Fullman v. Philadelphia Intern. Airport
| Decision Date | 10 May 1999 |
| Docket Number | No. CIV. A. 98-3674.,CIV. A. 98-3674. |
| Citation | 49 F.Supp.2d 434 |
| Parties | Andrew FULLMAN, Plaintiff, v. PHILADELPHIA INTERNATIONAL AIRPORT, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Andrew Fullman, Philadelphia, PA, pro se.
J. Bruce McKissock, Ingrid B. Hopkinson, McKissock & Hoffman, P.C., Philadelphia, PA, Howard Lebofsky, City of Philadelphia Law Dept., Philadelphia, PA, for Philadelphia Inter. Airport, City of Philadelphia, Dennis Bowey, Jim Lynch, Charles Isdell, Mark Gale.
James M. Penny, Jr., Todd J. Glassman, Lori M. Emrick, Obermayer, Rebmann Maxwell & Hippel, LLP, Philadelphia, PA, for Laidlaw Transit, Perry Vedder.
Matthew Lee Wiener, Dechart, Price & Rhoads, Philadelphia, PA, for Anthony Baselice.
Plaintiff, Andrew Fullman, has filed this pro se action against his former employer, Laidlaw Transit ("Laidlaw"), his former supervisor at Laidlaw, Perry Vedder ("Vedder"), the City of Philadelphia, the Philadelphia International Airport ("the Airport")1, various employees of the Airport, including Dennis Bouey, the Director of Aviation at the Airport ("Bouey"), Jim Lynch, the Airport Operations Superintendent ("Lynch"), Charles Isdell, the First Deputy Director of Aviation ("Isdell") and Mark Gale, the Airport Operations Manager ("Gale") (collectively "Airport officials"), as well as Anthony Baselice ("Baselice"), an individual who works at the Airport for an airlines. This action arises from plaintiff's alleged wrongful termination by his employer, Laidlaw. Specifically, plaintiff claims that all defendants discriminated against him based on his race, gender, and alleged disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pennsylvania Human Relations Act ("PHRA"), and the American with Disabilities Act ("ADA"). In addition, plaintiff asserts, against all defendants, a violation of his constitutional rights under 42 U.S.C. § 1983, as well as pendant state claims for emotional distress, wrongful termination and defamation.
Before the Court are summary judgment motions of defendants Laidlaw and Vedder, the Airport defendants, as well as defendant Baselice. For the reasons stated below, the Court will dismiss without prejudice plaintiff's Title VII and ADA claims against defendant Laidlaw for failure to exhaust administrative remedies, and grant each defendants' motions for summary judgment on all plaintiff's remaining claims.
The following facts are not in dispute or are construed in the light most favorable to the plaintiff. Plaintiff was hired by Laidlaw to serve as a shuttle bus driver at its Airport facility on June 24, 1996, to work the overnight employee shuttle bus at the Airport. Pursuant to it contract with the Airport,2 Laidlaw's shuttle drivers were responsible for transporting Airport employees between the various terminals and the employee parking lot.3 During their shifts, Laidlaw drivers were required to continuously make these designated "runs" around the Airport.
In June of 1997, defendant Laidlaw terminated plaintiff after plaintiff was involved in an accident with another bus (the "First Termination"). Plaintiff filed a grievance through the Union requesting reinstatement. Laidlaw agreed to reduce plaintiff's discipline to a suspension and plaintiff returned to work in late June.
In November of 1997, Vedder received a report from the Airport Operations Department that plaintiff was not making all his designated runs as required by Laidlaw policy and Laidlaw's contract with the Airport. After reviewing certain computer print-outs, which tracked all runs made by all employees, Vedder concluded that plaintiff was not making certain designated runs. In addition, after a review of plaintiff's time sheets, Vedder concluded that plaintiff had falsely indicated that he had made the runs but had not picked up any passengers when, in fact, he had skipped some runs for a bathroom break. As a result, Laidlaw terminated plaintiff (the "Second Termination") for a second time. After his Second Termination, plaintiff filed another grievance through the Union. Pursuant to the procedure in the collective bargaining contract, Vedder attended a meeting with Union representatives and plaintiff to discuss the firing. At the meeting, plaintiff alleged that he had not falsified any reports but merely recorded his bathroom breaks according to the way he and all other Laidlaw employees were trained. Laidlaw again settled the grievance by reinstating plaintiff.
In April of 1998, plaintiff was terminated for the third (the "Third Termination") and final time. It is the Third Termination that is before the Court at this time. The Third Termination was allegedly precipitated by events which occurred on March 20, 1998. During one of his runs that evening, plaintiff stopped his bus outside the American Airlines terminal, illuminated the "out of service" sign and proceeded to use the restroom. When plaintiff returned to his bus some American Airline employees, who were waiting for the bus, approached plaintiff and questioned where he had been. According to plaintiff, defendant Baselice began cursing at plaintiff for using the bathroom and an argument ensued. Plaintiff asked his dispatcher to call the police, who arrived shortly thereafter and diffused the dispute by calling another bus to take the employees to the employee parking lot. The next day, defendant Baselice filed a written complaint about plaintiff with Laidlaw and defendant Lynch, the Airport Director of Operations.
On March 31, 1998, Vedder received a letter from Lynch, which stated that Lynch had received Baselice's complaint and requested that Vedder provide a written response regarding plaintiff's actions as soon as possible. After receiving this most recent complaint about plaintiff, Vedder suspended plaintiff pending an investigation and another meeting with the Union. Prior to that meeting, however, Lynch told Vedder that based on plaintiff's repeated misconduct and the latest altercation with the American Airline employees, the Airport would no longer permit plaintiff to work at the Airport. Immediately thereafter, Lynch had plaintiff's Airport identification badge deactivated, effectively barring plaintiff's access to the Airport.
At the meeting with the Union, Vedder explained to the Union representative that he had suspended plaintiff pending an investigation and that Laidlaw could not retain plaintiff as a shuttle bus driver because Lynch had forbidden him from working at the Airport. As a result, Laidlaw instituted the Third Termination.
After the Third Termination, plaintiff did not file a grievance within the time period provided for under the collective bargaining contract. Rather, plaintiff filed the instant action.
In December of 1997, following his Second Termination, plaintiff filed a charge of discrimination ("First Charge") with the Philadelphia Commission on Human Relations ("PhilaCHR"). In the First Charge plaintiff alleged that the First Termination and the Second Termination were based on gender discrimination.
After his Third Termination in April 1998, plaintiff filed a second charge of discrimination ("Second Charge") with PhilaCHR, alleging that Laidlaw fired him in retaliation for filing the First Charge. Shortly thereafter, plaintiff amended the Second Charge ("Amended Second Charge"), adding a new claim and asserting that prior to the Third Termination, he had submitted documentation to Laidlaw regarding his serious medical condition which required him to take frequent bathroom breaks. These charges are still pending before the PhilaCHR. Plaintiff has not filed any charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the Pennsylvania Human Rights Commission ("PHRC").
Although plaintiff's complaint is not organized along separate counts against each of the defendants, it appears from the pleadings and plaintiff's deposition testimony, that plaintiff has attempted to set forth the following claims: 1) the defendants terminated plaintiff on account of his race and gender in violation of Title VII; 2) the defendants terminated plaintiff based on an alleged disability in violation of the ADA; 3) the defendants discriminated against him in violation of his constitutional rights under 42 U.S.C. § 1983; 4) the defendants terminated him in retaliation for plaintiff filing the grievance with the Union and the PhilaCHR in violation of Title VII; and 5) defendants "wrongfully terminat[ed]" plaintiff from his employment with Laidlaw without "just cause".4
Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court must accept the non-movant's version of the facts as true, and resolve conflicts in the non-movant's favor. Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).
The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the nonmovant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or...
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