Lavorgna v. Norfolk Southern Corporation

BRIEF in Support re Motion for Summary Judgment

W.D. Pa.March 15, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA KEITH LAVORGNA, Civil Action No. 2:16-CV-00491 Plaintiff v. Judge Mark R. Hornak NORFOLK SOUTHERN CORPORATION, Defendant DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant has moved for summary judgment and submits this brief in support of that motion. STATEMENT OF THE CASE This is an action by a former employee of Defendant, Norfolk Southern Corporation, arising under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seq.. In Count I of the Complaint, Plaintiff alleges that he was discharged from his job as a Conductor because of his disability, migraine headaches, in violation of the ADA, and that Defendant refused to engage in the interactive process also in violation of the ADA. Complaint ¶¶ 23-23. In Count II of the Complaint, Plaintiff alleges that he was discharged in retaliation for requesting FMLA leave. Id. ¶ 26. In the Complaint, Plaintiff alleges that his discharge resulted from a charge of falsifying an FMLA Certification Form, a charge which he denies. Complaint ¶¶ 16-17. Both parties engaged in discovery, which is now complete. Defendant has filed a Motion for Summary Judgment on the ground that there are no facts that would warrant a reasonable jury to find in Plaintiff’s favor on either Count of the Complaint. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 1 of 20 2 SUMMARY OF MATERIAL FACTS Background Except for a period of six months in 2015 when he was an Engineer Trainee, Plaintiff worked as a Conductor at Norfolk Southern Corporation (“Norfolk Southern”) from 2005 until September 8, 2015, when he was discharged.1 Lavorgna Deposition (“Dep.”) 10 and 14, Exh. M. Plaintiff was a member of the Sheet Metal, Air, Rail, and Transportation (“SMART”) Union. Id. at 21. On the date of his discharge, Plaintiff reported to Trainmaster Hugh Dodd. Lavorgna Dep. 22; Dodd Dep. 6; Dodd Dep. 9. He had reported to Mr. Dodd from the end of December 2014 or the beginning of 2015 until his discharge, except for the time he was in Engineer training. Id. at 22-23 Plaintiff suffers from periodic migraine headaches. Lavorgna Dep. 26. When he has them, he is unable to work because of the pain and the medications Id. 26-28 At a safety meeting in or around 2009, Plaintiff asked a supervisor, Aaron Booher, what he should do if he needed to take medications. Mr. Booher told Plaintiff he should not work if he were taking medications, and advised him that he should apply for Family and Medical Leave on days when he had to take medications. Id. at 26. Plaintiff believes that he initially applied for intermittent FMLA leave in 2009 or 2010 and was approved. After he was initially approved, each year he re-applied for intermittent leave, and he was approved. Id. at 28-29. 1 The engineer operates the locomotive’s throttle and brakes. The conductor works inside and outside of the locomotive, guiding the engineer, for example. See Lavorgna Dep. 17-19. Plaintiff participated in the engineer training program from January 2015 until July of 2015 , after which he resumed his role as a conductor. Id. at 14, 20-21. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 2 of 20 3 In 2013, Plaintiff was absent on FMLA leave 10 times at various times throughout the year, each absence being a full day. Id. at 30-31, Exh. B. In 2014, Plaintiff was absent on FMLA leave 14 times, at various times throughout the year, each absence being a full day. Id. Exh. C. No one ever criticized Plaintiff or said anything bad to him about his taking time off for FMLA leave. Id. at 29. 2015 FMLA Application and Certification Form On July 7, 2015, Plaintiff submitted another annual application seeking approval for intermittent FMLA leave. The application stated that he was requesting FMLA leave because of his own serious health condition and that he sought intermittent leave on an as needed, day by day basis. He identified Lakeside Primary Care (“Lakeside”) as his provider. Id. at 32-33, Exh. D. The FMLA application that he signed stated at the bottom that providing inaccurate information in support of FMLA leave would subject the employee to the disciplinary policy. Id. Defendant has retained an unaffiliated company, APS Healthcare (“APS”), to administer FMLA leave for its employees. Id. at 33. On July 7, 2015, Plaintiff went to Lakeside and was seen by a Physician Assistant, Samantha Morgan, who signed and faxed a Certification of Healthcare Provider Form directly to APS. Id. 34. The July 7, 2015 FMLA Certification Form stated that Plaintiff suffers from “Migraines” and that his condition causes one to two episodes per month with each episode lasting one day. Id. at Exh. E, Box 6. On July 15, 2015, APS sent Plaintiff a letter returning the FMLA Certification Form and advising him that his “provider certification was incomplete and [he] did not submit a completed certification in a timely manner.” Id. at 34, Exh. F. Plaintiff put the form on his kitchen table for Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 3 of 20 4 several days because he had to travel and could not take the form back to the doctor’s office. Id. at 37. On July 31, 2015, Plaintiff returned to Lakeside with the Certification Form and gave it to the receptionist, explaining that “the doctor needs to fill in the holes” and “she needs to initial it and sign it.” Id. at 38. Plaintiff waited in the lobby until the receptionist returned and gave him the Form back, which he took with him. Id. at 39. Plaintiff “barely glance[d] at” the Form when he was given it by the Lakeside receptionist. Id. at 62-63. After leaving Lakeside, Plaintiff again left the Form on his kitchen table. Id. at 39. He testified “I lost track of it again because I’m bouncing around from terminal to terminal.” Id. He finally mailed the form to APS on August 10, 2015. Id. at 39-41, Exh. H. The Form that Plaintiff mailed to APS the second time (Exhibit H) had been altered in several respects from the original Certification Form that had been faxed to APS by Lakeside on July 7 (Exhibit E). The altered Form stated that “Plaintiff suffers from “Migraines - Impedes ability to do job” (Box 3a). Id. at 41-43, Exh. H. The italicized language had been added to the Form. The Form was also altered to state that Plaintiff’s condition would cause four to six episodes per month and each episode would last one to two (Box 6).2 Id. The form was also changed to add Ms. Morgan’s title as a Physician’s Assistant in Box 12, and Ms. Morgan initialed that change. Id. On August 20, 2015, Lakeside’s Physician’s Assistant, Samantha Morgan, in apparent reply to a inquiry from APS, sent a letter to APS in which she stated: I did not adjust this patient’s FMLA papers in regards to writing 4-6 episodes per month for migraines. The only correction I made on 7/31/15 was writing “Physician Assistant” under field of specialization with my initials “SM” and date “7/31/15.” Please see both attached FMLA forms. 2 The original Form said two to three episodes per month, each lasting one day. Dep. Exh. E. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 4 of 20 5 Id. 45-46, Exh. I. Dr. York, Plaintiff’s regular physician, confirmed in a later conversation with Plaintiff that the Physician’s Assistant had told her that she had not put the disputed information on the FMLA Certification form. Id. at 63-64. Plaintiff has no reason to doubt that the Physician’s Assistant in fact sent this letter to APS. Id. at 45-46. Plaintiff has no explanation for how or by whom the changes to Box 6 of the form were made.3 Id. at 44-45. He admitted that the completed FMLA certification form went from Lakeside to APS Healthcare, back to Plaintiff, back again to Lakeside, back to Plaintiff, who mailed the form to APS. At no time did anyone employed by Defendant have the form in his or her possession, except Plaintiff himself. Id. at 43-44.4 Charge, Hearing The collective bargaining agreement between Defendant and the SMART Union requires a pre-disciplinary hearing. Lavorgna Dep. 47. Plaintiff was informed in an August 21, 2015 letter given to him by Mr. Dodd that he was removed from his job, that he was charged with conduct unbecoming of an employee because he falsified information on his application for Family Medical Leave Act, and that a formal hearing on the charge would be held on August 26, 2015. Id. at 46, Exh, J; Dodd Dep. 19. The August 21, 2015 letter stated Plaintiff could have “waived the investigation,” which is an option that would allow an employee to admit the charge and possibly get a lighter punishment.5 Lavorgna Dep. 53-54. This option was mistakenly included in the letter, however, 3 Plaintiff admitted that he made the change in Box 3 to add the words “impedes ability to do job.” Lavorgna Dep. 43. 4 In his Complaint, Plaintiff states that he was on a week-long trip after July 31 and that “his daughter’s friends had access to [t[he FMLA certification form]” during that time. Complaint ¶ 13(d). His daughter is married and has a son. Lavorgna Dep. 5. 5 The “Investigation” is a formal hearing held on the record by a hearing officer at which the employee is represented by a Union official and evidence is offered by both sides as to whether Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 5 of 20 6 because the waiver option is not available for a terminable offense. Dodd Dep. 23; 31-33. Mr. Dodd notified Plaintiff’s Union representative at the hearing that the waiver option was incorrect. Lavorgna Dep. Exh. K, pp. 10-11. This mistake was inconsequential because Plaintiff had notified his Union before the Investigation that he would not accept a waiver because he believed he “did not do anything wrong.” Id. Dep. 53, 55. Mr. Dodd charged Plaintiff under Rule 900 and the General Notice of the Safety and General Conduct Rules, which respectively state “service demands the honest…discharge of duty” and “employees are to conduct themselves in a professional manner.” Dodd Dep. 26-29, Exhs. A-B. On August 26, 2015, an Investigation was held in connection with the charge against Plaintiff. Lavorgna Dep. 46-48, Exhs. K, L. Mr. Dodd was the charging officer for the purposes of this hearing, which meant that he was responsible for proving that the charges against Plaintiff were accurate. Dodd Dep. 7. Plaintiff was represented at the hearing by R.W. Williams, Chairman of the Local Union. Lavorgna Dep. 47, Exh. K. The Hearing Officer was Mark Wagner, Assistant Terminal Superintendent at Defendant’s Conway Terminal. Lavorgna Dep. Exh. K, pp. 1-2. At the Investigation, Mr. Dodd presented the information and the documents that he had been given by Defendant’s Labor Relations Department and APS Healthcare, who had investigated the charge. Dodd Dep. 35, 38-39, Exh. K; Lavorgna Exh. 6-9. On the subject of the alterations in the document, Plaintiff’s testimony at the Investigation was as follows: I took it home. First thing I did was put it on my kitchen table. I got my stuff packed up because I was heading to Youngtown to train and I stayed in the employee committed an offense. See Lavorgna Exhs. K and L, which are the record of the Investigation and the exhibits offered at the Investigation of the charges against the Plaintiff. Lavorgna Dep. 48. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 6 of 20 7 Youngstown for the week. … And when I came back on the weekend I had written a hand-note on here, mail this to APS as soon as possible, and that was my note on the table to remind me to get this mailed in quickly. And that’s when I mailed it in. My kids were at the house. I have daughters. I got friends there. They got - they were staying overnight. They were taking care of the pets. …I can’t I can’t tell you how. Like I said, I was in Youngstown for that week. I put that paperwork down. It was on my kitchen table for a week. I’ve asked my kids about it. They says dad, we didn’t see it; we didn’t look at anything on there. I said did you have friends over. They said yes. I said okay. As far as that goes, I have no idea who altered that at all, no clue. Lavorgna Dep. Exh. K, p. 40. Plaintiff denied making any of the entries in Box 6. Id. p. 46. Plaintiff also testified at the Investigation that he took FMLA leave in the past on an average of 13 times a year. Id. P. 44. And he had had no issues or problems with FMLA until the Investigation. Id. 49. Discharge and Appeals On September 8, 2015, the Hearing Officer notified Plaintiff and the Union by letter that that Plaintiff was found guilty as charged, and that he was “hereby dismissed in all capacities with Norfolk Southern.” Lavorgna Dep. 49, Ex. M. The discharge decision was made by Mr. Wagner, the Hearing Officer. Plaintiff did not know Mr. Wagner and had had no issues with him before the Investigation. Id. at 47-48. The Union filed an appeal of the decision within Norfolk Southern, which was denied. Id. at 50, Exh. N. The Union then appealed the discharge to a Public Law Board.6 Id. at Exh. O. On June 13, 2016, Public Law Board 7579 issued a decision affirming the finding that Plaintiff was guilty as charged and denying his claim for reinstatement, concluding as follows: 6 Public Law Boards were authorized by Congress to hear and decide disputes involving railroad employees. 45 U.S.C. § 153. “[T]he Board is acquainted with established procedures, customs and usages in the railway labor world. It is the specialized agency selected to adjust these controversies.” Elgin J. & E. R.R. v. Burley, 327 U.S. 661, 664 (1946). It “is well equipped to exercise its congressionally imposed functions. Its members understand railroad problems and speak the railroad jargon. Long and varied experiences have added to the Board’s initial qualifications.” Slocum v. Delaware L. & W. R.R., 339 U.S. 239, 243 (1950) Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 7 of 20 8 Substantial evidence support the charges against Claimant. Claimant denied altering the application, but had no plausible explanation for how his application was changed. Regardless of how it became changed, Claimant remains responsible for the accuracy of the information he submitted. Taking into account the facts presented and the Claimant’s discipline record, the Board will not disturb the discipline assessed. Id. at 49-50, Exh. P. Plaintiff’s Relations with Management Plaintiff never experienced any problems when he took FMLA leave. Id. at 23. The only problem of any kind that Plaintiff had had with a supervisor was in 2012 when a supervisor pulled him and two engineers out of service for taking an extended lunch break. Id. at 24-25. Plaintiff testified that his managers and supervisors were unaware that he had migraine headaches. Id. at 29-30. Plaintiff never requested an accommodation from Norfolk Southern for his migraines, except for occasional intermittent time off under FMLA, which was granted. Id. at 29. Evidence of Comparators Plaintiff is not aware of other Norfolk Southern employees who were found to have falsified information on an FMLA form. Id. at 52. He is not aware of any of Defendant’s employees who falsified company records or were found to have falsified company records. Id. at 52. Plaintiff testified that he does not know if there are any employees who were treated differently than he was for similar conduct. Id. at 52. Plaintiff is not aware of any employees who were given leniency for doing something similar to what he was charged with having done. Id. at 58. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 8 of 20 9 Evidence of Discriminatory Intent When Plaintiff was asked why he believes that his discharge was in retaliation for requesting FMLA leave, he replied that it was because the offer to waive the hearing was rescinded by Mr. Dodd, and that his hearing was not held within 10 days. Id. at 53-56. When Plaintiff was asked to clarify why he believes that Mr. Dodd would have a bias against him because he used FMLA leave, he said: “I don’t know. I couldn’t answer that.’ I don’t understand this at all.” Id. at 56-57. As mentioned above, no one has ever criticized Plaintiff for taking FMLA leave. Id. at 29. No one has said anything negative to him about his migraines. Id. at 29-30. In fact, Plaintiff’s managers never knew he had migraines. Id. ARGUMENT 1. Standard of Review Summary judgment may be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed. R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F,3d 135, 140 (3d Cir. 2004). A dispute is “genuine” if the evidence is such that a Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 9 of 20 10 reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). A “material fact” is an outcome-determinative fact: “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof. Celotex, 477 U.S. at 322. Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.” Anderson, supra, at 327 (quoting Fed. R. Civ. P. 1). Summary judgment is warranted in the present case because the facts recited above are undisputed, coming mainly from the testimony of Plaintiff, and, on those facts, no reasonable jury could find in favor of Plaintiff on either count of his Complaint. 1. Plaintiff’s FMLA Retaliation Claim The FMLA does not explicitly prohibit retaliation against an employee who exercises rights under that Act. The Department of Labor has promulgated a Regulation, however, that prohibits employers “from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.” 29 C.F.R. § 825.220(c). This Regulation is the source of protection against employer retaliation under the FMLA. Lichtenstein v. University of Pittsburgh Medical Center, 691 F. 3d 294, 302 (3d Cir. 2012). “To prevail on a retaliation claim under the FMLA, Plaintiff must prove that (1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 10 of 20 11 and (3) the adverse action was causally related to her invocation of rights.” Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014). FMLA retaliation claims require proof of the employer's retaliatory intent. Capps v. Mondelez Global, LLC, 847 F. 3d 144, 152 (3d Cir. 2017); Mascioli v. Arby's Rest. Grp., Inc., 610 F. Supp. 2d 419, 431 and 433 (W.D. Pa. 2009). Plaintiff was informed that he was discharged because he was found guilty of falsifying the FMLA certification form. Plaintiff has admitted that he was never criticized and nothing negative was ever said to him about his use of FMLA leave. Nor has he any other evidence that would directly establish the requisite discriminatory intent. Consequently, he must show that his case is worthy of a jury trial, by use of indirect or circumstantial evidence. Lichtenstein, supra, at 302; Toth v. California University of Pennsylvania, 844 F. Supp. 2d 611, 636 (W.D. Pa. 2012). Claims based on circumstantial evidence proceed under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), involving a threshold burden on the plaintiff to show a prima facie case, which shifts the burden of production to the defendant to give a reason to the adverse action; whereupon the plaintiff can withstand summary judgment by pointing to evidence from which a jury could find either that the explanation is false or that otherwise would justify a finding of discriminatory intent. See Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014); Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015). a. Plaintiff cannot offer evidence of a Prima Facie Case Plaintiff’s prima facie case requires evidence that “(1) he invoked his right to FMLA- qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was causally related to his invocation of rights.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 11 of 20 12 245, 256 (3d Cir. 2014)(citing Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). Here, Plaintiff cannot satisfy the third element of the prima facie case because the record lacks evidence to support the contention that a causal connection existed between his request for and use of FMLA leave and his termination. To demonstrate causation, a plaintiff must point to evidence sufficient to create an inference that a causative link exists between his FMLA leave and his discharge. Innella v. Lenape Valley Found., 152 F. Supp. 3d 445, 458 (E.D. Pa. 2015) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000)). “There is no set way to establish a causal connection.” Id. (citing Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) “The requisite causal connection can be established by (1) temporal proximity between the protected activity and the adverse employment action, (2) circumstantial evidence of a “pattern of antagonism” following the protected conduct, or (3) where the proffered evidence, looked at as a whole, suffices to raise the inference.” Id. Plaintiff has no evidence of a causal connection between his invocation of FMLA rights and his discharge in the relevant sense; that is, that it was his invocation of his rights that motivated Defendant to discharge him. Obviously, if Plaintiff had never used FMLA, then he would not have been discharged. However, that the discharge decision had a relationship of some sort to Plaintiff’s request for FMLA leave does not satisfy the causation element. It must be the fact that Plaintiff exercised his right to ask for or use FMLA leave that caused the discharge decision. Yasmeen v. Hospira Inc., 2007 WL 3254923 at *4 (D. Utah Nov. 2, 2007)(“[T]o adopt a rule under the FMLA that employees are protected from discharge for apparently forging company documents would result in employees defrauding their employer Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 12 of 20 13 with impunity so long as the falsified document was an FMLA document.20 Such a result is contrary to common sense.”). Indeed, falsely requesting FMLA leave is not even protected from retaliation under the FMLA. Thus, in Capps v. Mondelez Global, LLC, 847 F. 3d 144, 152 (3d Cir. 2017). In Capps, the employee was discharged for misuse of FMLA leave, and the Court of Appeals affirmed summary judgment for the employer, even though had the employee not taken FMLA leave, he would not have been discharged. See also, Curtis v. Costco Wholesale Corp., 807 F. 3d 215, 220 (7th Cir. 2015) (“[A]ctivity that might normally receive FMLA protection is stripped of that protection when it is fraudulent.”); 29 C.F.R. § 825.216(d) (“[a]n employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA's job restoration or maintenance of health benefits provisions”); Smith v. Hope School, 560 F.3d 694, 702 (7th Cir. 2009)(employee's submission of “false paperwork” requesting FMLA leave rendered request “invalid,” did not constitute “statutorily protected activity,” and employee not fired for asserting FMLA rights). Thus, Plaintiff cannot withstand summary judgment if he cannot point to evidence in the record that, if true, would be adequate to prove that animosity toward his attempt to exercise his FMLA rights caused his discharge. He has no evidence to prove causation in the normal way. There is no temporal proximity, since Plaintiff had been using FMLA leave for several years before his discharge. There was no pattern of antagonism following his use of leave. Indeed, Plaintiff denied the existence of any negative response to his use of FMLA leave. The record as a whole discloses no facts that would support an inference of a causal connection between Plaintiff’s use of FMLA leave and his discharge. Dodd had been Plaintiff’s supervisor for only a short time and had no knowledge of Plaintiff’s historical use of FMLA leave or of his health condition until the issue of the falsified certification form arose. Dodd Dep. 34-35. It was a Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 13 of 20 14 previous supervisor who suggested to Plaintiff that he apply for intermittent FMLA leave in the first place. Lavorgna Dep. 26. In sum, Plaintiff cannot show that he has evidence to prove the causation element of a prima facie case of retaliation, so summary judgment on Plaintiff’s FMLA retaliation claim is mandated. b.. Plaintiff cannot offer evidence of pretext. Assuming that Plaintiff’s case survives summary judgment at the prima facie case stage, Defendant has articulated a legitimate reason for Plaintiff’s discharge, to wit, falsifying the FMLA Certification Form. See Yasmeen v. Hospira Inc., supra, at *6. (Falsification of FMLA Certification Form is a legitimate reason for discharge.) Plaintiff can still defeat summary judgment, however, if he can point to evidence that Defendant’s explanation is false, or to other evidence tending to show a retaliatory intent. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015): In Fuentes v. Perskie, this Court recognized two ways in which a plaintiff can demonstrate that the employer's legitimate, nondiscriminatory reason was pretextual. The first way to show pretext is for the plaintiff to point to evidence that would allow a factfinder to disbelieve the employer's reason for the adverse employment action. In order to raise sufficient disbelief, the evidence must indicate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons” to satisfy the factfinder that the employer's actions could not have been for nondiscriminatory reasons. Id. Alternatively, the second way a plaintiff can establish pretext is to point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer's action. Specifically, the plaintiff can show pretext this way by presenting evidence “with sufficient probative force” so as to allow the factfinder to “conclude by a preponderance of the evidence that [the protected trait] was a motivating or determinative factor.” Id. at 644-45. (Citations omitted). The record illustrates that Plaintiff possesses no evidence from which a fact finder reasonably could disbelieve Defendant’s explanation for the discharge Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 14 of 20 15 or from which a fact finder reasonably could believe that an invidious discriminatory reason was more likely than not a determinative cause. Plaintiff cannot withstand summary judgment by pointing to evidence of his innocence of the charge - which would consist solely of his own testimony that he did not alter the document. He must point to evidence tending to show that Mark Wagner, the decision maker, did not honestly believe that Plaintiff had altered the FMLA certification. The recent decision in Capps v. Mondelez Global, LLC, 847 F. 3d 144 (3d Cir. 2017) makes it clear that the relevant pretext issue is not whether the employee engaged in the conduct for which he was discharged, but whether the employer honestly believed that he had. Id. at 152-53. In Capps, the Court of Appeals held that an employer’s honest belief that an employee had abused FMLA leave was a sufficient defense to an FMLA retaliation charge, even if facts later showed that belief was mistaken. The evidence in the present case shows that Mr. Wagner was presented with substantial evidence of Plaintiff’s guilt. It was not disputed that the certification form was altered by someone to give Plaintiff more intermittent leave entitlement than the form signed by the Physician’s Assistant would have warranted. Plaintiff had possession of that form for ten days before he personally mailed it to the FMLA Administrator. Even if, as suggested in the Complaint, some third party altered the document, Plaintiff submitted it. As expressly stated in the decision of the Public Hearing Board, Plaintiff is the person who is responsible for the accuracy of the information he submits to warrant FMLA leave. Moreover, there is no evidence that would permit an inference that Mr. Wagner was influenced by a retaliatory motive. He did not even know the Plaintiff, according to Plaintiff’s testimony. Lavorgna Dep. 47-48. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 15 of 20 16 Plaintiff cannot rely on the most common way to establish pretext-showing that other employees who were similarly situated were treated better. His own testimony is that he has no knowledge of other employees who engaged or were believed by management to have engaged in similar falsification of documents. Lavorgna at 52, 58. Obviously, therefore, he cannot show that such employees were treated better. Nor can Plaintiff point to other evidence of retaliatory intent. The fact that Plaintiff took FMLA leave 10-12 times a year for several years without even a negative comment is compelling evidence tending to negate a corporate culture that is hostile to employees using FMLA leave. Plaintiff testified about supervisors who encouraged, not discouraged, his use of FMLA leave, when needed. Id. at 26-27. There is nothing in the record that would permit a jury to conclude that Plaintiff was actually discharged in retaliation for invoking his right to use FMLA leave. Defendant is entitled to summary judgment on Count II of Plaintiff’s Complaint because the Plaintiff cannot show that its explanation for discharging Plaintiff was a pretext to conceal an FMLA retaliatory motive. 2. Plaintiff’s ADA Claim In Count I of his Complaint, Plaintiff alleges that he was discharged because of his disability, and that Defendant refused to engage in the interactive process of accommodation. The ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability in regard to …discharge of employees … and other terms and conditions of employment.” 42 U.S.C. § 12112 (a). A qualified individual with a disability is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds ….” Id. § 12111(8). Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 16 of 20 17 Plaintiff does not have direct evidence that his discharge was motivated by disability bias. Consequently, as with his FMLA retaliation claim, whether Plaintiff has an ADA case for submission to a jury must be evaluated under the familiar McDonnell Douglas paradigm. Toth v. California University of Pennsylvania, 844 F. Supp. 2d 611, 636 (W.D. Pa. 2012). Plaintiff’s overall burden is to prove that his disability was the “but for” cause of his discharge. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2533 (2013). a. Plaintiff cannot establish a prima facie case of discriminatory discharge To establish a prima facie case of disparate treatment under the ADA, Plaintiff: must demonstrate that: (1) he is a disabled person within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job, with or without reasonable accommodations; and (3) he has suffered an adverse employment decision as a result of discrimination.. Pinskey v. Michaels Stores, Inc., 2016 WL 7163594 at *4 (W.D. Pa. Dec. 7, 2016); Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012); Williams v. Philadelphia Housing Auth. Police, 380 F.3d 751, 761 (3d Cir. 2004). Defendant does not dispute that Plaintiff had a disability or that he was qualified to be a conductor despite his disability, at least not for purposes of this motion. Defendant, however, contends that Plaintiff cannot point to evidence of a causal connection between his disability and his discharge. Plaintiff’s own testimony negates any showing of a bias against him because of his migraines, inasmuch as he admitted that his supervisors and managers had no knowledge of his migraines. Lavorgna 29-30. The Hearing Officer obviously learned in the course of the Investigation that Plaintiff suffered from migraine headaches, but there is nothing in the Investigation record that would support an inference that he was influenced by this information. On the contrary, the evidence of Plaintiff’s guilt that was presented to the Hearing Officer was Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 17 of 20 18 substantial, and his decision is plausible. Furthermore, the decision was found by the Public Law Board to be supported by the evidence. There is no reason to believe that the Board was biased based upon Plaintiff’s disability. There is, in summary, no evidence that would tend to show a causal connection between Plaintiff’s migraines and his discharge from employment. b. Plaintiff cannot show that the discharge explanation was a pretext. The legal standard for showing pretext is the same under the FMLA as under the ADA. Compare Capps v. Mondelez Global, LLC, 847 F. 3d 144 (3d Cir. 2017) and Pinskey v. Michaels Stores, Inc. , supra, at *6 (FMLA) and with Krause v. American Sterilizer Co., 124 F. 3d 494, 504 (3d Cir. 1997)(ADA) (“In order to survive a motion for summary judgment in a pretext case, the plaintiff must produce “sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action.” Sheridan, 100 F.3d at 1067. This is ordinarily done by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’”). For the reasons fully discussed with respect to Plaintiff’s FMLA claim, he does not have evidence of pretext on his ADA claim. That is, he cannot point to evidence that the explanation for his discharge given by Defendant is false or that there is other evidence of a disability-basis bias underlying his discharge. c. Plaintiff’s claim of a failure to accommodate is without merit. Finally, Plaintiff alleges in Court I of his Complaint that Defendant “refused to engage in an interaction process of accommodation.” Complaint ¶ 24. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 18 of 20 19 In Capps v. Mondelez Global, LLC, supra, 847 F. 3d at 157, the Court of Appeals set forth the elements of a failure to accommodate claim under the ADA: A plaintiff bringing an ADA failure-to-accommodate claim must establish: “(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006); [sic] see Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (citing Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 772 (3d Cir. 2004)). 847 F. 3d at 157. Plaintiff, in the present case, does not have evidence to satisfy any of these elements. Defendant did not know of his disability until the events giving rise to his discharge. He admittedly never requested an accommodation, other than his requests for intermittent FMLA leave. Lavorgna Dep. 29. Defendant granted all of his intermittent FMLA leave requests before the falsified request was submitted. Lavorgna Dep. 30-31, Exhs. B and C. Since there was no nexus between Plaintiff’s disability and the alteration of the document, there was no accommodation that would have been of any help to Plaintiff, other than to overlook his non- disability-related misconduct, which the law does not require. In the Capps case, the Court of Appeals rejected Capps’ failure to accommodate claim, noting that the only requested accommodation was intermittent leave, and he was granted such leave when he requested it up until he was discharged. 847 F. 3d at 157. The same is true in the present case. Defendant’s Motion for Summary Judgment on Count I of the Complaint should be granted. Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 19 of 20 20 CONCLUSION Based upon the points and authorities discussed in the foregoing Brief, Defendant respectfully requests that its Motion be granted and that summary judgment be entered on all claims in Plaintiff’s Complaint. Respectfully Submitted, s/John J. Myers f John J. Myers, PA I.D. No. 23596 Derek J. Illar, PA I.D. 307492 Eckert Seamans Cherin & Mellott, LLC U.S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, Pennsylvania 15219 412.566.5900 Counsel for Defendant Case 2:16-cv-00491-MRH Document 27 Filed 03/15/17 Page 20 of 20