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Foye v. SEPTA

United States District Court, E.D. Pennsylvania

March 28, 2017



          GENE E.K. PRATTER United States District Judge

         Plaintiffs 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”).

         Defendants 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 FMLA.[1]


         The 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 differ.

         A. Kelvin Holly

         Mr. 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.

         The 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.[3]

         On or 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 pedestrian.

         Mr. Holly was required to follow SEPTA's Bus Division Rules (“BDR”) and Authority Standard Rules (“ASR”). Following the incident, he was charged with violating:

• 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.

         B. Ernest Foye

         Mr. 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.

         On 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's bus.

         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.

         C. Legene Edwards

         Mr. 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.

         The CBA outlines a no fault attendance points system whereby points are assessed against employees for incidents of non-attendance. An employee who accumulates twenty (20)[4]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.

         Under 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.[5] As explained above, the CBA also provides for a “Last Chance Agreement, ” which an employee can choose in lieu of discharge.[6]

         SEPTA's 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.

         Employees 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 FMLA leave.
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.

         In July 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.[7] As a result of the Discharge with Dignity, Mr. Edwards's attendance points were reduced by 10.

         The Union had until August 2, 2013 to request a Last Chance Agreement, and it timely submitted such a request.[8] 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.

         On 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.

         The 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.

         Mr. Edwards, too, brings his claims under 42 U.S.C. §§ 1981 and 1983, Title VII, the PHRA, and the FMLA.


         Upon 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 party.” Id.

         In 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.


         These 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.

         A. Claims Under Title VII, the PHRA, and 42 U.S.C. §§ 1981 and 1983

         Each Plaintiff claims that SEPTA has discriminated against him on the basis of race in violation of Title VII, the PHRA, [9] and § 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).

         When evaluating discrimination claims under Title VII, the PHRA, or 42 U.S.C. §§ 1981 and 1983, [10] 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).

         To 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 Plaintiff”).

         To 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 ...

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