The entire BOP area is subject to high temperatures, which can exceed 90 degrees in the summer months, although the proximity of the workers to the 3000 degree molten steel does vary somewhat from position to position. Workers wear a variety of protective equipment to protect themselves from the extreme heat of the molten steel.
Latta has taken blood pressure medication for fifteen years, which does not affect his ability to function. Latta has taken medication since November 2001 to treat depression. Since late 2001, Latta has experienced excessive excessive perspiration, which he attributes to the effects of his medication. Latta has not been prescribed any medication for this condition. It is treated by taking fluids and resting in a cool place.
On June 21, 2010 Latta signed a bid for a promotion to Operating Technician I, a Labor Grade 3 position in the BOP department. Under the BLA, bids are awarded by seniority and the successful bidder is expected to accept the bid within two weeks. Latta was the most senior bidder. The date on which Latta was expected to begin performing the Operating Technician I duties was July 28, 2010, although he testified that he was unaware of this date. Through the entire month of August, Latta failed to accept the bid. On September 2, 2010 Kurt Wilson, the manager of the BOP department, met with Latta and informed him that if he did not accept the job that day, it would be awarded to the next-senior bidder.
In response to this ultimatum, Latta presented Wilson with a letter from his personal physician, Dr. Kamlesh Gosai, dated August 25, 2010 which stated, in relevant part: "Due to his ongoing medical conditions he should not be exposed to excessive temperatures." Latta had not previously expressed any concerns about high temperatures. Upon receipt of this letter, Wilson was concerned for Latta's health and referred Latta to a U.S. Steel doctor. The U.S. Steel doctor referred Latta back to Dr. Gosai to determine whether Latta was able to work in the BOP area. Latta was not able to be examined by Dr. Gosai until after the Labor Day weekend, at which point Dr. Gosai found him fit to return to work. Latta returned to his gatekeeper assignment without any medical restriction on September 10, 2010. Wilson again imposed a deadline on Latta to decide whether he would accept the bid. Latta did not make a final decision, although he contends that he "was pursuing acceptance of this bid" through his bid foreman, Chuck Zigler. On September 14, 2010 the Operating Technician I job was awarded to the next bidder.
On December 27, 2010, Latta tore a tendon in his left ankle, which caused swelling and triggered depression. Latta eventually had surgery on the ankle in March 2012.
Until mid-2011, Latta was assigned to work as a gatekeeper. At that time, Latta was re-assigned to a job as a burner in response to his harassment of two newly hired co-workers. On July 30, 2011 Latta collapsed at work from a heat-related illness and was taken by ambulance and treated for dehydration at the medical facility of the U.S. Steel Clairton Works. This was the only episode of heat-related illness for which Latta was treated during his employment. Latta called off work the next day, July 31st. On August 2, 2011 Latta went to an appointment with Dr. Gosai. On August 1rd, he appeared at the U.S. Steel medical office for a return to work physical but reported that he still did not feel well and was sent back to Dr. Gosai.
On August 111th, Latta returned to the U.S. Steel medical office for another return to work physical. Latta presented a letter from Regina Hudak, a Physician Assistant in Dr. Gosai's office, which stated that Latta was able to return to work on August 14th. However, the letter further recommended, based on discussions with Latta, that due to excessive perspiration Latta be transferred from the burner job back to the gatekeeper job. Dr. Vaughan, the U.S. Steel doctor, found that Latta was no longer suffering from dehydration and that his general physical condition and medical tests were normal. Unable to determine the cause of Latta's continuing complaints, Dr. Vaughan recommended further evaluation by Dr. Gosai and refused to clear him for work on that date. Medical tests continued through the end of August. Latta was not prescribed any medication to control his excessive perspiration and no other medical problems were found.
There was apparent confusion between the parties as to Latta's status during the 49-day time period. Latta called every week but was not scheduled to work. Latta believed that he was being prevented from working by U.S. Steel and applied for unemployment and disability benefits. Attached to Latta's application for disability benefits was an August 19th Physician's Statement of Dr. Gosai, in which he stated, in relevant part: (1) that Latta had been unable to perform his job from August 2nd through "unknown"; (2) that he was "not fit for gainful employment until all testing and evaluations are done"; (3) that the most recent appointment had been on August 15th; and (4) that the next appointment was scheduled for August 29th. The record does not reflect the results of the August 29th appointment or any followup communication between Latta and U.S. Steel thereafter. U.S. Steel concluded that Latta had abandoned his position. In early September, U.S. Steel threatened to issue a 5-day letter to Latta for failing to report to work. After discussions between the union and company, on September 19th Latta returned to work without medical restriction in the burner job. Latta had been off work for 49 days.
Latta had suffered from depression and needed intermittent leave since at least 2007, particularly on days associated with the death of his son. Sometime in 2009 or in February 2010 Ashley Wissinger, an attorney in the U.S. Steel Labor Relations department, allegedly told Latta that she believed he was using FMLA "as an umbrella" and that she had "a problem with someone claiming they have a disability when there's nothing wrong with them." Nevertheless, Latta's requests for time off pursuant to the Family Medical Leave Act ("FMLA") were routinely granted.
On December 8, 2010 Latta filed a charge of discrimination with the EEOC and PHRC, alleging age and disability discrimination for denial of the Operating Technician I job in September 2010. On January 9, 2012 Latta filed a second charge of discrimination with the EEOC and PHRC, alleging disability discrimination and retaliation based on the events of July-September 2011. Neither charge of discrimination alleges, explicitly or ...