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McGlone v. Philadelphia Gas Works

United States District Court, E.D. Pennsylvania

January 20, 2017



         In this 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.

         I. FACTS

         The 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.

         When 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)).[1]

         At the 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)).

         Throughout 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.

         A 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.

         Shortly 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.


         On June 10, 2015, Plaintiff filed a complaint against PGW (ECF No. 1) alleging:

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)

         On 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 Amended Complaint:

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)

         PGW 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.


         A 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.

         A party 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.


         a. Admissibility of Plaintiff's Evidence

         At the 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.

         i. Declaration of Susan McGlone

         Mrs. 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.”).

         Mrs. 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.

         ii. Declaration of Patrick McGlone, Jr.

         Plaintiff's 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.

         Finally, 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.

         iii. Declaration of Bill Alburger

         All 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.

         b. Disability Discrimination under the ADA and PHRA (Counts I and II)

         Plaintiff 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.

         The 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.

         “A plaintiff presents a prima facie case of discrimination under the ADA by demonstrating:

1. He is a disabled person within the meaning of the ADA;
2. He is otherwise qualified to perform the essential functions of the job, with or without reasonable ...

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