Cichonke v. Bristol Twp., CIVIL ACTION NO. 14-4243

JOHN CICHONKE, Plaintiff, v. BRISTOL TOWNSHIP, et al., Defendants.

CIVIL ACTION NO. 14-4243

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 25, 2015

MEMORANDUM

BUCKWALTER, S. J.

Currently pending before the Court is the Motion by Defendants¹ Bristol Township, William McCauley, and Scott Swichar (collectively, "Defendants") to Dismiss Plaintiff John Cichonke ("Plaintiff")'s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted in part and denied in part.

I. FACTUAL BACKGROUND

Plaintiff John Cichonke ("Plaintiff") was employed by Defendant Bristol Township from December 1988 through June 18, 2013 in its Sewer Treatment Plant operations. (Am. Compl. ¶¶ 3, 19.) Defendant William McCauley ("McCauley") has been employed by Defendant Bristol Township as Township Manager since early 2012. (Id. ¶ 10.) Defendant Scott Swichar ("Swichar") has been employed by Defendant Bristol Township as a Sewer Department ProjectManager and Operations Analyst since early 2012. (Id. ¶ 11.) Defendant Swichar was one of Plaintiff's direct supervisors. (Id.)

In 2010, Plaintiff was diagnosed with Trigeminal Neuralgia, a condition which caused him to regularly have severe and debilitating pain and which is listed as a Serious Health Condition under the Family and Medical Leave Act ("FMLA"). (Id. ¶ 20.) Plaintiff underwent surgery for that condition in February 2011, but continued to suffer from frequent, severe, and debilitating flare-ups. (Id. ¶¶ 21-22.) As a result of those flare-ups, Plaintiff occasionally needed to be out of work. (Id. ¶ 23.)

In January 2013, Plaintiff was performing work duties when he experienced sudden and severe chest pain. (Id. ¶ 24.) He went to a local hospital and was incorrectly diagnosed with a pulled muscle. (Id.) Plaintiff was thereafter placed on light duty for several weeks. (Id.) On February 19, 2013,² Plaintiff applied for Intermittent FMLA leave by filling out and submitting to Bristol Township the required FMLA form and Certification of Employee's Serious Health Condition, signed by Doctor Dani S. Bidros ("First Certification"), which listed Plaintiff's Trigeminal Neuralgia as the Serious Health Condition. (Id. ¶ 25.) On February 20, 2013, Plaintiff had severe chest pain and went to a local hospital where doctors determined that he had blood clots and immediately admitted him to the intensive care unit. (Id. ¶ 28.) Several days later, he returned to work. (Id. ¶ 29.) On March 4, 2013, the Bristol Township Human Relations Director told Plaintiff that he would need to obtain a second Certification of Employee's Serious Health Condition ("Second Certification") because the First Certification was not being accepted by Defendant McCauley, the Bristol Township Manager. (Id. ¶¶ 30, 32.) Plaintiff was told that Defendant McCauley would not approve FMLA leave related to Plaintiff's Trigeminal Neuralgiabecause he did not believe that it was a serious medical condition. (Id. ¶ 32.) Plaintiff did not receive written notification regarding what additional information was necessary to make the First Certification complete and sufficient. (Id. ¶ 31.) On March 4, 2013, Plaintiff obtained a Second Certification and later provided it to the Bristol Township Human Relations Director. (Id. ¶ 37.)

On June 6, 2013, Plaintiff called in sick to work due to a flare-up of Trigeminal Neuralgia. (Id. ¶ 45.) At some point that day, he left his house to pick up medicine at a local drug store. (Id. ¶ 46.) While Plaintiff was at the drug store, the president of his local Veterans of Foreign Wars chapter ("VFW") called Plaintiff and asked for his assistance with some paperwork at the VFW office. (Id.) Plaintiff agreed to stop by the VFW office on his way home from the drug store. (Id. ¶ 47.) He parked his truck in the VFW parking lot and spent approximately thirty minutes to one hour assisting the VFW president with paperwork in the club office. (Id.)

The VFW is a members-only club that permits outside guests on a limited basis. (Id. ¶ 48.) Security measures include a closed-circuit security camera, locked doors, a buzzer system, and a VFW employee responsible for security enforcement. (Id. ¶ 49.) To gain entrance to the club, visitors ring the buzzer and present a membership card to the security enforcement employee. (Id. ¶ 50.) Those seeking entry to the VFW who are not members must explain the purpose of their visit and are permitted to enter on a limited basis. (Id. ¶ 51.)

On June 6, 2013, at the direction of Defendant McCauley,³ Defendant Swichar and former Human Resources Officer Paula Kearns drove to the VFW to investigate whetherPlaintiff was drinking alcohol. (Id. ¶ 52.) Defendant Swichar rang the buzzer and told the VFW employee who answered that Bristol Township was interested in potentially renting the VFW space for an event, even though that was not true and he was actually there to look for Plaintiff. (Id. ¶¶ 57-58.) Plaintiff alleges that Defendant Swichar provided a false reason for his presence because he did not believe he would have been allowed in for the purpose of looking for Plaintiff. (Id. ¶ 59.) After gaining entry to the VFW, Defendant Swichar looked for Plaintiff. (Id. ¶ 60.) According to Plaintiff, Defendant Swichar did not locate him inside the VFW. (Id. ¶ 143.) On the evening of June 6, 2013, Defendant Swichar drove past Plaintiff's house at least two times. (Id. ¶ 62.)

On June 10, 2013, Defendant Swichar, acting under Defendant McCauley's orders and/or authorization, required Plaintiff to submit to a Breathalyzer alcohol test during work hours. (Id. ¶¶ 63, 71.) Defendant Swichar stated that the basis for the test was reasonable suspicion. (Id.) Defendant Bristol Township's policy⁴ regarding alcohol testing states the following:

The required observations for alcohol and/or controlled substances reasonable suspicion testing must be based on specific contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee and must be made by a supervisor or manager who is trained in accordance with the following requirements:

(a) Supervisors/managers designated to determine whether reasonable suspicion exists to require an employee to undergo alcohol or controlled substance testing must receive at least one hour of training on alcohol misuse and at least one hour of training on controlled substances.

(b) The training provided by the contractor must cover the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.

(Id. ¶ 64.) Plaintiff alleges that Defendant Swichar did not have reasonable suspicion sufficient to require Plaintiff to undergo testing, and that Defendant Swichar had not received Bristol Township's mandatory training regarding alcohol testing for employees. (Id. ¶¶ 66-68.) Plaintiff alleges, upon information and belief, that Defendants have not required employees who are younger than Plaintiff to undergo alcohol testing during work hours, even though those employees had previously been suspected of drinking alcohol during work hours, including but not limited to former employee K.T. (Id. ¶ 76.)

Plaintiff's Breathalyzer test was negative for alcohol, and Defendant Swichar directed Plaintiff to return to work. (Id. ¶ 75.) Plaintiff was "extremely upset" by the testing, so he requested, and was approved for, four days of vacation time for June 11, 2013 to June 14, 2013, "to recover from the stress" he experienced. (Id. ¶ 77.) Defendant Bristol Township did not compensate Plaintiff for the four days of vacation time. (Id.)

On June 18, 2013, Plaintiff attempted to take one day of FMLA leave due to his medical conditions. (Id. ¶ 78.) Plaintiff completed and submitted the FMLA forms, but Defendant Swichar gave Plaintiff a letter informing him that he had exhausted his sick leave, that his sick leave had not been approved, and that he must report to work or face disciplinary action or discharge. (Id. ¶¶ 79-80.)

Plaintiff resigned from his position on June 18, 2013, due to what Plaintiff believes was retaliation and harassment, as well as prior complaints of retaliation and harassment that had not been addressed. (Id. ¶ 85.) Plaintiff alleges that when he left his position, he was eligible for accrued and unused vacation time totaling 144 hours, to be paid at his hourly rate of $22.47 for a total amount of $3,235.68. (Id. ¶ 89.) Pursuant to a Collective Bargaining Agreement, Bristol Township is required to provide bargaining unit member employees with one hundred percent ofaccrued and unused vacation time upon resignation or retirement. (Id. ¶ 90.) Plaintiff requested his accrued and unused vacation time on several occasions, and though he was told payment was forthcoming, he has not yet received payment. (Id. ¶¶ 91-92.) Defendant Bristol Township printed a check for Plaintiff's vacation time, but Defendant McCauley refused to allow the payment to be made. (Id. ¶ 93.) Plaintiff alleges, upon information and belief, that Defendant McCauley refused to process and make payment for Plaintiff's accrued and unused vacation time because Plaintiff had asserted claims with state and federal agencies under the Collective Bargaining Agreement, as well as under other state and federal laws. (Id. ¶ 94.) Plaintiff further alleges, upon information and belief, that Defendants have provided one hundred percent of accrued and unused vacation time to employees who are younger than Plaintiff upon their resignation or retirement, including but not limited to B.G., Z.M., and K.T. (Id. ¶ 95.)

On June 19, 2013, Plaintiff requested copies of his FMLA documents, but was told "it's all still on [Defendant McCauley's] desk" awaiting signature, and he did not receive copies of the requested documents. (Id. ¶ 86.) On several occasions throughout the weeks of June 20, 2013 through July 10, 2013, Plaintiff called Bristol Township to ask...