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Lavorgna v. Norfolk Southern Corp.

United States District Court, W.D. Pennsylvania

October 31, 2017

KEITH LAVORGNA, Plaintiff,
v.
NORFOLK SOUTHERN CORPORATION, Defendant.

          OPINION

          Mark R. Hornak, United States District Judge

         Plaintiff Keith Lavorgna ("Lavorgna" or "Plaintiff), applied for leave under the Family Medical Leave Act (FMLA) while employed by Defendant Norfolk Southern Corporation ("Norfolk" or "Defendant"). Norfolk determined that Lavorgna had falsified his FMLA certification form and terminated his employment. Lavorgna filed claims for unlawful discrimination under the Americans with Disabilities Act (ADA) and retaliation under the FMLA. Norfolk contends that Plaintiff was terminated for a nondiscriminatory reason and that the Plaintiff cannot demonstrate that its reasons for his dismissal are pretextual. It then moved for summary judgment on those grounds, asserting that there are no genuine issues of material fact and that it is entitled such judgment in its favor.

         For the reasons which follow, Defendant's Motion is granted as to all claims, and summary judgment is entered in favor of Defendant.

         I. BACKGROUND

         Plaintiff suffers from severe migraine headaches. (Keith Lavorgna Dep. 26:2-18, ECF No. 26-1.) He takes medication for his migraine episodes. (Id. at 28:6-11.) Plaintiff became a Norfolk employee in 2005. (Compl. ¶ 8, ECF No. 1; Answer ¶ 3, ECF No. 9.) At the time of his hiring, Plaintiffs managers and supervisors were not aware that he suffered from severe migraine headaches. (Keith Lavorgna Dep. 29:15-25, ECF No. 26-1.) After an annual safety meeting in 2009, Plaintiff asked a trainmaster what he should do if he had to "take medication for anything." (Id. at 26:09-18.) The trainmaster did not want him working while medicated and told him, "[I]f you have to mark off, we have an extra board that covers you. Don't worry about that. We want you to be focused at work and not tear things up or damage things or get someone hurt." (Id. at 67:4-10.) He asked Plaintiff, "Did you apply for FMLA?" (Id. at 26:19-20.) Plaintiff had not, but subsequently submitted an FMLA leave application and that application was approved. (Id. at 27:3-5.)

         APS Healthcare ("APS"), a separate company, manages administration of FMLA requests from Defendant's employees on behalf of Defendant. (Concise Statement of Material Facts ("CSMF") ¶ 12, ECF No. 25.)[1] Neither Norfolk nor any of its own employees or supervisors review or approve FMLA leave applications or requests. (Id. ¶¶ 12, 17; Hugh Dodd Dep. 8:10-14, ECF No. 26-2.) Plaintiffs FMLA leave application was approved by APS without any issues annually from 2009 or 2010 until 2015, when Plaintiff submitted the application at issue here. (CSMF ¶ 13, ECF No. 25.) Plaintiff took FMLA leave often (10) days in 2013 and fourteen (14) days in 2014. (CSMF ¶¶ 14-15, ECF No. 25.) Plaintiffs FMLA leave was unpaid. (Keith Lavorgna Dep. 66:21-25, ECF No. 26-1.) Defendant never criticized nor otherwise took any action toward Plaintiff in response to any of his FMLA-covered absences. (CSMF ¶ 16, ECF No. 25.)

         Plaintiff did not take any FMLA leave after December 2014 and did not attempt to renew his FMLA application until July 2015, seven months later. (Keith Lavorgna Dep. 31-33, ECF No. 26-1.) On the bottom of Plaintiff s FMLA application, the pre-printed "Failure to Comply with FMLA Responsibilities" section states,

[Y]ou are responsible for ensuring that the information and documentation provided to support your need for FMLA leave is accurate. Any misuse of FMLA leave, failure to timely provide a completed medical certification, failure to comply with applicable call-in procedure or providing inaccurate information in support of FMLA leave may subject you to handling under applicable disciplinary and/or absenteeism policies.

(ECF No. 26-1, at 92.)

         On July 7, 2015, Plaintiff went to his physician, Dr. York at Lakeside Primary Care, to have the doctor fill out the Certification of Healthcare Provider (CHP) form for FMLA leave. (Keith Lavorgna Dep. 33:21-24, ECF No. 26-1; ECF No. 26-1, at 93.) Instead of being seen by Dr. York, Plaintiff was seen by a physician assistant, Samantha Morgan, who had never before filled out an FMLA application. (Keith Lavorgna Dep. 33:24-34:7, ECF No. 26-1.) Plaintiff told Morgan that he suffered from migraines once or twice month. (Keith Lavorgna Dep. 27:19-20, ECF No. 26-1.) Morgan filled out the CHP form and faxed it to APS on July 7, 2015. (ECF No. 26-1, at 93, 94.)

         On July 15, 2015, APS sent Plaintiff a letter informing him that his FMLA application was '[i]ncomplete or [d]eficient." (ECF No. 26-1, at 94.) The letter stated in relevant part, "[Y]ou must provide the following item(s): 1. The certification is missing required information. 2. Other Reason: Section 3b and 5 are incomplete. All additions/corrections must be dated and initialed by the health care provider." (Id.) APS gave Plaintiff twelve (12) days to cure the deficiencies. (Id.) Plaintiff failed to return his FMLA request to APS before the deadline. (Keith Lavorgna Dep. 34:18-21, ECF No. 26-1.) On July 27, 2015, APS sent Plaintiff a letter stating, "[Y]ou do not qualify for Family and Medical Leave at this time due to: . . . Your provider certification was incomplete and you did not submit a completed certification in a timely manner. Your request for family/medical leave cannot be certified without this information." (ECF No. 26-1, at 95.) Plaintiff did not receive the July 27th letter. (Keith Lavorgna Dep. 36:4-5, ECF No. 26-1.)

         After Plaintiff received the July 15th letter, he placed that letter on his kitchen table and traveled to work at different terminals for Norfolk. (Id. at 37:20-24.) On July 31, 2015, Plaintiff took the prior CHP form APS attached to the July 15th letter back to his doctor's office. (Id. at 37:25-38:25.) The receptionist told Plaintiff to wait in the lobby and returned the form to him after about forty (40) minutes with Morgan's signature. (Id.) Plaintiff put that form on his kitchen table and proceeded to again travel for work. (Id. at 39:18-21.) He called APS to get its address on August 7, 2015. (ECF No. 26-1, at 168.) APS received the amended form from Plaintiff on August 10, 2015. (Id.)

         A. The July 7 and August 10 Versions of the CHP Form

         On the original form Morgan faxed to APS on July 7, Plaintiff filled out the top two lines, which contain the employee's name and ID number, the patient's name (if different than the employee) and date of birth, and the relationship of the patient to the employee. (ECF No. 26-1, at 132, 164.) Plaintiff also wrote "migraines" in response to the question "What are the medical facts that support the patient's serious health condition?" in section 3a and "impedes ability to do job" in response to the prompt "Please indicate type of leave the Employee needs for the serious health condition stated in Section 3" in section 6. (Id. at 93, 132 (emphasis omitted); Keith Lavorgna Dep. 43:10-12, ECF No. 26-1.)

         The "amended" CHP form, received by APS on August 10, was significantly altered to include information beyond what APS sought in its July 15th letter. (ECF No. 26-1, at 96.) Section 3a was updated to read "migraines-impedes ability to do job" instead of simply "migraines" as it read in the initial July 7th form submitted to APS. (Id.) Section 5 was updated to state that Lavorgna's migraines required two medical visits a year. (Id.) This section had been left blank in the July 7th form. (Id. at 93.) Section 6 was changed to indicate that Plaintiff suffered four to six such episodes a month requiring "one/two" days off for each episode. (Id. at 96.) The July 7th form, however, had only stated that he suffered one to two such episodes a month requiring one day off each episode. (Id. at 93.) Lastly, the physician's assistant's title was filled in and initialed at the bottom of the form Lavorgna mailed to APS, which APS received on August 10. (Id. at 96.) That field had been left blank on the original July 7th form. (Id. at 93.)

         B. APS's Response

         On August 14, 2015, an APS employee entered notes into Lavorgna's APS file about the differences between the original certification form and the amended version:

[S]ection 3c and 3d remain as previous, frequency/duration changed to 4-6x per month for one/two days but only initials in section 12 where .. . specialty added.

(ECF No. 26-1, at 168.) APS's employee "Getten" spoke to Morgan and concluded,

[she] was very receptive and stated the form was brought in with a star in section 12 stating she needed to provide her specialty (this was not addressed in cure sent) and this was all that she provided, did NOT change freq/duration.

(Id.) APS faxed the amended August 10th certification form it received from Plaintiff to Morgan for her "review/verification of changes." (Id.) On August 18, 2015, another APS employee entered notes into APS's file about a conversation he/she had with Norfolk:

[I]nformed [Norfolk] that it appears [Lavorgna] altered med[ical] certification]

(Id.) On August 20, 2015, Morgan sent APS a letter in response to its inquiry. Morgan stated,

I did not adjust this patient[']s FMLA papers in regards to writing 4-6 episodes per month for migraines. The only correction I made on 7/31/15 was writing "Physician Assistant" under field of specialization with my initials "SM" and date "7/31/15."

(Id. at 97.)

         C. Norfolk's Response

         Norfolk's Labor Relations department sent Plaintiffs supervisor, Hugh Dodd, "information that pertained to Mr. Lavorgna's FMLA submissions and information from the healthcare provider stating that they had not made specific changes." (Hugh Dodd Dep. 17:16-18:9, ECF No. 26-2.) The information included Morgan's letter. (Id. at 18:24-25, 21:12-15.) On August 21, 2015, Dodd charged Plaintiff with falsifying his FMLA documents and relieved him of his duties without pay until an investigation concluded. (Keith Lavorgna Dep. 25:18-19, ECF No. 26-1; ECF No. 26-1, at 98.) As the charging officer, Dodd was responsible for showing that the charges were accurate. (Hugh Dodd Dep. 7:14-21, ECF No. 26-2.) Mr. Dodd did not know that Plaintiff suffered a serious medical condition before charging him. (Id. at 29:7-17.) Dodd charged Plaintiff under Norfolk General Conduct Rule 900 and the general notice printed on the Norfolk employee rule book. (Hugh Dodd Dep. 26:20-29:3, ECF No. 26-2.) Rule 900 states:

GENERAL CONDUCT REGULATIONS
900. Employee Conduct
Employees are to conduct themselves in a professional manner and not engage in behavior or display material that would be considered offensive or inappropriate by co-worker, customers, or the public. Offensive or inappropriate behavior includes making disparaging remarks, telling jokes, or using slurs concerning race, religion, color, national origin, gender, age, veteran status, sexual orientation, disability or any other legally protected status. Offensive or inappropriate material includes that which is sexually explicit or insulting to individuals because of ...

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