Wilkinson v. Klinger, Inc.
MEMORANDUM (Order to follow as separate docket entry) re: 28 First MOTION for Summary Judgment filed by Marvin E. Klinger, Inc. Signed by Honorable Matthew W. Brann on 12/5/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARVIN E. KLINGER, INC.,
DECEMBER 5, 2017
Before the Court for disposition is Defendant Marvin E. Klinger, Inc.’s
Motion for Summary Judgment. For the following reasons, this Motion will be
granted in its entirety.
A. Ms. Wilkinson’s Employment History
On August 8, 1991, Plaintiff Susan J. Wilkinson (“Ms. Wilkinson”) began
her employment as an at-will school bus driver for Defendant Marvin E. Klinger,
Inc. (“Defendant”).1 In her application for employment, Ms. Wilkinson indicated
that she had no history of drug use and would voluntarily submit to a drug test.2
Def.’s Statement of Material Facts Pursuant to L.R. 56.1 (“Def.’s Statement of Material
Facts”)(ECF No. 29) ¶¶ 1 & 3, at 1; Pl.’s Answer to Def.’s Statement of Material Facts
(“Pl.’s Answer to Def.’s Facts”)(ECF No. 36) ¶¶ 1 & 3, at 1 & 2.
Def.’s Statement of Material Facts ¶ 2, at 1; Pl.’s Answer to Def.’s Facts ¶ 2, at 1.
On January 26, 1995, Ms. Wilkinson received and signed Defendant’s Drug and
Alcohol Use and Testing Policy (“Drug Policy”).3 Ms. Wilkinson understood that
this policy subjected her to drug testing,4 and did not object to this practice.5
B. Defendant Marvin E. Klinger, Inc.’s Drug & Alcohol Use &
Defendant, as a school bus contractor, has a government-mandated drug
testing policy administered by First Advantage.6 This drug policy, “concerned
about alcohol abuse and illegal drug use,” states, as its purpose, the promotion of a
“safe, healthy, and productive work environment.”7 The drug policy prohibits,
inter alia, the following conduct: (1) “using or being under the influence of legal
drugs that are being used illegally,” or (2) “using or being under the influence of
legal drugs whose use can adversely affect the ability of the driver to perform his
or her job safely.”8 For the purposes of the policy, however, “drugs” are defined as
“any and all controlled substances, such as but not limited to, marijuana, cocaine,
amphetamines, PCP, opiates . . . [and] includes prescription and over-the-counter
medications which are being abused.”9
Def.’s Statement of Material Facts ¶ 6, at 1; Pl.’s Answer to Def.’s Facts ¶ 6, at 2.
Dep. of Susan Wilkinson (ECF No.35-3), at 12:12-16.
Id. at 12:17-21.
Def.’s Statement of Material Facts ¶ 31, at 4; Pl.’s Answer to Def.’s Facts ¶ 31, at 4.
Marvin E. Klinger Inc. Drug & Alcohol Use & Testing Policy (ECF No. 5-1), at 1.
Id. at 2.
Id. at 2.
This Policy further provides for “random testing,” or unannounced testing,
in which “the driver must report to the collection site immediately after receiving
notice of their selection.”10 Under “Test Procedures,” random drug testing, along
with pre-employment, post-accident, and reasonable suspicion drug testing,
follows the below procedure:
The applicant/employee will provide a urine sample at the
assigned collection site at the appointed time.
The applicant/employee will participate in the chain of custody
procedures in order to insure accurate collection by
providing photo identification.
completing and signing consent, release of information
and Chain of Custody forms.
following DOT/FEDERAL urine collection procedures in
cooperation with the collection Site.
Under split specimen procedures, the donor must provide 45
ml. in a specimen container. The collector will pour 30 ml. into one
bottle and seal it, the remaining sample of 15 ml. will be sealed in a
second bottle. Both bottles will be sent to the laboratory. The bottle
with 30 ml. will be the primary specimen and the second bottle will be
held by the laboratory and analyzed only after a verified positive by
the MRO and the employee requests the analysis within 72 hours of
notification by the MRO.
If the applicant/employee refuses to provide the specimen for
drug testing, the situation will be considered equal to a positive test
and the same consequences will apply.
Id. at 3.
C. All positive urine screens will be confirmed through GC/MS testing (Gas
Chromatography/Mass Spectrometry) before any discipline is imposed or
hiring decisions are made.
D. A Medical Review Officer (MRO) will review all DOT regulated drug
tests performed by the laboratory. The MRO is to determine whether
positive test results indicate illegal drug use or whether other medical
explanations could account for the result. The MRO will inform the
employee of his findings.
On all “positive” drug screen test results, the MRO will make two attempts
on two consecutive days to first contact the applicant/employee and review
his findings. If the applicant/employee cannot be reached during the above
mentioned time frame, the company management will be contacted and
informed to contact the applicant/employee and have such person make
themselves available to be contacted by the MRO to review his findings. If
the applicant/employee does not make themselves available to be contacted
by the MRO, the consequences to the applicant/employee will be equal to
that of a positive test result, which is immediate discipline, up to and
The policy further provides that “[t]he consequence of testing positive for drugs is:
Termination.”12 Ms. Wilkinson understood this consequence for a positive drug
In his deposition, Stuart Hoffman, M.D.—Chief Medical Review Officer of
First Advantage—described the process of reviewing positive drug test results as
follows.14 First, he noted that the actual testing is performed by one of 30
Id. at 5–6 (emphasis added).
Id. at 7.
Def.’s Statement of Material Facts ¶ 9, at 2; Pl.’s Answer to Def.’s Facts ¶ 9, at 2.
Def.’s Statement of Material Facts ¶ 42, at 5; Pl.’s Answer to Def.’s Facts ¶ 42, at 5.
federally-certified laboratories using mass spectrometry and gas chromatography. 15
Upon receipt of positive test results from those laboratories, Dr. Hoffman testified
that a medical review officer, in this case Dr. Lipshutz, will attempt to determine,
via telephone conversation with the donor, if there is a legitimate medical
explanation for the substance reported.16 At the conclusion of this telephone
conversation, the medical review officer will typically request prescription
information which would be verified at the pharmacy.17
C. Ms. Wilkinson’s Positive Drug Test
On November 21, 2014, Ms. Wilkinson was selected for random drug
testing and presented to Back 2 Back Chiropractic to provide a sample in
accordance with the above policy.18 Earlier in the day, following her morning bus
route, Ms. Wilkinson had taken Vicodin for her sciatica.19 Ms. Wilkinson had a
valid prescription for Vicodin from her doctor for treatment of pain.20
On November 26, 2014, Ms. Wilkinson was contacted by an individual from
the drug testing company—First Advantage.21 During that conversation, Ms.
Def.’s Statement of Material Facts ¶ 46, at 6; Pl.’s Answer to Def.’s Facts ¶ 46, at 5.
Def.’s Statement of Material Facts ¶¶ 43-44, at 6; Pl.’s Answer to Def.’s Facts ¶¶ 43-44, at 5.
Def.’s Statement of Material Facts ¶ 17, at 3; Pl.’s Answer to Def.’s Facts ¶ 17, at 2.
Def.’s Statement of Material Facts ¶ 14, at 2; Pl.’s Answer to Def.’s Facts ¶ 14, at 2.
Dep. of Susan Wilkinson (ECF No. 35-3), Exh. 4, Family Practice Center, PC Medical
Records, at page 48.
Def.’s Statement of Material Facts ¶ 18, at 3; Pl.’s Answer to Def.’s Facts ¶ 18, at 3.
Wilkinson expressed that the positive drug test was the result of her prior ingestion
of Vicodin.22 She called the drug testing company several days later because she
thought the results to be in error. She again stated to the company that she had
taken a pain pill earlier in the day.23 Ms. Wilkinson does not recall submitting
medical information to the drug testing company.24 This lack of supporting
medical documentation is confirmed by the drug testing company’s records.2526
On December 2, 2014, Defendant, through Michael Klinger, was informed the
results of Ms. Wilkinson’s unrebutted, positive drug test.27 First Advantage further
indicated that Ms. Wilkinson needed to be taken off the road.28
Pl.’s Answer to Def.’s Facts ¶ 18, at 3 (citing Dep. of Susan Wilkinson (ECF No. 35-3), at
Def.’s Statement of Material Facts ¶ 19, at 3; Pl.’s Answer to Def.’s Facts ¶ 19, at 3.
Def.’s Statement of Material Facts ¶ 20, at 3; Pl.’s Answer to Def.’s Facts ¶ 20, at 3.
Dep. of Susan Wilkinson (ECF No. 35-3), Exh. 6, First Advantage PC Medical Records, at
Ms. Wilkinson disputes in her deposition whether she was told to submit supporting
documentation. See Dep. of Susan Wilkinson (ECF No. 35-3), at 44:23–25. This dispute will
not preclude the imposition of summary judgment in favor of Defendant as it fails to cast
doubt on Defendant’s reliance on the positive, unrebutted test results as conveyed, and relates
not to the actions or motives of Defendant, but rather First Advantage. See Clark v. Modern
Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) and Celotex Corp. v. Catrett, 477 U.S.317, 322 (1986) (“Facts
that could alter the outcome are ‘material facts’”).
Dep. of Susan Wilkinson (ECF No. 35-3), Exh. 6, First Advantage PC Medical Records, at
page 50; see also Dep. of Michael Klinger (ECF No. 29-3), at 10:7-13.
Def.’s Statement of Material Facts ¶ 38, at 5; Pl.’s Answer to Def.’s Facts ¶ 38, at 5.
D. Ms. Wilkinson’s Termination
After learning of these positive test results, Dennis Klinger29 both called Ms.
Wilkinson and later stopped at her home.30 During these conversations, Mr.
Klinger expressed to Ms. Wilkinson that she was being terminated as a result of
this positive drug test and the subsequent loss of an S endorsement on her license.31
Ms. Wilkinson then inquired if she could drive a van instead.32 Mr. Klinger denied
that request, stating that it was impossible because drug testing was also done on
van drivers.33 Mr. Klinger did however express that, if Ms. Wilkinson could get
this issue straightened out with First Advantage, she could have her job back.34
Ms. Wilkinson did not thereafter “straighten it out” or ask for a retest, because she
believed that her termination was “cut and dried.”35
E. Procedural History
Ms. Wilkinson commenced this action against Defendant on October 2,
2015. In her original Complaint, she alleged five claims of employment
Dennis Klinger is the manager of Marvin E. Klinger, Inc. See Def.’s Statement of Material
Facts ¶ 30, at 4; Pl.’s Answer to Def.’s Facts ¶ 30, at 4.
Dep. of Dennis Klinger (ECF No. 29-2), at 19:24—20:4. Def.’s Statement of Material Facts ¶
22, at 3; Pl.’s Answer to Def.’s Facts ¶ 22, at 3.
Pl.’s Answer to Def.’s Facts ¶ 22, at 3.
Dep. of Dennis Klinger (ECF No. 29-2), at 22:1-8.
Def.’s Statement of Material Facts ¶ 23, at 4; Pl.’s Answer to Def.’s Facts ¶ 23, at 3.
discrimination: (1) disability discrimination under the Americans with Disabilities
Act (“ADA”); (2) age discrimination and retaliation under the Age Discrimination
in Employment Act of 1967; (3) age and disability discrimination under the
Pennsylvania Human Relations Act (“PHRA”); (4) wrongful discharge pursuant to
state law; and (5) invasion of privacy/intrusion upon seclusion under state law.36
Defendant thereafter filed a Motion to Dismiss on October 30, 2015, asking the
Court to dismiss Ms. Wilkinson’s Complaint in its entirety for failure to state a
claim upon which relief can be granted.37
On May 3, 2016, I issued a Memorandum Opinion and accompanying Order
which granted Defendant’s motion as to the age discrimination claims, but allowed
Ms. Wilkinson leave to file an Amended Complaint correcting the outlined
deficiencies.38 Rather than file an Amended Complaint, Ms. Wilkinson expressed
to the Court her desire to proceed on the remaining claims.39 Defendant thereafter
answered, and the parties commenced factual discovery.40
Following the completion of discovery, Defendant filed a Motion for
Summary Judgment seeking the entry of final judgment in its favor on all
ECF No. 1.
ECF No. 5.
ECF Nos. 23 & 24.
ECF No. 15.
ECF No. 16.
remaining claims.41 This Motion has since been fully briefed, and is now ripe for
Summary judgment is granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”43 A dispute is “genuine if a reasonable trier-of-fact could find in
favor of the non-movant,” and “material if it could affect the outcome of the
case.”44 To defeat a motion for summary judgment, then, the nonmoving party
must point to evidence in the record that would allow a jury to rule in that party’s
favor.45 When deciding whether to grant summary judgment, a court should draw
all reasonable inferences in favor of the non-moving party.46
A. Ms. Wilkinson’s Disability Discrimination Claims under the
ADA and PHRA47
ECF No. 28.
ECF Nos. 32, 35, & 37.
Federal Rule of Civil Procedure 56(a).
Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)
(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986)).
Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
Ms. Wilkinson’s disability discrimination claim under the PHRA is analyzed under the same
framework as the ADA. Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012)
The ADA prohibits discrimination “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.”48 When the plaintiff’s allegations of
intentional discrimination are supported only by circumstantial evidence,49 a court
must follow the well-established McDonnell-Douglas50 burden-shifting
framework. That analysis proceeds as follows:
First, the plaintiff must establish a prima facie case of discrimination.
If the plaintiff succeeds in establishing a prima facie case, the burden
shifts to the defendant “to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” (citation
omitted). Finally, should the defendant carry this burden, the plaintiff
then must have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination.51
1. Prima Facie Case
(noting that the Rehab Act, ADA, and PHRA are to be interpreted consistently, and with the
same standard for determination of liability).
42 U.S.C. § 12112(a).
In a footnote within her brief, Ms. Wilkinson argues that the facts as presented may
constitute direct evidence of disability discrimination not requiring the McDonnell-Douglas
burden shifting framework. See Pl.’s Br. at 12 n. 3. Direct evidence of discrimination is
evidence that is “so revealing of discriminatory animus that it is not necessary to rely on any
presumption from the prima facie case to shift the burden of production.” Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1096 n. 4 (3d Cir. 1995). Here, the factual record
contains no direct evidence demonstrating outright that Ms. Wilkinson was terminated as a
result of her disability.
411 U.S. 792, 802–804 (1973).
Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999) (quoting McDonnell
Douglas, 411 U.S. at 802).
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In this matter, Defendant first argues that summary judgment in its favor is
appropriate for both the ADA and PHRA disability discrimination claims because
Ms. Wilkinson has failed to adduce evidence establishing a prima facie case. A
prima facie case of disability discrimination—the first step of the McDonnellDouglas framework — requires that plaintiff establish (1) that she is disabled
within the meaning of the ADA, (2) that she is otherwise qualified for the job, with
or without reasonable accommodations, and (3) that she was subjected to an
adverse employment decision as a result of discrimination.52 Defendant argues that
Ms. Wilkinson is not disabled within the meaning of the ADA, while appearing to
concede the remaining elements of the prima facie case.
Under the ADA, a “disability” is “a physical or mental impairment that
substantially limits one or more major life activities . . . a record of such an
impairment; or . . . being regarded as having such an impairment[.]” 53 Federal
regulations provide that “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.”54 Here, Ms. Wilkinson argues that she
has satisfied the definition of having a disability because she was in fact disabled
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).
42 U.S.C. § 12102(1)(A)–(C).
42 U.S.C. § 12102(2)(A).
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due to her sciatica. In the alternative, Ms. Wilkinson argues that she was either (1)
“regarded as disabled” by Defendant, or (2) had a record of such disability.
Ms. Wilkinson first argues that she is disabled within the meaning of the
ADA because of her sciatic pain. A “physical impairment” is defined as:
(1) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine . . .55
A diagnosis alone, however, is insufficient to establish a disability under the
ADA.56 Rather, plaintiffs must also “offer[ ] evidence that the extent of the
limitation caused by their impairment in terms of their own experience is
substantial.”57 “Substantially limits” “shall be construed broadly in favor of
expansive coverage” and “is not meant to be a demanding standard.”58
Viewing the evidence in the light most favorable to Ms. Wilkinson, I find
that she has met this relaxed standard. Here, Ms. Wilkinson argues that she was
disabled because she suffered from migraines and sciatic nerve pain “severe
enough that [she] took medication and actually had a wooden block . . . on her gas
29 C.F.R. § 1630.2(h)(1).
Tice v. Centre Area Transp. Auth., 247 F.3d 506, 513 n. 5 (3d Cir.2001).
Toyota Motor. Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).
29 C.F.R. § 1630.2(j)(1)(i).
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pedal to ease the pain.”59 In her deposition, Ms. Wilkinson noted the ways in
which her sciatica had limited major life activities, and stated that the wooden
block installed on the gas pedal was necessary to ease the pain of her condition
I am skeptical as to whether the light evidence adduced by Ms. Wilkinson
presents a genuine issue of material fact regarding whether her impairment
substantially limited a major life activity. However, because the Court ultimately
finds that Ms. Wilkinson has failed to demonstrate that Defendant’s proffered
reasons for her termination were pretextual, it will assume, arguendo, that she has
satisfied her prima facie case and will proceed to the next step of the McDonnell
2. Legitimate, Non-Discriminatory Reason
Under the McDonnell Douglas framework, the burden now shifts to
Defendant to show a legitimate business purpose for the termination.62 Defendant
has met this relatively thin burden of production. Indeed, at the time of her
termination, and in the time since that date, Defendant has argued that Ms.
Pl.’s Br. in Opp. (“Pl.’s Br.”)(ECF No. 35), at 6.
Dep. of Susan J. Wilkinson (ECF No. 35-3) at 24:21-25:4; 26:8-13; 26:18-25.
See Showers v. Endoscopy Center of Central Pennsylvania, LLC, 58 F.Supp.3d 446, 465
(M.D.Pa. 2014)(Conner, C.J.) (while skeptical of whether fact issues existed on the prima
facie case, proceeding to analyze under McDonnell Douglas); McLean v. Abington Memorial
Hosp., Civil Action No. 15-CV-671, 2015 WL 5439061, at *4 (E.D.Pa. Sept. 15, 2015).
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003).
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Wilkinson was terminated as the result of her positive drug test, as communicated
by the drug testing company.63 In his deposition, Michael Klinger specifically
stated the following:
Q. So I think your testimony is you took the call from Robert at First
Advantage. And then what did you do after that, if anything?
A. Well, I know I took the call. And like I said, he took me through
the process of what they had done.
And I know that they had --- I knew at that point, they had already
spoken to Ms. Wilkinson. And they gave her a period of time to
produce some documentation, which she told me she produced
nothing, no documentation whatsoever. And that was when he said
you need to get her off the road. Her CDL is no good. And that was a
first for me.
Q. So I guess what I’m asking is, when did you start to have this
conversation with your brother and your father about terminating Ms.
Wilkinson at that point?
A. Probably about the time I hung up the phone and rounded them up,
and said here’s the deal. And I told them what the call was. We were
strictly depending on First Advantage and we really had no other
Because Defendant has put forward a legitimate, non-discriminatory reason
for her termination—Ms. Wilkinson’s unrebutted, positive drug test, the burden
therefore rests with the plaintiff to show that this “legitimate, non-discriminatory
reason” was merely pretext for discriminatory animus. In order to demonstrate that
Dep. of Dennis Klinger (ECF No. 29-2), at 17: 23–18:1.
Dep. of Michael Klinger (ECF No. 29-3), at 11:24–12:17.
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Defendant’s stated reason for termination was pretextual, Mrs. Wilkinson must
“point to some evidence, direct or circumstantial, from which a fact finder could
reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action.”65 This evidence
“must allow a factfinder reasonably to infer that each of the employer’s proffered
non-discriminatory reasons was either a post hoc fabrication or otherwise did not
actually motivate the employment action.”66 Under this framework, the plaintiff
bears an admittedly “difficult burden,”67 as he “must show not merely that the
employer’s proffered reason was wrong, but that it was so plainly wrong that it
cannot have been the employer’s real reason.”68 This difficulty, however, is
directly attributable to the “inherent tension between the goal of all discrimination
law and our society’s commitment to free decisionmaking by the private sector in
Here, the factual record contains no evidence from which a reasonable
factfinder could “believe that an invidious discriminatory reason was more likely
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Id. (emphasis in original).
Atkinson v. LaFayette College, 460 F.3d 447, 454 (3rd Cir. 2006) (internal quotation marks
and citation omitted).
Fuentes, 32 F.3d 759, 765 (3rd Cir. 1994) (quoting Ezold v. Wolf, Block, Schorr and SolisCohen, 983 F.2d 509, 531 (3rd Cir. 1992)).
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than not a motivating or determinative cause of the employer’s action.”70 This
form of pretext is typically shown through evidence that (1) the plaintiff has
previously been discriminated against by the employer; (2) the employer has
discriminated against other persons with disabilities; or (3) the employer has
treated similarly situated persons without a disability more favorably.71 Indeed, the
record reveals that Ms. Wilkinson was a long standing employee of Defendant who
can point to no prior history of discrimination.72 She similarly has adduced no
evidence of similarly situated persons without a disability who received more
Ms. Wilkinson attempts to show pretext by arguing that the record contains
evidence from which a reasonable juror could disbelieve the Defendant’s
articulated legitimate reason for her termination. At the outset, I note that it is not
enough for her to “simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent.”73 Instead, she “must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
Id. at 764.
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644–45 (3d Cir. 1998).
Dep. of Michael Klinger (ECF No. 29-3), at 9:17-24.
Fuentes, 32 F.3d at 765.
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legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence, and hence infer that the employer did not act for the
asserted non-discriminatory reasons.”74
Here, Ms. Wilkinson argues that a reasonable jury could find Defendant’s
justification for her termination to be pretext because (1) she was a long-time
employee with no record of safety concerns or discipline, (2) Dennis Klinger
admitted Plaintiff may have told him she was taking medication, (3) Defendant
made no effort to work with her after her failed drug test, (4) there is no evidence
that First Advantage ever sent a letter to Defendant indicating that Ms. Wilkinson
was unfit for duty, and (5) Defendant has no human resources department.75 Each
of these explanations, however, fail to demonstrate pretext.
First, while the undisputed facts demonstrate that Ms. Wilkinson had an
otherwise unblemished employment history, this fact is insufficient to demonstrate
that the legitimate, non-discriminatory reason advanced by Defendant—her
positive drug test— is unworthy of credence. The Court is in agreement with
Defendant that this method of showing pretext fails as a matter of law. Indeed, in
Kautz v. Met-Pro Corp., the United States Court of Appeals for the Third Circuit
Id. (emphasis in original) (internal quotation marks and citations omitted).
Pl.’s Br. at 11–12.
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rejected an “attempt to use past positive performance reviews to show that more
recent criticism was pretextual.”76
Second, Ms. Wilkinson’s attempt to show pretext through Dennis Klinger’s
“knowledge” of her prescription for pain medication is equally insufficient, and is
in fact a distortion of the testimony. In his deposition, Dennis Klinger specifically
stated the following on this issue:
Q. Did she tell you that she was taking prescribed medication?
A. I don’t recall that.
Q. So it’s possible she may have and you don’t remember?
A. It’s possible.
Q. Did she tell you that she was taking any type of medication?
A. No, I don’t recall that.77
However, even if Dennis Klinger’s testimony had affirmatively established his
knowledge of her medical prescription, this fact itself would not be indicative of
pretext. I note that the ultimate inquiry remains whether the factual record
contains evidence from which a reasonable jury could disbelieve the employer’s
articulated legitimate reasons. Knowledge of a prescription for painkillers is
Kautz v. Met-Pro Corp., 412 F.3d 463, 474 (3d Cir. 2005)(citing Ezold v. Wolf, Block, Schorr
and Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992)(“Pretext is not established by virtue of
the fact that an employee has received some favorable comments in some categories or has,
in the past, received some good evaluations.”)).
Dep. of Dennis Klinger (ECF No. 29-2), at 20:5-13.
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insufficient to discredit the reason advanced for the termination given both
Defendant’s reliance on the representations of First Advantage concerning Ms.
Wilkinson’s failure to produce supporting documentation and the lack of
alternatives created by its own drug and alcohol policy.78
Ms. Wilkinson’s additional premises of pretext —that there is no evidence
that First Advantage ever sent a letter to Defendant indicating that Ms. Wilkinson
was unfit for duty and that Defendant has no human resources department—
similarly fail to demonstrate that Defendant did not believe or rely on the
unrebutted, positive drug test results. Again, I note that while this evidence may be
probative of mistake or lack of the utmost diligence, the ultimate issue remains
“whether discriminatory animus motivated the employer, not whether the employer
is wise, shrewd, prudent, or competent.”79 Indeed, in Ballo v. Adecco, an
unpublished but substantially analogous case from the Eastern District of
Pennsylvania, that court wrote the following concerning the application of a
positive drug test:
The most that can be said for Ballo’s argument is that Adecco might
have avoided this litigation through better communication with Ballo
about his drug test results. But federal antidiscrimination laws only
prohibit employment decisions based on impermissible factors such as
age, race, and gender. Unfair or incorrect business decisions are not
Dep. of Dennis Klinger (ECF No. 29-2), at 17:4-20; Dep. of Michael Klinger (ECF No. 293), at 11:24–12:17.
Fuentes, 32 F.3d at 765.
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covered. (Citations omitted). Accordingly, the Court grants Adecco's
summary judgment motion on Ballo’s ADEA disparate treatment
Given Ms. Wilkinson’s long and unblemished employment history, better
communication regarding her termination may have been advisable. Furthermore,
while I am cognizant that the painkillers used were treatment for her alleged
disability, I nevertheless note that “[t]hough an employer is prohibited from
discharging an employee based on his disability, the employer is not prohibited
from discharging an employee for misconduct, even if that misconduct is related to
his disability.”81 Here, no evidence exists sufficient to disbelieve that a positive
drug test was the reason for her termination, nor does Ms. Wilkinson dispute the
results of that test.82 Because no reasonable jury could find for Ms. Wilkinson on
this issue, no actionable discrimination claim survives.83
4. Failure to Accommodate Claim
Ms. Wilkinson next alleges that Defendant failed to accommodate her
request to drive a van and thus did not engage in the interactive process required by
the ADA. A plaintiff establishes that her employer violates its duty to engage in
Civil Action No. 05-CV-5734, 2006 WL 1876569, at *6 (E.D.Pa. July 5, 2006).
Sever v. Postmaster Gen., 220 F. App’x 159, 161–62 (3d Cir.2007)(citing cases).
Dep. of Susan Wilkinson (ECF No. 35-3), at 68:9-11 (Q. And you tested positive for drugs,
whether you agree with that or not? A. Right).
See McLean v. Abington Memorial Hosp., Civil Action No. 15-CV-671, 2015 WL 5439061,
at *5 (E.D.Pa. Sept. 15, 2015)(finding a lack of pretext where McLean had adduced no
evidence showing the Hospital's proffered reasons for her termination lacked a factual basis
and McLean had admitted to every instance of discipline for errors at issue).
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the interactive process by showing that (1) the employer knew about the
employee’s disability; (2) the employee requested accommodations or assistance
for his or her disability; (3) the employer did not make a good faith effort to assist
the employee in seeking accommodations; and (4) the employee could have been
reasonably accommodated but for the employer’s lack of good faith.84 The failure
to engage in such a process, however, does not give rise to an independent cause of
action, but rather is considered a component of the reasonable accommodation
An employer is liable under that reasonable accommodations analysis if: “1)
the employer knew about the employee’s disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the employer did not
make a good faith effort to assist the employee in seeking accommodations; and 4)
the employee could have been reasonably accommodated but for the employer’s
lack of good faith.”86 “Once a plaintiff alleges facts that, if proven, would show
that an employer should have reasonably accommodated an employee’s disability
and failed to, the employer has discriminated against the employee.”87
Taylor v. Phoenixville School District, 184 F.3d 296, 319-20 (3d Cir. 1999).
Whelan v. Teledyne Metalworking Prods., 226 F. App’x 141, 147 (3d Cir.2007).
Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (citing Williams v. Phila. Hous.
Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004)).
Ferreri v. Mac Motors, Inc., 138 F.Supp.2d 645, 650 n. 1 (E.D.Pa. 2001)(citations omitted).
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In Tayor v. Phoenixville Area School District, the Third Circuit addressed
the notice which must be given to an employer in order to constitute a request for a
reasonable accommodation.88 In that case, our Court of Appeals wrote the
[W]hile the notice does not have to be in writing, be made by the
employee, or formally invoke the magic words
‘reasonable accommodation,’ the notice nonetheless must make clear
that the employee wants assistance for his or her disability. In other
words, the employer must know of both the disability and the
employee’s desire for accommodations for that disability.”89
In McLean v. v. Abington Memorial Hospital, cited supra, an unpublished but
persuasive case applying the above standard, the Eastern District of Pennsylvania
granted summary judgment to an employer on a reasonable accommodation claim
brought under the ADA.90 In so doing, the District Court found that, although
a request for transfer to a vacant position can constitute a request for a reasonable
accommodation, plaintiff’s claim nevertheless failed as a matter of law because
said request for transfer did not relate to her sleep apnea disability, but rather was
caused by a desire to change supervisors.91
In this matter, even accepting Ms. Wilkinson’s assertion that Defendant
knew of her diagnosis of sciatica, her ADA reasonable accommodation claim fails
Taylor, 184 F.3d at 313.
Id. (emphasis added).
McLean, 2015 WL 5439061, at *8.
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because, like that in McLean, the accommodation requested was not for her
disability, but rather as a possible end run around her failed drug test. Here, the
undisputed facts specifically indicate that, when Dennis Klinger visited Ms.
Wilkinson at her home on December 2, 2016, she requested reassignment to van
driving.92 Given the positive, and at this point—unrebutted results of the drug test,
Mr. Klinger denied this request.93 In his deposition, he stated the following as
justification for this denial:
Q. Are there other jobs that Ms. Wilkinson could have done at the company?
A. Well, no. She asked if she would be able to drive a van for our company.
But I explained that that wouldn’t be an option because we also --- we also
do drug testing on van drivers --- everyone, bus drivers, van drivers and so
she wouldn’t be able to do that.94
Mr. Klinger, however, suggested during their meeting that Ms. Wilkinson
“communicate with the people at First Advantage,” and, if the issue could be
resolved, he would let her drive again.95
In sum, because Ms. Wilkinson’s request to drive a van was not an
accommodation for her disability and Defendant’s drug policy otherwise called for
her termination, she has failed to establish a prima facie case of failure to
accommodate under the ADA. Based on the foregoing analysis, summary
Dep. of Susan Wilkinson (ECF No. 35-3), at 55:19—56:6.
Dep. of Dennis Klinger (ECF No. 29-2), at 22:1-8
Dep. of Dennis Klinger (ECF No. 29-2), at 23:13-20.
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judgment will therefore be granted in favor of Defendant on Counts I and III, or
disability discrimination in violation of the ADA and PHRA.
B. Ms. Wilkinson’s Wrongful Discharge and Invasion of
Privacy/Intrusion Upon Seclusion Claims.
Defendant next seeks summary judgment in its favor on Ms. Wilkinson’s
claims of wrongful discharge based in tort and invasion of privacy/intrusion upon
seclusion, as contained in Counts IV and V.
In general, no cause of action exists for the termination of an at-will
employee, and an employee may be lawfully discharged for any reason or no
reason.96 Exceptions to this rule have been recognized in extremely limited
circumstances, where the termination of an employee would violate a “clear
mandate of public policy emanating from either the Pennsylvania Constitution or
statutory pronouncements.”97 Public policy, however, “is not limited to ‘that
which has been legislatively enacted.’”98 To be cognizable, non-legislatively
enacted public policy must be extremely clear and accepted virtually universally.99
Pennsylvania jurisprudence therefore demonstrates that exceptions to the at-will
See McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 286 (Pa. 2000).
Weaver v. Harpster, 975 A.2d 555, 556 (Pa. 2009).
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 112 (3d Cir. 2003)(quoting Shick v.
Shirey, 716 A.2d 1231 (Pa. 1998)).
Id. at 112. See also Clark v. Modern Group Ltd., 9 F.3d 321, 328 (3d Cir. 1993)(provides
detailed discussion of case law on the public policy exception).
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employment doctrine “should be few and carefully sculpted so as not to erode an
employer’s inherent right to operate its business as it chooses.”100
In Borse v. Piece Goods Shop, Inc., for example, the United States Court of
Appeals of the Third Circuit was presented with a wrongful discharge claim
brought by a plaintiff who was terminated after refusing to take a drug test.101
Addressing whether termination of an employee for refusal to consent to drug
testing and to personal searches by an employer might violate public policy, the
Third Circuit held that such a discharge “may violate the public policy embodied in
the Pennsylvania cases recognizing a cause of action for tortious invasion of
privacy.”102 Our Court of Appeals adopted the following “fact-intensive” analysis
to determine whether the policy constituted a wrongful discharge action for
tortious invasion of privacy:
The test we believe that Pennsylvania would adopt balances the employee’s
privacy interest against the employer’s interest in maintaining a drug-free
workplace in order to determine whether a reasonable person would find the
employer’s program highly offensive.103
In essence, Defendant argues that its policy satisfies this Borse test because
it respects an employee’s privacy interest to the greatest extent possible consistent
Weaver v. Harpster, 975 A.2d 555, 556 (Pa. 2009).
963 F.2d 611 (3d Cir. 1992).
Id. at 613.
Id. at 625.
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with its express intent of protecting the children who ride on its school buses.104
Ms. Wilkinson, however, contends that summary judgment is inappropriate, as
“any reasonable person would find an employer policy authorizing blanket
discharge for any type of medication, regardless of whether it is prescribed by a
physician, to be a violation of an important public policy.”105 Ms. Wilkinson
argues that, in Rowles v. Automated Prod. Systems, this Court was presented with a
drug and alcohol policy, and denied summary judgment under Borse on the basis
that “there are substantial unresolved issues of material fact which go to whether
APS’s drug and alcohol abuse policy, both on its face and in its implementation,
constituted an invasion of Rowles’ privacy.”106 The Court reached this conclusion
because the defendant’s policy required plaintiff to “reveal private medical facts
about himself, specifically, his epilepsy and the drugs he must take in order to
control his condition” to his supervisor, and contained “no measures for excluding
information about legally prescribed medications.”107
Def.’s Br. in Supp. (“Def.’s Br.”) at 12.
Pl.’s Br. at 15.
Rowles v. Automated Prod. Sys., Civil Action No. 98-CV-0707, 1999 U.S. Dist Lexis 21605,
at *41 (M.D.Pa. Mar. 26, 1999)(Rambo, C.J.).
Id. at *38
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In the instant matter, summary judgment on counts IV108 and V is
appropriate for two reasons. First, under the Pennsylvania tort of invasion of
privacy under “intrusion upon seclusion” theory, “an actor commits intentional
intrusion only if he or she believes, or is substantially certain, that he or she lacks
necessary legal or personal permission to commit intrusive act.”109 The undisputed
facts of this case indicate that Ms. Wilkinson consented to the urinalysis drug
testing in both a written consent form and a pattern of behavior. The factual record
contains a written form signed by Ms. Wilkinson which demonstrates her consent
to drug testing and Defendant’s drug policy.110 Moreover, in her deposition, Ms.
Wilkinson stated the following concerning Defendant’s practice of drug testing and
her previous pattern of acquiescence:
Q. And did you understand that you were subject to drug testing?
Q. Did you have any problems with that?
A. No, sir, I did not.
The success of Counts IV and V—wrongful discharge and invasion of privacy based on an
intrusion upon seclusion theory—is necessarily entangled because, in recognizing that
“public policy that may, under certain circumstances, give rise to a wrongful discharge action
related to urinalysis,” the Third Circuit in Borse cited Pennsylvania common law concerning
tortious invasion of privacy. See Borse, 963 F.2d at 620–21.
O’Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir. 1989).
Def.’s Statement of Material Facts ¶ 6, at 1; Pl.’s Answer to Def.’s Facts ¶ 6, at 2.
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Q. Did you understand that you were subject to drug testing because you
were a school bus driver?
Q. Based on this policy and reading this policy, did you understand that you
could be terminated if you tested positive for drugs?
A. Yes, I would imagine I did at that time.
Q. Did you ever have any objection – and you were tested more than once
over the years?
A. Oh, yes. Many a time.
Q. Did you ever have any objection to being tested?
A. No, sir, I did not.
Q. Did you ever feel it was intrusive, an invasion of your privacy, that sort
A. No, sir.111
This consent by Plaintiff stands in contrast to Borse—the leading Third Circuit
case on this issue, in which the plaintiff was fired for refusing to consent to a
urinalysis test—and Rowles, a decision of this Court in which the plaintiff refused
the drug test and was subsequently terminated.112
Dep. of Susan Wilkinson (ECF No. 35-3), at 12:12-25; 13: 11-24. See also Dep. of Susan
Wilkinson, Exh. 2, Marvin E. Klinger, Inc. Drug & Alcohol Use & Testing Policy, at 40
(showing signature of Susan Wilkinson acknowledging consent to such testing).
Borse, 963 F.2d at 626; Rowles, 1999 U.S. Dist Lexis 21605, at *9. See also Watson v.
Vulcraft Sales Corp., Civil Action No. 12-CV-00628, 2012 WL 2572056, at *7 (W.D.Pa.
July 2, 2012) (“Assuming arguendo, that Plaintiff had asserted a wrongful discharge claim,
his public policy argument still would likely fail. The factual situation in this case differs
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Second, even in the absence of explicit consent by Ms. Wilkinson,
Defendant would still be entitled to summary judgment on this claim as no
reasonable jury would finds its drug policy in violation of the Borse balancing test.
In Borse, our Court of Appeals envisioned two ways in which an employer’s
urinalysis program might intrude upon an employee’s seclusion. First, the Borse
Court stated that “the manner in which the drug test is conducted may implicate
tortious intrusion upon seclusion because ‘there are few activities in our society
more personal or private than the passing of urine.’”113 In explaining this potential
privacy concern, the Third Circuit noted that “many urinalysis programs monitor
the collection of the urine specimen to ensure that the employee does not adulterate
it or substitute a sample from another person.”114 The second way in which a
urinalysis test may intrude upon an employee’s seclusion is through the “‘host of
private medical facts about an employee, including whether she is epileptic,
pregnant, or diabetic’” which it may reveal.115
The instant testing policy instituted by Defendant—and carried out by drug
testing company First Advantage—does not implicate either of these concerns.
First, there is no evidence within the factual record that the testing was performed
significantly from that of Borse, as Watson had agreed to drug testing, pursuant to signing
Vulcraft's “Division Policies” form, where Borse did not consent.”).
963 F.2d at 621 (quoting Skinner v. Railway Labor Exec. Ass., 489 U.S. 602, 617 (1989)).
Id. (quoting Skinner, 489 U.S. at 617).
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in a manner offensive to the reasonable person. In the deposition of Stuart B.
Hoffman, M.D.—Chief Medical Review Officer at First Advantage, he stated that
testing is not performed by First Advantage, but rather by “one of 30 federally
certified laboratories in the United States.”116 Upon the return of a positive drug
test from one of these facilities, the medical review officer assigned to the case is
tasked with determining via telephone conference with the donor if there is a
legitimate medical explanation for the substance reported, and thereafter requesting
prescription information which would be verified at the pharmacy. 117
Unlike the policy in Rowles, the instant drug policy as implemented takes
into consideration valid medical prescriptions, and, if properly utilized by Ms.
Wilkinson, would likely have prevented the harsh result incurred here—
termination. Indeed, per the testimony of Dr. Hoffman, First Advantage would
instead “send a safety concern letter to the employer” or recommend that an
employee “undergo a fitness for duty examination by a physician” if a substantial
question remained following testing as to whether an employee is medically fit to
do the job.118
Second, the undisputed facts indicate that the way in which positive test
results are reviewed does not unduly intrude upon an employee’s seclusion, or the
Dep. of Stuart Hoffman (ECF No. 29-4), at 14:9-12.
Def.’s Statement of Material Facts ¶¶ 43-44, at 6; Pl.’s Answer to Def.’s Facts ¶ 43-44, at 5.
Dep. of Stuart Hoffman (ECF No. 29-4), at 14:21–15:9.
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protection of their private medical information. Indeed, in Dr. Hoffman’s
deposition, he described the review process as follows:
Q. Okay. When an employee tests positive for drugs, do you have any
understanding as to what First Advantage does in terms of reporting
that information back to the company that hired them?
A. Yes, we -- if the test is negative, it goes very quickly. If-- either the
same day or the next business day. If the test is nonnegative, then it is
reviewed by a medical review officer and that officer then attempts to
interview the donor to determine whether or not they have a legitimate
medical explanation for the substance that the laboratory reported.
Q. So how does the legitimate process -- or how does the process
work to find out whether there’s a legitimate reason for the drugs; in
other words, the employee has to submit documentation by fax or by
e-mail or something along those lines?
A. Yes, the medical review officer telephonically interviews the donor
and asks various questions and then usually culminating in a request
for prescription information, which would be verified at the
Q. So within 24 hours a donor is expected to get some type of
confirmation from the pharmacist indicating that they had a
prescription; is that what you are saying?
A. No, the donor is to notify us either directly to the MRO or put it
onto a telephonic recording that we take the information from.119
Based on this process as outlined, it is clear that an employee’s positive test
result, potentially caused by the ingestion of prescription drugs for a medical
ailment (as for Ms. Wilkinson), is first reviewed by a medical review officer to rule
Id. at 9:2-22; 12:2-8.
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out any medical explanations. Therefore, while Ms. Wilkinson avers that this
employer policy violates public policy because it authorizes “blanket discharge for
any type of medication, regardless of whether it is prescribed by a physician,” this
assertion is in fact belied by the process of review as outlined by Dr. Hoffman.
This testing procedure, utilizing a medical review officer tasked with reviewing an
employee’s medical history for a legitimate reason for the positive result, protects
the employee’s personal information in a way directly in contrast to the test
utilized in Rowles. As previously noted, that case involved a drug policy which
mandated disclosure of all prescription drug use to an employer supervisor.120
Given these important distinctions with Rowles, and upon application of the
Borse balancing test, I find that no facts remain from which a reasonable jury could
find that the instant drug policy, in word or implementation, is “highly offensive”
to a reasonable person. Having previously detailed the implications which this
drug policy has on employee’s privacy interest, I note that “employer’s interest in
maintaining a drug-free workplace” is unquestionably heightened by the nature of
Defendant’s business—transporting children—and the presence of a government
mandate requiring such a policy.121
Rowles, 1999 U.S. Dist. LEXIS 21605, at *38.
Def.’s Statement of Material Facts ¶ 31, at 4; Pl.’s Answer to Def.’s Facts ¶ 31, at 4.
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Pursuant to Borse, Counts IV and V of Ms. Wilkinson’s Complaint, or
wrongful discharge based in tort and invasion of privacy/intrusion upon seclusion,
fail and summary judgment will therefore be entered in favor of Defendant on
Based on the above reasoning, Defendant Marvin E. Klinger, Inc.’s Motion
for Summary Judgment is granted in its entirety. The Clerk is therefore directed to
enter final judgment in favor of Defendant and to close this case.
An appropriate Order follows.
BY THE COURT
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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