JACOB P. HART, Magistrate Judge.
Matthew Beishl has brought this action against Bucks County, his former employer, in connection with his dismissal. He has asserted claims under the Family Medical Leave Act ("FMLA"), 29 USC §2601 et seq., the Americans With Disabilities Act ("ADA"), 42 USC §1201, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §951 et seq.
Bucks County ("the County") has filed a motion seeking summary judgment on all counts. For the reasons explained below, I will grant the County's motion.
Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact.
When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party.
Beishl became employed by Bucks County in March, 2006, as a custodian assigned to the County's Neshaminy Manor Nursing Home. Amended Complaint ("Complaint") at ¶¶10-11. In 2010, he was promoted to Groundskeeper Level 1, and assigned to Core Creek Park.
In 1999, Beishl was diagnosed with esophageal achalasia.
According to Beishl, the County was aware of his condition at all times during the period of his employment. Complaint at ¶13. The County, however, maintains that the third-party administrator of its FMLA program only notified the County of the parameters of FMLA leave which was approved for an employee, in terms of dates and hours approved, and never notified it of the nature of the medical condition underlying an employee's use of FMLA. Deposition of Travis Monroe, attached to Motion as Exhibit 5, at 95.
CIGNA, which was the third-party administrator during this period, approved a continuous period of FMLA leave for Beishl from April 23, 2014, through June 9, 2014, so that he could undergo surgery related to his esophageal achalasia. CIGNA Leave Status Determination, attached to Motion as Exhibit 9; Beishl Deposition,
On or about July 1, 2015, CIGNA approved Beishl's request for intermittent FMLA leave from December, 2014, through December 22, 2015. Intermittent leave, as opposed to block leave, means that the days of leave need not be taken consecutively; an employee may call out on an occasional basis, as his health condition requires. CIGNA Leave Status Determination Notification of July 1, 2015, attached to Motion as Exhibit 13. Beishl was approved for "8.00 hours 5 times every 1 week(s) for incapacity and 8.00 hours 4 times every 1 month(s) for Office Visit."
On February 16, 2016, Beishl was notified by a supervisor that he should find his union representative and appear at a Loudermill hearing, i.e. a disciplinary or pre-termination hearing as required under
Specifically, the County accused Beishl of (a) having taken 19 days of purported FMLA leave after his leave expired on December 22, 2015; (b) having taken days of purported FMLA leave after he "ran out of hours/time in October"; and (c) failing to report to CIGNA all of the days he called out of work. Record of Disciplinary Action,
Beishl's deposition testimony regarding the explanations he gave at his Loudermill hearing is somewhat at variance with the hearing minutes, but it is sufficient to say that Beishl told the County that his violation of FMLA policies was the result of confusion, and of having been given inconsistent or misleading information by CIGNA. Beishl Deposition,
At Beishl's deposition, this exchange took place:
Beishl's Deposition,
Beishl was given a five-day suspension. Record of Discipline,
On June 29, 2016, CIGNA approved intermittent leave for Beishl from December 24, 2015 through January 11, 2016; and from February 12, 2016 through December 23, 2016. Notification of June 26, 2016, attached to Motion as Exhibit 13, Bates Stamped COB 0575. Subsequently, on December 28, 2016, CIGNA extended Beishl's intermittent leave through June 23, 2017.
In its Motion, the County maintains that Beishl had unexcused absences every day for the week of January 1-6, 2017, and then called out under FMLA on every workday between January 9 and January 31, 2017. Exhibit 16 at Bates Stamp COB 0610. Beishl has not contested the accuracy of these statements. Response to Defendant's Statement of Undisputed Material Facts at ¶¶83-84.
On or about January 26, 2017, Beishl's immediate supervisor, David Sutterly, called Beishl and told him that he needed to apply for continuous (or block) FMLA leave because he had missed more than four consecutive days of work. David Sutterly Deposition, attached to Motion as Exhibit 3 at 27-29. Subsequently, Beishl submitted a request for a block FMLA leave, which was approved from January 5, 2017, until February 19 or 21, 2017. Complaint at ¶21; Answer to Amended Complaint at ¶21.
According to Beishl, he underwent an endoscopy on Friday, February 17, 2017, revealing a buildup of fluid, which was then suctioned out. Beishl Deposition,
On February 21, 2017, Beishl attempted to return from FMLA leave, but he was sent home by a supervisor because he had not produced a physician's note stating that he could resume normal work activities without an accommodation, which the County required for a return from block leave. Complaint at ¶22. Beishl testified at his deposition:
According to Beishl, his primary physician "was on vacation or something" that week.
Sometime in the month of January, 2017, while Beishl was absent on FMLA leave, one or more of Beishl's coworkers told Jay McQuaid, the County's Operations Manager, that Beishl played in a rock band. McQuaid Deposition, attached to Motion as Exhibit 2 at 63-4. McQuaid told Richard Spencer, the County's Director of Operations, that some County employees had seen Facebook posts from Beishl about band performances which took place "on days that he was out." Spencer Deposition, attached to Motion as Exhibit 1 at 86-7.
Apparently, this was not the only office scuttle-butt about Beishl. According to McQuaid, County employees had told him that they heard Beishl calling into sports talk radio programs during working hours. McQuaid Deposition,
In an email dated January 12, 2017, Spencer advised Travis Monroe and Lauren Smith in the County Human Resources department, of these developments:
Email, attached to Motion as Exhibit 18. (Bold in original).
Travis Monroe responded to Spencer on the same day: "Can you provide us with the dates in which they may have coincided with his time out playing in the band? The Eagles and Phillies games will be hard to confirm but the band performances may be something we can investigate further."
Beginning in January, 2017, Spencer began an investigation to determine whether the coincidence between Beishl's FMLA leave days and other events created a pattern suggestive of a violation of FMLA policy. Spencer Deposition,
On February 21, 2017, Lauren Smith reported to Spencer that Beishl had returned to work, but without a doctor's clearance. Email of February 21, 2017, attached to Motion as Exhibit M. She wrote: "Now he just told me he won't be able to get a note until his 2/27 appt. with the doctor."
With Spencer's knowledge, McQuaid briefly attended the February 24, 2017, Flabbergasted concert at Hurricane Jack's, and videotaped Beishl performing as lead singer. McQuaid Deposition,
On March 1, 2017, when Beishl returned to work with certification from his physician, he was informed by a supervisor that he would be subject to another Loudermill Hearing. Complaint at ¶23. A meeting took place on March 20, 2017, although it is unclear from the record whether it was considered a Loudermill hearing, or more of an initial meeting preceding a formal hearing. According to Spencer, the March 20, 2017, meeting was attended by him, Lauren Smith, Jay McQuaid, and two union shop stewards, as well as Beishl. Spencer Deposition,
At the March 20, 2017, meeting or hearing, Spencer accused Beishl of abusing his FMLA leave.
Nevertheless, the February 24, 2017, concert was not the only date identified at the hearing. According to Beishl, Spencer "came up with all these strange dates", "a whole bunch of dates," and "he said there was a pattern of me calling out when I was playing with the band."
Spencer testified at his deposition that Beishl stated in his own defense that "I felt better in the afternoon." Spencer Deposition,
Spencer further testified:
Spencer also remembered Biehl saying that in wintertime, it stressed him to have his workplace temporarily transferred from Core Creek Park to the Neshaminy Manor Nursing Home.
It is not clear what, if anything, was resolved at the March 20, 2017, meeting, or if it was essentially to give Beishl notice of the subject of an impending Loudermill hearing. In any event, on the morning of April 19, 2017, Beishl was given a written Notice of Loudermill Meeting signed by Spencer, in which it was written:
County of Bucks Notice of Loudermill Meeting, attached to Plaintiff's Response as Exhibit O, at Bates Stamp COB 0615.
The Notice also stated that Beishl was accused of violating County Work Rules pertaining to family and medical leave, dishonesty, excessive tardiness or absenteeism, and "action that is in any way detrimental to employee morale.
The hearing took place that afternoon. According to Spencer, at the April 19, 2017, hearing, Beishl was presented with "a lot of the same information" they had discussed at the March 20, 2017, hearing. Spencer Deposition,
A report authored by Spencer, and dated May 3, 2017, states:
County of Bucks Report on Matthew Beishl FMLA Use, attached Motion as Exhibit 16, and to Response as Exhibit O.
Beishl testified at his deposition that at the April 19, 2017, hearing:
Beishl Deposition,
Beishl was asked at his deposition: "And did he [Spencer] believe that you had abused your FMLA leave?"
As noted, Spencer prepared a report, which was dated May 3, 2017, entitled Report on Matthew Beishl FMLA Use. Beishl Report,
The report did reflect Beishl's statement that it "was more difficult to travel up to Neshaminy Manor" in the winter.
Further, Spencer noted ten times in 2016 that Beishl had taken FMLA leave "which was concentrated around weekends or holidays": put another way, the FMLA days included a Monday or a Friday, thereby creating long weekends or long holidays.
The report concluded: "It is my recommendation that Matt Beishl be terminated for continued violation of FMLA leave abuse [sic] and potential fraud. It is also my recommendation that this matter be turned over to the Controller's office and potentially the District Attorney's office to determine if fraud has taken place as FMLA is a federal policy."
Spencer forwarded his report to Monroe and Smith in Human Relations, with a note seeking a meeting with Brian Hessenthaler, the County's Chief Operating Officer, and the county solicitor. Spencer Deposition,
In a meeting which took place on May 8, 2017, Spencer informed Beishl that the County was terminating his employment for FMLA abuse. Complaint at ¶26. Beishl filed a grievance over his termination, but at the third level, Scott Miller, his union representative, informed him that the union would not represent him at arbitration. Beishl Deposition,
This case was filed on July 5, 2018. It originally included ADA and PHRA claims asserting a failure to accommodate, as well as the claims discussed herein. Those counts were dismissed by the Honorable Timothy J. Savage in a December 27, 2018, decision ruling on the County's Motion to Dismiss for Failure to State a Claim.
The facts discussed below overlap temporally with the facts discussed above, and there is also overlap in the subject matter, since they all create one series of events. The facts in this section, however, are more central to Beishl's remaining ADA and PHRA claims, and for the purposes of clarity I have set them forth separately.
Beginning before Spencer became the Director of Operations, and at least since December, 2014, the County temporarily relocated a number of Grounds Department employees during the winter months from county parks to other county locations. Spencer Deposition,
Since December, 2014, Beishl was sent for the winter months from Core Creek Park to work at the Neshaminy Manor, with periods spent working at other locations as well, such as the courthouse and the health department. Beishl Deposition,
On or about December 1, 2014, while working at the Neshaminy Manor, Beishl submitted to the County a Bucks County ADA Accommodation Request form. County of Bucks ADA Accommodation Request, attached to Response as Exhibit D. In this form, Beishl stated that his medical impairment was "achalasia."
Beishl wrote in his ADA request that his job duties at Core Creek Park were not affected by his achalasia.
Beishl's ADA request led to a meeting with Travis Monroe of the Human Relations Department on December 4, 2014. Beishl Deposition,
At his own deposition, Monroe said that he had no recollection of this conversation with Beishl, but that, generally "other employees being impacted wouldn't come into focus on my considerations that I would make for that individual, so just generally speaking that doesn't make any sense or sound like anything I would say because it doesn't have any relevance to what the employee's requesting." Monroe Deposition,
Beishl also spoke to Gerry Anderson, who was then the Director of Operation.
Beishl testified that, after he was returned to Core Creek Park, he was given "harder jobs, more work." Beishl Deposition,
The next winter, that of 2015-2016, Beishl and a number of other Grounds Department employees were again relocated. In Beishl's Complaint, he alleges that, at the February 16, 2016, Loudermill hearing discussed above, he "relayed how taxing working at ... Neshaminy Manor ... was on his health." Complaint at ¶17. The County denies this occurred, writing in its Answer that, at that meeting, Beishl never "referenced his purported desire not to work at Neshaminy Manor or the purported effects of his temporary assignment to Neshaminy Manor on his health." Answer to Amended Complaint at ¶17.
In any event, in the winter of 2016-2017, five Grounds Department staff were temporarily relocated. Spencer Deposition,
On December 2, 2016, Beishl sent Spencer the following email:
Email, attached to Response as Exhibit R, Bates Stamp COB 1469.
Spencer responded the same day:
Beishl wrote back to Spencer the same afternoon, in two separate emails, repeating his request to stay at Core Creek Park, and asking for Spencer to reconsider his answer.
Beishl was reassigned that winter. However, as discussed above, he was out of work on FMLA leave from Monday, January 2, 2017, through March 1, 2017.
In the first count of Beishl's complaint, he alleges that the County unlawfully retaliated against him for exercising his statutory rights under FMLA. As the Court of Appeals for the Third Circuit has explained:
FMLA retaliation claims are analyzed under the burden-shifting framework set forth in
If a plaintiff is successful in setting forth a pro se case of FMLA retaliation, the burden of proof shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its action.
If the defendant meets this "minimal burden", the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably disbelieve the County's articulated legitimate reason.
Crucially, it is not sufficient for a plaintiff to show that his employer's decision was wrong or mistaken, since the factual dispute at issue is whether the decision was motivated by discrimination, and not whether the defendant employer was wise, prudent, or even competent.
Specifically in the context of FMLA retaliation cases, this principle has been described as an "honest belief rule", whereby, in a FMLA retaliation case, "the question is not whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest.'"
This nomenclature appears to have originated in the Seventh Circuit, where the Court of Appeals wrote in a case involving COBRA:
As an example of how the honest belief rule works in practice, the
Beishl has certainly shown that he invoked his right to FMLA leave, and that he was terminated. He has not, however, come forward with evidence upon which a factfinder could reasonably rely in finding that his termination was causally related to his invocation of his rights under FMLA. The overwhelming trend of the evidence suggests that the County did not fire Beishl because he took FMLA leave, but because the County believed he abused it. He has not, therefore, demonstrated a prima facie case of FMLA retaliation.
Even if I were to find that Beishl set forth a satisfactory prima facie case of FMLA retaliation, this same evidence is insufficient under the burden-shifting framework of
In defending this claim, Beishl maintains that the County's explanation is "riddled with contradictions, inconsistencies, and implausibilities." Response at 17. He primarily supports this by factually attacking the County's calendars which purported to show his pattern of FMLA abuse.
Response at 17-18 (internal citations omitted; bold in original).
At most, this pokes holes in the County's methodology. For example, although Beishl relies upon the fact that he only performed in two rock concerts on days when he was actually on FMLA leave, the County relied upon Spencer's report which stated that there were three such days: December 23, 2016, January 14, 2017 and January 24, 2017. Report on Matthew Beishl FMLA use,
Equally, it is apparent from Spencer's report that many of the Tuesday, Wednesday, and Thursday FMLA days Beishl cites were adjacent to Mondays or Fridays, and therefore created the long weekends which the County found suspicious. Report,
Thus, at most, Beishl has shown that the calendars Spencer relied upon in preparing the report on which the County relied in terminating his employment were less than perfect, and less than unambiguous. He has not, however, shown that the calendars were so implausible and/or incoherent that they were clearly a pretext for discrimination.
Beishl argues that performing with his band on or close to FMLA days is not suggestive of fraud, because — as Spencer admits Beishl told him — he "often felt better by the afternoon on days where he had to utilize FMLA leave." Spencer Deposition,
On the contrary, the evidence indicates that Spencer and the other County decisionmakers honestly believed — rightly or wrongly — that an individual who was capable of screaming rock lyrics into a microphone in a bar until the small hours of the morning was capable of coming to work that day or the day before. According to both McQuaid and Spencer, the investigation into Beishl's use of FMLA time was precipitated by co-worker rumors that Beishl posted on Facebook about performing with his band "on days that he was out," and that he took days off "surrounding different sporting events." McQuaid Deposition,
Even emails exchanged between Spencer, Monroe, and Smith indicate that County decisionmakers believed that performing rock concerts on FMLA days was evidence of misuse. As above, Spencer texted Smith about the February 24, 2017, performance: "Wonder if his doctor cleared him to sing lead vocals Friday night. We have to do something about this abuse." Email of February 21, 2017,
There is no evidence to the contrary. Beishl argues that, when Spencer initially wrote to Smith and Monroe, on January 12, 2017, his predisposition to find an excuse to fire Beishl was demonstrated in the statement: "I had provided a pattern of his absences in the past and was told there was not much we could do." Motion Exhibit 18,
When questioned about this at his deposition, Spencer stated that he did not challenge an employee's right to take necessary medical leave:
Spencer Deposition,
Beishl further argues that pretext is demonstrated by the fact that he was fired for performing with a rock band and attending sporting events during non-work hours, even though the County had no policy precluding employees from engaging in these activities: "as a result, Defendant essentially terminated Plaintiff for something he was permitted to do, which is the essence of pretext." Response at 19.
This argument is not persuasive. There is no evidence that Beishl's leisure activities were of interest to the County except in that he was believed to be using FMLA time to facilitate them, rather than for its intended purpose. The only references in the evidence to Beishl's band, or to football, is in the context of determining whether his pattern of FMLA use suggested fraud. Beishl was not fired for being in a rock band, or attending Eagles games. He was fired because the County believed — again, whether rightly or wrongly — that he took FMLA time to do so.
Finally, Beishl argues that the concept of "honest belief", as described in
Because Beishl has not pointed to evidence in the record sufficient to create a genuine factual dispute as to whether his termination was casually related to his having taken FMLA leave, this count cannot survive summary judgment. Even if Beishl were deemed to have set forth a pro se case of FMLA retaliation, this count would still be properly dismissed because he has not successfully rebutted the County's articulated legitimate reason for his termination.
Under the ADA, an employer is prohibited from discriminating against a qualified individual with a disability because of the individual's disability. 42 USC §12112(a). In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer; and (3) he has suffered an adverse employment decision as a result of discrimination.
As a practical matter, it is not clear what is left of Beishl's ADA claim other than retaliation, following Judge Savage's December 27, 2018, Opinion dismissing the claim of failure to accommodate. However, in its Motion for Summary Judgment, the County treated the claim of disability discrimination separately from the ADA retaliation claim, so I will do the same.
As above, the evidence is not reasonably interpreted as showing that the County terminated Beishl for any reason other than that it believed he had abused his FMLA leave. For that reason, Beishl will not be able to show that he was terminated as a result of discrimination on the basis of disability.
Beishl argues that the County terminated his employment because of the unpredictable nature of his esophageal achalasia, which could lead him to call out sick at inopportune times. Beishl Deposition,
There are no letters, emails, or other evidence showing that Spencer resented Beishl having an illness. As above, Beishl has shown that Spencer asked the Human Relations about his leave patterns earlier than 2016 ("I had provided a pattern of his absences in the past ..."). However, it would be nothing more than unsupported speculation to assume that the subtext was that Spencer disapproved of Beishl taking FMLA time. Notably, Spencer stated that he had been concerned with Beishl's "pattern of absences", and not the mere fact of his absences.
As evidence of ADA discrimination, Beishl also states that "the Defendant subjected Plaintiff to three Loudermill hearings due to his usage of FMLA leave in order to treat his disability." Response at 21. Yet, here again, the evidence shows that the three Loudermill hearings were held to determine whether Beishl abused his FMLA leave, not simply because he used FMLA leave. As Spencer testified: "What we're looking at is whether or not the time they're taking is in accordance with what they've been granted and approved." Spencer Deposition,
Beishl testified at his deposition that, when he spoke to Travis Monroe in early December, 2014, about seeking an accommodation under the ADA to prevent his temporary relocation from Core Creek Park, "Monroe dissuaded [him] from doing so" on the basis that it would inconvenience other workers. Response at 21. He argues that this showed hostility to his need for ADA accommodation. Monroe testified at his own deposition that he would not have said these things to Beishl. Monroe Deposition,
However, Beishl's conversation with Monroe took place 25 months before the County began investigating Beishl's use of his FMLA leave, and 30 months before his termination. Beishl's — inquiry regarding ADA accommodation was never mentioned during the investigation, or at any of the Loudermill hearings. Standing alone, therefore, it cannot be reasonably considered causally connected to the employment action at issue here — namely, Beishl's termination.
Beishl suggests that the County's rejection of his requests in the winters of 2015-2016 and 2016-2017 to remain at Core Creek Park also constituted hostility to his desire to obtain ADA accommodation. Leaving aside the fact that Judge Savage has already ruled that a request for a shorter commute is not a reasonable request for accommodation under the ADA, the evidence shows that Beishl did not ask to remain at Core Creek Park because of his esophageal achalasia those years, but because of his family troubles. Indeed, Beishl never filed an ADA Accommodation Form after December, 2014, despite obviously knowing after 2014 that this was the way to obtain ADA accommodation form the County.
Further, in the entire email exchange between Beishl and Spencer in December, 2016, Beishl discussed his wife's challenges and his family's financial issues, but mentioned his own health only in the clause "but aside from my health issues...." This might be enough to constitute a request for ADA accommodation if it referred back to some prior, more detailed, communication with Spencer explaining how a longer commute would affect his health, but Beishl has not even alleged that there was any another communication with Spencer about his esophageal achalasia. The phrase "but aside from my health issues", standing alone, is insufficient to invoke the ADA, particularly because it specifically points to reasons for his request other than his health issues.
The only other evidence to which Beishl points in arguing that he can show the County's hostility to his alleged disability is Hessenthaler's rhetorical question at his deposition: "If the issue is with his throat, how could he be a lead singer in a rock group?" Hessenthaler Deposition,
Rather, Hessenthaler's testimony adds to the evidence that the County decisionmakers believed that Beishl did not actually suffer from disabling symptoms on occasions when he took FMLA leave on the day of, or immediately before or after a rock performance.
As a whole, therefore, Beishl has not come forward with evidence sufficient to permit a finder of fact to find a causal link between his alleged disability and any adverse employment action by the County. (In that regard, it can also be noted that Beishl has not shown any comparator evidence to prove that employees other than him were treated more favorably). This also compels the dismissal of his discrimination claim under the PHRA, because the same analysis is used analyzing a PHRA claim.
The ADA contains an anti-retaliation provision, which states that: "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 USC §12203(a).
Claims of ADA retaliation are analyzed under the
A request for FMLA leave may, under certain circumstances, qualify as a request for a reasonable accommodation under the ADA.
Judge Savage also found that the three months between Beishl's third request that he not be transferred to Neshaminy Manor and his termination was not such a long period as to preclude a finding of a causal connection.
Nevertheless, only a gap of a few days between a protected action and a termination is sufficient, standing alone, to show a causal connection.
As Beishl points out, timing which exceeds a few days can be sufficient to show a causal link when taken together with other types of suggestive evidence.
Unlike in
Consequently, Beishl has not shown a prima facie case of ADA retaliation, and this count of his complaint is also subject to summary judgment. The identical PHRA retaliation claim must also be dismissed, because it, too, is analyzed under the
For the reasons set forth above, Defendant County of Bucks' Motion for Summary Judgment will be granted on all counts, and this matter dismissed with prejudice.
