Hayduk v. City of Johnstown, Civil Action No. 3:2005-294.

Citation580 F.Supp.2d 429
Decision Date30 June 2008
Docket NumberCivil Action No. 3:2005-294.
PartiesDavid G. HAYDUK, Plaintiff, v. CITY OF JOHNSTOWN, and Jeffrey F. Silka, individually and in his capacity as City Manager, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

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580 F.Supp.2d 429
David G. HAYDUK, Plaintiff,
CITY OF JOHNSTOWN, and Jeffrey F. Silka, individually and in his capacity as City Manager, Defendants.
Civil Action No. 3:2005-294.
United States District Court, W.D. Pennsylvania.
June 30, 2008.

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Robert S. Brierton, Johnstown, PA, for Plaintiff.

Teresa O. Sirianni, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Defendants.


KIM R. GIBSON, District Judge.


The above-captioned matter is before the Court on the Parties' cross motions for summary judgment. Plaintiff claims that Defendants interfered with his rights under the Family and Medical Leave Act by failing to advise him of his rights under the Act, failing to offer him leave under the Act, terminating him as a result of absences he claims were protected by the Act and, post-termination, refusing to provide him leave under the Act and to rehire him. He seeks recovery under the remedial provisions of the Act itself as well as the general remedial provisions of 42 U.S.C. § 1983. Defendants claim that Plaintiff never qualified for the protections

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of the Act, and that Defendant Silka has immunity from suit.

For the reasons given below, the Court will deny Silka's claim of immunity in part and reserve judgment in part pending resolution of an issue of material fact; dismiss Plaintiff's § 1983 claims; recast Plaintiff's wrongful termination claim as a claim of discrimination and/or retaliation and dismiss Plaintiff's remaining interference claims; dismiss the wrongful termination claim in part; find that there are issues of material fact regarding the remainder of the wrongful termination claim; and reopen discovery regarding Defendants' reasons for terminating Plaintiff;


David Hayduk [hereinafter Plaintiff] was born in 1943. Document No. 46-4 p. 9. He has apparently lived his entire life in the same house in Johnstown, Pennsylvania. Id. So far as the Court can determine, he lived alone at all times relevant to the above-captioned action. See id. at 8-9.

From the early 1990s until his termination on September 10, 2003, Plaintiff was employed full time by Defendant City of Johnstown [hereinafter City] as a residential rehabilitation inspector. Id. at 17. He was classified as a non-union, non-supervisory employee. Document No. 46-4 pp. 18-19; Document No. 46-6 p. 44; Document No. 46-8 p. 50. At the time of his termination, Plaintiff's job paid $24,000 per year. Document No. 46-6 p. 11.

As part of a federally funded program administered by the City, Plaintiff was assigned to inspect houses within the City with an emphasis on "windows, doors, furnaces, siding, chimneys, [and] sidewalks." Document No. 46-4 p. 22. He would then estimate the cost of improving those items and write up bid specifications. Document No. 46-4 pp. 20-21. After the bid had been awarded he would monitor the contractor's work and then perform a final inspection to assure that it had been satisfactorily completed before the City's final payment. Document No. 46-4 p. 21; Document No. 46-6 p 32. Plaintiff also performed followup inspections; if the owners had kept up their property the City would forgive the grants that had been used to pay for the work.1 Document No. 46-4 pp. 143-44.

Plaintiff would generally visit a site eight times during the course of a typical three-week rehabilitation. Document No. 46-4 p. 24. His work "[o]ccasionally" required him to use a ladder; he always worked alone in the field. Id. at 23. Plaintiff's regular work hours were 8 a.m. to 4:30 p.m. Id. at 28. He was not required to punch in when he arrived at City Hall, but was required to sign out when he left the office for an inspection. Id. at 28-30.

Beginning in 2000 and continuing until his termination, Plaintiff had the use of a City vehicle for his inspections. Id. at 31. It was parked in a lot located between his house and City Hall; he would typically drive from his home to the lot and then take the City car to City Hall and would reverse the procedure at the end of the day. Id. at 226-27. However, the City car was old and "broke down constantly." Document No. 46-6 p. 29. When it did, Plaintiff would use his personal automobile. From the perspective of Ronald Andrews, his immediate supervisor, "that was not a problem." Id.

Plaintiff would also use his own car if it was more convenient or if there were other "extenuating circumstances." Document No. 46-4 p. 232. He claims that he was

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not aware of any city policy to the contrary, at least before August of 2003. Id. at 232-33. The City also had a written policy that forbade operation of the City vehicle outside the City limits except under circumstances inapplicable to Plaintiff. Document No. 46-10 p. 16. Plaintiff claims not to have seen it; that his understanding of City policy, at least before August of 2003, was based on discussions in weekly staff meetings; and that he believed, based on those discussions, that the City's policy was merely to "[u]se the vehicle as much as you can, unless it's broke down." Document No. 46-4 p. 36. Plaintiff would, therefore, briefly operate the City vehicle outside the City if he believed it was the most efficient way to travel between jobs. Id. at 44-48.

During the course of his employment with the City, Plaintiff underwent several medical procedures. In approximately 1994 he had a bilateral radial keratotomy to correct his vision; although he wore glasses at one time he no longer needed them, at least as of August 7, 2006. Document No. 15-2 p. 32; Document No. 46-4 p. 92-93. He visits Dr. Polito, the ophthalmologist who preformed the procedure "every few years," so that the doctor can "see what's going on." Document No. 46-4 p. 94.

In February of 2001, after complaining for some months of pain that had earlier been diagnosed as gastroesophogeal reflux, Plaintiff was diagnosed by Dr. Cyril Nathaniel with multivessel coronary artery disease and underwent a triple coronary artery bypass shortly thereafter. Document No. 46-4 pp. 53, 67-71; Document No. 47-13 p. 3. Dr. Nathaniel subsequently prescribed daily aspirin, Lipitor, a drug used to control serum cholesterol levels, and various drugs to control blood pressure, including Norvasc and Accupril, the two blood pressure medications Plaintiff was taking at the time of his termination. Document No. 46-4 pp. 54-55, 81-82; Document No. 47-13 p. 4. Dr. Nathaniel also apparently prescribed an over-the-counter potassium supplement. Document No. 46-4 pp. 96-99; Document No. 47-13 p. 4. Post-surgery, Plaintiff saw Dr. Nathaniel once or twice a year "[o]n an official basis," but also saw and spoke with the doctor when he went "in for pills," for a total of "maybe 10, 12 times a year...." Document No. 46-4 pp. 56, 81, 83.

In addition to Plaintiff's medications, Dr. Nathaniel prescribed a course of cardiac rehabilitation that Plaintiff claims to have pursued "religiously" several times a week, from roughly a month after his surgery until early 2006. Document No. 15-2 p. 2; Document No. 46-4 pp. 71-74, 79-80. The rehabilitation center was at Lee Hospital, approximately "five minutes" from City Hall. Document No. 15-2 p. 2; Document No. 46-4 p. 69. Throughout the remainder

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of his employment with the City, Plaintiff left work for the sessions and was paid for the 45 minutes to an hour he was gone.3 Document. No. 46-4 pp. 79-80; Document No. 44 p. 2 ¶ 17; Document No. 49 p. 3 ¶ 17. He did, however, miss roughly five to six sessions per month due to conflicts with work. Document No. 46-4 p. 80. The rehabilitation was evidently successful; Plaintiffs expert reported that, at least as of March 4, 2005, the date of his report, Plaintiff was "able to walk on a treadmill for an impressive rate and time," Document No. 15-2 p. 4, and, indeed, Plaintiff himself has testified that he feels that he has recovered from the surgery. Document No. 46-4 p. 77.4

Plaintiff has also had several infected teeth extracted by Dr. Hertzler, an oral surgeon, on referral from various general dentists. Document No. 46-4 pp. 101-105. The first extractions occurred in approximately 1999; Dr. Hertzler removed two more infected teeth shortly after Plaintiffs termination in September of 20035 and performed further extractions of infected teeth in 2004 and 2005. Document No. 46-4 pp. 102-04; Document No. 15-3. Plaintiff has testified that Dr. Hertzler also performed oral surgery related to implants, Document No. 46-4 p. 102, but that is called into question by his expert's report that he has "an upper plate and a lower partial plate." Document No. 15-2 p. 3. Plaintiff states that he also saw his regular dentist "once a month" in 2003 for fillings and bonding. Document No. 46-4 p. 105.

Dr. Brisini, a urologist, removed a growth in Plaintiffs bladder sometime in the 1980s, and Plaintiff has returned every six months thereafter for a followup cystoscopy. Document No. 15-2 p. 2; Document No. 46-4 p. 132. By 2002 Plaintiff was also seeing Dr. Brisini for prostate problems. Document No. 46-4 p. 132. In addition, Plaintiff had a right inguinal hernia repair in April of 2003. Document No. 15-2 p. 2; Document No. 46-6 p. 48.

In 2002 and 2003, the City allowed its employees either 12, 14 or 18 new sick days every year; testimony varied. Document No. 46-5 p. 58, Document No. 46-6 p. 25. Whatever their number, unused sick days could be carried over from year

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to year. Document No. 46-4 p. 78; Document No. 46-6 p. 26. Plaintiff had apparently not carried over sufficient sick days...

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