United States District Court, E.D. Pennsylvania
ANDREW P. BRONSON, Plaintiff,
SOUTHEASTERN PA TRANS. AUTHORITY (SEPTA), Defendant.
EDUARDO C. ROBRENO, JUDGE.
Andrew Bronson brings this unlawful termination suit against
Southeastern Pennsylvania Transportation Authority
(“SEPTA”) under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12112-12117,
and the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. § 2601 et seq. See
Compl. at 1, ECF No. 3. SEPTA has moved for summary judgment
on all claims. For the reasons discussed below, the Court
will grant SEPTA's motion for summary judgment as to all
was employed by SEPTA as a train operator for approximately
ten years before his employment was terminated on September
8, 2015. Id. at 6. During that time, Bronson was
disciplined several times for substandard attendance. He also
violated train traffic signals on four occasions. On that
basis, SEPTA terminated Bronson's employment. Bronson,
who suffers from depression and generalized anxiety disorder,
argues that “the reason provided by [SEPTA] for its
termination of Plaintiff was merely pretext for terminating
his employment because of his disabilities, ” and
further that his termination was “in violation of the
began working at SEPTA as a bus driver on September 19, 2005.
Statement of Uncontested Material Facts (“SOF”)
¶ 1, ECF No. 18. On July 22, 2012, he transferred to a
train operator position. Id. at ¶ 2. While he
was a bus driver, Bronson alleges that SEPTA discriminated
against him on account of his alleged disabilities by: (a)
assessing him “points” under an attendance policy
for unauthorized absences when he was attending counselling
sessions and (b) not authorizing an absence to attend a
counselling session on one occasion. See Compl. ¶¶
6-15, 25-27; see also April 19, 2017 deposition transcript of
Plaintiff (“Bronson Tr.”) at 216:3-222:17, ECF
claims that, in 2012, his disabilities became
“aggravated . . . due to work and family stress.”
Id. He thereafter sought therapeutic treatment from
Life Counseling Services while continuing to
“effectively perform the duties of his position with
SEPTA.” Id. Bronson claims that he explained
to his supervisors that he would be intermittently absent
from work so that he could treat his disability with therapy
sessions at life counseling.” Id. Despite this
notification, Bronson claims that he was disciplined for
substandard attendance. Id. These incidents,
described in the Complaint, occurred on October 8, 2012;
January 17, 2013; and April 9, 2013.
on July 22, 2012, Bronson was transferred to SEPTA's Fern
Rock Transportation Center to work as a train operator.
Id. at ¶ 14. Between the date of the transfer
and April 9, 2013, the date of his last discipline, Bronson
was disciplined four times for excessive absences.
Id. at ¶ 16. Further, on three occasions, he
was orally warned about his excessive absences, and on one
occasion he served a one-day administrative suspension.
Id. at ¶ 17.
claims that he was missing work to attend counselling
sessions during the period of time when he was being
disciplined for excessive absences. Bronson Tr. 209:4-15. He
has put forth no evidence, however, that he notified SEPTA
during the July 22, 2012 to April 9, 2013 time period that he
was seeking leave to attend counselling sessions.
though SEPTA provides employees such as Bronson with notice
of their FMLA rights through numerous forums, including
through the parties' Collective Bargaining Agreement
(“CBA”) a copy of which Bronson acknowledged
receiving, he claims that he was unaware that he might have
been eligible to take leave pursuant to the FMLA until 2014.
See Def. Mot. at Ex. D., ECF No. 18-2; see also Bronson Tr.
26:6-17; 227:13 to 228:4; Compl. ¶ 16.
first applied for FMLA leave on June 23, 2014, but his
application was denied because he failed to provide the
required medical certification. SOF ¶ 18. Bronson then
re-applied for FMLA leave, this time providing the required
certification. Id. at ¶ 19. Upon receiving his
completed application, SEPTA's third-party FMLA vendor
approved Bronson to use intermittent leave from September 19,
2014 to March 15, 2015. Id. at ¶ 20.
first signal violation occurred on November 19, 2012, when he
drove a subway train through a stop signal while transporting
passengers. Id. at ¶ 33. An automatic safety
feature caused the train to “go into emergency, ”
meaning the train came to a halt. Id. at ¶ 34.
As a result of that violation, SEPTA sought to impose a
five-day suspension on Bronson. Id. at ¶ 35.
After the violation and discipline were reviewed with Bronson
and a Union representative at an Informal Hearing, Bronson
accepted the discipline and declined to pursue his grievance
any further. Id. at ¶¶ 36, 37.
second signal violation occurred on November 14, 2013, when
Bronson drove his train through a red signal as he was
approaching a station, again causing his train to go into
emergency. Id. at ¶ 38. As a result of that
violation, SEPTA sought to suspend Bronson for ten days.
Id. at ¶ 39. Bronson disputed that violation
finding through all four stages of the grievance process.
Id. at ¶ 40. At each step of the grievance
process, the discipline was upheld, culminating with a
neutral arbitrator upholding the discipline. Id. at
¶ 41. After the second signal violation, Bronson's
supervisor provided him with oral coaching recommending that
he slow down while driving the train, even if that meant the
train would be late in arriving to the next station.
Id. at ¶ 42.
third signal violation occurred on June 12, 2014, when
Bronson again drove a train through another stop signal.
Id. at ¶ 43. As a result of that violation,
SEPTA sought to terminate Plaintiff's employment.
Id. at ¶ 44. Bronson testified at his
deposition that there was no exculpatory or mitigating
explanation for why he violated the signal on this occasion.
Id. at ¶ 45.
the Informal Hearing for the third signal violation, during
which Bronson's Union indicated that it would not be
contesting the underlying merits of the violation, Union
Representative Keith Swaby advised Bronson during a phone
call that his employment would be terminated unless he signed
a Last Chance Agreement. Id. at ¶ 46. Swaby
reviewed the substantive terms of the Agreement with Bronson
during their phone call. I ...