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Gardner v. Septa

United States District Court, E.D. Pennsylvania

October 17, 2019

SEPTA, Defendant.



         Plaintiff, 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).

         For the following reasons, the Court grants Defendant's Motion for Summary Judgment in the accompanying Order.

         I. BACKGROUND

         Plaintiff 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.[1]

         On June 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.

         On July 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.

         On 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 Operator position.

Id.[2] 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.[3]

         On 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 opinion. Id.

         On 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.

         On 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.

         On 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.

         On 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.

         The CBA 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.

         On 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.

         On 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.

         On 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. Id.[4]

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         II. STANDARD

         Summary 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.

         The 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 ...

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