Mercer v. Se. Pa. Transit Auth.

• Citation: 26 F.Supp.3d 432
• Decision Date: 18 June 2014
• Docket Number: Civil Action No. 12–6929.
• Parties: Vincent MERCER, Plaintiff, v. SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

26 F.Supp.3d 432

Vincent MERCER, Plaintiff

v.SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY, et al., Defendants.

Civil Action No. 12–6929.

United States District Court, E.D. Pennsylvania.

Signed June 18, 2014.

Olugbenga O. Abiona, Brian Matthew Rhodes, Philadelphia, PA, for Plaintiff.

Jo Bennett, Brad M. Kushner, Stevens & Lee, Philadelphia, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Plaintiff Vincent Mercer brings this disability discrimination action against his former employer, Defendant Southeastern Pennsylvania Transportation Authority, and two of his former supervisors, Defendants Leander Berry and Jason Griffin (collectively, “SEPTA”). Mercer claims he was denied a reasonable accommodation for his disability, that he was retaliated against, that his employment was terminated on the basis of his disability, and that he was subjected to a hostile work environment, all in violation of the Americans with Disabilities Act (“ADA”), and the Pennsylvania Human Relations Act (“PHRA”). SEPTA has moved for summary judgment, and, for the reasons that follow, the Court will grant the motion in its entirety.

I. FACTUAL BACKGROUND

Mercer worked as a maintenance custodial bus driver for SEPTA from 2001 until approximately January 14, 2011. Pl. Statement Facts ¶¶ 1, 136, ECF No. 16–2; Def. Statement Facts ¶¶ 1, 33, ECF No. 14–3. Mercer's responsibilities in that position included custodial tasks such as keeping the buses clean and driving buses between bus depots for service. Def. Statement Facts ¶ 2. Throughout his employment with SEPTA, Mercer was a member of Transport Workers Union Local 234 (“the Union”), and the terms of his employment were governed by a Collective Bargaining Agreement (“CBA”). Id. ¶ 3.

In 2004, Mercer was diagnosed with diabetes

, high blood pressure, and high cholesterol. Id. ¶ 4. On June 21, 2010, Mercer obtained a note from his doctor stating the following:

Vincent Mercer [has] been a patient for (6) years, he has hypertension

and diabetes. He states that he needs to take his medicine at a specific time because it helps him to be more compliant and causes less side effects. He also states working in overheated conditions cause [sic] presyncopal¹ symptoms—which can occur with anyone, but worse with hypertensive patients.

Decl. of Jeffrey Erinoff, Ex. 1, Letter from Dr. Pasha Generette, June 21, 2010, ECF No. 14–5. Mercer gave the note to his supervisor at the time, who forwarded it to SEPTA's medical director, Dr. Jeffrey Erinoff. Def. Statement Facts ¶ 6.

A week later, on June 28, 2010, Mercer passed out while working on a hot bus. Pl. Statement Facts ¶ 16. He was taken by ambulance to the emergency room at Montgomery Hospital, where he “underwent a cardiac procedure.” Decl. of Jeffrey Erinoff, Ex. 2, Letter from Montgomery Hospital, June 28, 2010, ECF No. 14–5. His treating physician cleared him to return to work on July 6, 2010, with the restriction that he “avoid excessive heat (buses without air conditioning) because this could worsen his cardiac and medical conditions.” Id. Mercer provided the note containing those instructions to Dr. Erinoff during a physical examination on July 20, 2010. Def. Statement Facts ¶ 10; Pl. Resp. Def. Statement Facts ¶ 10, ECF No. 16–1. After discussing the restriction with Mercer, Dr. Erinoff recommended to Mercer's supervisors that he be permitted to clean buses with the air conditioning turned on when the outside temperature exceeded 90 degrees. Def. Statement Facts ¶ 11; Pl. Resp. Def. Statement Facts ¶ 11.

Mercer says that, despite Dr. Erinoff's recommendation, he was routinely assigned to work on buses without air conditioning during the remainder of the summer of 2010. Pl. Statement Facts ¶ 19. Specifically, he contends that Defendant Berry, one of his supervisors, directed him to work on buses without air conditioning on an almost daily basis from the time he returned to work until Berry was relocated to a different bus depot in early October 2010.² Id. ¶¶ 19, 29. Mercer says that he frequently complained to his Union representatives and to his supervisors about his working conditions, but no changes were made. Id. ¶ 19. One of Mercer's coworkers, Robert Cohen, agrees that Mercer was assigned to work on hot buses even after he provided SEPTA with his doctor's note (although it is unclear which of the two notes Cohen is referring to).Id. ¶¶ 40–46.

In addition to being asked to work in excessively hot conditions, Mercer also claims that Berry frequently cursed at him, called him “fat,” and made fun of him about his weight. Id. ¶ 21. He describes one particular incident in detail, during which Berry allegedly ridiculed him in front of coworkers by dropping something on the floor and asking him to “pick it the fuck up.” Pl. Resp. Mot. Summ. J., Ex. A, Mercer Dep. 153:10, Oct. 4, 2013, ECF No. 16–3. Mercer also asserts that a different supervisor, Jim Heiser, would sometimes yell at him, throw keys at him, and snatch papers from him. Pl. Statement Facts ¶ 31.

On August 18, 2010, Mercer had a confrontation with Berry that led to the temporary termination of his employment. Although the parties dispute many of the details of the event, they agree that Berry demanded that Mercer transport a bus to a different facility, and that Mercer did not do so, instead leaving work early. Def. Statement Facts ¶¶ 14–15; Pl. Statement Facts ¶¶ 20, 26. They also agree that Berry used the phrase “direct order” when asking Mercer to move the bus. Def. Statement Facts ¶ 16; Pl. Statement Facts ¶ 24. Mercer maintains that he did not move the bus because he was not feeling well after cleaning buses with no air conditioning all day. Pl. Statement Facts ¶ 23. He also says that it was unclear to him whether Berry was actually giving him a direct order, and that he believed he had permission to leave from Berry's supervisor, Defendant Jason Griffin. Id. ¶¶ 24–25.

When Mercer came to work the next morning, August 19, 2010, Griffin informed him that he was being “held off” (i.e., suspended) until further notice pending an investigation into the incident. Id. ¶ 27; Def. Statement Facts ¶ 19. That investigation resulted in Griffin concluding that Mercer had violated a direct order from his supervisor, which subjected him to immediate termination. Def. Statement Facts ¶ 20; Decl. Jason Griffin, Ex. 1, Authority Standard Rules, at 14–15, ECF No. 14–9. The Union appealed that determination, and—following the procedures provided for in the CBA—the Union and SEPTA entered into a settlement agreement that permitted Mercer to return to work. Def. Statement Facts ¶¶ 21–23. Pursuant to that agreement, Mercer was placed on “Last Chance” status, which meant that he would be automatically discharged if he incurred any disciplinary actions during the next 730 days. Id. ¶ 23. Mercer signed the agreement and returned to work after completing a physical examination on September 27, 2010.

After Mercer returned to work, he accumulated several warnings for violating SEPTA's “Vehicle Maintenance Information System” (“VMIS”), which is a computer program SEPTA uses to track employees' time and to assign work. Id. ¶ ¶ 27, 32. Pursuant to a 2005 Memorandum of Understanding between SEPTA and the Union, an employee who receives six violation notices in a year is advanced one level on SEPTA's progressive discipline policy. Id. ¶ 29. Mercer received his sixth violation notice on December 27, 2010, and so he was advanced one disciplinary step. Id. ¶ 33. Because he was already on “Last Chance” status, however, SEPTA terminated Mercer's employment effective January 14, 2011. Id. Mercer disputes the accuracy of several of the violation notices he received. See Pl. Statement Facts ¶¶ 4–8, 30, 134–135.

The Union appealed Mercer's discharge, the appeal progressed through the steps provided for in the CBA, and the matter was eventually scheduled for arbitration. Def. Statement Facts ¶¶ 34–37. Prior to the arbitration date, however, the Union and SEPTA again agreed to a settlement, pursuant to which Mercer would again be permitted to return to work on “Last Chance” status. Id. ¶ 37. This time, Mercer refused to sign the agreement, as he had filed a claim against SEPTA with the Equal Employment Opportunity Commission (“EEOC”) and he was concerned that by signing the agreement he would be waiving his rights to pursue a lawsuit against SEPTA. Pl. Statement Facts ¶¶ 127, 130–133, 142–143. Mercer therefore never returned to work after his discharge on January 14, 2011.

II. PROCEDURAL HISTORY

On July 8, 2011, Mercer filed a charge of discrimination under the ADA and the PHRA with the EEOC, and he was issued a right-to-sue letter on September 20, 2012. Compl. ¶ 5, ECF No. 1. He then timely filed the instant complaint. SEPTA answered on March 19, 2013 (ECF No. 6), and then moved for summary judgment following the completion of discovery (ECF No. 14). Mercer responded on March 23, 2014 (ECF No. 16), and the matter is now ripe for disposition.

III. LEGAL STANDARD

Summary judgment is appropriate if 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(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact...