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Wilkinson v. Marvin E. Klinger, Inc.

United States District Court, M.D. Pennsylvania

December 5, 2017




         Before the Court for disposition is Defendant Marvin E. Klinger, Inc.'s Motion for Summary Judgment. For the following reasons, this Motion will be granted in its entirety.


         A. Ms. Wilkinson's Employment History

         On August 8, 1991, Plaintiff Susan J. Wilkinson (“Ms. Wilkinson”) began her employment as an at-will school bus driver for Defendant Marvin E. Klinger, Inc. (“Defendant”).[1] In her application for employment, Ms. Wilkinson indicated that she had no history of drug use and would voluntarily submit to a drug test.[2] On January 26, 1995, Ms. Wilkinson received and signed Defendant's Drug and Alcohol Use and Testing Policy (“Drug Policy”).[3] Ms. Wilkinson understood that this policy subjected her to drug testing, [4] and did not object to this practice.[5]

         B. Defendant Marvin E. Klinger, Inc.'s Drug & Alcohol Use & Testing Policy

         Defendant, as a school bus contractor, has a government-mandated drug testing policy administered by First Advantage.[6] This drug policy, “concerned about alcohol abuse and illegal drug use, ” states, as its purpose, the promotion of a “safe, healthy, and productive work environment.”[7] The drug policy prohibits, inter alia, the following conduct: (1) “using or being under the influence of legal drugs that are being used illegally, ” or (2) “using or being under the influence of legal drugs whose use can adversely affect the ability of the driver to perform his or her job safely.”[8] For the purposes of the policy, however, “drugs” are defined as “any and all controlled substances, such as but not limited to, marijuana, cocaine, amphetamines, PCP, opiates . . . [and] includes prescription and over-the-counter medications which are being abused.”[9]

         This Policy further provides for “random testing, ” or unannounced testing, in which “the driver must report to the collection site immediately after receiving notice of their selection.”[10] Under “Test Procedures, ” random drug testing, along with pre-employment, post-accident, and reasonable suspicion drug testing, follows the below procedure:

1. The applicant/employee will provide a urine sample at the assigned collection site at the appointed time.
2. The applicant/employee will participate in the chain of custody procedures in order to insure accurate collection by
providing photo identification.
completing and signing consent, release of information and Chain of Custody forms.
following DOT/FEDERAL urine collection procedures in cooperation with the collection Site.
3. Under split specimen procedures, the donor must provide 45 ml. in a specimen container. The collector will pour 30 ml. into one bottle and seal it, the remaining sample of 15 ml. will be sealed in a second bottle. Both bottles will be sent to the laboratory. The bottle with 30 ml. will be the primary specimen and the second bottle will be held by the laboratory and analyzed only after a verified positive by the MRO and the employee requests the analysis within 72 hours of notification by the MRO.
4. If the applicant/employee refuses to provide the specimen for drug testing, the situation will be considered equal to a positive test and the same consequences will apply.
C. All positive urine screens will be confirmed through GC/MS testing (Gas Chromatography/Mass Spectrometry) before any discipline is imposed or hiring decisions are made.
D. A Medical Review Officer (MRO) will review all DOT regulated drug tests performed by the laboratory. The MRO is to determine whether positive test results indicate illegal drug use or whether other medical explanations could account for the result. The MRO will inform the employee of his findings.
On all “positive” drug screen test results, the MRO will make two attempts on two consecutive days to first contact the applicant/employee and review his findings. If the applicant/employee cannot be reached during the above mentioned time frame, the company management will be contacted and informed to contact the applicant/employee and have such person make themselves available to be contacted by the MRO to review his findings. If the applicant/employee does not make themselves available to be contacted by the MRO, the consequences to the applicant/employee will be equal to that of a positive test result, which is immediate discipline, up to and including termination.[11]

         The policy further provides that “[t]he consequence of testing positive for drugs is: Termination.”[12] Ms. Wilkinson understood this consequence for a positive drug test.[13]

         In his deposition, Stuart Hoffman, M.D.-Chief Medical Review Officer of First Advantage-described the process of reviewing positive drug test results as follows.[14] First, he noted that the actual testing is performed by one of 30 federally-certified laboratories using mass spectrometry and gas chromatography.[15]Upon receipt of positive test results from those laboratories, Dr. Hoffman testified that a medical review officer, in this case Dr. Lipshutz, will attempt to determine, via telephone conversation with the donor, if there is a legitimate medical explanation for the substance reported.[16] At the conclusion of this telephone conversation, the medical review officer will typically request prescription information which would be verified at the pharmacy.[17]

         C. Ms. Wilkinson's Positive Drug Test

         On November 21, 2014, Ms. Wilkinson was selected for random drug testing and presented to Back 2 Back Chiropractic to provide a sample in accordance with the above policy.[18] Earlier in the day, following her morning bus route, Ms. Wilkinson had taken Vicodin for her sciatica.[19] Ms. Wilkinson had a valid prescription for Vicodin from her doctor for treatment of pain.[20]

         On November 26, 2014, Ms. Wilkinson was contacted by an individual from the drug testing company-First Advantage.[21] During that conversation, Ms. Wilkinson expressed that the positive drug test was the result of her prior ingestion of Vicodin.[22] She called the drug testing company several days later because she thought the results to be in error. She again stated to the company that she had taken a pain pill earlier in the day.[23] Ms. Wilkinson does not recall submitting medical information to the drug testing company.[24] This lack of supporting medical documentation is confirmed by the drug testing company's records.[25], [26] On December 2, 2014, Defendant, through Michael Klinger, was informed the results of Ms. Wilkinson's unrebutted, positive drug test.[27] First Advantage further indicated that Ms. Wilkinson needed to be taken off the road.[28]

         D. Ms. Wilkinson's Termination

         After learning of these positive test results, Dennis Klinger[29] both called Ms. Wilkinson and later stopped at her home.[30] During these conversations, Mr. Klinger expressed to Ms. Wilkinson that she was being terminated as a result of this positive drug test and the subsequent loss of an S endorsement on her license.[31]Ms. Wilkinson then inquired if she could drive a van instead.[32] Mr. Klinger denied that request, stating that it was impossible because drug testing was also done on van drivers.[33] Mr. Klinger did however express that, if Ms. Wilkinson could get this issue straightened out with First Advantage, she could have her job back.[34]Ms. Wilkinson did not thereafter “straighten it out” or ask for a retest, because she believed that her termination was “cut and dried.”[35]

         E. Procedural History

         Ms. Wilkinson commenced this action against Defendant on October 2, 2015. In her original Complaint, she alleged five claims of employment discrimination: (1) disability discrimination under the Americans with Disabilities Act (“ADA”); (2) age discrimination and retaliation under the Age Discrimination in Employment Act of 1967; (3) age and disability discrimination under the Pennsylvania Human Relations Act (“PHRA”); (4) wrongful discharge pursuant to state law; and (5) invasion of privacy/intrusion upon seclusion under state law.[36]Defendant thereafter filed a Motion to Dismiss on October 30, 2015, asking the Court to dismiss Ms. Wilkinson's Complaint in its entirety for failure to state a claim upon which relief can be granted.[37]

         On May 3, 2016, I issued a Memorandum Opinion and accompanying Order which granted Defendant's motion as to the age discrimination claims, but allowed Ms. Wilkinson leave to file an Amended Complaint correcting the outlined deficiencies.[38] Rather than file an Amended Complaint, Ms. Wilkinson expressed to the Court her desire to proceed on the remaining claims.[39] Defendant thereafter answered, and the parties commenced factual discovery.[40]

         Following the completion of discovery, Defendant filed a Motion for Summary Judgment seeking the entry of final judgment in its favor on all remaining claims.[41] This Motion has since been fully briefed, and is now ripe for disposition.[42]

         II. LAW

         Summary judgment is granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[43] A dispute is “genuine if a reasonable trier-of-fact could find in favor of the non-movant, ” and “material if it could affect the outcome of the case.”[44] To defeat a motion for summary judgment, then, the nonmoving party must point to evidence in the record that would allow a jury to rule in that party's favor.[45] When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the non-moving party.[46]

         III. ANALYSIS

         A. Ms. Wilkinson's Disability Discrimination Claims under the ADA and PHRA [47]

         The ADA prohibits discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[48] When the plaintiff's allegations of intentional discrimination are supported only by circumstantial evidence, [49] a court must follow the well-established McDonnell-Douglas[50] burden-shifting framework. That analysis proceeds as follows:

First, the plaintiff must establish a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” (citation omitted). Finally, should the defendant carry this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.[51]

         1. Prima Facie Case

         In this matter, Defendant first argues that summary judgment in its favor is appropriate for both the ADA and PHRA disability discrimination claims because Ms. Wilkinson has failed to adduce evidence establishing a prima facie case. A prima facie case of disability discrimination-the first step of the McDonnell-Douglas framework - requires that plaintiff establish (1) that she is disabled within the meaning of the ADA, (2) that she is otherwise qualified for the job, with or without reasonable accommodations, and (3) that she was subjected to an adverse employment decision as a result of discrimination.[52] Defendant argues that Ms. Wilkinson is not disabled within the meaning of the ADA, while appearing to concede the remaining elements of the prima facie case.

         Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities . . . a record of such an impairment; or . . . being regarded as having such an impairment[.]”[53] Federal regulations provide that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”[54] Here, Ms. Wilkinson argues that she has satisfied the definition of having a disability because she was in fact disabled due to her sciatica. In the alternative, Ms. Wilkinson argues that she was either (1) “regarded as disabled” by Defendant, or (2) had a record of such disability.

         Ms. Wilkinson first argues that she is disabled within the meaning of the ADA because of her sciatic pain. A “physical impairment” is defined as:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine . . .[55]

         A diagnosis alone, however, is insufficient to establish a disability under the ADA.[56] Rather, plaintiffs must also “offer[ ] evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.”[57] “Substantially limits” “shall be construed broadly in favor of expansive coverage” and “is not meant to be a demanding standard.”[58]

         Viewing the evidence in the light most favorable to Ms. Wilkinson, I find that she has met this relaxed standard. Here, Ms. Wilkinson argues that she was disabled because she suffered from migraines and sciatic nerve pain “severe enough that [she] took medication and actually had a wooden block . . . on her gas pedal to ease the pain.”[59] In her deposition, Ms. Wilkinson noted the ways in which her sciatica had limited major life activities, and stated that the wooden block installed on the gas pedal was necessary to ease the pain of her condition while working.[60]

         I am skeptical as to whether the light evidence adduced by Ms. Wilkinson presents a genuine issue of material fact regarding whether her impairment substantially limited a major life activity. However, because the Court ultimately finds that Ms. Wilkinson has failed to demonstrate that Defendant's proffered reasons for her termination were pretextual, it will assume, arguendo, that she has satisfied her prima facie case and will proceed to the next step of the McDonnell Douglas analysis.[61]

         2. Legitimate, Non-Discriminatory Reason

         Under the McDonnell Douglas framework, the burden now shifts to Defendant to show a legitimate business purpose for the termination.[62] Defendant has met this relatively thin burden of production. Indeed, at the time of her termination, and in the time since that date, Defendant has argued that Ms. Wilkinson was terminated as the result of her positive drug test, as communicated by the drug testing company.[63] In his deposition, Michael Klinger specifically stated the following:

Q. So I think your testimony is you took the call from Robert at First Advantage. And then what did you do after that, if anything?
A. Well, I know I took the call. And like I said, he took me through the process of what they had done.
And I know that they had --- I knew at that point, they had already spoken to Ms. Wilkinson. And they gave her a period of time to produce some documentation, which she told me she produced nothing, no documentation whatsoever. And that was when he said you need to get her off the road. Her CDL is no good. And that was a first for me.
Q. So I guess what I'm asking is, when did you start to have this conversation with your brother and your father about terminating Ms. Wilkinson at that point?
A. Probably about the time I hung up the phone and rounded them up, and said here's the deal. And I told them what the call was. We were strictly depending on First Advantage and we really had no other option.[64]

         3. Pretext

         Because Defendant has put forward a legitimate, non-discriminatory reason for her termination-Ms. Wilkinson's unrebutted, positive drug test, the burden therefore rests with the plaintiff to show that this “legitimate, non-discriminatory reason” was merely pretext for discriminatory animus. In order to demonstrate that Defendant's stated reason for termination was pretextual, Mrs. Wilkinson must “point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.”[65] This evidence “must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action.”[66] Under this framework, the plaintiff bears an admittedly “difficult burden, ”[67] as he “must show not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason.”[68] This difficulty, however, is directly attributable to the “inherent tension between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs.”[69]

         Here, the factual record contains no evidence from which a reasonable factfinder could “believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.”[70] This form of pretext is typically shown through evidence that (1) the plaintiff has previously been discriminated against by the employer; (2) the employer has discriminated against other persons with disabilities; or (3) the employer has treated similarly situated persons without a disability more favorably.[71] Indeed, the record reveals that Ms. Wilkinson was a long standing employee of Defendant who can point to no prior history of discrimination.[72] She similarly has adduced no evidence of similarly situated persons without a disability who received more favorable treatment.

         Ms. Wilkinson attempts to show pretext by arguing that the record contains evidence from which a reasonable juror could disbelieve the Defendant's articulated legitimate reason for her termination. At the outset, I note that it is not enough for her to “simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”[73] Instead, she “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons.”[74]

         Here, Ms. Wilkinson argues that a reasonable jury could find Defendant's justification for her termination to be pretext because (1) she was a long-time employee with no record of safety concerns or discipline, (2) Dennis Klinger admitted Plaintiff may have told him she was taking medication, (3) Defendant made no effort to work with her after her failed drug test, (4) there is no evidence that First Advantage ever sent a letter to Defendant indicating that Ms. Wilkinson was unfit for duty, and (5) Defendant has no human resources department.[75] Each of these explanations, however, fail to demonstrate pretext.

         First, while the undisputed facts demonstrate that Ms. Wilkinson had an otherwise unblemished employment history, this fact is insufficient to demonstrate that the legitimate, non-discriminatory reason advanced by Defendant-her positive drug test- is unworthy of credence. The Court is in agreement with Defendant that this method of showing pretext fails as a matter of law. Indeed, in Kautz v. Met-Pro Corp., the United States Court of Appeals for the Third Circuit rejected an “attempt to use past positive performance reviews to show that more recent criticism was pretextual.”[76]

         Second, Ms. Wilkinson's attempt to show pretext through Dennis Klinger's “knowledge” of her prescription for pain medication is equally insufficient, and is in fact a distortion of the testimony. In his deposition, Dennis Klinger specifically stated the following on this issue:

Q. Did she tell you that she was taking prescribed medication?
A. I don't recall that.
Q. So it's possible she may have and you don't remember?
A. It's possible.
Q. Did she tell you that she was taking any type of medication?
A. No, I don't recall that.[77]

However, even if Dennis Klinger's testimony had affirmatively established his knowledge of her medical prescription, this fact itself would not be indicative of pretext. I note that the ultimate inquiry remains whether the factual record contains evidence from which a reasonable jury could disbelieve the employer's articulated legitimate reasons. Knowledge of a prescription for painkillers is insufficient to discredit the reason advanced for the termination given both Defendant's reliance on the representations of First Advantage concerning Ms. Wilkinson's failure to produce supporting documentation and the lack of alternatives created by its own drug and alcohol policy.[78]

         Ms. Wilkinson's additional premises of pretext -that there is no evidence that First Advantage ever sent a letter to Defendant indicating that Ms. Wilkinson was unfit for duty and that Defendant has no human resources department- similarly fail to demonstrate that Defendant did not believe or rely on the unrebutted, positive drug test results. Again, I note that while this evidence may be probative of mistake or lack of the utmost diligence, the ultimate issue remains “whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”[79] Indeed, in Ballo v. Adecco, an unpublished but substantially analogous case from the Eastern District of Pennsylvania, that court wrote the following concerning the application of a positive drug test:

The most that can be said for Ballo's argument is that Adecco might have avoided this litigation through better communication with Ballo about his drug test results. But federal antidiscrimination laws only prohibit employment decisions based on impermissible factors such as age, race, and gender. Unfair or incorrect business decisions are not covered. (Citations omitted). Accordingly, the Court grants Adecco's summary judgment motion on Ballo's ADEA disparate treatment claim.[80]

         Given Ms. Wilkinson's long and unblemished employment history, better communication regarding her termination may have been advisable. Furthermore, while I am cognizant that the painkillers used were treatment for her alleged disability, I nevertheless note that “[t]hough an employer is prohibited from discharging an employee based on his disability, the employer is not prohibited from discharging an employee for misconduct, even if that misconduct is related to his disability.”[81] Here, no evidence exists sufficient to disbelieve that a positive drug test was the reason for her termination, nor does Ms. Wilkinson dispute the results of that test.[82] Because no reasonable jury could find for Ms. Wilkinson on this issue, no actionable discrimination claim survives.[83]

         4. Failure to Accommodate Claim

         Ms. Wilkinson next alleges that Defendant failed to accommodate her request to drive a van and thus did not engage in the interactive process required by the ADA. A plaintiff establishes that her employer violates its duty to engage in the interactive process by showing that (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.[84] The failure to engage in such a process, however, does not give rise to an independent cause of action, but rather is considered a component of the reasonable accommodation analysis.[85]

         An employer is liable under that reasonable accommodations analysis if: “1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.”[86] “Once a plaintiff alleges facts that, if proven, would show that an employer should have reasonably accommodated an employee's disability and failed to, the employer has discriminated against the employee.”[87]

         In Tayor v. Phoenixville Area School District, the Third Circuit addressed the notice which must be given to an employer in order to constitute a request for a reasonable accommodation.[88] In that case, our Court of Appeals wrote the following:

[W]hile the notice does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation, ' the notice nonetheless must make clear that the employee wants assistance for his or her disability. In other words, the employer must know of both the disability and the ...

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