United States District Court, E.D. Pennsylvania
E.K. PRATTER United States District Judge
Ernest Foye, Kelvin Holly, and Legene Edwards, all
African-American bus operators, sued their former employer,
the Southeastern Pennsylvania Transportation Authority
(“SEPTA”) and Darren Vogelman, their supervisor.
Each plaintiff alleges claims pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq. (“Title VII”), the Pennsylvania
Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951
et seq. (“PHRA”), and 42 U.S.C.
§§ 1981 and 1983. In addition, Mr. Edwards
separately alleges that Defendants violated his rights under
the Family and Medical Leave Act of 1993, 29 U.S.C §
2601 et seq. (“FMLA”).
have moved for summary judgment as to each Plaintiff. They
have also moved to strike portions of the declarations
submitted by Mr. Holly and Mr. Edwards. For the reasons set
forth below, the Court will grant summary judgment for
Defendants as to Mr. Foye's, Mr. Holly's, and Mr.
Edwards's claims under Title VII, the PHRA, and 42 U.S.C.
§§ 1981 and 1983. The Court also grants summary
judgment with respect to Mr. Edwards's claims under the
FACTUAL AND PROCEDURAL BACKGROUND
following facts are undisputed unless otherwise described.
Where there is a dispute, the facts are presented necessarily
in the light most favorable to Plaintiffs. See Abramson
v. William Paterson Coll. of N.J., 260 F.3d 265, 267 (3d
Cir. 2001). While Plaintiffs bring the same types of claims
against Defendants, the facts of their individual cases
Holly, who is African-American, worked for SEPTA as a bus
operator in the Southern Division. Mr. Vogelman was the
Director of Transportation in that Division.
terms and conditions of Mr. Holly's employment were
governed by a Collective Bargaining Agreement
(“CBA”) between SEPTA and the Transport
Workers' Union Local 234. The “performance”
track of the CBA outlines six steps of progressive discipline
applicable to employees: (1) verbal warning; (2) written
warning; (3) one day suspension; (4) three day suspension;
(5) Discharge with Dignity; (6) discharge. At the Discharge
with Dignity stage, employees may enter into a “Last
Chance Agreement” in lieu of discharge. A Last Chance
Agreement consists of a one-day suspension followed by a
one-year probationary period. Employees are allowed one Last
Chance Agreement in their SEPTA career. Mr. Holly entered
into a Last Chance Agreement with SEPTA as part of a Union
grievance arising from performance-related violations on
August 23, 2013.
about September 27, 2013, Mr. Holly was involved in an
incident with a pedestrian. According to the incident report
signed by Mr. Holly, a pedestrian walked to the curb and the
right side mirror of Mr. Holly's bus struck the left side
of a pedestrian's head, knocking his glasses off. Mr.
Holly did not call the SEPTA Control Center at that time. He
stopped the bus and spoke with the pedestrian, who stated
that he was fine. Mr. Holly then adjusted the right side
mirror of the bus and drove the bus to SEPTA's Southern
Depot, completing his “run.” Once he arrived at
the Depot, he reported the incident to the Control Center.
Mr. Holly did not hand out incident report cards to
passengers or get the name and contact information of the
Holly was required to follow SEPTA's Bus Division Rules
(“BDR”) and Authority Standard Rules
(“ASR”). Following the incident, he was charged
• ASR 12.A, which requires employees to report incidents
by the quickest means of communication;
• BDR 53.A & B, which requires employees to
“immediately contact the Control Center in the event
they are involved in any accident, blockade, or mishap,
” and “[i]f witnessing or involved in an accident
with persons or to property, however slight, the employee
shall immediately contact Control Center . . .
‘tag' the event if camera equipped and attempt to
obtain the names of all witnesses as soon as practical . . .
• Violation of Last Chance Agreement, which involves
immediate discharge for an employee on “last
chance” probation charged with committing an infraction
for which discipline is justified.
Def. Statement of Undisputed Facts ¶ 20. The grievance
procedure under the CBA involves four steps: (1) an informal
hearing where the employee is made aware of charges against
him and the proposed discipline; (2) a formal hearing; (3) a
hearing conducted by a SEPTA Labor Relations Manager; and (4)
arbitration if the Union grievances are denied at steps (2)
and (3) and the Union elects to pursue arbitration. In Mr.
Holly's case, the Assistant Director for the Southern
Division recommended discharge at the informal hearing, and
the Union's subsequent grievance was denied at the formal
hearing level and the Labor Relations level. The Union
elected not to arbitrate. Mr. Holly invokes 42 U.S.C.
§§ 1981 and 1983, Title VII, and the PHRA.
Foye is an African-American former SEPTA bus operator, who
worked out of the Southern Division. Like Mr. Holly, he was a
member of the Transport Workers' Union Local 243 and was
subject to the same Collective Bargaining Agreement,
Authority Standard Rules, and Bus Division Rules.
September 9, 2013, Mr. Foye was involved in an incident with
an individual while operating a SEPTA bus. At first, the
individual stood in front of Mr. Foye's stopped bus,
blocking its path. The individual then moved to the bus's
open front door of the bus and placed his hand in the
bus's doorway while the door was closing. With the
individual's hand caught in the door, Mr. Foye drove the
bus forward for approximately ten feet, at which point Mr.
Foye stopped the bus, opened the doors, and pushed the
individual back from the bus. Mr. Foye then allowed the
individual to board the bus. When the individual got off the
bus and was running alongside it, Mr. Foye drove precariously
close to him and did not abide by a STOP sign. This entire
series of events was captured by video surveillance on Mr.
Foye was charged with an array of rule violations, and he
proceeded with the CBA's four-step grievance process. At
the informal hearing, Mr. Vogelman recommended that Mr. Foye
be discharged. The Union's subsequent grievances at the
formal hearing level and the Labor Relations level were
denied, and it did not pursue arbitration. During the
grievance proceedings, Mr. Foye admitted that he had made
several “terrible mistakes” and took full
responsibility for his actions. See Def. Ex. E. Mr.
Foye also makes his claims under 42 U.S.C. §§ 1981
and 1983, Title VII, and the PHRA.
Edwards is an African-American former SEPTA bus operator who
worked out of the Southern Division. Like the other
Plaintiffs, Mr. Edwards was a member of Local 234 and was
subject to the CBA between the Union and SEPTA.
outlines a no fault attendance points system whereby points
are assessed against employees for incidents of
non-attendance. An employee who accumulates twenty
(20)or more points is subject to progressive
discipline. Points are reduced for regular attendance and
completion of progressive discipline. Points are not incurred
for FMLA leave.
the CBA, an employee who accumulates 20 or more points will
be subject to progressive discipline each time his point
total reaches 20 points. Def. Ex. C. Progressive discipline
under the “attendance track” includes: (1) a
one-day suspension; (2) a five-day suspension; (3) Discharge
with Dignity; (4) Discharge. As explained above, the CBA also
provides for a “Last Chance Agreement, ” which an
employee can choose in lieu of discharge.
FMLA Policy allows eligible employees up to 12 weeks of
unpaid, job-protected leave per year to care for a qualifying
family member (such as a spouse) with a serious health
condition. That permitted leave may be taken continuously, or
on an intermittent or reduced schedule basis. SEPTA's
FMLA Policy requires that an employee properly and timely
notify his supervisor, manager, or dispatcher, as well as
AmeriHealth, the Third Party Administrator
(“TPA”) that handles FMLA matters for SEPTA, that
he is taking FMLA-qualifying leave. “If an employee
does not contact the TPA, he/she may not qualify for FMLA and
may be subject to disciplinary action for attendance
infractions.” Pl. Ex. P-1.
are also required to provide information to AmeriHealth in
order to process FMLA claims. The FMLA Policy states:
Employees are obligated to cooperate with the TPA in the flow
of information necessary to administer FMLA leave. This
includes, upon request, submitting a complete and sufficient
certification to support the need for leave. Failure to do so
may result in some or all of an absence not being treated as
For leaves involving a serious health condition, the employee
will be required to have his/her treating health care
provider complete a Medical Certification Form in a timely
manner. . . . It is the employee's responsibility to
submit the form to the TPA in a timely manner, which means
the employee must make a diligent, good faith effort to
return the form within fifteen (15) calendar days from the
date the form is issued to the employee.
Pl. Ex. P-1. The Policy explains that the “TPA, upon
receiving all information to substantiate the employee's
need and eligibility for FMLA, is solely responsible for
approval or rejection of [the] request.” Pl. Ex. P-1.
2008, Mr. Edwards received FMLA leave to care for his wife,
who was battling cancer. Between 2008 and 2012, Mr. Edwards
renewed his applications for FMLA leave several times, and
numerous absences were approved as FMLA-protected, for which
he did not incur points under SEPTA's attendance points
system. On May 15, 2013, however, Mr. Edwards received a
Discharge with Dignity for otherwise accumulating too many
attendance points, and the Union grieved the
decision. As a result of the Discharge with Dignity,
Mr. Edwards's attendance points were reduced by 10.
Union had until August 2, 2013 to request a Last Chance
Agreement, and it timely submitted such a
request. In between the May 15, 2013 Discharge with
Dignity and the Union's request for a Last Chance
Agreement Mr. Edwards was assessed attendance points for
numerous absences. After exceeding the points threshold on
June 24, 2013, he was again charged with substandard
attendance. The informal hearing addressing that charge was
held in abeyance on June 26, 2013.
August 12, 2013, Mr. Edwards executed the Last Chance
Agreement that the Union requested in response to his
grievance of the May 15, 2013 Discharge with Dignity. The
Agreement outlined that he would serve a one-day suspension
without pay on August 20, 2013, but that the one year
probationary period began running on May 15, 2013-the date of
his discharge with dignity. It explained that should Mr.
Edwards be charge with committing any infraction for which
discipline is justified while on probation, he would be
subject to immediate discharge. Mr. Edwards's employment
was terminated on August 12, 2013 for his having violated the
Last Chance Agreement.
Union grieved Mr. Edwards's discharge for violation of
the Last Chance Agreement. It took the position that SEPTA
should not have assessed attendance points against Mr.
Edwards for his June 24, 2013 absence because it was
protected leave under the FMLA. The Union also challenged
SEPTA's assessment of attendance points for Mr.
Edwards's August 16, 2011 absence, which was discovered
during the audit in the previous grievance, and it generally
objected to SEPTA's decision to hold the grievance in
abeyance until the work resumption agreement was signed. The
grievance regarding Mr. Edwards's violation of the Last
Chance Agreement was denied at the Formal Hearing and Labor
Relations steps. The Union did not pursue arbitration.
Edwards, too, brings his claims under 42 U.S.C. §§
1981 and 1983, Title VII, the PHRA, and the FMLA.
motion of a party, summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Fed R. Civ. P. 56(c). A factual dispute
is “material” if it might affect the outcome of
the case under governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). An issue of fact is
“genuine . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
evaluating a summary judgment motion, the court “must
view the facts in the light most favorable to the non-moving
party” and make every reasonable inference in that
party's favor. Hugh v. Butler Cty. Family YMCA,
418 F.3d 265, 267 (3d Cir. 2005). A party seeking summary
judgment bears the initial responsibility for informing the
district court of the basis for the motion and identifying
those portions of the record that 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 may be met by
“pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case.” Id. at 325. Summary judgment is proper
if the non-moving party fails to rebut by making a factual
showing “sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Id. at 322.
Plaintiffs' claims, albeit arising from different factual
circumstances, are subject to the same legal inquiry.
Accordingly, the Court will address their common claims under
Title VII, PHRA, and 42 U.S.C. §§ 1981 and 1983 and
then turn to Mr. Edwards's FMLA claims.
Claims Under Title VII, the PHRA, and 42 U.S.C. §§
1981 and 1983
Plaintiff claims that SEPTA has discriminated against him on
the basis of race in violation of Title VII, the PHRA,
§ 1981. Plaintiffs' § 1981 claims against Mr.
Vogelman are analyzed in the same manner as their claims
under Title VII and the PHRA. Jordan v. Se. Pennsylvania
Transp. Auth., No. CIV.A. 10-3470, 2012 WL 4815414, at
*16 (E.D. Pa. Oct. 10, 2012). The Third Circuit Court of
Appeals has held that § 1981 does not provide an
independent cause of action against state governmental units
like SEPTA, and instead, § 1983 provides the exclusive
remedy against state governments for violation of rights
guaranteed in, or by, § 1981. See McGovern v. City
of Phila., 554 F.3d 114, 121 (3d Cir. 2009); see
also Taylor v. Se. Pa. Transp. Auth., 2007 WL 1074887,
at *2 (E.D. Pa. Apr. 5, 2007) (“SEPTA is treated as a
municipal agency in determining its liability under §
1983.”). Because SEPTA cannot be held liable for
employee actions through vicarious liability, Plaintiffs here
must show that SEPTA “implemented or executed a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated, or acted pursuant to governmental
custom even though such a custom has not received formal
approval through the body's official decision-making
channels.” Jordan, 2012 WL 4815414, at *16
(internal quotation marks and alterations omitted) (quoting
McGovern, 554 F.3d at 121).
evaluating discrimination claims under Title VII, the PHRA,
or 42 U.S.C. §§ 1981 and 1983,  courts apply
the familiar three-part burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under McDonnell Douglas, a plaintiff must
first establish a prima facie case for
discrimination. Id. at 802. If a plaintiff does so,
the burden then shifts to the defendant to advance a
legitimate, non-discriminatory reason for its actions.
Id. at 802-03. If the defendant advances a
legitimate, non-discriminatory reason for its actions, the
burden shifts back to the plaintiff to prove that the
defendant's proffered reason is merely a pretext for
discrimination. Id. at 806-07. The McDonnell
Douglas framework “was never intended to be rigid,
mechanized or ritualistic. Rather, it is merely a sensible,
orderly way to evaluate the evidence in light of common
experience as it bears on the critical question of
discrimination.” Weldon v. Kraft, Inc., 896
F.2d 793, 798 (3d Cir. 1990).
establish a prima facie case of disparate treatment
based on race, whether under § 1981, Title VII, or the
PHRA, a plaintiff must show (1) that he was a member of a
protected class; (2) that he was qualified for the position;
(3) that he suffered an adverse employment action; and (4)
circumstances give rise to an inference of unlawful
discrimination. See, e.g., Jones v. Sch. Dist.
of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). A
plaintiff may satisfy the fourth prong through comparator
evidence-in other words, “by showing that similarly
situated individuals outside the plaintiff's class were
treated more favorably [than the plaintiff].”
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261,
273-74 (3d Cir. 2010); Tyler v. Se. Pennsylvania Transp.
Auth., No. CIV.A. 99-4825, 2002 WL 31965896, at *3 (E.D.
Pa. Nov. 8, 2002), aff'd sub nom. Tyler v.
SEPTA, 85 F. App'x 875 (3d Cir. 2003) (reciting the
fourth prong as “an employee in a non-protected class,
otherwise similarly situated, was treated more favorably than
satisfy the fourth prong using comparators who are similarly
situated, “the plaintiff must show that ‘the
other employee's acts were of comparable
seriousness.'” Glenn v. Raymour &
Flanigan, 832 F.Supp.2d 539, 548 (E.D. Pa. 2011)
(quoting Anderson v. Haverford C., 868 F.Supp. 741,
745 (E.D. Pa. 1994)). While the relevant factors for
comparators are fact-dependent, in the context of workplace
discipline, it is significant whether “the two
employees dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct without
such differentiating or mitigating circumstances as ...