United States District Court, E.D. Pennsylvania
AUSTIN MCHUGH UNITED STATES DISTRICT JUDGE.
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.
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.
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
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. 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.” 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.
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. 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.
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.
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
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. 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.
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
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.
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).
Isley's ADA Claims
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.
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.
“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).
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.
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 ...