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Isley v. Aker Philaldelphia Shipyard, Inc.

United States District Court, E.D. Pennsylvania

August 17, 2017

KEVIN ISLEY, Plaintiff,



         In this employment case, a worker slated for termination because of poor attendance asked that his employer retroactively reclassify two of his unexcused absences as protected leave under the Family and Medical Leave Act (FMLA), or the Americans with Disabilities Act (ADA), as supplemented by state law. The employer declined and proceeded to fire him. Discovery is now complete, and because there is no evidence of discriminatory intent, and the plaintiff was not eligible for FMLA leave as a matter of law, summary judgment will be granted in favor of the employer.

         I. BACKGROUND

         Plaintiff Kevin Isley was employed by Defendant Aker Philadelphia Shipyard (the Shipyard) from February 2013 until February 2015. During this time, he earned generally favorable performance reviews and was promoted from “laborer” to “ship-fitter, ” but also accumulated 12 “no-pay” absences-two more than were permitted under the Collective Bargaining Agreement (CBA) that governed his employment. On that basis, the Shipyard fired him.

         Isley's last two absences, which resulted in his termination and are the focus of this suit, occurred on February 19 and 23, 2015. On the afternoon of the 19th, Isley began experiencing chest pains and shortness of breath. These symptoms intensified over the course of the day and around 9:00 p.m., an hour before his shift was scheduled to begin, Isley had a friend drive him to a local emergency room, where he remained for approximately three and half hours, until 12:30 a.m. the following day. During this time, doctors ran a battery of tests, ruled out the possibility of a heart attack, and diagnosed Isley with costochondritis, an inflammation of the cartilage in the rib cage which normally subsides on its own. Accordingly, Isley was directed to rest for a few days, take Motrin with meals, and follow up with a physician if necessary, but was not otherwise told to take any specific follow-up action.

         The episode on February 19 was Isley's second bought of costochondritis, the previous flare-up having occurred in April 2014. Then too, Isley visited the E.R. but he did not miss any of his scheduled shifts and never informed anyone at the Shipyard that he had a medical condition. By contrast, on February 20, 2015, Isley claims that he called his union steward, Sean Harvey, and told him that he had been to the hospital “for my heart.” Resp. Ex. R at 131:16-17. Similarly, Isley claims that on February 23, his next scheduled day of work, he called his supervisor, Shawn James and told him that he would again be absent due to “heart issues.” Id. at 164:19-20.[1] Isley also sent to Harvey and James a digital image of a note that he received from his E.R. doctor on February 20. That note explained that Isley had been “medically cleared for discharge” from the E.R. and could “return to work/school on: 2/23/15.”[2] Because Harvey and James were not responsible for tracking Isley's attendance or making requests for medical leave on his behalf, neither man relayed Isley's communications to the Shipyard's Human Resources (H.R.) department.[3]

         Isley returned to work on February 24. On February 26, Sandy Galassco, a member of the Shipyard's H.R. department, prepared a one-page “Notice of Impending Termination, ” which stated that Isley had exceeded the allowable number of no-pay absences, listed the dates on which he had missed work in the previous 24 months, and directed him to contact H.R. or his supervisor if he believed the information on the form was incorrect.[4] Galassco gave the Notice to James and Harvey, who presented it to Isley. All three men signed the document, which was then submitted to Marion Meixsell, H.R. generalist. On the basis of the signed Notice, Meixsell decided to fire Isley. Resp. Ex. S at 33:9-24. Consequently, and still on February 26, Meixsell electronically signed and dated a Union Employee Data Change Form in preparation for a meeting the following morning with Isley and Harvey, the shop steward. Id. at 54:18-24; Resp. Ex. D.

         At the February 27 meeting, Isley claims that he told Meixsell that he had gone to the E.R. because of a heart condition. Meixsell disputes this account, and claims that Isley told her that he went to the hospital because he had the flu. Meixsell and Isley agree, however, that a central topic of discussion during the meeting was Isley's 32-hour balance of “personal time”- paid leave that he could have applied to excuse his absences on the19th and 23rd by calling into an H.R. hotline before missing work on those dates. As Isley recalled, “[Harvey] let Marion [Meixsell] know, he [(Isley)] has enough [personal time], could you just take the days off that, because I [(Harvey)] need him, he's a good worker.” Def. Ex. R at 146:14-17. Meixsell apparently found that Isley's balance of personal time weighed against granting him a second chance, concluding, in effect, that Isley's termination was a problem of his own making since “he could have used 16 hours [of personal time] to save his job and chose not to use the time.” Resp. Ex. M. She therefore informed him of his discharge, effective immediately.

         Isley's union appealed his termination by filing a grievance and requesting a “third step” hearing. That hearing was held on March 12, before Michael Giantomaso, the Shipyard's V.P. of H.R. As Giantomaso explained, at third step hearings, the Shipyard and the union each present their side of the story “and then I make my decision within five business days in writing. If the union doesn't like my decision then they can take it to . . . binding arbitration.” Resp. Ex. V at 53:3-8. Prior to the third step hearing, Giantomaso did not know why Isley had been terminated, let alone the reason for Isley's absences on February 19 or 23. Id. at 52:16-22; Resp. Ex. S at 49:2-7.

         Isley attended the third step hearing and was also represented by three union members: Dave Gaillard, James Hall, and Fred Chamberlain. Meixsell, representing the Shipyard, reiterated her view that Isley's firing was warranted because he exceeded his ten-absence limit and could have, but did not, cover his absences using his accumulated personal time. According to Giantomaso, Isley responded by claiming he didn't “know how to call out personal time.' And I asked him again, ‘You don't? You've never called out personal time?' He said ‘No, I never did, I don't know how.'” Id. at 45:3-7. Giantomaso claims that he and Chamberlain then reviewed Isley's time records and found that he had in fact used personal time on several other occasions, leading Giantomaso to conclude that Isley “provided false information and lied to me”-grounds for termination under the CBA.[5] Id. at 45:11-12. Isley disputes this version of events. He claims that “I didn't say I didn't know how to use personal time. I said that I didn't know that I had to use personal time to go to the hospital.” Resp. Ex. R at 136:17-20. Isley also maintains that he explained that his absences on the 19th and 23rd were due to a heart condition and demanded to know why his absences were not excused as FMLA-qualifying leave. Resp. Ex. R at 139:2-7.

         Giantomaso issued his decision on March 20 in a letter that he sent to various Shipyard officials and to the attendees at the third step hearing, including Isley's union representatives. In that letter, Giantomaso explained that during the hearing, “Mr. Isley stated [he didn't] know how to use personal time, ” which led Giantomaso to “personally check[]” the Shipyard's timesheet records where he “found that Mr. Isley used personal time on 6 different occasions.” Resp. Ex. O. According to Giantomaso, “[t]his prove[d] . . . that Mr. Isley knew how to use the personal time and he decided not to.” Id. “As a result” Giantomaso concluded, “I am sustaining the discharge and denying the grievance.” Id. The union elected not to challenge Giantomaso's decision by submitting Isley's grievance to arbitration, and Isley's termination became final.

         Isley then initiated the current suit, arguing that the Shipyard violated the ADA, the Pennsylvania Human Resources Act (PHRA), and FMLA when it refused to excuse his absences on February 19 and 23. The Shipyard now moves for summary judgment. For the reasons below, that motion will be granted.

         II. STANDARD

         The well-established standard for summary judgment is governed by Fed.R.Civ.P. 56(a), as amplified by Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


         A. Isley's ADA Claims

         The ADA forbids covered employers from discriminating against disabled individuals. Prohibited discrimination includes retaliation against an employee who, in good faith, requests an accommodation, whether that employee is disabled or not. Isley brings largely overlapping claims under both discrimination and retaliation theories.[6]

         1. Discrimination

         “Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff's disabilities.” Id. “In other words, an employer can unlawfully ‘discriminate' within the meaning of the ADA in two different ways . . .: (1) if the employer takes adverse action against a qualified individual with a disability and that decision was motivated by the individual's actual disability or the employer's belief that the individual had a disability (i.e. disparate treatment); or (2) if the employer fails to make reasonable accommodations for that individual.” Fuoco v. Lehigh Univ., 981 F.Supp.2d 352, 361 (E.D. Pa. 2013). Isley brings “disparate treatment” and “failure to accommodate” claims, which I discuss in turn below.

         Because “the ADA . . . and Title VII . . . serve the same purpose-to prohibit discrimination in employment against members of certain classes[-]. . . the methods and manner of proof under one statute . . . inform the standards under the others as well.” Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). Thus, an ADA plaintiff can prove discrimination directly as, in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), or circumstantially, using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Williams v. Phil. Hous. Auth. Police Dep't, 380 F.3d 751, 759 & n.3 (3d Cir. 2004) (applying McDonnell Douglas).

         Isley argues that this is a direct evidence case because the Shipyard “counted . . . ADA protected absences” on February 19 and 23 against him, thereby demonstrating its discriminatory bias with clarity sufficient to render unnecessary McDonnell Douglas's burden-shifting approach. Resp. at 3. This argument assumes too much. As discussed at length below, Isley has not established that he notified the Shipyard of his disability, or that he requested an accommodation. Because Isley has not shown that the Shipyard knew he was disabled, its decision to fire him shortly after he missed work for health-related reasons is, at best, circumstantial evidence of discriminatory bias. This case is therefore properly analyzed under McDonnel Douglas's burden-shifting framework.

         a. Disparate Treatment

         “[I]n order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show: (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 accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). If Isley succeeds, then the burden shifts to the Shipyard to articulate a legitimate ...

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