United States District Court, E.D. Pennsylvania
P. HART UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
Facts Relevant to the FMLA Claims
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.
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
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.
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).
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,
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.
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.
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.
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.
was given a five-day suspension. Record of Discipline,
supra. The Record of Discipline reflected that
further violations would result in termination. Id.
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.
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.
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.
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.
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.
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,
The County’s Investigation of Beishl’s Use of
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.
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
email dated January 12, 2017, Spencer advised Travis Monroe
and Lauren Smith in the County Human Resources department, of
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.
attached to Motion as Exhibit 18. (Bold in original).
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.
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.
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.
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.
Subsequent Loudermill Hearings and Beishl’s
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.
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.
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.
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 ...