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Beishl v. County of Bucks

United States District Court, E.D. Pennsylvania

September 17, 2019

MATTHEW BEISHL
v.
COUNTY OF BUCKS

          OPINION

          JACOB P. HART UNITED STATES MAGISTRATE JUDGE.

         Matthew Beishl has brought this action against Bucks County, his former employer, in connection with his dismissal. He has asserted claims under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq., the Americans With Disabilities Act (“ADA”), 42 U.S.C. §1201, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.

         Bucks County (“the County”) has filed a motion seeking summary judgment on all counts. For the reasons explained below, I will grant the County’s motion.

         I. Summary Judgment

         Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must present more than mere bare assertions, conclusory allegations, or suspicions to show the existence of a genuine issue. Jutrowski Township of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). It is not sufficient to reassert factually unsupported allegations contained in the pleadings. Anderson v. Liberty Lobby, 466 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, supra, at 325.

         When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Nevertheless, Rule 56 “mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra, at 323.

         II. Factual Background

         A. Facts Relevant to the FMLA Claims

         Beishl became employed by Bucks County in March, 2006, as a custodian assigned to the County’s Neshaminy Manor Nursing Home. Amended Complaint (“Complaint”) at ¶¶10-11. In 2010, he was promoted to Groundskeeper Level 1, and assigned to Core Creek Park. Id. He remained in this position until he was fired by the County on May 8, 2017. Id.

         In 1999, Beishl was diagnosed with esophageal achalasia. Id. at ¶13. This is a condition where the valve which controls the esophagus fails to relax with swallowing. Dorland’s Illustrated Medical Dictionary, 31st ed. (2007) at 15. According to Beishl, his esophageal achalasia caused swallowing problems, vomiting, aspiration during sleep which could cause chest pain, and retention of food particles in the esophagus, which at least once caused a fungal infection. Deposition of Matthew Beishl, attached to Motion for Summary Judgment (“Motion”) as Exhibit 6, at 20-21.

         According to Beishl, the County was aware of his condition at all times during the period of his employment. Complaint at ¶13. The County, however, maintains that the third-party administrator of its FMLA program only notified the County of the parameters of FMLA leave which was approved for an employee, in terms of dates and hours approved, and never notified it of the nature of the medical condition underlying an employee’s use of FMLA. Deposition of Travis Monroe, attached to Motion as Exhibit 5, at 95.

         CIGNA, which was the third-party administrator during this period, approved a continuous period of FMLA leave for Beishl from April 23, 2014, through June 9, 2014, so that he could undergo surgery related to his esophageal achalasia. CIGNA Leave Status Determination, attached to Motion as Exhibit 9; Beishl Deposition, supra, at 35-37. (In Beishl’s complaint, he averred that his surgery took place in 2015, but at his deposition, he said that he believed it was actually in 2014, which corresponds to CIGNA’s records. Id. at 39).

         On or about July 1, 2015, CIGNA approved Beishl’s request for intermittent FMLA leave from December, 2014, through December 22, 2015. Intermittent leave, as opposed to block leave, means that the days of leave need not be taken consecutively; an employee may call out on an occasional basis, as his health condition requires. CIGNA Leave Status Determination Notification of July 1, 2015, attached to Motion as Exhibit 13. Beishl was approved for “8.00 hours 5 times every 1 week(s) for incapacity and 8.00 hours 4 times every 1 month(s) for Office Visit.” Id. In his notice of approved FMLA leave from CIGNA, Beishl was also notified that he had “88 hours/2.2 weeks” of FMLA time remaining. Id.; Beishl Deposition, supra, at 96-7.

         On February 16, 2016, Beishl was notified by a supervisor that he should find his union representative and appear at a Loudermill hearing, i.e. a disciplinary or pre-termination hearing as required under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). At the hearing, which took place that afternoon, the County informed Beishl that he was subject to disciplinary action for violations of the County’s FMLA policy. County of Bucks Record of Disciplinary Action, attached to Motion as Exhibit 14.

         Specifically, the County accused Beishl of (a) having taken 19 days of purported FMLA leave after his leave expired on December 22, 2015; (b) having taken days of purported FMLA leave after he “ran out of hours/time in October”; and (c) failing to report to CIGNA all of the days he called out of work. Record of Disciplinary Action, supra; Complaint at ¶¶16-17; Minutes of Matt Beishl Loudermill Hearing, attached to Motion as Exhibit 15. Further, according to the County, Beishl had violated its policy that an individual taking five or more consecutive days of FMLA leave must apply for a block leave. Record of Disciplinary Action, supra.

         Beishl’s deposition testimony regarding the explanations he gave at his Loudermill hearing is somewhat at variance with the hearing minutes, but it is sufficient to say that Beishl told the County that his violation of FMLA policies was the result of confusion, and of having been given inconsistent or misleading information by CIGNA. Beishl Deposition, supra, at 85-88; Minutes supra.

         At Beishl’s deposition, this exchange took place:

DEFENDANT’S COUNSEL: And was it the County’s belief that you had violated these policies over the – with the conduct leading up to this discipline?
BEISHL: The county’s belief?
DEFENDANT’S COUNSEL: Correct.
BEISHL: I would say yes.
Beishl’s Deposition, supra, at 88.

         Beishl was given a five-day suspension. Record of Discipline, supra. The Record of Discipline reflected that further violations would result in termination. Id.

         On June 29, 2016, CIGNA approved intermittent leave for Beishl from December 24, 2015 through January 11, 2016; and from February 12, 2016 through December 23, 2016. Notification of June 26, 2016, attached to Motion as Exhibit 13, Bates Stamped COB 0575. Subsequently, on December 28, 2016, CIGNA extended Beishl’s intermittent leave through June 23, 2017. Id. at Bates Stamp 1137.

         In its Motion, the County maintains that Beishl had unexcused absences every day for the week of January 1-6, 2017, and then called out under FMLA on every workday between January 9 and January 31, 2017. Exhibit 16 at Bates Stamp COB 0610. Beishl has not contested the accuracy of these statements. Response to Defendant’s Statement of Undisputed Material Facts at ¶¶83-84.[1]

         On or about January 26, 2017, Beishl’s immediate supervisor, David Sutterly, called Beishl and told him that he needed to apply for continuous (or block) FMLA leave because he had missed more than four consecutive days of work. David Sutterly Deposition, attached to Motion as Exhibit 3 at 27-29. Subsequently, Beishl submitted a request for a block FMLA leave, which was approved from January 5, 2017, until February 19 or 21, 2017. Complaint at ¶21; Answer to Amended Complaint at ¶21.

         According to Beishl, he underwent an endoscopy on Friday, February 17, 2017, revealing a buildup of fluid, which was then suctioned out. Beishl Deposition, supra, at 115.

         On February 21, 2017, Beishl attempted to return from FMLA leave, but he was sent home by a supervisor because he had not produced a physician’s note stating that he could resume normal work activities without an accommodation, which the County required for a return from block leave. Complaint at ¶22. Beishl testified at his deposition:

I was upset because I had already missed so much work, and I would have never needed the note if I had still had the intermittent leave as opposed to the block leave which they had basically told me I had to have. Because you don’t need a doctor’s note when you have intermittent leave, at least that was my understanding.

Id. at 116.

         According to Beishl, his primary physician “was on vacation or something” that week. Id. at 118. Beishl returned to work with a physician’s note on March 1, 2017. Id.

         B. The County’s Investigation of Beishl’s Use of FMLA Leave

         Sometime in the month of January, 2017, while Beishl was absent on FMLA leave, one or more of Beishl’s coworkers told Jay McQuaid, the County’s Operations Manager, that Beishl played in a rock band. McQuaid Deposition, attached to Motion as Exhibit 2 at 63-4. McQuaid told Richard Spencer, the County’s Director of Operations, that some County employees had seen Facebook posts from Beishl about band performances which took place “on days that he was out.” Spencer Deposition, attached to Motion as Exhibit 1 at 86-7.

         Apparently, this was not the only office scuttle-butt about Beishl. According to McQuaid, County employees had told him that they heard Beishl calling into sports talk radio programs during working hours. McQuaid Deposition, supra, at 77-8. (It is not clear whether he was doing this on days he was on FMLA leave, or whether he was said to be calling from work). McQuaid reported this to Spencer, who testified that McQuaid also told him that Beishl was rumored to take days off “surrounding different sporting events in Philadelphia.” Spencer Deposition, supra, at 89-90.

         In an email dated January 12, 2017, Spencer advised Travis Monroe and Lauren Smith in the County Human Resources department, of these developments:

Lauren and Travis, One of our consistent FMLA users is Matt Beishl. He was disciplined last year for abuse of the County FMLA policy and put on a 3d step final notice. He was calling out to us FMLA but not calling into CIGNA. We caught it during one of our routine audits as he was over his FMLA approve[d] hours by something like 100 hours which would have put him at 16 plus occurrences.
Matt continues to call out under his new FMLA leave granted under Standard [which replaced CIGNA as the County’s third-party administrator] and intermittently uses his own regular sick, etc., whatever time he has available. It was brought to my attention recently that they had seen Matt posting on Facebook the days when he was out about the band that he plays in that performed the evening before. I did a little quick searching online and turns out he is in a band called flabbergasted. The majority of his callouts are around the weekends, which is also when the band plays. I also understand that the callouts tend to be around Eagles or Phillies games and have heard from others that on occasion you can hear him calling into the sports talk shows during work hours. He is very much into his sports.
I had provided a pattern of his absences in the past and was told there was not much we could do. Just wanted you to be aware of the new information surround[ing] callouts which create a staffing problem for us.
Thanks.

         Email, attached to Motion as Exhibit 18. (Bold in original).

         Travis Monroe responded to Spencer on the same day: “Can you provide us with the dates in which they may have coincided with his time out playing in the band? The Eagles and Phillies games will be hard to confirm but the band performances may be something we can investigate further.” Id. Spencer replied: “Will compare dates.” Id. He also forwarded to Monroe a link to a Facebook page which contained photographs showing Beishl performing with his band, Flabbergasted. Id.

         Beginning in January, 2017, Spencer began an investigation to determine whether the coincidence between Beishl’s FMLA leave days and other events created a pattern suggestive of a violation of FMLA policy. Spencer Deposition, supra, at 94, 116.

         On February 21, 2017, Lauren Smith reported to Spencer that Beishl had returned to work, but without a doctor’s clearance. Email of February 21, 2017, attached to Motion as Exhibit M. She wrote: “Now he just told me he won’t be able to get a note until his 2/27 appt. with the doctor.” Id. Spencer responded: “Well his next concert is this Friday night 2/24 at Hurricane Jack’s. Wonder if his doctor cleared him to sing lead vocals Friday night. We have to do something about this abuse.” Id. He received a response from Travis Monroe: “Kevin, I agree. I’ll talk offline with Lauren about an approach.” Id.

         With Spencer’s knowledge, McQuaid briefly attended the February 24, 2017, Flabbergasted concert at Hurricane Jack’s, and videotaped Beishl performing as lead singer. McQuaid Deposition, supra, at 65-68. McQuaid gave the video to Spencer the following Monday morning, and told him that Beishl looked “fine” in his opinion. Id. at 69-70, 94.

         C. Subsequent Loudermill Hearings and Beishl’s Termination

         On March 1, 2017, when Beishl returned to work with certification from his physician, he was informed by a supervisor that he would be subject to another Loudermill Hearing. Complaint at ¶23. A meeting took place on March 20, 2017, although it is unclear from the record whether it was considered a Loudermill hearing, or more of an initial meeting preceding a formal hearing. According to Spencer, the March 20, 2017, meeting was attended by him, Lauren Smith, Jay McQuaid, and two union shop stewards, as well as Beishl. Spencer Deposition, supra, at 169.

         At the March 20, 2017, meeting or hearing, Spencer accused Beishl of abusing his FMLA leave. Id. at ¶24; Report on Matthew Beishl FMLA Use, attached to Beishl’s Response as Exhibit O at 1. Beishl was confronted with the videotape of himself performing with his band on February 24, 2017. Beishl Deposition, attached to Motion as Exhibit 6, at 123. Beishl pointed out that he had represented himself as healthy and able to return to work three days earlier, on February 21, 2017, and was only out on FMLA leave on the 24th because he had not obtained a doctor’s note. Id.

         Nevertheless, the February 24, 2017, concert was not the only date identified at the hearing. According to Beishl, Spencer “came up with all these strange dates”, “a whole bunch of dates,” and “he said there was a pattern of me calling out when I was playing with the band.” Id. at 123, 125. As Beishl remembered it, the March 20, 2017, meeting “kind of focused around the band.” Id. at 127.

         Spencer testified at his deposition that Beishl stated in his own defense that “I felt better in the afternoon.” Spencer Deposition, supra, at 172. Beishl also explained to them that the had an intermittent condition which “could flare up at any given time”: “During that meeting he actually explained to us what his condition was even though we did ...


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