Parrotta v. Peco Energy Co.
| Decision Date | 31 January 2019 |
| Docket Number | CIVIL ACTION NO. 18-2842 |
| Parties | Michael PARROTTA v. PECO ENERGY COMPANY |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Stephanie J. Mensing, Mensing Law LLC, Philadelphia, PA, for Michael Parrotta.
Talib Nadir Ellison, Exelon Business Service Co., Philadelphia, PA, for PECO Energy Company.
Confusion over marijuana use now reaches into whether an employee failing a drug test after admittedly self-prescribing marijuana to alleviate foot pain may argue his employer illegally retaliated by firing him after it enrolled him in an Employee Assistance Program which it treated as leave under the Family and Medical Leave Act until it could hold a disciplinary hearing on his failed drug test. The employer's internal drug policies mandated termination for a failed drug test and warned employees the Assistance Program would not prevent later termination. This employer decided to first place the employee in the Assistance Program for several weeks with pay and then, when he finished, hold a disciplinary hearing. Following the hearing, the employer terminated him for marijuana use as required in its internal policies. He claims, among other things, the employer fired him in retaliation for being enrolled in the Assistance Program. But the Family and Medical Leave Act only allows a retaliation claim when the employee shows his employer retaliated against him for invoking his federal rights. The evidence today is the employee never invoked his federal rights. His employer automatically placed him in the Assistance Program and then, consistent with its policy, terminated him for admitted marijuana use several weeks later. There is also no disputed fact issue as to the employee's lack of foot disability when terminated as his doctor cleared him for work over seven months earlier. We grant the employer's motion for summary judgment in the accompanying Order.
PECO Energy Company hired Michael Parrotta as a Senior Engineer on February 23, 2015.2 PECO offers leave under the Family and Medical Leave Act allowing Mr. Parrotta to, among other benefits, take two weeks paid leave following the birth of his son in August 2016.3
Mr. Parrotta's foot injuries.
On September 7, 2016, podiatrist Dr. Marc Baer told April Brockson, a PECO occupational services nurse, of his continuing treatment of Mr. Parrotta's foot condition.4 Dr. Baer diagnosed Mr. Parrotta with a second plantar plate tear in his left foot.5 Mr. Parrotta has always maintained his disability is a second plantar plate tear in his left foot.6 He argues no other disability. Dr. Baer requested Ms. Brockson provide Mr. Parrotta with work restrictions as he could not climb ladders or wear fire resistant clothing due to his treatment.7 Dr. Baer requested these restrictions for "at least 30 days from the date of [the] letter and until further notice."8
Following Dr. Baer's notice, Mr. Parrotta told Ms. Brockson he had Morton's Neuroma
in his feet and a "Second Plantar Plate Tear" in his left foot, and he was wearing a "mid-calf rigid boot."9 On October 14, 2016, Mr. Parrotta told Ms. Brockson of a planned October 31, 2016 surgery for his left foot and following surgery, he will require a cast and crutches for six weeks.10
On October 31, 2016, Ms. Brockson told PECO employees of Mr. Parrotta's approved FMLA medical leave for his surgery and recovery.11 On November 11, 2016, Dr. Baer told PECO Mr. Parrotta underwent "left plantar plate repair" surgery and a "left weil 2nd metatarsal osteotomy
."12 Dr. Baer wrote Mr. Parrotta "is non weight bearing, has a below the knee case and is using a walker."13 Dr. Baer further wrote the prognosis for the plantar plate was "good" and Mr. Parrotta's pain was "well controlled with Percocet."14 Dr. Baer also recommended Mr. Parrotta's return to "limited duty" on December 5, 2016, with "limited walking, use of cast or boot, possible crutches, no stairs or ladders."15 On December 1, 2016, Ms. Brockson told PECO's human resources representative Joseph Fenico and Mr. Parrotta's supervisor, George Leinhauser, Dr. Baer released Mr. Parrotta to light duty effective December 5 with restrictions: "limited walking, may need use of one crutch to walk with cast or boot, no stairs or ladders."16 Mr. Leinhauser responded "[w]e can make accommodations."17
On January 23, 2017, Mr. Parrotta told Ms. Brockson he stopped wearing the boot.18 Mr. Parrotta told her "[a]lthough Dr. Baer was pleased overall with the progress since surgery, he doesn't want me doing anything too rigorous, since some soreness still exists."19
On March 3, 2017, Mr. Parrotta told Ms. Brockson he could resume "full duty" with "only maintenance follow up with Dr. Baer."20 On March 7, 2017, Dr. Baer wrote Mr. Parrotta's prognosis was "good" and cleared him for "full duty" on January 10, 2017 with no restrictions and no further treatment.21 Under the medications section on the form for Mr. Parrotta's treatment plan, Dr. Baer wrote "N/A."22 Dr. Baer did not prescribe medical marijuana. The same day, Ms. Brockson told Mr. Parrotta's new supervisor Suzanne Shaw and Mr. Fenico Mr. Parrotta could "resume his regular job duties."23
Mr. Parrotta's marijuana use leads to failed random drug test.
On May 12, 2017, PECO Fitness for Duty Manager Emilee A very told a PECO representative of randomly selecting Mr. Parrotta for drug testing scheduled May 15, 2017.24 Mr. Parrotta does not dispute PECO randomly selected him for testing. On May 19, 2017, Ms. Avery reported Mr. Parrotta tested positive on the random drug testing25 and further directed:
[Mr. Parrotta] must be removed from duty and directed to contact the Employee Assistance Program (EAP) within 24 hours to schedule a substance abuse evaluation. The evaluation will determine what assistance, education and/or treatment [Mr. Parrotta] will require to address his substance abuse. [Mr. Parrotta] is to remain off-duty until such time as the EAP has determined that the employee has satisfactorily completed the recommended treatment program. My records indicate that this is Michael Parrotta's 1st positive test.26
On May 19, 2017, PECO's human resources representative Mr. Fenico wrote to Mr. Parrotta confirming a positive test27 and describes what happens next:
Exelon's Drug and Alcohol Policy provides "[f]or exempt employees, the first positive drug test will result in termination of employment."29 PECO classifies its senior engineers (like Mr. Parrotta) as exempt employees.30 Its Policy defines "drugs" as any "chemical substance whose manufacture, use, possession, purchase, or sale is prohibited by law."31 Marijuana use is prohibited by law. Under the Policy, Mr. Parrotta's positive drug test for marijuana use should automatically result in termination. But PECO did not terminate him.
The Policy provides if an employee is not terminated for his first violation, the employee "will be required to obtain and complete treatment through" an Employee Assistance Program.32 PECO provides the Employee Assistance Program for confidential assistance for issues including drug and alcohol use.33 PECO's Drug and Alcohol Policy provides "participation in the [Employee Assistance Program] or seeking treatment will not prevent disciplinary action, up to and including termination, for a violation of this Policy or a violation of any other applicable policy, procedure, or rule."34 Ms. Avery explained PECO places employees on short-term disability while they complete the Employee Assistance Program, running FMLA leave concurrently with short-term disability.35 Mr. Parrotta adduced no evidence of PECO telling employees how it internally treated his Employee Assistance Program leave as both short-term disability and FMLA leave.
PECO mandated FMLA leave to allow drug assistance.
On May 19, 2017, Mr. Parrotta began the Employee Assistance Program.36 As FMLA retaliation may only arise when the employee requests FMLA leave, the lawyers now dispute whether Mr. Parotta requested FMLA leave. Mr. Parrotta's counsel argues he requested FMLA leave and PECO approved a leave of absence beginning May 19, 2017.37 PECO disagrees arguing the Employee Assistance Program is mandated and Mr. Parrotta never requested FMLA leave. Mr. Parrotta also disagrees with his lawyer; he swore he did not request FMLA leave to complete the Employee Assistance Program; rather, PECO assigned FMLA to him:
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