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 Prоgram 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.
I. Undisputed facts.
PECO Energy Company hired Michael Parrotta as a Senior Engineer on February
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.
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."
On October 31, 2016, Ms. Brockson told PECO employees of Mr. Parrotta's approved FMLA medical leave for his surgery and recovery.
On January 23, 2017, Mr. Parrotta told Ms. Brocksоn he stopped wearing the boot.
On March 3, 2017, Mr. Parrotta told Ms. Brockson he could resume "full duty" with "only maintenance follow up with Dr. Baer."
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.
[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. Pаrrotta] 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 test
[The positive drug test violated] the Exelon Drug and Alcohol policy, the Standards of Conduct, and the Department of Transportation regulations.
According to those policies and regulations you are being advised you are being relieved from your duties effective immediately and are not to report to work, until advised that you are cleared to do so.
Before you report to work you must comply with the following:
Within 24 hours you must Contact the Employee Assistance Program to schedule an evaluation with a Substance Abuse Professional (SAP) and to determine what level of treatment is required....
Complete the treatment program recommended by the Substance Abuse Professional (SAP).
Complete a follow-up SAP evaluation to determine if whether you have satisfactorily completed the program.
Pass a return-to-duty drug and alcohol test.
Complete a review by Occupational Health physician.
You are not permitted to return to your position until you have completed the steps outlined above. In addition, pursuant to Exelon's Drug and Alcohol Policy (HR-AC-16 Revision 0), employees are required to immediately initiate this process. Nothing in this letter is a guarantee of continued employment and you are subjected to any applicable policies including the Exelon Drug and Alcohol Policy.
Please be advised, if you do not comply with the directives outlined above by the deadline provided, we will move forward, with a recommendation for the appropriate level of discipline, up to and including termination.28
Exelon's Drug and Alcohol Policy provides "[f]or exempt employees, the first positive drug test will result in termination of employment."
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.
PECO mandated FMLA leave to allow drug assistance.
On May 19, 2017, Mr. Parrotta began the Employee Assistance Program.
Q: You state or your Complaint asserts that "On May 22nd, 2017, [Mr. Parrotta] informed [PECO] that he needed FMLA leave beginning on May 22nd, 2017." Who did you inform that you needed FMLA leave?
A: May 22nd? I don't remember....
Q: And so your contention is that you requested FMLA, so you could attend the diversion program?
A: I didn't request it. It was just-it was just a letter I got in the mail. I didn't request it...
Q: So you agree with me that it is not really accurate to say that you notified [PECO] that you needed FMLA leave; correct?
A: Correct. It was just assigned. It was just given.38
On June 22, 2017, Mr. Fenico told Ms. Brockson and Ms. Shaw "when Mr. Parrotta is cleared to return to work, he is to return to the [Main Office Building]," not the Berwyn office.
PECO's fact-finding hearing on the marijuana use under its Policy.
After his Employee Assistance Program ended, Mr. Parrotta returned to work.
Fenico/Shaw: Are you aware of our Drug and Alcohol Policy (HR-AC-16) (Gave him a copy)
Parrotta: Yes.
Fenico/Shaw: On Wednesday May 15th you submitted to a Random Drug and Alcohol Test and I was made aware on May 19th that you did not pass the test. Can you please explain the reason why you did not pass the test?
Parrotta: I had marijuana in my system for pain. I had left foot surgery on 10/31/2016 to shorten the tendon on my second toe. There was significant scar tissue and the wound was not healing correctly.
Fenico/Shaw: Is there anything you'd like to add?
Parrotta: I was in consultation with a Delaware doctor for medicinal certification.
Fenico/Shaw: You live in Pa. but it's not legal in Pa?
Parrotta: Correct.
Fenico/Shaw: Is this doctor prescribing or distributing it to you?
Parrotta: No. He's putting me on a list if/when it becomes legal in Pa.
Fenico/Shaw: How were you obtaining the marijuana, through your own devices?
Parrotta: On my own.47
The remainder of PECO's notes confirm: "At this time we are relieving you of duties pending the results of the investigation. We will be [in] contact [with] you in the next week regarding the results of the investigation. You will remain off PECO property until the company has made a decision."
Mr. Fenico had "no idea" whether Mr. Parrotta would return to work after the positive drug test.
PECO fires Mr. Parrotta.
On August 21, 2017, PECO representatives held a consensus call to discuss Mr. Parrotta's positive drug test.
Ms. Krick, PECO's Vice President in Human Resources Operations, participated in the consensus call and the executive termination call.
On August 30, 2017, Mr. Fenico wrote to Mr. Parrotta "[b]asеd on your infraction of the Exelon Drug and Alcohol Policy HR-AC-16 and PECO Drug and Alcohol Policy,
Exelon's Employee Involuntary Termination Policy states:
It is the longstanding policy and objective of this Company to comply with all applicable laws and regulations in connection with an employee involuntary termination....
Before any recommendation for termination of employment receives final approval, the department's Human Resources representative will determine whether the employee has engaged in any protected activity and, if so, whether that activity might have impacted the department's recommendation for termination.64
PECO terminated other exempt employees who tested positive for marijuana.
In the five years before firing Mr. Parrotta, PECO fired three other exempt employees after they tested positive for marijuana on their first positive tests.
Mr. Parrotta loses job with a PECO contractor.
On December 18, 2017, Mr. Parrotta accepted an offer of employment with Burns and McDonnell, one of PECO's major contractors.
PECO maintains a policy for rehiring "a former employee who previously received, is eligible to receive or is currently receiving benefit payments under a Retirement Plan or Savings Plan."
Burns contacted PECO about hiring Mr. Parrotta, project manager Omoro Jean-Baptiste reached out to Ms. Shaw asking if Mr. Parrotta would be a good fit for the project.
II. Analysis
Mr. Parrotta suеs PECO alleging its termination of his employment entitles him to damages for (1) disability discrimination under the Americans with Disabilities Act (the Disabilities Act) and the Amended ADA (the Amended Act) based solely on his claim of disability based on his second left plantar plate tear in his left foot; (2) retaliation under the Disabilities Act and the Amended Act; (3) disability discrimination and retaliation under the Pennsylvania Human Rights Act; (4) retaliation under the Family and Medical Leave Act; and (5) tortious interference with business relations. PECO moves for summary judgment on all claims.
A. We grant summary judgment for PECO on Mr. Parrotta's disability discrimination claims under the Disabilities Act and Pennsylvania law.
PECO argues Mr. Parrotta fails to raise a genuine issue of fact as to whether PECO discriminated against him in violation of the Disabilities Act or Pennsylvania law. Mr. Parrotta argues genuine issues of material fact preclude summary judgment. We agree with PECO finding Mr. Parrotta's did not have a disability related to his foot condition when he suffered an adverse employment action.
i. We apply a burden-shifting analysis for disability discrimination claims under the Disabilities Act.
Under the Disabilities Act, Congress provides "[n]o covered entity shall discriminate
We apply a burden-shifting analysis to Mr. Parrotta's disability discrimination claims under the Act.
ii. Mr. Parrotta fails to establish a prima facie case for disability discrimination.
PECO argues Mr. Parrotta fails establish a prima facie case because he fails to raise a genuine issue of fact as to whether he is "disabled" under the Disabilities Act at the time of the adverse employment action. To establish a prima facie case, Mr. Parrotta must show: "(1) [he] is a disabled person within the meaning of the ADA; (2) [he] is qualified to perform the essential functions of the job, with or without reasonable accommodations by [PECO]; and (3) [he] has suffered an adverse employment decision as a result of discrimination."
Mr. Parrotta argues he was "disabled" when PECO terminated him because "he suffered and continues to suffer from a condition(s) that causes pain in his left [foot]."
Congress defined "disability" in the Disabilities Act as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."
a. Mr. Parrotta fails to raise a genuine issue of fact as to whether he has an "impairment that substantially limits one or more major life activities."
PECO argues Mr. Parrotta fails to establish he was disabled because he points only to his own testimony regarding his pain at the time PECO terminated him. To determine whether Mr. Parrotta is disabled under Subsection (A), we "must first identify the specific life activities that [Mr. Parrotta] claims are affected and determine
Under the Disabilities Act, "major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."
In Mills , the defendant argued the plaintiff was not "disabled" under the Act because she could perform daily activities and chores like driving, shopping, and caring for her daughter following a back injury.
Mr. Parrotta relies upon Hammel v. Soar Corp.
PECO argues Mr. Parrotta's case is more like Sampson v. Methacton School District.
PECO also relies upon Brearey v. Brennan where Judge Gоldberg found the employee failed to raise a genuine dispute of fact as to whether he suffered from a disability under the Act.
Mr. Parrotta has not adduced evidence-other than his own testimony-of suffering a long-term foot disability or being disabled when terminated. The medical evidence is to the contrary. Dr. Baer diagnosed Mr. Parrotta with a second plantar plate tear in his left foot, for which Mr. Parrotta received surgery on October 31, 2016.
PECO terminated Mr. Parrotta over eight months later on August 30, 2017. Mr. Parrotta testified the pain in his left foot substantially limited his ability to walk, a major life activity under the Act:
So when I wake up in the morning, even before I put my feet on the ground, I am already in pain. It is just how the blood settles or something during the night, I'm not sure, but as soon as I put my foot down, it is going to take a while to flex and bend the toe, just so I don't have pain, just walking to the bathroom or walking down to the kitchen or something like that. So-and then, if I am sitting at a desk, working for an hour or something, or even half an hour, and I get up, the pain starts again. Every time I rest, it just-it is a buildup of like, I don't know, some sort of maybe fluid or just the scar tissue or something, but I have to keep it moving constantly just to, you know, have no pain. But if I rest, and then I start moving again, I will have pain.114
Mr. Parrotta is like the employee in Brearey. Mr. Parrotta underwent surgery on October 31, 2016 and Dr. Baer imposed restrictions on Mr. Parrotta's ability to work until December 5, 2016.
We acknowledge Congress's mandate to construe "disabled" broadly. But Judge Restrepo, faced with "admittedly limited" evidence, still found medical documentation for the plaintiff's back pain in close temporal proximity to the plaintiffs termination. Here, we have no documentation of Mr. Parrotta's condition around the time PECO terminated him. Dr. Baer, the only treating doctor in the record, cleared Mr. Parrotta for "full duty" work without restrictions on January 10, 2017, over seven months before his termination.
Unlike the employee in Mills , Mr. Parrotta's alleged limitations on his ability to walk at the time of his termination were "self-imposed." To show disability measured from the time of the adverse action, Mr. Parrotta relies only on his own testimony his left foot caused him pain when walking. As explained, pain alone is insufficient to establish a substantial limitation on a major life activity.
b. Mr. Parrotta fails to raise a genuine issue of fact as to whether he had a record of impairment.
PECO argues Mr. Parrotta cannot show a record of impairment as his surgery, recovery time, and work restrictions for his foot condition total approximately two months. Mr. Parrotta argues his record of impairment dates back three years before his surgery and continues to this day.
Our Court of Appeals determined a "relatively short-term absence from work, without any long-term impairment, is generally held to be insufficient to create a record of disability."
To establish a record of impairment, Mr. Parrotta argues his physical impairment "dates back approximately three years prior to his October 31, 2016 surgery and continues to this day."
On September 7, 2016, Dr. Baer requested work restrictions for Mr. Parrotta: no climbing ladders and no wearing fire resistant clothing.
c. Mr. Parrotta fails to raise a genuine issue of fact as to whether PECO regarded him as disabled.
Mr. Parrotta alleges he had an impairment and PECO and his supervisors were aware of his impairment. PECO argues no PECO representative regarded Mr. Parrotta as disabled.
Mr. Parrotta is "regarded" as having an impairment under Section 12102(1)(C) if PECO "subjected [him] to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity."
In Gavurnik , the plaintiff was hospitalized for chest pains and later requested a note clearing him for return to work. Judge Schiller found the plaintiff's evidence only showed the employer's awareness of his chest pains and thus insufficient to establish the "regarded as" prong.
Mr. Parrotta similarly adduces no evidence PECO regarded him as having an impairment. In his report to PECO, Dr. Baer cleared Mr. Parrotta for "full duty" work effective January 10, 2017, with no restrictions, no prescribed medications, and no further treatment. No reasonable fact-finder would believe PECO regarded Mr. Parrotta as having an impairment when it terminated him after Dr. Baer cleared Mr. Parrotta for full duty without restrictions seven months before it terminated him. While Mr. Parrotta told Mr. Fenico and Ms. Shaw at the August 16, 2017 fact-finding he took marijuana to treat the pain in his foot, an employer's awareness of an employee's pain is not enough to establish the "regarded as" prong.
As Mr. Parrotta fails to show he was "disabled" under the Act, he fails to establish a prima facie case for disability discrimination. Even assuming we found a prima facie case for disability discrimination, we also find no evidence creating genuine issues of material fact precluding summary judgment in PECO's favor.
iii. PECO articulates a legitimate, nondiscriminatory reason for terminating Mr. Parrotta.
Upon showing a prima facie case, the burden shifts to PECO to proffer a legitimate, nondiscriminatory reason for terminating Mr. Parrotta. PECO proffers a reason: "At all times, [PECO] made clear that [Mr. Parrotta] was terminated based on his first verified positive drug test, which, for exempt employees called for termination under [PECO]'s policies."
iv. Mr. Parrotta fails to show pretext.
Since PECO articulates a legitimate, nondiscriminatory reason for terminating him, Mr. Parrotta must show the proffered reason is pretextual. Mr. Parrotta offers two reasons for pretext: (1) because PECO maintained a "zero-tolerance" Drug and Alcohol policy, PECO would have terminated him immediately following his positive drug test rather than waiting 107 days to terminate him; and, (2) PECO terminated three other exempt employees for a first-time positive drug test for marijuana "in a very short period of time" compared to Mr. Parrotta's termination.
To show pretext, Mr. Parrotta must offer evidence "from which a factfinder could reasonably either (1) disbelieve [PECO's] articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [PECO's] action."
Under the first option, Mr. Parrotta must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [PECO's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' and hence infer 'that [PECO] did not act for [the asserted] non-discriminatory reasons.' "
Under the second option, Mr. Parrotta must offer evidence showing "(1) [he] has previously been discriminated against by [PECO]; (2) [PECO] has discriminated against other persons with disabilities; or (3) [PECO] has treated similarly situated persons without a disability more favorably."
a. Mr. Parrotta fails to offer evidence discrediting PECO's рroffered reason for terminating him.
Mr. Parrotta argues although PECO contends in maintained a "zero-tolerance" Drug and Alcohol policy, it terminated him 107 days after his positive drug test. Because of the delay-and Exelon's Drug and Alcohol Policy allowing for management's discretion concerning termination-PECO's proffered reason for termination suffers from "too many weaknesses, implausibilities, inconsistencies, incoherencies, and contradictions" and thus suggests PECO terminated him because of his alleged disability.
Mr. Parrotta acknowledges while Exelon's Drug and Alcohol Policy provides "[f]or exempt employees, the first positive drug test will result in termination of employment,"
[The confirmed positive test] represented a violation of the Exelon Drug and Alcohol policy, the Standards of Conduct, and the Department of Transportation regulations.
According to those policies and regulations you are being advised you аre being relieved from your duties effective immediately and are not to report to work, until advised that you are cleared to do so.
Before you report to work you must comply with the following:
Within 24 hours you must Contact the Employee Assistance Program to schedule an evaluation with a Substance Abuse Professional (SAP) and to determine what level of treatment is required....
Complete the treatment program recommended by the Substance Abuse Professional (SAP).
Complete a follow-up SAP evaluation to determine if whether you have satisfactorily completed the program.
Pass a return-to-duty drug and alcohol test.
Complete a review by Occupational Health physician.
You are not permitted to return to your position until you have completed the steps outlined above. In addition, pursuant to Exelon's Drug and Alcohol Policy (HR-AC-16 Revision 0), employees are required to immediately initiate this process. Nothing in this letter is a guarantee of continued employment and you are subjected to any applicable policies including the Exelon Drug and Alcohol Policy.
Please be advised, if you do not comply with the directives outlined above by the deadline provided, we will move forward, with a recommendation for the appropriate level of discipline, up to and including termination.146
On June 22, 2017, Mr. Fenico told Ms. Brockson and Ms. Shaw "when Mr. Parrotta is cleared to return to work, he is to return to the [Main Office Building]," nоt the Berwyn office.
Mr. Parrotta testified PECO representative Dave Robl told him he "could return to work after [he] successfully completed the substance abuse counseling."
Mr. Parrotta fails to offer evidence showing PECO's proffered reason suffers weaknesses or inconsistencies making it "unworthy of credence." Mr. Parrotta, an exempt employee, tested positive for marijuana and PECO terminated him after the positive test. Mr. Parrotta admitted to PECO representatives he used an illegal drug. PECO provides in its Drug and Alcohol Policy "[f]or exempt employees, the first positive drug test will result in termination."
The fact PECO waited 107 days before terminating him does not make PECO's reason unbelievable, nor does it suggest PECO fired him because of his alleged disability. As Mr. Parrotta admits, PECO must still "go through a process" before terminating employees for positive drug tests. The process involves the Employee Assistance Program, a fact-finding hearing, a consensus call, and an executive termination call. While he argues PECO representatives told him or suggested he could return to work after completing the Employee Assistance Program, PECO ultimately terminated him. The Drug and Alcohol Policy provides "partiсipation in the [Employee Assistance Program] or seeking treatment will not prevent disciplinary action, up to and including termination, for a violation of this Policy[.]"
Mr. Parrotta seems to argue because the Drug and Alcohol Policy allowed for PECO's discretion to terminate him for a positive drug test or it otherwise failed to automatically fire him as exempt employee
Mr. Parrotta points to alleged deficiencies in, and witnesses' inability to recall details from, the fact-finding and consensus call, including (1) Mr. Fenico and Ms. Shaw's failure to ask follow-up questions during, or locate their notes from, the fact-finding hearing; (2) the failure to discuss Mr. Parrotta's medical condition and FMLA leave during the consensus call and executive termination call; and (3) the failure to determine whether Mr. Parrotta engaged in protected activity in violation of its termination policy.
This evidence does not render PECO's reasons "unworthy of credence." We do not inquire whether PECO "conducted a comprehensive investigation or whether they made a wise or prudent decision," but "whether [PECO's] decision was motivated by discriminatory animus."
Mr. Parrotta admits he tested positive for an illegal drug and no medical professional prescribed the drug. Mr. Parrotta also admits PECO's Drug and Alcohol Policy provides "[f]or exempt employees, the first positive drug test will result in termination of employment."
b. Mr. Parrotta fails to show PECO treated similarly-situated employees more favorably than him.
To show disability discrimination was "more likely than not" the reason for his termination, Mr. Parrotta argues PECO treated similarly-situated employees without a disability more favorably than it treated him. Mr. Parrotta argues "three other exempt employees who [PECO] terminated for positive drug tests (none of who presented medical explanations during their fact findings) were all terminated in a very short time period."
Mr. Parrotta's argument misses the mark. Mr. Parrotta must show PECO treated similarly-situated employees more favorably than it treated him. PECO terminated these three exempt employees following their first positive drug tests for marijuana; in other words, PECO treated Mr. Parrotta the same as it treated these three employees. Although PECO terminated these employees sooner after their positive tests, we fail to see how such evidence proves PECO treated these employees more favorably. In fact, as PECO approved Mr. Parrotta for paid leave following the drug test,
We are not reviewing a situation where an employer terminated an employee for using a legitimate, lawful drug. In such a case, the plaintiff may be able to claim discrimination. Mr. Parrotta used an illegal drug without a prescription from a medical professional and PECO terminated him under its Drug and Alcohol Policy. While PECO employed Mr. Parrotta longer than the three comparator employees following their respective positive drug tests, this does not show PECO treated the other employees more favorably. Mr. Parrotta points to deficiencies in the termination process, but such evidence does not suggest PECO's reason for termination was "plainly wrong."
Mr. Parrotta fails to raise an issue of fact as to whether PECO's proffered reason for terminating him is pretextual. We grant PECO summary judgment on Mr. Parrotta's disability discrimination claims under the Disabilities Act and Pennsylvania law.
B. We grant PECO summary judgment on Mr. Parrotta's retaliation claims under the Disabilities Act and Pennsylvania law.
Under the retaliation provision in the Disabilities Act, Congress provides
To establish a prima facie case for retaliation under the Disabilities Act, Mr. Parrotta must show "(1) protected employee activity; (2) adverse action by the employer eithеr after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action."
PECO concedes Mr. Parrotta engaged in protected activity when he requested disability leave and light work duty. PECO only argues Mr. Parrotta fails to show a causal connection between the protected activity and his termination. "To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) an intervening pattern of antagonism [or other evidence of retaliatory animus] coupled with timing to establish a causal link."
In his response, Mr. Parrotta argues a causal connection because PECO terminated him shortly after his return from FMLA leave ending on August 12, 2017. But Mr. Parrotta did not request FMLA leave in this instance; PECO placed him on paid FMLA leave to complete the Employee Assistance Program following his positive drug test.
Mr. Parrotta alleges three requests for disability accommodations: (1) for light duty in September 2016 prior to his October 31, 2016 surgery; (2) for medical leave for his surgery and post-surgery recovery; and, (3) for light duty work after he returned to work in December 2016.
Even if Mr. Parrotta could establish a prima facie case for retaliation, he fails to raise a genuine dispute of material fact showing PECO's reason for termination is pretext. We apply the same burden-shifting framework to retaliation claims under the Disabilities Act. As explained, Mr. Parrotta failed show PECO's legitimate, nondiscriminatory reason for his termination was pretextual. The parties incorporated their arguments from Mr. Parrotta's disability discrimination claim concerning lеgitimate, nondiscriminatory reason and pretext into their arguments for the retaliation claims. We grant PECO summary judgment on Mr. Parrotta's retaliation claims under the Disabilities Act and Pennsylvania law.
C. We grant PECO summary judgment on Mr. Parrotta's FMLA retaliation claim.
Mr. Parrotta argues PECO terminated him because he took FMLA leave. PECO argues Mr. Parrotta fails to establish a prima facie case for retaliation and, even assuming he does, he fails to show PECO's proffered reason for terminating him was pretextual.
The Department of Labor provides "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions[.]"
We apply the burden-shifting framework to Mr. Parrotta's retaliation claim under the FMLA.
The difficult issue before us is whether Mr. Parrotta invoked his right to the FMLA leave or PECO assigned him to the Employee Assistance Program and internally treated the leave as a FMLA leave. Do you need to ask for FMLA leave to sue for FMLA retaliation?
Before Erdman , our Court of Appeals described the first element of a prima facie case as whether the employee "took an FMLA leave."
i. Mr. Parrotta fails to establish a prima facie case for FMLA retaliation for his August 24, 2016 FMLA leave.
PECO argues Mr. Parrotta fails to show a causal connection between his August 24, 2016 FMLA request and his termination. We agree.
Mr. Parrotta can show causal connection with (1) an "unusually suggestive" temporal proximity between the protected activity and the adverse action or (2) evidence of a "pattern of antagonism in the intervening period."
Mr. Parrotta requested, and PECO granted, a two-week FMLA leave of absence on August 24, 2016 for the birth of his son. PECO terminated Mr. Parrotta on August 30, 2017. Mr. Parrotta fails to establish an "unduly suggestive" temporal proximity between his FMLA leave request and his termination.
ii. Mr. Parrotta fails to establish a prima facie case for FMLA retaliation for FMLA leave from October 31, 2016 to December 5, 2016.
Mr. Parrotta requested, and PECO granted, an FMLA medical leave from October 31, 2016 to December 5, 2016 for his surgery on his left foot and post-surgery recovery. PECO terminated Mr. Parrotta on August 30, 2017. Mr. Parrotta fails to show an "unusually suggestive" temporal proximity between his request for leave and his termination.
iii. Mr. Parrotta fails to establish a prima facie case for FMLA retaliation for his FMLA leave from May 19, 2017 to August 12, 2017.
Mr. Parrotta argues PECO retaliated against him by terminating shortly after he returned from his second FMLA leave on August 12, 2017. PECO argues Mr. Parrotta cannot establish a prima facie case because he did not invoke his rights under the FMLA.
Mr. Parrotta cites his lawyer's Rule 26 Report to show he invoked his rights: "On May 23, 2017, [PECO]'s FMLA Coordinator informed [Mr. Parrotta] that [he] was eligible for FMLA leave and that [PECO] had approved [his] FMLA leave request, beginning on May 19, 2017."
Q: You state or your Complaint asserts that "On May 22nd, 2017, [Mr. Parrotta] informed [PECO] that he needed FMLA leave beginning on May 22nd, 2017." Who did you inform that you needed FMLA leave?
A: May 22nd? I don't remember....
Q: And so your contention is that you requested FMLA, so you could attend the diversion program?
A: I didn't request it. It was just-it was just a letter I got in the mail. I didn't request it....
Q: So you agree with me that it is not really accurate to say that you notified [PECO] that you needed FMLA leave; correct?
A: Correct. It was just assigned. It was just given.193
Regardless of his lawyer's position in а Rule 26 Report, Mr. Parrotta admitted under oath he did not request FMLA leave; rather PECO assigned him to the Employee Assistance Program and internally treated him as subject to FMLA leave to complete the Employee Assistance Program.
We recognize the apparent facial unfairness; one might argue PECO places Mr. Parrotta on leave to participate in the Employee Assistance Program so he does not invoke his FMLA rights and thus cannot sue when he is fired shortly after his FMLA leave for the conduct leading to the Employee Assistance Program. But this facial inequity fades when PECO's Policy reminded Mr. Parrotta the Employee Assistance Program did not affect a later finding leading to termination. Mr. Parrotta neither invoked his federal rights nor knew of his FMLA protections as there is no evidence PECO told Mr. Parrotta of the FMLA internal treatment. Mr. Parrotta admitted using an illegal marijuana drug as a Senior Engineer. PECO provided him with an Employee Assistance Program to address his marijuana use. It did not guarantee his job after completing the Employee Assistance Program. Another alternative would be PECO firing Mr. Parrotta for the marijuana use as required under its Policy and not providing him with the Employee Assistance Program while being paid. Federal law, including thе FMLA, does not allow a retaliation claim when Mr. Parrotta fails to establish he invoked his rights under the FMLA. It is incongruous to argue an employer retaliates against an employee for taking FMLA leave when the employer puts the employee on leave and there is no evidence the employee knows he is on FMLA leave. He just knows he is getting paid while participating in the Employee Assistance Program. He thus fails to establish a prima facie case for FMLA retaliation.
We grant PECO summary judgment on Mr. Parrotta's FMLA retaliation claims.
D. We dismiss Mr. Parrotta's tortious interference claim for lack of subject matter jurisdiction.
PECO argues Mr. Parrotta fails to establish a claim for tortious interference as a matter of law. Mr. Parrotta argues PECO had no justification for interfering with his new employment with Burns because its "Rehiring Retirees" policy applies only to "retirees" and Mr. Parrotta was not a "retiree."
As we grant summary judgment to PECO on Mr. Parrotta's federal claims, we decline jurisdiction on his state law claim. When "all federal claims are eliminated before trial, a federal court should
III. Conclusion.
In an accompanying Order, we grant PECO summary judgment on Mr. Parrotta's claims for (1) disability discrimination under the Americans with Disabilities Act and the Pennsylvania Human Relations Act, (2) retaliation under the Disabilities Act and the Pennsylvania Human Relations Act, and (3) retaliation under the FMLA. We dismiss without prejudice Mr. Parrotta's claim for tortious interference with business relations under Pennsylvania law for lack of subject matter jurisdiction.
Notes
Our Policies require a Statement of Undisputed Material Facts ("SUMF") and an appendix in support of summary judgment. PECO filed its SUMF ("PECO SUMF") at ECF Doc. No. 17 and its appendix at ECF Doc. No. 18. PECO filed its brief in support of the Motion at ECF Doc. No. 19. Mr. Parrotta filed his opposition brief at ECF Doc. No. 20, his response SUMF ("Parrotta SUMF") at ECF Doc. No. 20-1, and his supplement to PECO's appendix at ECF Doc. No. 20-2.
ECF Doc. No. 17 (PECO SUMF) ¶ 25. PECO is an indirеct subsidiary of Exelon Corporation.Id. ¶ 1.
ECF Doc. No. 17 (PECO SUMF) ¶ 26; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 26.
ECF Doc. No. 17 (PECO SUMF) ¶ 27; ECF Doc. No. 18 (App. DMSJ) at 46.
ECF Doc. No. 18 (App. DMSJ) at 54.
Mr. Parrotta's Complaint (ECF Doc. No. 1) ¶ 16; Mr. Parrotta's Brief in Opposition to PECO's Motion for Summary Judgment (ECF Doc. No. 20), at p. 6.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 27.
ECF Doc. No. 17 (PECO SUMF) ¶ 30; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 30.
ECF Doc. No. 17 (PECO SUMF) ¶ 31; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 31.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 33.
Id. at ¶ 34.
ECF Doc. No. 17 (PECO SUMF) ¶¶ 33-34.
Id. at ¶ 35.
Id. at ¶ 36; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 36.
ECF Doc. No. 17 (PECO SUMF) ¶ 36; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 36.
ECF Doc. No. 17 (PECO SUMF) ¶ 37; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 37.
ECF Doc. No. 17 (PECO SUMF) ¶ 37; ECF Doc. No. 18 (App. DMSJ) at 57.
ECF Doc. No. 17 (PECO SUMF) ¶ 38.
Id. at ¶ 40.
Id. at ¶ 41.
Id. at ¶ 42; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 42.
ECF Doc. No. 17 (PECO SUMF) ¶ 51.
Id. at ¶ 52.
ECF Doc. No. 18 (App. DMSJ) at 97.
ECF Doc. No. 17 (PECO SUMF) ¶ 12.
Id. at ¶ 4.
ECF Doc. No. 18 (App. DMSJ) at 10.
ECF Doc. No. 18 (APP. DMSJ) at 11.
ECF Doc. No. 18 (App. DMSJ) at 10.
ECF Doc. No. 17 (PECO SUMF) ¶ 57; ECF Doc. No. 18 (App. DMSJ) at 33.
ECF Doc. No. 17 (PECO SUMF) ¶ 57; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 57.
ECF Doc. No. 9 (Rule 26 Report, Stipulated Facts), at p. 3 ¶ 2.f.
ECF Doc. No. 18 (App. DMSJ) at 257-61.
ECF Doc. No. 20-2 (App. DMSJ) at 295.
Id. at 282.
ECF Doc. No. 18 (App. DMSJ) at 107.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 118.
ECF Doc. No. 17 (PECO SUMF) ¶ 58; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 58; ECF Doc. No. 20, at p. 2.
ECF Doc. No. 17 (PECO SUMF) ¶ 59.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 59.
ECF Doc. No. 18 (App. DMSJ) at 110.
Id. at 111.
ECF Doc. No. 20-2 (App. DMSJ) at 294.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 127.
Id. at ¶ 124.
Id. at ¶ 60.
ECF Doc. No. 17 (PECO SUMF) ¶ 66.
ECF Doc. No. 20-2 (App. DMSJ) at 300-01.
ECF Doc. No. 17 (PECO SUMF) ¶ 69.
ECF Doc. No. 18 (App. DMSJ) at 128-32.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 143.
Id. at ¶ 148.
Id. at ¶ 154.
Id. at ¶ 152.
ECF Doc. No. 17 (PECO SUMF) ¶ 72; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 72.
ECF Doc. No. 18 (App. DMSJ) at 197, 199.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 74.
ECF Doc. No. 17 (PECO SUMF) ¶ 85.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 86; ECF Doc. No. 17 (PECO SUMF) ¶ 88.
ECF Doc. No. 20-2 (App. DMSJ) at 340.
ECF Doc. No. 18 (App. DMSJ) at 208.
ECF Doc. No. 17 (PECO SUMF) ¶ 90.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 91.
Id. at ¶ 92.
ECF Doc. No. 17 (PECO SUMF) ¶ 94.
Id. at ¶ 94.
Summary judgment is proper when "the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material facts are those 'that could affect the outcome' of the proceeding, and 'a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party.' " Pearson v. Prison Health Serv. ,
As courts use the same analysis for disability discrimination claims under the Act and claims under Pennsylvania law, our holding for Mr. Parrotta's disability discrimination claim under the Act applies equally to his Pennsylvania law claim. See Bialko v. Quaker Oats Co. ,
Sampson v. Methacton Sch. Dist. ,
Decker v. Alliant Techs., LLC ,
Garrow v. Wells Fargo Bank, N.A. , No. 15-1468,
ECF Doc. No. 20, at p. 6.
ECF Doc. No. 19, at p. 8.
Mills v. Temple Univ. ,
Mills ,
Mills ,
No. 14-3106,
Hammel ,
Sampson ,
No. 17-2108,
Brearey ,
Id. at *6.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 99.
ECF Doc. No. 18 (App. DMSJ) at 49.
ECF Doc. No. 20-2 (App. DMSJ) at 277.
Id. at 285.
ECF Doc. No. 18 (App. DMSJ) at 226-28.
Id. at 54.
Id. at 49.
ECF Doc. No. 20-2 (App. DMSJ) at 329.
Provence v. Avon Grove Charter Sch. , No. 07-659,
Eshelman v. Agere Sys., Inc. ,
ECF Doc. No. 20, at p. 9.
ECF Doc. No. 18 (App. DMSJ) at 44.
Id. at 54.
Id. at 49.
Sampson ,
Gavurnik v. Home Properties, L.P. ,
Id. at 420.
Id. at 419-20.
ECF Doc. No. 19, at p. 14.
ECF Doc. No. 20, at p. 14.
ECF Doc. No. 19, at pp. 17-18.
Showers v. Endoscopy Ctr. of Cent. Pennsylvania, LLC ,
Fuentes ,
Maiorini v. Farmers Ins. Exch. , No. 14-1613,
Keller ,
Proudfoot v. Arnold Logistics, LLC ,
ECF Doc. No. 20, at p. 14.
ECF Doc. No. 18 (App. DMSJ) at 11.
Id. at 9.
Id. at 97.
ECF Doc. No. 20-2 (App. DMSJ) at 295.
Id. at 294.
Id. at 298-99.
ECF Doc. No. 18 (App. DMSJ) at 111.
ECF Doc. No. 20-2 (App. DMSJ) at 299-300.
Id. at 300-01.
Id. at 282.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 130.
Id. at ¶ 143-55.
ECF Doc. No. 20, at p. 13.
ECF Doc. No. 18 (App. DMSJ) at 197, 199.
Id. at 11.
Id. at 10.
Id. at 97.
While Mr. Parrotta argues pretext because PECO did not immediately terminate him, he seems to misread the policy. He argues although the policy provides "[f]or exempt employees, the first positive drug test will result in termination," PECO waited 107 days to terminate him. But this provision does not mandate immediate termination. In fact, PECO provided for immediate termination in certain instances: "Employees will be immediately terminated for the following conduct: the refusal to take a test or failing to show up for a test without a reasonable and substantiated explanation, as determined in management's discretion; providing a false or tampered sample; or otherwise willfully attempting to subvert the testing process." Neither party offers evidence or argues Mr. Parrotta committed one of these violations.
Russell v. Vanguard Grp. , No. 04-3269,
Gupta v. Sears, Roebuck & Co. , No. 07-243,
Santiago v. Brooks Range Contract Servs., Inc. , No. 11-7269,
ECF Doc. No. 18 (App. DMSJ) at 11; ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 12.
Cullison v. Dauphin Cty., PA , No. 10-705,
Maiorini v. Farmers Ins. Exch. , No. 14-1613,
ECF Doc. No. 20, at p. 14.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 74.
ECF Doc. No. 18 (App. DMSJ) at 98 (showing Mr. Parrotta began a medical absence on 5/19/17 covered by "personal sick/FMLA" for the first five days of absence, thereafter "STD/FMLA").
Like his disability discrimination claims, our holding on Mr. Parrotta's retaliation claim under the Disabilities Act applies to his retaliation claim under Pennsylvania law. Gardner v. Sch. Dist. of Philadelphia ,
Wells v. Retinovitreous Assocs., Ltd. , No. 15-5675,
Mills ,
Rubano v. Farrell Area Sch. Dist. ,
ECF Doc. No. 18 (App. DMSJ) at 257-61.
ECF Doc. No. 20-1 (Parrotta SUMF) ¶ 63.
Williams v. Philadelphia Hous. Auth. Police Dep't ,
Capps v. Mondelez Glob., LLC ,
Lichtenstein v. Univ. of Pittsburgh Med. Ctr. ,
Id. at 303.
Conoshenti v. Pub. Serv. Elec. & Gas Co. ,
Erdman v. Nationwide Ins. Co. ,
Capps v. Mondelez Glob. LLC ,
Williams ,
ECF Doc. No. 9 (Rule 26 Report, Stipulated Facts), at p. 3 ¶ 2.f.
ECF Doc. No. 18 (App. DMSJ) at 257-61.
ECF Doc. No. 20, at p. 16.
Bloom v. Indep. Blue Cross ,
Bloom ,
ECF Doc. No. 1 (Complaint) ¶¶ 6-7.