Gaus v. Norfolk Southern Ry. Co.
| Decision Date | 28 September 2011 |
| Docket Number | Civil Action No. 09-1698 |
| Parties | ANTHONY GAUS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY CO., Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Pending before the court is the motion for summary judgment (ECF No. 23) filed by Defendant Norfolk Southern Railway Company ("NSR" or "Defendant"). Plaintiff Anthony Gaus ("Gaus" or "Plaintiff") filed this civil action asserting claims under Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§794 et seq. ("Rehabilitation Act"), the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. ("ADA"), the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 ("ADAAA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §951 et seq. ("PHRA"). After reviewing the record, considering the submissions of the parties and the undisputed facts of record, viewing all disputed material facts in plaintiff's favor and drawing all reasonable inferences in favor of plaintiff, the court concludes that a reasonable jury could not find that Gaus was substantially limited in the major life activity of working with respect to conduct or events occurring before January 1, 2009, and therefore, Gaus failed to establish a prima facie case of disability discrimination with regard to NSR's refusal to allow Gaus to return to work during calendar year 2008. On the other hand, with respect to the conduct or events occurringafter 2008, the court concludes that material issues of fact exist precluding summary judgment. Therefore, the court will grant in part and deny in part defendant's motion for summary judgment.
Plaintiff's railroad career began in September 1998 when he was hired as a car man by Consolidated Rail Corporation. (Def.'s Concise Stmt. Mat. Facts ("Def.'s CSMF") ¶ 5, ECF No. 28.) On June 1, 1999, Gaus became an employee of NSR and has been employed by NSR to the present. (Def.'s CSMF ¶6.) NSR, which is headquartered in Norfolk, Virginia, is a transportation company in the business of hauling freight by rail in the eastern and central portions of the United States, and employs approximately 29,000 people. (Id. ¶¶3-4.)
Gaus has been employed as a journeyman electrician at the Conway Locomotive Shop from December 2004 through the present. (Id. ¶7.) Locomotive electricians are responsible for diagnostics, maintenance and repair of diesel/electrical locomotives. (Id. ¶8.) The physical duties of a locomotive electrician require lifting up to 50 pounds, working at different heights, stooping, bending and getting on and off equipment. (Id. ¶9.) The electrician job in a locomotive shop is recognized as a safety-sensitive position. (Id. ¶10.) The job of electrician in the locomotive shop requires moving on and around moving machinery and involves the operationof locomotives for diagnostic and other reasons. (Id. ¶¶11-12.) Because the electricians must also operate locomotives in the performance of their duties, the positions are subject to the rules of the Hours of Service Act, 49 U.S.C. § 20101 et seq., and the Federal Railroad Administration's Drug Testing Program. (Id. ¶13.)
On a number of occasions during Gaus' employment prior to October 2007, various medical conditions caused him to miss work. (Id. ¶14.) During the course of his employment, Gaus applied for FMLA leave on seven occasions and was granted leave five times. (Id. ¶15.) The conditions for which Plaintiff sought and was granted FMLA leave, between August 6, 2001 and September 6, 2006, include ulcerative colitis (id. ¶¶16-19), abdominal surgery to repair a hernia (id. ¶¶24-27), carpal tunnel syndrome (id. ¶¶28-30), and torn ligaments in his left shoulder (id. ¶¶33-35). Plaintiff sought FMLA leave commencing July 30, 2002 through August 6, 2002, for gall bladder surgery, but his request was denied because he had not worked the requisite hours (1,250) during the previous twelve-month period. (Id. ¶¶21-23.) On each such occasion, Gaus underwent a return to work physical at which time he was released to return to work without any restrictions. (Id. ¶¶18, 20, 23, 27, 30, 35.)2
Of relevance here is the FMLA leave request submitted by Plaintiff to commence on October 27, 2007. (Id. ¶36.) The reason given for that leave request was Addison's disease; the leave request was tentatively approved effective October 17, 2007, and that approval was confirmed with the FMLA leave set to expire on October 31, 2007. (Id. ¶¶36-37.) In support of this particular FMLA leave request, Gaus supplied a medical certification from Dr. Parepollywho indicated that Gaus was suffering from adrenal insufficiency requiring steroid medications and testosterone deficiency also requiring daily medications. Dr. Parepolly indicated the onset of this condition was October 3, 2007. (Id. ¶38.) Although Dr. Parepolly estimated Gaus could return to work on November 1, 2007, Gaus' own treating physician, Dr. Karen Schogel, did not recommend his actual return until July 23, 2008. (Id. ¶¶39-40.)
During this period between October 17, 2007 and July 23, 2008 and subsequent thereto, Gaus treated for a variety of conditions for which the medical department at NSR requested additional medical information in order to assess the impact of those conditions on his ability to perform the duties of an electrician. (Id. ¶41.) Based on an evaluation dated July 8, 2008 from a neurosurgeon, Dr. Gardner, of the UPMC Department of Neurological Surgery, Gaus was treating for pituitary adenoma. (Id. ¶42.) In addition, between October 2007 and July 23, 2008, Gaus treated for panhypopituitarism with Dr. Elisabeth Bergman. (Id. ¶43.) Dr. Bergman was unsure if Gaus' symptoms were secondary to panhypopituitarism or chronic parvovirus infection. (Id. ¶44.)
Gaus also treated during this time for chronic parvovirus infection with Dr. Abbas. (Id. ¶45.) Dr. Abbas' records from March 18, 2008 were reviewed by the NSR Medical Department. (Id. ¶46.) Dr. Abbas reported in March 2008 that Gaus' parvovirus was complicated by the development of adrenal insufficiency, hypothyroidism and hypogonadism all in October 2007. (Id. ¶47.) When evaluated by Dr. Abbas on March 18, 2008, Gaus provided a history that he continued to experience fatigue, sweating, particularly following exertion, flushing of face, neck and upper chest, arthralgia involving several joints, including those of hands, feet and ankles. The pain was constant with the severity ranging from 5 to 8 on a scale of 10. Gaus experienced abdominal pain and back ache on and off, but this was not new. He complained of feelingoverheated along with the chills. He described experiencing a fine tremor of his hands for the past several months. (Id. ¶48.)
During this time, Gaus suffered from chronic pain involving his joint, hip, low back and abdomen. (Id. ¶49.) His most recent visit for pain prior to Dr. Schogel's return to work document of July 17, 2008 was with Dr. Mathie at Allegheny North Arthritis Center on May 22, 2008, where Gaus presented with ongoing joint pain involving his hands, low back, and hips. He rated his pain as an 8 out of 10, and fatigue and sleep disturbances at 10 out of 10. (Id. ¶50; Def.'s App., Ex. 26.) During this same period, Dr. Mathie recommended additional tests, injection treatment and physical therapy. (Def.'s CSMF ¶51, ECF No. 28.) Gaus was also treating for mild to moderate sleep apnea and had undergone a sleep study on June 25, 2008. (Id. ¶52.)
Gaus felt that he was able to return to work in the spring or early summer of 2008. (Pl.'s App., Ex. 1 at 62, ECF No. 36.) Dr. Karen Schogel, Gaus' primary care physician, approved Gaus to return to work on July 21, 2008. (Pl.'s App., Ex. 3, ECF No. 36.) At that time, Gaus believed he could return to work with no restrictions. (Pl.'s CSMF ¶6, ECF No. 35.)
Gaus completed a return to work form and had a return to work examination on July 23, 2008. (Def.'s CSMF ¶53, ECF No. 28.) The physician hired by NSR to examine Gaus provided an opinion that Gaus could return to work without restriction. (Id. ¶54.) According to Plaintiff, despite two separate medical opinions that Gaus could return to work, one by a physician hired by NSR and the other by Gaus' primary care physician, the NSR medical department felt that the medical evidence was insufficient and that it required more information. (Pl.'s CSMF ¶9, ECF No. 35.) According to Defendant, the information provided by Gaus and arising out of the July 23, 2008 exam caused the NSR medical department to seek review of Gaus' status beforereleasing him to return to work. (Def.'s CSMF ¶55,ECF No. 28.) In a letter dated July 30, 2008, Gaus was advised by Tony Stuart, shop manager and Gaus' supervisor, that the NSR medical department needed additional information. (Id. ¶56.) The medication Gaus reported using on his return to work information was of concern to the medical department. (Id. ¶57.) In partial response to the request for additional records, Dr. Schogel sent a 45-page fax to the NSR medical department on July 31, 2008. (Id. ¶58.) On August 18, 2008, a 28-page fax of medical records was sent from Dr. Schogel to NSR. (Id. ¶59.) This fax included the same medical documentation previously faxed from Dr. Schogel's office with the addition of lab reports dated August 1, 2008. (Id. ¶60.)
At this point, the NSR medical department felt that it possessed insufficient medical evidence to make an informed decision about whether Gaus could return to work. (Id. ¶61.) On August 20, 2008, Dr. Lina conducted a comprehensive review of the information which had been received from Gaus' treating and referral physicians, and summarized these findings in the NSR medical records. (Id. ¶¶ 62-63.)
On August 20, 2008, Dr. Lina discussed her summary and preliminary conclusions in a telephone conference with Gaus. In a letter to Gaus dated August 23, 2008, she identified the additional records he needed to...
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