McCall v. City of Phila.

COLEMAN MCCALL, JR. Plaintiff, v. CITY OF PHILADELPHIA, Defendant.

CIVIL ACTION NO. 11-5689

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 29, 2013

MEMORANDUM

BUCKWALTER, S.J.

Currently pending before the Court are the Cross-motions for Summary Judgment filed by Plaintiff Coleman McCall ("Plaintiff" or "McCall") and Defendant City of Philadelphia ("Defendant" or "City"). For the following reasons, Plaintiff's Motion is denied in its entirety and Defendant's Motion is granted in part and denied in part.

I. STATEMENT OF FACTS

The present litigation involves a claim by Plaintiff against the City under the anti-retaliation provisions of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA"), the Americans With Disability Act of 1990, as amended, 42 U.S.C. §§ 1211, et seq. ("ADA"), and the Pennsylvania Human Relations Act, 647 Pa.C.S § 951, et seq. ("PHRA"). Both parties now seek summary judgment on these claims.

A. The City's Relevant Employment Policies and Civil Service Regulations

Civil Service Regulation 22.01 provides as follows:

22.01 - GENERAL PROVISIONS. No officer or employee in the Civil Service shall absent himself from duty without leave except in case of sickness or great emergency.

An employee who is absent from the service without a valid leave of absence for five consecutive working days shall be deemed to have abandoned his position and to have resigned from the service unless he shall within a period of ten (10) calendar days next succeeding such five (5) days prove to the satisfaction of the Director that such failure was excusable; provided however, that nothing herein contained shall be construed as preventing an appointing authority from suspending or discharging an employee on account of unauthorized absence.

(Def.'s Mot. Summ. J., Ex. C.) Regulation 22.02 goes on to state:

22.02 - LEAVES OF ABSENCE WITHOUT PAY, GRANTING OF. The appointing authority, subject to the approval of the Director, may grant a leave of absence without pay for a period not exceeding one year, to an employee upon the employee's written request. Such leave, however, may, for meritorious reasons, be extended for additional periods with the approval of the appointing authority and the Director. The employee's written request shall state the duration of the requested leave and the reason for the request. Medical documentation shall accompany requests for medical leaves. If a leave request is denied and such denial will have the effect of causing the employee's separation from City service, the employee shall be notified in writing that his/her request has been denied and that he/she may appeal such action to the Civil Service Commission within (30) days.

(Id.) Finally, Regulation 22.05 provides:

22.05 - INFORMAL LEAVES OF ABSENCE WITHOUT PAY NOT TO EXCEED FIFTEEN (15) WORKING DAYS. The appointing authority may, at his discretion, grant to employees upon their request informal leaves of absence, without pay, not to exceed fifteen (15) working days. Such leaves of absence do not require the approval of the Director and the granting of such leaves of absence without pay need not be reported to the Personnel Department.

(Id.)

In addition, the City maintains a City-wide sick leave policy, which sets forth requirements for obtaining and taking sick leave. (Def.'s Mot. Summ. J., Ex. D.) This policy affords paid leave for all permanent Civil Service employees, including eleven paid holidays, vacation based on years of service, administrative leave days, sick leave, and funeral leave. (Id.) The Philadelphia Airport itself, where Plaintiff worked, also maintains a sick leave policy specifically for Airport employees, (Def.'s Mot. Summ. J., Ex. E), as well as a policy on unpaid leave. (Def.'s Mot.Summ. J., Ex. F.) Notably, none of these policies require employees or their physicians to identify a medical condition on a sick leave notice. (Def.'s Mot. Summ. J., Exs. D, E, & F.) Nonetheless, Yvonne Howard, the Airport's Human Resources Director, testified that when a medical leave of absence is applied for, the employee must submit medical documentation indicating what the leave is for, the duration of time, and a written request from the employee and approval from the manager and the Human Resources office. (Def.'s Mot. Summ J., Ex. W, Dep. of Yvonne Howard ("Howard Dep.") 153:22-154:6, July 12, 2012.) All of these policies are included in a booklet entitled, "The Family and Medical Leave Act: Guidelines for City of Philadelphia Employees." (Def.'s Mot. Summ. J., Ex. I.) Plaintiff signed a form on March 30, 2001, indicating receipt of this booklet. (Id.)

Before August of 2009, supervisors approved the use of unpaid time leave with little or no guidance. (Def.'s Mot. Summ. J., Ex. H, Dep. of Christine Derenick-Lopez ("Lopez Dep."), 61:21-62:62:5, Nov. 26, 2012.) As a result, Christine Derenick-Lopez, the Assistant Director of Aviation for the City, went through several meetings with the local union and ultimately issued an August 28, 2009 memorandum clarifying the use of unpaid leave. (Derenick-Lopez Dep. 63:7-64:4.) The memorandum indicated that, in accordance with Civil Service Regulation 22.05, the "appointing authority may, at his discretion, grant to employees upon their request informal leaves of absence, without pay, not to exceed fifteen (15) working days." (Def.'s Mot. Summ. J., Ex. G (emphasis in original).) She further explained that, effective September 7, 2009, the Division of Aviation would evaluate all requests for unpaid leave and decisions would be made on a case-by-case basis, considering documentation of an emergency, grave illness, or disabling injury; the employee's attendance, work, and disciplinary histories; previous unpaid leave status;and the impact of the unpaid leave on the Division of Aviation. (Id.) Finally, the memorandum noted that "[t]he exceptions to the use of unpaid leave include: eligible employees with a qualifying condition under the Family and Medical Leave Act, and Military Leave of Absence." (Id.) Ms. Lopez testified that there was no ADA impact study done relative to this memorandum. (Lopez Dep. 85:10-17.)

From 2007 through 2009, Lucinda West (formerly Lucinda Goss) handled administration of FMLA leave. (Def.'s Mot. Summ. J., Ex. J, Dep. of Lucinda West ('West Dep.") 15:6-11, Nov. 9, 2012.) She was trained in the handling of FMLA matters. (Id. at 16:9-18:22, Def.'s Mot. Summ. J., Ex. K.) She explained that she could only approve FMLA leave if an employee provided a proper medical reason. (West Dep. 18:23-19:4.)

B. Plaintiff's Employment With the City and ADA Accommodations

From April 17, 2000 until April 5, 2011, Plaintiff was employed with Defendant City of Philadelphia as a "Custodial Worker 1" at the Airport. (Def.'s Statement of Undisputed Facts ("DSUF") ¶ 1; Pl's Resp. to Defendant's Statement of Undisputed Facts ("PRSUF") ¶ 1.) Custodial workers were responsible for the cleaning and maintenance of the Airport. (Def.'s Mot. Summ. J., Ex. A, Dep. of Coleman McCall ("McCall Dep."), 49:4-7, Apr. 25, 2013; Def.'s Mot. Summ. J., Ex. B.)

Sometime in 2003, Plaintiff was diagnosed with severe bilateral knee arthritis and degenerative joint disease. (DSUF ¶ 17; PRSUF ¶ 17.) In both 2003 and 2005, Plaintiff sought accommodations from the City in the form of work modifications and documented his need for those accommodations with medical support. (DSUF ¶ 18; PRSUF ¶ 18.) On each occasion, the City approved Plaintiff's request and granted the accommodations. (Id.) Specifically, on October28, 2005, Plaintiff submitted a note from his doctor asking that he be allowed to use a ride-on burnisher rather than one that required him to walk behind it. (DSUF ¶ 20; PRSUF ¶ 20; Def.'s Mot. Summ. J., Ex. M.) When the City requested more detailed medical documentation, Plaintiff provided additional information from his doctor. (DSUF ¶¶ 21-22; PRSUF ¶¶ 21-22; Def.'s Mot. Summ. J., Ex. M.) By way of a letter dated November 11, 2005, the City accommodated his request for the ride-on burnisher. (Id.) In addition, the City approved Plaintiff for a period of light duty, (McCall Dep. 77:10-15), and gave him extra days off for medical treatment. (Id. at 78:9-12.) Plaintiff also depended highly on his fifteen allotted unpaid leave days per year to manage his disability. (Id. at 74:22-11.) During Plaintiff's employment with the City, he remained able to perform the essential functions of his position with reasonable accommodations, despite his knee conditions. (DSUF ¶ 19; PRSUF ¶ 19.)

C. Plaintiff's Use of FMLA Leave

During his tenure with the City, Plaintiff used FMLA leave numerous times for his knee condition, his depressive disorder, and other authorized reasons. (DSUF ¶ 26; PRSUF ¶ 26.) Specifically, Plaintiff used FMLA for six days' leave in 2002; from September 21, 2004 to October 21, 2004; from May 6, 2005 to July 11, 2005; from March 3, 2006 to May 3, 2006; intermittently between May 10, 2006 and May 10, 2007, and June 4, 2008 and July 12, 2008; from August 28, 2008 to November 28, 2008; intermittently between August 12, 2009 and October 9, 2009; and from August 11, 2010 to October 2, 2010. (Def.'s Mot. Summ. J., Ex. N; DSUF ¶ 26; PRSUF ¶ 26.) In addition, Plaintiff used FMLA leave in December 2006 due to the death of his father, (DSUF ¶27; PRSUF ¶ 27), and intermittently from June 4, 2008 to August 27, 2008 due to the premature birth of his twin children. (DSUF ¶ 28; DSUF ¶ 28, Def.'s Mot. Summ. J., Ex. N.)

For the leave of absence in May of 2006, Plaintiff submitted a Request for FMLA leave, along with a Certification of Healthcare Provider dated May 1, 2006. (Pl.'s Mot. Summ. J., Ex. 6.) Plaintiff's supervisor, Darnell Mason, then sent an email to Jennifer Robinson in Human Resources requesting that Plaintiff's time card for May 11, 2006 be changed from unpaid sick leave to FMLA leave. (Pl.'s Mot. Summ. J., Ex. 7.) One hour later, however, Mason sent a second email...