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Fischer v. Joseph McCormick Construction Co., Inc.

United States District Court, W.D. Pennsylvania

November 3, 2014

ARTHUR O. FISCHER, JR., Plaintiff,



I. Introduction

The instant action involves an allegation that an employer unlawfully declined to rehire one of its former employees because he was suffering from prostate cancer. The Defendant has filed a motion for summary judgment, and United States Magistrate Judge Susan Baxter has recommended that the motion be granted. Docket Nos. 35 & 45. Pursuant to 28 U.S.C. § 636(b)(1), the Plaintiff has filed written objections to Judge Baxter's report and recommendation. Docket No. 48. For the reasons that follow, the Defendant's motion for summary judgment will be granted.

II. Background

The Joseph McCormick Construction Company, Inc. ("McCormick Construction"), is in the business of constructing roads through the production and administration of asphalt. Docket Nos. 37 & 41 at ¶ 1. The work performed by McCormick Construction is seasonal in nature. Id. at ¶ 2. Most members of McCormick Construction's workforce are typically laid off in November. Id. at ¶ 3. The employees are normally called back to work in March or April. Id. at ¶ 4. At all times relevant to this case, Owen McCormick ("McCormick") served as the President of McCormick Construction and the Chairman of its Board of Directors. Id. at ¶¶ 5-6. He was responsible for making personnel decisions. Id. at ¶ 7. Robert B. Gwinn ("Gwinn") was McCormick Construction's Vice President of Operations. Id. at ¶ 9. Joseph T. Hosey ("Hosey") worked as a project manager for McCormick Construction. Id. at ¶ 10.

In 2004, Arthur O. Fischer, Jr. ("Fischer"), started to work as McCormick Construction's General Superintendent. Docket Nos. 37 & 41 at ¶ 11. During the winter break commencing in November 2011, Fischer learned that he needed to undergo a surgical procedure designed to alleviate the effects of prostate cancer. Id. at ¶ 13. The operation was scheduled for March 15, 2012. Id. Fischer informed Gwinn of the impending surgical procedure on February 15, 2012. Id. at ¶¶ 12-13. While speaking with Gwinn, Fischer suggested that he would be ready to return to work at the beginning of the construction season. Id. at ¶ 16. Gwinn later told McCormick that Fischer was preparing to undergo a medical procedure. Id. Fischer remained in contact with Gwinn about work-related matters. Id. at ¶ 19. Gwinn informed Fischer of job orders that had been received for the upcoming year. Id. at ¶ 20.

On March 1, 2012, Gwinn received an update about the status of Fischer's health. Docket Nos. 37 & 41 at ¶ 22. Gwinn told Fischer that construction projects would be starting around the middle of March, and that McCormick Construction would be ready for him when he was medically able to return. Id. at ¶ 23. During a conversation with Gwinn conducted on March 19, 2012, Fischer advised that his surgery had been delayed by roughly ten days, but that he would most likely be able to return to work on April 9, 2012. Id. at ¶ 24. Gwinn made no inquiries as to whether Fischer would be under medical restrictions upon his return. Id. at ¶ 25.

McCormick Construction's annual preseason meeting was scheduled for March 30, 2012. Docket Nos. 37 & 41 at ¶ 26. Gwinn contacted Fischer to determine whether he would be able to attend the meeting. Id. Fischer stated that he would not be able to attend because of an inability to drive on that date. Id. In the meantime, McCormick Construction continued to treat Fischer as if he were coming back to work for the next construction season. Id. at ¶ 36.

During the early part of April 2012, McCormick decided not to rehire Fischer. ECF Nos. 37 & 41 at ¶ 72. Gwinn communicated McCormick's decision to Fischer during a meeting held on April 9, 2012. Id. at ¶ 92. Fischer was told that he was not being rehired because several of McCormick Construction's foremen had complained about his management style and threatened to leave the company if he was retained. Docket No. 38-2 at 19. McCormick Construction did not replace Fischer with a new General Superintendent. ECF Nos. 37 & 41 at ¶ 73. Instead, Fischer's prior duties and responsibilities were assumed by McCormick Construction's foremen and project managers. Id. at ¶ 74.

Fischer later filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that McCormick Construction had unlawfully declined to rehire him because of his age and disability. Docket No. 1 at ¶ 19. On November 27, 2012, the EEOC provided Fischer with written notice of his right to sue McCormick Construction within ninety days. Docket No. 1-1. Fischer commenced this action against McCormick Construction on February 11, 2013, asserting claims under the Age Discrimination in Employment Act of 1967 ("ADEA") [29 U.S.C. § 621 et seq. ] and the Americans with Disabilities Act of 1990 ("ADA") [42 U.S.C. § 12101 et seq. ]. He amended his complaint on July 8, 2013, and added parallel discrimination claims under the Pennsylvania Human Relations Act ("PHRA") [43 PA. STAT. § 951 et seq. ]. Docket No. 20. On August 9, 2013, Fischer filed a motion to withdraw the claims premised on a theory of age-based discrimination. Docket No. 26. Judge Baxter granted that motion on September 12, 2013. Docket No. 30.

On February 21, 2014, McCormick Construction filed a motion for summary judgment. Docket No. 35. In a report and recommendation dated July 23, 2014, Judge Baxter advised that the motion should be granted. Docket No. 45. Fischer filed written objections to the report and recommendation on August 4, 2014. Docket No. 48. The parties advanced their respective positions during the course of an oral argument session conducted on September 17, 2014. Docket Nos. 50 & 51. McCormick Construction's motion for summary judgment is now ripe for disposition.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township , 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co. , 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup , 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof. Celotex Corp. , 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate ...

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