Fedorowicz v. Norfolk Southern Railway Company

MOTION for Partial Summary Judgment

E.D. Pa.May 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SCOTT FEDOROWICZ, : : Plaintiff, : : CASE NO: 5:15-cv-05235-JFL vs. : : NORFOLK SOUTHERN : RAILWAY COMPANY, : : Defendant. : NORFOLK SOUTHERN RAILWAY COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S CLAIM FOR PUNTIVE DAMAGES Pursuant to Rule 56 of the Federal Rules of Civil Procedure, for the reasons set forth in the accompanying Brief in Support of Norfolk Southern Railway Company’s Motion for Partial Summary Judgment and its Statement of Undisputed Material Facts in Support of Norfolk Southern Railway Company’s Motion for Partial Summary Judgment and all exhibits thereto, Defendant Norfolk Southern Railway Company, by and through its undersigned counsel, hereby respectfully requests that the Court enter an Order granting summary judgment on Plaintiff’s claim for punitive damages under the Americans With Disabilities Act because there are no genuine issues of material fact and Norfolk Southern Railway Company is entitled to judgment as a matter of law on Plaintiff’s punitive damages claim. Case 5:15-cv-05235-JFL Document 35 Filed 05/01/17 Page 1 of 3 -2- Respectfully submitted this 1st day of May, 2017. /s/ Myra K. Creighton Elizabeth A. Mallory Joseph P. Sirbak, II Buchanan Ingersoll & Rooney PC Two Liberty Place 50 S. 16th Street, Ste. 3200 Philadelphia, PA 19102-2555 (215) 665-8700 elizabeth.malloy@bipc.com Myra K. Creighton Georgia Bar 195660 (Admitted Pro Hac Vice) Fisher & Phillips LLP 1075 Peachtree Street NE, Suite 3500 Atlanta, GA 30309 (404) 240-4285 mcreighton@laborlawyers.com Attorneys for Defendant Norfolk Southern Railway Company Case 5:15-cv-05235-JFL Document 35 Filed 05/01/17 Page 2 of 3 -3- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SCOTT FEDOROWICZ, : : Plaintiff, : : CASE NO: 5:15-cv-05235-JFL : NORFOLK SOUTHERN : RAILWAY COMPANY, : : Defendant. : CERTIFICATE OF SERVICE I, Myra K. Creighton, Esquire, hereby certify that on this 1st day of May, 2017, a true and correct copy of the foregoing Defendant’s Motion for Partial Summary Judgment, Proposed Order, Brief in Support of Defendant’s Motion for Partial Summary Judgment, Certificate of Nonconcurrence, Statement of Undisputed Facts in Support of Defendant’s Motion for Partial Summary Judgment, and all exhibits thereto were filed via the Court’s electronic filing system and were served upon the following attorney via the Court’s electronic filing system: Gregory G. Paul Morgan & Paul PLLC First and Market Building 100 First Avenue, Suite 1010 Pittsburgh, PA 15222 /s/ Myra K. Creighton Myra K. Creighton Georgia Bar 195660 (Admitted Pro Hac Vice) Case 5:15-cv-05235-JFL Document 35 Filed 05/01/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SCOTT FEDOROWICZ, : : Plaintiff, : : CASE NO: 5:15-cv-05235-JFL vs. : : NORFOLK SOUTHERN : RAILWAY COMPANY, : : Defendant. : BRIEF IN SUPPORT OF THE MOTION OF DEFENDANT NORFOLK SOUTHERN RAILWAY COMPANY FOR PARTIAL SUMMARY JUDGMENT BUCHANAN INGERSOLL & ROONEY PC Elizabeth A. Malloy Joseph P. Sirbak, II Two Liberty Place 50 S. 16th Street, Ste. 3200 Philadelphia, PA 19102-2555 (215) 665-8700 elizabeth.malloy@bipc.com FISHER & PHILLIPS LLP Myra K. Creighton Georgia Bar 195660 (Admitted Pro Hac Vice) 1075 Peachtree Street NE, Suite 3500 Atlanta, GA 30309 (404) 240-4285 mcreighton@laborlawyers.com Attorneys for Defendant Norfolk Southern Railway Company Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 1 of 15 ii TABLE OF CONTENTS I. INTRODUCTION ......................................................................................... 1 II. STATEMENT OF PERTINIENT FACTS ................................................. 1 III. SUMMARY OF ARGUMENT..................................................................... 4 IV. QUESTION PRESENTED ........................................................................... 5 Whether NS RR is entitled to summary judgment on Fedorowicz’s claim for punitive damages under the ADA because there is no evidence that NS RR acted in the face of the perceived risk that it would violate the ADA in disqualifying Fedorowicz? ........................................................ 5 V. ARGUMENT .................................................................................................. 6 A. Legal Standard For Granting Summary Judgment ................................. 6 B. NS RR Is Entitled to Summary Judgment on Fedorowicz’s Claim for Punitive Damages. ........................................................................................ 6 VI. CONCLUSION ............................................................................................10 Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 2 of 15 iii TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ...................................... 6 Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 903 (8th Cir. 2006) ......................................................................................................................11 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) .................................................. 6 Consolidated Rail Corp. v. Railway Labor Executives, 491 U.S. 299 (1989) .......... 8 Gonzalez v. Molded Acoustical Prod. of Easton, Inc., No. CIV.A. 11-5327, 2013 WL 1234809, at *7 (E.D. Pa. Mar. 27, 2013) ......................................................... 7 Hann v. Nestle USA, Inc., No. 13-CV-14616, 2016 WL 4537812, at *10 (E.D. Mich. Aug. 31, 2016) ............................................................................................11 Kolstad v. American Dental Ass’n, 527 U.S. 521, 536 (1999) ..............................1, 7 Skinner v. Railway Labor Executives’ Assn., 109 S. Ct. 1402, 1415 (1989) ............. 8 Webner v. Titan Distribution, Inc., 267 F.3d 828, 837 (8th Cir. 2001) ...................11 Rules Fed. R. Civ. P. 56(c)................................................................................................... 6 Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 3 of 15 I. INTRODUCTION Defendant Norfolk Southern Railway Company (“Norfolk Southern” or “NS RR”), by and through the undersigned counsel, respectfully submits this Brief in Support of its Motion for Summary Judgment on Plaintiff Scott Fedorowicz claim for punitive damages under the Americans with Disabilities Act (“ADA”). NS RR is entitled to summary judgment because Fedorowicz cannot establish a genuine issue of material fact to show that NS RR discriminated in the face of the perceived risk that its actions violated federal law. See Kolstad v. American Dental Ass’n, 527 U.S. 521, 536 (1999). II. STATEMENT OF PERTINIENT FACTS NS RR is a Class I railroad engaged in freight transportation. Undisputed Statement of Material Fact ¶1 (hereinafter “USMF ¶1”). If offered Fedorowicz a conductor job, contingent upon him being determined fit for duty. USMF ¶41. The duties of the job Fedorowicz was offered, freight train conductor, are to be in charge of the safe and efficient movement of various types of freight over rail, which include freight filled with hazardous, combustible materials. USMF ¶19, 27. These job duties can affect not only the conductor’s own safety, but also that of the conductor’s co-workers and the general public. USMF¶¶19-30. It is a critically safety-sensitive position that requires an individual to exercise a high degree of situational awareness, alertness, and constant focus when performing Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 4 of 15 -2- his/her duties. USMF ¶¶28-30. Consequently, NS RR requires all conductors to be fit for duty. USMF ¶¶8, 11, 41. Scott Fedorowicz has Type I insulin dependent diabetes. USMF ¶39. He began NS RR’s post-offer fitness for duty evaluation process by submitting to a medical examination during which he advised the examining physician that he has Type I diabetes. USMF ¶¶43-44. The physician sent NS RR’s Medical Department (“Medical Dept.”) Fedorowicz’s examination results. USMF ¶43. After a review of the results, Medical Dept. asked Fedorowicz and his treatment provider to submit additional information concerning his diabetes, which they did. USMF ¶45. Specifically, Fedorowicz provided a handwritten blood glucose log for the period August 29 through September 11, 2013. USMF ¶47. Ralph Cincinnati, Licensed Nurse Practitioner at Berks Endocrinology, sent a treatment note following Fedorowicz’s September 9 appointment with him. It indicated that Cincinnati had not seen Fedorowicz for over a year, and that Fedorowicz’s blood sugar control was “suboptimal”. USMF ¶¶46, 49. Upon receipt and review of the information, Anita Euell, an Occupational Health Nurse in NS RR’s Medical Dept., called Fedorowicz and inquired about the availability of additional treatment notes and about his blood glucose values reflected on his blood glucose log. USMF ¶50, Fedorowicz told nurse Euell that he did not know the last time he had seen his treatment provider but that he had lost Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 5 of 15 -3- his insurance after he was laid off 18 months before. USMF ¶50. He also confessed that the multiple times he had had significantly high blood glucose values over 300 on his blood glucose log most likely was the result of him eating 15 Oreos at night before bed. Id. Upon inquiry, he claimed to have reduced the number of Oreos he ate to “four with milk.” Id. Two days later, Euell sent Dr. David Deibert, an endocrinologist at Berks Endocrinology a medical inquiry concerning Fedorowicz. USMF ¶51. In his response dated September 19, Dr. Deibert opined that Fedorowicz could safely perform the duties of a conductor and also opined that Fedorowicz was at risk for experiencing a significant hypoglycemic or hyperglycemic event. USMF ¶52. Following receipt of Dr. Deibert’s response, Euell reviewed the information Fedorowicz and his healthcare providers had submitted. USMF ¶53. She recommended disqualification. USMF ¶53. Dr. Lina subsequently reviewed all the medical information in Fedorowicz’s medical file concerning his glucose levels and other diabetes-related details, as well as Ms. Euell’s memorandum concerning her call with Fedorowicz. USMF ¶54. As a result of Dr. Lina’s review, and taking into account her intimate knowledge of the critically safety-sensitive nature of the conductor position, the essential mental functions it required, the erratic and unpredictable schedule new conductors work, and the environment in which conductors work, Dr. Lina Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 6 of 15 -4- concluded that Fedorowicz presently was not medically fit for duty. USMF ¶55. In her opinion, Fedorowicz’s diabetes was not under good control or stable and the record showed that he was not medically compliant with his recommended treatment regime. USMF ¶¶46, 56-57. She, however, noted a recommendation that Fedorowicz submit updated information establishing a 2-4 week of stability and control for reconsideration. USMF ¶58. NS RR thereafter sent Fedorowicz a letter advising him that he was medically disqualified. USMF ¶59. At some point after his receipt of the letter, Fedorowicz sent to the Medical Dept. a letter objecting to his disqualification. USMF ¶62. Euell called and advised him that his beliefs concerning the basis for his disqualification were incorrect. USMF ¶63. She also told him that he could submit an updated blood glucose log along with any additional medical information for reconsideration. Id. He never did. USMF ¶64. III. SUMMARY OF ARGUMENT NS RR revoked Fedorowicz’s conditional job offer to be a conductor because he was not fit for duty in a letter dated September 27, 2013. Specifically, NS RR revoked its offer because it requires individuals with diabetes to have blood glucose that is controlled and stable on account of the risks posed by unstable blood glucose values, i.e., unstable blood glucose can lead to the adverse effects of hyperglycemia or hypoglycemia, which include impaired mental functioning. Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 7 of 15 -5- If a conductor suffers impaired mental functioning or any adverse effects on the ability to concentrate, focus or exercise situational awareness, it creates a risk of death or serious injury to him, his co-workers, and members of the public. A conductor likely to experience these effects cannot safely perform the fundamental essential mental functions the conductor position requires. NS RR concluded that Fedorowicz was at risk for suffering the adverse effects of hyperglycemia based on an individualized assessment of the information he provided, which included the Med-15 Form, his blood glucose log, memorandum concerning Ms. Euell’s September 16 conversation with him, his treatment provider notes, Dr. Deibert’s response to Nurse Euell’s inquiry, and current medical knowledge concerning hyperglycemia. Further, NS RR offered Fedorowicz the opportunity to submit an updated blood glucose log and other medical information, if available, for reconsideration, which he declined to do. Based on her medical research and her individualized evaluation of the information Fedorowicz and his providers submitted, there is no evidence that Dr. Lina discriminated in the face of a perceived risk that her determination violated the ADA. IV. QUESTION PRESENTED Whether NS RR is entitled to summary judgment on Fedorowicz’s claim for punitive damages under the ADA because there is no evidence that NS RR acted in the face of the perceived risk that it would violate the ADA in disqualifying Fedorowicz? Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 8 of 15 -6- V. ARGUMENT A. Legal Standard For Granting Summary Judgment A moving party is entitled to summary judgment where no genuine issues of material fact exist. Fed. R. Civ. P. 56(c). Summary judgment is properly entered against “the party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists only if there is evidence that would allow “a reasonable jury to return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). B. NS RR Is Entitled to Summary Judgment on Fedorowicz’s Claim for Punitive Damages. In order to support an award of punitive damages in a case of alleged employment discrimination, a plaintiff must demonstrate that his employer “engaged in intentional discrimination and has done so with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 530 (1999). “To justify an award of punitive damages, proof of intentional discrimination is not enough; rather, the employer must have ‘discriminate[d] in the face of a perceived risk that its actions will violate federal law.’” Gonzalez v. Molded Acoustical Prod. of Easton, Inc., No. CIV.A. 11-5327, 2013 WL 1234809, at *7 (E.D. Pa. Mar. 27, 2013) (quoting Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 9 of 15 -7- Kolstad, 527 U.S. at 536). In Kolstad the Supreme Court specifically stated that there are situations where even intentional discrimination will not result in punitive damages such as where the employer “reasonably believe[s] that its discrimination satisfies a bona fide occupational qualification defense or a statutory exception to liability” and specifically cited to 42 U.S.C. § 12113 (the business necessity defense) as an example of such a situation. 527 U.S. at 537. Here, NS RR had extended a conditional job offer for the conductor position to Fedorowicz. USMF ¶41. The conductor position has been universally recognized as safety-sensitive, potentially affecting not only the conductor’s own safety, but also that of his co-workers and the general public. See Skinner v. Railway Labor Executives’ Assn., 109 S. Ct. 1402, 1415 (1989); Consolidated Rail Corp. v. Railway Labor Executives, 491 U.S. 299 (1989). There is no dispute that a freight rail conductor carries out critically safety-sensitive responsibilities such as controlling track switches, monitoring the train's air pressure and track conditions, and communicating the railroad signals to other crew members. USMF ¶¶19-30. Further, conductors must ensure compliance with all railroad regulations, operating rules, safety procedures, train orders and local bulletins, and must be able to recognize and interpret railroad signals and banners and accurately judge distances. USMF ¶24. Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 10 of 15 -8- There is no evidence that Dr. Lina knew she disqualified Fedorowicz with any knowledge that she was risking violation of the ADA in making her medical determination following an individualized review of the information he and his medical providers submitted and taking into consideration a conductor’s job responsibilities and her medical knowledge. USMF ¶56. Dr. Lina has been trained concerning the dictates of the ADA and knew that it required her to perform an individualized assessment of job offerees’ fitness for duty. USMF ¶7. Further, she previously had consulted with the NS RR law department on ADA issues. USMF ¶7. Dr. Lina’s research revealed no medical evidence an individual with diabetes would have to have hyperglycemia for any particular period of time before experiencing the adverse mental effects of hyperglycemia. USMF ¶56. Finally, the Medical Disqualification Form reveals that Dr. Lina’s decision was not set in stone. Specifically, she suggested a period of control and stability for a two to four week period. USMF ¶58. Fedorowicz never submitted any updated information. USMF ¶64. Here, Fedorowicz’s blood sugar log reflected significant “glycemic excursions” (100 point swings to both blood glucose rates), Cincinnati 55:7-14, and a pattern of multiple, significantly high blood sugars on consecutive days in a short period that presented a real safety risk. USMF ¶56. Deibert admits that working an unpredictable, erratic schedule would require an insulin dependent Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 11 of 15 -9- diabetic to “diligently” check blood sugars and to “make healthy food choices”. Deibert 18:24-19:11. Fedorowicz did non-consistently check his blood sugar and he did not make appropriate food choices. Euell Decl. at ¶8 (Exh. 29, NS000042); Cincinnati 23:22-25. Consequently, Dr. Lina’s concern regarding Fedorowicz’s noncompliance with his recommendation was justified and reasonable. Therefore, Fedorowicz is not entitled to punitive damages under the ADA. See, e.g., Fahey v. Twin City Fan Companies, Ltd., 994 F. Supp. 2d 1064, 1081 (D.S.C. 2014) (in finding punitive damages inappropriate, the court explained that, “[w]hile its safety concerns were not grounded on legally permissible grounds, [the employer] believed their concerns to be lawful and such beliefs were not malicious or reckless.”); Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 903 (8th Cir. 2006) (holding that employer's failure to offer the employee, who was legally blind, a forklift position in the warehouse based on the perceived safety risk to the employee and others did not rise to level of malice or reckless indifference, and thus employee was not entitled to punitive damages in his claim of failure to accommodate under the ADA); Hann v. Nestle USA, Inc., No. 13-CV-14616, 2016 WL 4537812, at *10 (E.D. Mich. Aug. 31, 2016) (granting summary judgment to employer with respect to punitive damages claim where there was no evidence that employer acted with malice or reckless indifference; employer considered the restrictions from plaintiff’s physician in evaluating whether plaintiff could satisfy Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 12 of 15 -10- the demands of the position and attempted to work with plaintiff for months to accommodate him);Webner v. Titan Distribution, Inc., 267 F.3d 828, 837 (8th Cir. 2001) (vacating a punitive damages award finding employer's safety concerns that employee would injure himself were consistent with the employer acting to protect itself, and, while culpable, did not rise to the level of malice required to sustain an award of punitive damages). Consequently, in the absence of any evidence that NS RR proceeded in the face of a perceived risk, the Court should grant it summary judgment. VI. CONCLUSION For the foregoing reasons, NS RR respectfully asks that the Court to grant summary judgment on Fedorowicz’s claim for punitive damages. Respectfully submitted this 1st day of May, 2017. /s/ Myra K. Creighton Elizabeth A. Mallory Joseph P. Sirbak, II Buchanan Ingersoll & Rooney PC Two Liberty Place 50 S. 16th Street, Ste. 3200 Philadelphia, PA 19102-2555 (215) 665-8700 elizabeth.malloy@bipc.com Myra K. Creighton Georgia Bar 195660 (Admitted Pro Hac Vice) Fisher & Phillips LLP 1075 Peachtree Street NE, Suite 3500 Atlanta, GA 30309 Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 13 of 15 -11- (404) 240-4285 mcreighton@laborlawyers.com Attorneys for Defendant Norfolk Southern Railway Company Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 14 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SCOTT FEDOROWICZ, : : Plaintiff, : : CASE NO: 5:15-cv-05235-JFL : NORFOLK SOUTHERN : RAILWAY COMPANY, : : Defendant. : CERTIFICATE OF SERVICE I, Myra K. Creighton, Esquire, hereby certify that on this 1st day of May, 2017, a true and correct copy of the foregoing Defendant’s Motion for Summary Judgment, Proposed Order, Brief in Support of Defendant’s Motion for Summary Judgment, Statement of Nonconcurrence, Statement of Undisputed Facts in Support of Defendant’s Motion for Summary Judgment, and all exhibits thereto were filed via the Court’s electronic filing system and were served upon the following attorney via the Court’s electronic filing system: Gregory G. Paul Morgan & Paul PLLC First and Market Building 100 First Avenue, Suite 1010 Pittsburgh, PA 15222 /s/ Myra K. Creighton Myra K. Creighton Georgia Bar 195660 (Admitted Pro Hac Vice) Case 5:15-cv-05235-JFL Document 35-1 Filed 05/01/17 Page 15 of 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA SCOTT FEDOROWICZ, ) ) Plaintiff, ) ) v. ) CIVIL ACTION FILE ) NO.: 5:15-CV-05235-JFL NORFOLK SOUTHERN RAILWAY ) COMPANY, ) ) Defendant. ) CERTIFICATE OF NONCONCURRENCE I, Myra K. Creighton, hereby certify that on May 1, 2017, I called counsel for Plaintiff/Scott Fedorowicz (“Fedorowicz”) pursuant to the Honorable Joseph F. Leeson, Jr.’s Policies and Procedures Section F(4), regarding Defendant Norfolk Southern Railway Company’s Motion for Partial Summary Judgment. Counsel for Fedorowicz did not concur. Dated this 1st day of May, 2017. /s/Myra K. Creighton Myra K. Creighton Georgia Bar No. 195660 FISHER & PHILLIPS LLP 1075 Peachtree Street NE Suite 3500 Atlanta, GA 30309 (404) 231-1400 phone (404) 240-4249 fax mcreighton@laborlawyers.com Case 5:15-cv-05235-JFL Document 35-2 Filed 05/01/17 Page 1 of 1