United States District Court, E.D. Pennsylvania
PATRICK MCGLONE, SR.
PHILADELPHIA GAS WORKS, PGW
MEMORANDUM RE: DEFENDANT'S MOTIONS FOR SUMMARY
disability discrimination action, Defendant Philadelphia Gas
Works (“PGW”) moves for summary judgment on
Plaintiff Patrick McGlone, Sr.'s claims arising under the
Americans with Disabilities Act (“ADA”),
Pennsylvania Human Relations Act (“PHRA”), and
Pennsylvania law. Plaintiff, a long-time employee of PGW,
contends that PGW subjected him to various forms of
disability discrimination after he suffered an on-the-job
injury and then returned to work physically impaired. PGW
seeks summary judgment on the ground that Plaintiff has
failed to make out a prima facie case for any of his claims.
For the reasons discussed below, we agree with PGW and the
motion will be granted in its entirety.
following is a fair account of the factual assertions at
issue in this case, as taken from PGW's Statement of
Undisputed Facts and not genuinely disputed by Plaintiff.
Plaintiff began his employment with PGW in 1981 and worked
there until his retirement on September 12, 2012. ECF No. 37,
Def.'s Mot. for Summary Judgment (“Def.'s
Mot.”), Def.'s Statement of Undisputed Facts
(“DSOF”) ¶ 1. At the time that he retired,
Plaintiff was employed as a Service Specialist in PGW's
Field Services Department (“FSD”). Id.
¶ 3. The duties of this position included performing,
and training personnel on how to perform, service and repairs
on utility appliances. Id. ¶ 4. On January 19,
2012, Plaintiff was servicing a PGW customer's heater
when he “tried to stand and heard a pop and had a
burning sensation” in his left knee. Id.
¶ 45 (quoting Def.'s Mot., Ex. FF (Record of Dr.
Katz, Jan. 19, 2012)). An MRI revealed that Plaintiff had
suffered a tear in his medial meniscus, and he underwent
surgery to repair it on February 17, 2012. Id.
¶ 48. Plaintiff applied for and received Workers'
Compensation benefits in connection with his knee injury, and
did not work from the date of the injury until on or around
May 21, 2012, when his treating physician, Dr. Francine Katz,
released him to return to PGW with certain medical
restrictions. Id. ¶¶ 46, 49. The
restrictions Dr. Katz imposed included: no climbing, no
kneeling, no crawling, no squatting or crouching, no
unprotected heights, no driving clutch vehicles, and no use
of the left lower leg for foot controls, repetitive
movements, or balance. Id. ¶ 49.
Plaintiff returned to PGW, he was assigned to light duty work
in the Transportation Department (also known as
“Fleet”) that included, at a minimum, sweeping
the premises, filing paperwork, and driving automatic
vehicles. Id. ¶ 63. At some point during the
summer of 2012, Plaintiff was transferred from Fleet back to
FSD, where he was to perform only the training duties of the
Service Specialist position and was told, at the outset, to
“adhere to his restrictions[, . . . ] not bend [and]
keep his hands in his pockets.” Id. ¶ 66;
ECF No. 40, Pl.'s Opp'n to Def.'s Mot. for
Summary Judgment (“Pl.'s Opp'n”), Ex. C
(Dep. Tr. of Robert K. Smith) at 13:1-10. The transfer was
approved by PGW's Medical Director, Dr. Robert A. Barlow,
as consistent with and within the scope of Plaintiff's
medical restrictions. DSOF ¶ 67. On June 6, 2012,
Plaintiff saw Dr. Katz and, according to her record of the
visit, stated that he was “still having a lot of pain
[but] finds that if he wears his brace he is good, ”
was “tolerating work, ” “doing his job,
” and “doing training but . . . just not getting
down on his knees as much as he used to.” Id.
¶ 68 (quoting Def.'s Mot., Ex. NN (Record of Dr.
Katz, June 6, 2012)).
June 6, 2012 visit, Dr. Katz modified Plaintiff's
restrictions and indicated that Plaintiff was no longer
restricted from climbing stairs. Id. ¶ 69. The
following month, on July 3, 2012, Plaintiff had another
appointment with Dr. Katz at which he indicated that he did
not wish to continue treating with her and was going to be
seen by Dr. Gerald E. Dworkin, “a pain management
specialist that [Plaintiff had] been seeing . . . for other
issues that he had from prior injuries.” Id.
¶ 70 (quoting Def.'s Mot., Ex. PP (Record of Dr.
Katz, July 3, 2012)). Plaintiff shortly thereafter underwent
a procedure in connection with a back injury he had sustained
separate and apart from his knee injury. Id. ¶
71. On July 12, 2012, Dr. Dworkin amended Plaintiff's
medical restrictions to indicate that he could
“[c]ontinue limited lifting > 15 lb” and could
not bend. Id. ¶ 72 (quoting Def.'s Mot.,
Ex. RR (Record of Dr. Dworkin, July 12, 2012)). On August 9,
2012, Plaintiff had a follow-up appointment with Dr. Dworkin
after which the doctor noted that Plaintiff should be on
light duty, with “no kneeling, bending, crawling, . . .
[or] lifting > 10 lbs” through December 1, 2012.
Id. ¶ 73 (quoting Def.'s Mot., Ex. SS
(Record of Dr. Dworkin, Aug. 9, 2012)).
this time period, from Plaintiff's return to work on or
around May 21, 2012 onward, Plaintiff alternated between
light duty work in Fleet and performing training duties as a
Service Specialist in FSD. Id. ¶ 75. Whether
these temporary assignments forced Plaintiff, in the face of
his complaints, to violate his medical restrictions is a key
part of Plaintiff's claims.
separate facet of this case involves an incident between
Plaintiff and one of his co-workers, Jeffrey Shapiro, and how
PGW may have used it as a covert way to force Plaintiff to
retire. See, e.g., Pl.'s Opp'n at 40-42. On
September 11, 2012, the two men had a verbal altercation at
work, after which Mr. Shapiro submitted a memorandum to the
superintendent of FSD accusing Plaintiff of threatening him.
Id. ¶ 21. The following morning, PGW attempted
to interview Plaintiff regarding the incident to determine if
it constituted a violation of PGW's Workplace
Violence/Threats Policy, but Plaintiff declined to
participate in the interview and instead announced his intent
to retire. Id. ¶¶ 22, 24. Plaintiff feared
that if the investigation went forward and found him to have
violated the policy, he would be fired and would therefore
lose the lifetime medical benefits he and his family were due
to receive from PGW. Id. ¶ 29; Pl.'s
Opp'n, Counter Statement of Undisputed Facts
(“CSUF”) ¶ 15.
following Plaintiff's retirement on September 12, 2012,
Plaintiff submitted an application for Social Security
Disability (“SSD”) Benefits in which he
represented to the Social Security Administration
(“SSA”) that he was disabled as of January 9,
2012 on account of the following medical conditions: torn
rotator cuffs, herniated disc (back fusion), left bicep
tendon tear, left meniscus tear, depression, high blood
pressure, and cholesterol. DSOF ¶ 34. The SSA concluded
that Plaintiff was disabled as of January 9, 2012 with a
primary diagnosis of “Disorders of the back (Discogenic
and Degenerative)” and a secondary diagnosis of
“Osteoarthritis and Allied disorders.”
Id. ¶ 35. As a result, Plaintiff began to
receive SSD benefits and he continues to receive them to this
day. Id. ¶ 37.
10, 2015, Plaintiff filed a complaint against PGW (ECF No. 1)
1. Disability discrimination under the ADA (Count I)
2. Disability discrimination under the PHRA (Count II)
3. Retaliation under Title VII of the Civil Rights Act of
1964 (Count III)
4. Retaliation under the PHRA (Count IV)
5. Age discrimination under the Age Discrimination in
Employment Act (“ADEA”) (Count V)
6. Age discrimination under the PHRA (Count VI)
7. Wrongful discharge under Pennsylvania law (Count VII)
8. Breach of express contract of continued employment under
Pennsylvania law (Count VIII)
August 11, 2015, PGW filed a partial motion to dismiss,
seeking dismissal of Plaintiff's Title VII cause of
action as well as his claim that PGW breached his contract of
continued employment (ECF No. 3). The parties agreed to a
stipulation whereby Plaintiff would file an amended complaint
(ECF No. 4) and as a result the Court denied the Motion to
Dismiss as moot (ECF No. 6). On September 15, 2015, Plaintiff
filed an amended complaint, adding the Utility Workers'
Union of America AFL/CIO Local 686 (“Union”) as a
defendant (ECF No. 7). In the Amended Complaint, Plaintiff
omitted Counts III and IV but otherwise maintained the same
claims from his original complaint. For ease of reference in
this Memorandum, the following are the Counts alleged in the
1. Disability discrimination under the ADA (Count I)
2. Disability discrimination under the PHRA (Count II)
3. Retaliation under the PHRA (Count III)
4. Age discrimination under the ADEA (Count IV)
5. Age discrimination under the PHRA (Count V)
6. Wrongful discharge under Pennsylvania law (Count VI)
7. Breach of express contract of continued employment under
Pennsylvania law (Count VII)
answered the Amended Complaint on October 8, 2015 (ECF No.
9). The Union filed a motion to dismiss on November 25, 2015
(ECF No. 16), and Plaintiff responded on December 14, 2015
with a motion seeking leave to file a second amended
complaint (ECF No. 17). Plaintiff then filed a stipulation of
dismissal of all claims against the Union (ECF No. 23), and
the Court entered an order dismissing the Union on January
11, 2016 (ECF No. 25). At the time of the Union's
dismissal from the case, counsel for Plaintiff and PGW agreed
that Plaintiff's breach of contract claim (Count VII)
would be withdrawn. Pl.'s Opp'n at 7. On August 19,
2016, PGW moved for summary judgment (ECF No. 37), and on
September 16, 2016, Plaintiff responded (ECF No. 40). In his
response, Plaintiff withdrew both claims for age
discrimination (Counts IV and V). Pl.'s Opp'n at 7.
PGW then filed a Reply on September 30, 2016 (ECF No. 43). On
October 10, 2016, Plaintiff moved for leave to file a sur
reply and filed a supplemental counter statement of
undisputed facts (ECF No. 44). On October 17, 2016, PGW moved
to strike Plaintiff's filing (ECF No. 45). Oral argument
was held on November 17, 2016 regarding the pending summary
judgment motion (ECF No. 49). The only Counts still pending
are Counts I, II, III, and VI.
district court should grant a motion for summary judgment if
the movant can show “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). A
dispute is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A factual dispute is
“material” if it “might affect the outcome
of the suit under the governing law.” Id.
seeking summary judgment always bears the initial
responsibility for informing the district court of the basis
for its motion and identifying those portions of the record
that it believes demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Where the non-moving party bears the burden
of proof on a particular issue at trial, the moving
party's initial burden can be met simply by
“pointing out to the district court . . . that there is
an absence of evidence to support the nonmoving party's
case.” Id. at 325. After the moving party has
met its initial burden, the adverse party's response
must, “by citing to particular parts of materials in
the record” set out specific facts showing a genuine
issue for trial. Fed.R.Civ.P. 56(c)(1)(A). “Speculation
and conclusory allegations do not satisfy [the non-moving
party's] duty.” Ridgewood Bd. of Educ. V. N.E.
ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999)
(superseded by statute on other grounds as recognized by
P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 730
(3d Cir. 2009)). Summary judgment is appropriate if the
non-moving party fails to rebut by making a factual showing
“that a genuine issue of material fact exists and that
a reasonable factfinder could rule in its favor.”
Id. Under Rule 56, the Court must view the evidence
presented on the motion in the light most favorable to the
opposing party. Anderson, 477 U.S. at 255.
Admissibility of Plaintiff's Evidence
outset of the analysis, we address the admissibility of the
declarations of Plaintiff's wife, son, and former
co-worker, which together form a sizable part of
Plaintiff's evidentiary showing. See Pl.'s
Opp'n, Exs. F, G, I.
Declaration of Susan McGlone
McGlone's declaration recounts several statements that
Plaintiff made to her, each of which will be inadmissible for
their truth and not considered at this juncture unless an
exception to the rule against hearsay applies. See
Fed.R.Evid. 801(c), 802; Smith v. City of Allentown,
589 F.3d 684, 693 (3d Cir. 2009) (“Hearsay statements
that would be inadmissible at trial may not be considered for
purposes of summary judgment.”).
McGlone's statements that Plaintiff called her shortly
after being forced to perform duties contrary to
Plaintiff's medical restrictions qualify as present sense
impressions under Federal Rule of Evidence 803(1) and are
therefore admissible. See Pl.'s Opp'n, Ex. F
(Decl. of Susan McGlone) ¶¶ 6-10. But, Mrs.
McGlone's statements that Plaintiff told her he
complained to various individuals at PGW about his
assignments do not fall under any exception to the rule
against hearsay. See id., Ex. F ¶ 5.
Declaration of Patrick McGlone, Jr.
son's declaration likewise includes some admissible
statements and some inadmissible ones. Mr. McGlone Jr.'s
assertions that he witnessed his father experiencing pain in
his temporary position in Fleet are admissible. See
id., Ex. I (Decl. of Patrick McGlone, Jr.) ¶ 7.
Otherwise, the Declaration is replete with hearsay statements
and statements that contain facts of which Mr. McGlone, Jr.
does not have personal knowledge. Specifically, Mr. McGlone
Jr.'s averment that Plaintiff told PGW “over and
over again” that he did not want to retire or resign
but rather wanted to be re-assigned to a sedentary position
is hearsay to which no exception applies. Id., Ex. I
¶ 20. As for the affiant's statement that he saw his
father being harassed at work, Mr. McGlone, Jr. explained at
his deposition that the only poor treatment he witnessed
Plaintiff suffer was being referred to as a
“cripple” on one occasion and being the subject
of a rumor started by a co-worker. Pl.'s Opp'n, Ex. I
¶ 5; Def.'s Mot., Ex. AAA (Dep. Tr. of Patrick
McGlone, Jr.) at 32:16-23, 41:20-23, 42:18-43:9.
Mr. McGlone, Jr. does not indicate any basis for his
knowledge of the facts he relays in paragraphs 8, 9, 11, and
12 regarding his father being forced to use stairs throughout
his temporary assignments in Fleet and FSD. He also does not
indicate his basis for stating that he “know[s]”
that several PGW employees told Plaintiff that they were
colluding to ensure he was terminated. Pl.'s Opp'n,
Ex. I ¶ 19. For an affidavit to be considered on summary
judgment, it “must be made ‘on personal
knowledge, ' must set forth ‘such facts as would be
admissible in evidence' and must ‘show
affirmatively that the affiant is competent to testify to the
matters stated therein.'” Maldonado v.
Ramirez, 757 F.2d 48, 50 (3d Cir. 1985) (quoting
Fed.R.Civ.P. 56(e)). Mr. McGlone Jr. has neither shown that
his statements in paragraphs 8, 9, 11, 12, and 19 are based
on firsthand knowledge nor that he is competent to testify to
the facts he relays therein. As such, we will not consider
them in deciding this motion.
Declaration of Bill Alburger
probative statements in the declaration of Bill Alburger were
retracted by Mr. Alburger, as evident in his affidavit dated
May 16, 2016. See Pl.'s Opp'n, Ex. G;
Def.'s Reply, Ex. BBB.
Disability Discrimination under the ADA and PHRA (Counts I
claims PGW discriminated against him on the basis of a
disability in violation of the ADA and the PHRA. Because
Plaintiff has failed to demonstrate the existence of a
genuine dispute of material fact regarding these claims, they
will be dismissed.
Third Circuit has held that “the PHRA is to be
interpreted as identical to federal antidiscrimination laws
except where there is something specifically different in its
language requiring that it be treated differently.”
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d
Cir. 2002). The only substantive difference between the Acts
for purposes of this analysis concerns the definition of
“disabled”; therefore, we will address that
distinction but otherwise analyze Plaintiff's claims
under Counts I and II together.
plaintiff presents a prima facie case of discrimination under
the ADA by demonstrating:
1. He is a disabled person within the meaning of the
2. He is otherwise qualified to perform the essential
functions of the job, with or without reasonable