United States District Court, E.D. Pennsylvania
F. KENNEY, JUDGE
Robert Gardner, brought this action against his current
employer, Defendant, Southeastern Pennsylvania Transportation
Authority (“SEPTA”), under the Americans with
Disabilities Act (“ADA”) and the Pennsylvania
Human Relations Act (“PHRA”). Plaintiff alleges
that he is an individual with a disability for the purposes
of the ADA and PHRA, and that Defendant violated his rights
by not granting him a reasonable accommodation, by failing to
engage in the interactive process, and by retaliating against
him because of his claimed disability. Currently before the
Court is Defendant's Motion for Summary Judgment and
Memorandum of Law (ECF No. 40), Plaintiff's Memorandum of
Law in Opposition to the Motion (ECF No. 43), Defendant's
Reply Memorandum of Law in Further Support of its Motion (ECF
No. 44), and Plaintiff's Sur-reply in Further Opposition
to the Motion (ECF No. 45).
following reasons, the Court grants Defendant's Motion
for Summary Judgment in the accompanying Order.
began working for SEPTA as a bus operator in January 2014.
ECF No. 40-2 ¶ 2. In March 2014, Plaintiff submitted an
application requesting that SEPTA transfer him from a bus
operator to a rail operator. ECF No. 40-4 at 24. SEPTA
entered into a collective bargaining agreement
(“CBA”) with Transport Workers Union Local 234
City Transit Division (“Local 234”). ECF No.
40-5; ECF No. 40-6. As a bus operator, Plaintiff was a member
of Local 234, and as a SEPTA employee, Plaintiff was subject
to the CBA. ECF No. 40-4 at 17. Section 305(e) of the CBA
governs Plaintiff's application for transfer to rail
operator, which states that such transfers are granted based
on the applicant's seniority within his/her division. ECF
No. 40-5 at 30.
4, 2015, Plaintiff was involved in a work-related motor
vehicle accident and suffered injuries as a result. ECF No.
40-2 ¶ 3. He received medical treatment for his injuries
on June 5, June 10, and June 17, 2015, and filed a
workers' compensation claim in connection therewith. ECF
No. 40-2 ¶ 4. On June 17, 2016, following his treatment,
the doctors cleared Plaintiff to return to full-duty work,
without restrictions. ECF No. 40-7 at 2-3, 9-12.
28, 2015, Plaintiff underwent a follow-up evaluation with Dr.
Lawrence Axelrod, Medical Director of WORKNET Occupational
Medicine. ECF No. 40-7 at 16. This time, Dr. Axelrod issued a
Physical Capacities Form that cleared Plaintiff for work,
with restrictions. Id. In contrast to
Plaintiff's June 17, 2015 medical evaluation, Dr. Axelrod
opined that Plaintiff was “OK to operate rail vehicles
but not bus.” Id. In a separate report, Dr.
Axelrod pointed out that Plaintiff “requested [that Dr.
Axelrod] continue to medically disqualify him from driving a
bus and [Plaintiff] requested that [Dr. Axelrod] allow
[Plaintiff] specifically to operate a rail vehicle (trolley)
... considerations must be given to the possibility of
intentional manipulative type behaviors.” ECF No. 40-7
at 5-7. SEPTA decided to assign Plaintiff to a temporary
light-duty position. ECF No. 40-7 at 14.
August 5, 2015, Plaintiff submitted a letter to SEPTA
requesting an ADA accommodation for his injuries. ECF No.
43-11 at 46. In that letter, Plaintiff stated:
[a]fter being injured on duty June 04, 2015, I specifically
request medical disqualification from the position of Bus
Operator, because I cannot perform the essential elements of
the job with or without reasonable accommodation.
Specifically, I am no longer medically able to perform
frequent repetitive arm/hand motion or frequent gross
manipulation, which are physical requirements of the Bus
Id. Attached to Plaintiff's August 5, 2015
letter was a note from Dr. Mark Allen, Plaintiff's
personal physician, in which Dr. Allen stated that Plaintiff
has been “under my care after an injury while at work
on June 4, 2015 ... Estimated length of employee
disqualification from job notes that he is capable of driving
a trolley car only.” Id. at 48.
August 11, 2015, Dr. Axelrod conducted another follow-up
evaluation with Plaintiff in order to assess his ability to
return to work. ECF No. 40-7 at 5-7. In his subsequent
report, Dr. Axelrod stated, “[Plaintiff] had no change
in his overwhelmingly axial neck complaints of pain with no
radicular quality symptoms to the upper extremities ... [h]e
was working in a modified capacity” and Plaintiff asked
that Dr. Axelrod reproduce the same restrictions as Dr.
Allen. Id. at 7. Despite Plaintiff's request,
however, Dr. Axelrod opined that Plaintiff was capable of
returning to his regular duties as a bus operator:
At the conclusion of the office visit dated 8/11/15 I
informed [Plaintiff] that since he had axial neck complaints
of pain without radicular quality features, in my
professional medical opinion within a reasonable degree of
medical certainty he was immediately physically capable of
returning to his regular full duty position driving a bus for
SEPTA Buses with no restrictions or accommodations.”
Id. Plaintiff disagreed with Dr. Axelrod's
September 2, 2015, Plaintiff completed a “SEPTA Request
for Reasonable Accommodation” form and delivered it to
SEPTA's ADA Compliance Consultant for its Equal
Employment Opportunity/Affirmative Action and Employee
Relations (“EEO/AA/ER”) Department, Jacqueline
Hopkins. ECF No. 40-2 ¶ 5. Plaintiff indicated on the
form that his impairment began on June 4, 2015, and requested
that SEPTA transfer him to a rail operator position because
he believed it would cause him less physical stress. ECF No.
40-7 at 22-24; ECF No. 40-4 at 15-16. At the time, Plaintiff
was number 35 out of 37 on the seniority list for bus-to-rail
transfers. ECF No. 40-7 at 62.
September 4, 2015, Ms. Hopkins discussed Plaintiff's
accommodation request with him over the telephone and
Plaintiff memorialized that conversation in a follow-up
e-mail. ECF No. 40-7 at 65-66. Ms. Hopkins explained the
difference between identifying a reasonable accommodation and
the transfer process under the CBA. Id. at 65.
September 17, 2015, SEPTA received a note from Dr. Allen that
cleared Plaintiff to return to full work duties as a bus
operator. Id. at 77. Specifically, Dr. Allen's
note stated, “[Plaintiff] is cleared to return to full
duties at work” and is dated “9/16/15.”
Id. In response, Ms. Hopkins asked Plaintiff to
explain the discrepancy between his physician's reports
and his ability to safely perform the essential functions of
his job as a [bus] operator, with or without accommodations.
Id. at 75. Plaintiff responded on September 30,
2015, by submitting two additional Physical Capacities Forms
that restated Dr. Allen's prior opinion-that he was only
capable of driving a rail car, but not a bus-as well as a new
report stating that Plaintiff's condition was
“[u]nchanged.” Id. at 79-80; 82-83.
Meanwhile, on September 23, 2015, Plaintiff e-mailed Ms.
Hopkins and described his injuries as follows:
I have disabilities as a result of being permanently disabled
and/or limited in range of motion resulting from both the
congenital fusion of my thoracic spine (T1-T2) and the
surgical fusion of my cervical (C4-C7) spine that required
implantation of a prosthetic device on November 17, 214 (sic)
and covered under the ADA, which I have provided you
sufficient evidence to support, in the form of CT scan
ECF No. 43-11 at 22.
September 29 and September 30, 2015, Plaintiff submitted two
SEPTA Operator's Accident/Incident Reports asserting that
he was unable to operate a bus safely because of physical
conditions related to the June 4, 2015 accident to
SEPTA's Assistant Director for the Southern District,
Thomas Ropars. ECF No. 40-7 at 85; ECF No. 40-8 at 2. Mr.
Ropars e-mailed Plaintiff and explained that his reasonable
accommodation request was not properly the subject of an
accident or incident report; however, because Plaintiff
stated in his report that it was unsafe for him to drive a
bus, he must determine Plaintiff unfit for duty and place him
on sick leave per SEPTA's Fitness for Duty policy. ECF
No. 40-8 at 4-6. According to SEPTA's Fitness for Duty
policy, “[e]mployees must not perform any service while
affected by any condition that could impair their ability to
perform their duties properly.” Id. at 8. In
such cases, “[a] medical certificate stating the nature
of the sickness and certifying that the employee is fit for
duty must be produced, if required by the employee's
supervisor, before the employee may return to work.”
Id. According to Section 501(n) of the CBA, an
employee returning to work after an absence due to illness or
injury may do so subject only to the approval of SEPTA's
Medical Department. ECF No. 40-6 at 26. As such, Mr. Ropars
advised Plaintiff that before he could return to work he
would need to provide the medical clearances required by
SEPTA's Fitness for Duty policy and CBA Section 501(n).
ECF No. 40-7 at 60.
further provides that union members who cannot report to work
because of injury or sickness must go on sick leave;
therefore, until Plaintiff obtained the necessary medical
clearances and was permitted to return to work, he was placed
on sick leave. ECF No. 40-6 at 24-27. While on sick leave,
Plaintiff received all sick benefits to which he was entitled
under the CBA. ECF No. 40-8 at 10-22.
October 1, 2015, Ms. Hopkins wrote Plaintiff to advise that
she received the additional material he submitted and invited
Plaintiff to meet with SEPTA's Medical Director, Dr.
Jeffrey Erinoff, SEPTA's Director of EEO/AA &
Employee Relations, Lorraine McKenzie, and herself.
Id. at 24. On the same day, Plaintiff dual-filed a
charge of discrimination with the Equal Employment
Opportunity Commission and the Pennsylvania Human Relations
Commission. Id. at 26-28.
October 5, 2015, Gardner filed a grievance against SEPTA
through Local 234. Id. at 30. The grievance stated,
“[t]he Union protests the Authority not granting
reasonable accommodation request to Robert Gardner, #17542,
for his disability.” Id.
October 7, 2015, Plaintiff attended an interactive process
meeting with Ms. Hopkins, Ms. McKenzie, and Dr. Erinoff.
Id. at 32. On Plaintiff's behalf, Ms. Hopkins
investigated how much longer Plaintiff “could expect to
remain on those transfer lists for the trolley
position.” Id. at 34. On October 19, 2015,
SEPTA's Labor Relations Manager, Bud Scott, advised Ms.
Hopkins by e-mail that Local 234 President Willie Brown was
opposed to circumventing the provisions under the CBA to
allow Plaintiff's transfer to rail operator.
October 28, 2015, Ms. Hopkins wrote to Plaintiff and
summarized the history of the interactive process to date.
Id. at 36-50. Ms. Hopkins informed Plaintiff that
due to the conflicting medical evaluations he had previously
submitted, SEPTA intended to rely on the upcoming Independent
Medical Examination (“IME”) scheduled for October
21, 2015 for Plaintiff's pending workers'
compensation claim. Id. at 36-37.
October 21, 2015, Dennis P. McHugh, D.O. conducted the IME,
which included a review of Plaintiff's medical history
and a physical examination, and he produced a report of his
findings. ECF No. 40-9 at 2-7. Dr. McHugh cleared Plaintiff
for full duty work without restrictions as a SEPTA bus
operator and stated:
[I]t is my medical opinion, within a reasonable degree of
medical certainty, that [Plaintiff] is fully recovered from
the cervical and lumbar sprains and strains and that he needs
no further care. It is my medical opinion, within a
reasonable degree of medical certainty, that [Plaintiff]
could return to full duty work without restrictions as a
SEPTA bus driver immediately.
Id. at 6.
November 19, 2015, SEPTA's Vocational Consultant, Jocelyn
Jervis, notified Plaintiff that he was permitted to return to
work on December 3, 2015, pending a medical-fitness-for-duty
examination pursuant to SEPTA's Fitness for Duty policy
and Section 501(n) of the CBA. ECF No. 40-9 at 9.
December 3, 2015, Ms. Hopkins wrote to Plaintiff informing
him that based on Dr. McHugh's conclusions in his IME
report, SEPTA determined that Plaintiff did not have a
disability under the ADA and; therefore, it would not grant
his request for ADA accommodation. ECF No. 40-2 at ¶ 7.
January 27, 2016, Plaintiff submitted another request for
accommodation and supported his request with the same
documents from his September 2, 2015 submission seeking the
same accommodation. Id. at 13-23. On February 10,
2016, SEPTA received another note from Dr. Allen stating that
Plaintiff was “[c]leared to return to normal duties,
” dated “2/10/16.” Id. at 25. And,
on February 22, 2016, Ms. Hopkins denied Plaintiff's
second request for accommodation. Id. at 27.
April 11, 2016, SEPTA transferred Plaintiff to trolley
operator based on seniority. Id. at 29-33. On June
28, 2017, SEPTA promoted Plaintiff to Supervisor, Control
Center - CCT. Id. at 35. On October 17, 2017, SEPTA
promoted to Transportation Manager. Id. at 37. On
June 12, 2018, SEPTA promoted Plaintiff to Control Center
Manager - Bus. ECF No. 40-4 at 2. Plaintiff is employed by
SEPTA in the same position, today. ECF No. 40-2 at ¶ 1.
judgment is appropriate if the moving party shows there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). The material facts must be viewed in the light most
favorable to the nonmoving party only if there is a
“genuine” dispute as to those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007) (emphasis added);
Fed.R.Civ.P. 56(c). A fact is “material” if proof
of its existence or non-existence might affect the outcome of
the litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-248 (1986). A dispute of fact is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Id. at 248-49.
initial burden is on the moving party to show the absence of
a genuine dispute of material fact. See Celotext
Corporation v. Catrett, 477 U.S. 317, 323 (1986) (the
burden on the moving party is one that involves
“identifying the portions of the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits demonstrating the absence of a
genuine issue of a material fact.”). As the Supreme
Court has emphasized, “[w]hen the moving party has
carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt
as to the material facts … Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.'” Scott, 550 U.S. at 380 (quoting
Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-587 (1986) (footnote ...