LAVORGNA v. NORFOLK SOUTHERN CORPORATION

Filing 37

OPINION. Signed by Judge Mark R. Hornak on 10/31/17. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEITH LAVORGNA,

)
)

Plaintiff,

)

2: 16-cv-00491

)

v.

)

Judge Mark R. Hornak

)

NORFOLK SOUTHERN CORPORATION,

)
)

Defendant.

)
OPINION

Mark R. Hornak, United States District Judge

Plaintiff Keith Lavorgna ("Lavorgna" or "Plaintiff'), applied for leave under the Family
Medical Leave Act (FMLA) while employed by Defendant Norfolk Southern Corporation
("Norfolk" or "Defendant"). Norfolk determined that Lavorgna had falsified his FMLA
certification form and terminated his employment. Lavorgna filed claims for unlawful
discrimination under the Americans with Disabilities Act (ADA) and retaliation under the FMLA.
Norfolk contends that Plaintiff was terminated for a nondiscriminatory reason and that the Plaintiff
cannot demonstrate that its reasons for his dismissal are pretextual. It then moved for summary
judgment on those grounds, asserting that there are no genuine issues of material fact and that it is
entitled such judgment in its favor.
For the reasons which follow, Defendant's Motion is granted as to all claims, and summary
judgment is entered in favor of Defendant.
I.

BACKGROUND

Plaintiff suffers from severe migraine headaches. (Keith Lavorgna Dep. 26:2-18, ECF No.
26-1.) He takes medication for his migraine episodes. (Id. at 28:6-11.) Plaintiff became a Norfolk
employee in 2005. (Compl.

~

8, ECF No. 1;

Answer~

1

3, ECF No. 9.) At the time of his hiring,

Plaintiff's managers and supervisors were not aware that he suffered from severe migrame
headaches. (Keith Lavorgna Dep. 29: 15-25, ECF No. 26-1.) After an annual safety meeting in
2009, Plaintiff asked a trainmaster what he should do if he had to "take medication for anything."
(Id. at 26:09-18.) The trainmaster did not want him working while medicated and told him, "[I]f
you have to mark off, we have an extra board that covers you. Don't worry about that. We want
you to be focused at work and not tear things up or damage things or get someone hurt." (Id. at
67 :4-10.) He asked Plaintiff, "Did you apply for FMLA ?" (Id. at 26: 19-20.) Plaintiff had not, but
subsequently submitted an FMLA leave application and that application was approved. (Id. at
27:3-5.)
APS Healthcare ("APS"), a separate company, manages administration ofFMLA requests
from Defendant's employees on behalf of Defendant. (Concise Statement of Material Facts
("CSMF") ~ 12, ECF No. 25.) 1 Neither Norfolk nor any of its own employees or supervisors review
or approve FMLA leave applications or requests.

(Id.~~

12, 17; Hugh Dodd Dep. 8:10-14, ECF

No. 26-2.) Plaintiff's FMLA leave application was approved by APS without any issues annually
from 2009 or 2010 until 2015, when Plaintiff submitted the application at issue here. (CSMF ~ 13,
ECF No. 25.) Plaintiff took FMLA leave often (10) days in 2013 and fourteen (14) days in 2014.
(CSMF ~~ 14-15, ECF No. 25.) Plaintiff's FMLA leave was unpaid. (Keith Lavorgna Dep. 66:2125, ECF No. 26-1.) Defendant never criticized nor otherwise took any action toward Plaintiff in
response to any of his FMLA-covered absences. (CSMF ~ 16, ECF No. 25.)

1

Defendant filed a concise statement of material facts as required by both Federal Rule of Civil Procedure 56 and this
Court's Local Civil Rule 56. Plaintiff did not file a counterstatement of material facts. By virtue of both Rules, this
Court is to treat the statement of facts submitted by Defendant as admitted for purposes of resolving this Motion and
it does so here. See Donahue-Cavlovic v. Borough of Baldwin, et al., No. l 5-cv-1649, 2017 WL 4862072, * 1, n. 1
(W.D. Pa. Oct. 26, 2017).

2

Plaintiff did not take any FMLA leave after December 2014 and did not attempt to renew
his FMLA application until July 2015, seven months later. (Keith Lavorgna Dep. 31-33, ECF No.
26-1.) On the bottom of Plaintiffs FMLA application, the pre-printed "Failure to Comply with
FMLA Responsibilities" section states,
[Y]ou are responsible for ensuring that the information and documentation
provided to support your need for FMLA leave is accurate. Any misuse of FMLA
leave, failure to timely provide a completed medical certification, failure to comply
with applicable call-in procedure or providing inaccurate information in support of
FMLA leave may subject you to handling under applicable disciplinary and/or
absenteeism policies.
(ECF No. 26-1, at 92.)
On July 7, 2015, Plaintiff went to his physician, Dr. York at Lakeside Primary Care, to
have the doctor fill out the Certification of Healthcare Provider (CHP) form for FMLA leave.
(Keith Lavorgna Dep. 33:21-24, ECF No. 26-1; ECF No. 26-1, at 93.) Instead of being seen by
Dr. York, Plaintiff was seen by a physician assistant, Samantha Morgan, who had never before
filled out an FMLA application. (Keith Lavorgna Dep. 33:24-34:7, ECF No. 26-1.) Plaintiff told
Morgan that he suffered from migraines once or twice month. (Keith Lavorgna Dep. 27:19-20,
ECF No. 26-1.) Morgan filled out the CHP form and faxed it to APS on July 7, 2015. (ECF No.
26-1, at 93, 94.)
On July 15, 2015, APS sent Plaintiff a letter informing him that his FMLA application was
'[i]ncomplete or [d]eficient." (ECF No. 26-1, at 94.) The letter stated in relevant part, "[Y]ou must
provide the following item(s): 1. The certification is missing required information. 2. Other
Reason: Section 3b and 5 are incomplete. All additions/corrections must be dated and initialed by
the health care provider." (Id.) APS gave Plaintiff twelve (12) days to cure the deficiencies. (Id.)
Plaintiff failed to return his FMLA request to APS before the deadline. (Keith Lavorgna Dep.
34:18-21, ECF No. 26-1.) On July 27, 2015, APS sent Plaintiff a letter stating, "[Y]ou do not

3

qualify for Family and Medical Leave at this time due to: ... Your provider certification was
incomplete and you did not submit a completed certification in a timely manner. Your request for
family/medical leave cannot be certified without this information." (ECF No. 26-1, at 95.) Plaintiff
did not receive the July 27th letter. (Keith Lavorgna Dep. 36:4-5, ECF No. 26-1.)
After Plaintiff received the July 15th letter, he placed that letter on his kitchen table and
traveled to work at different terminals for Norfolk. (Id. at 37:20-24.) On July 31, 2015, Plaintiff
took the prior CHP form APS attached to the July 15th letter back to his doctor's office. (Id. at
37:25-38:25.) The receptionist told Plaintiff to wait in the lobby and returned the form to him after
about forty (40) minutes with Morgan's signature. (Id.) Plaintiff put that form on his kitchen table
and proceeded to again travel for work. (Id. at 39:18-21.) He called APS to get its address on
August 7, 2015. (ECF No. 26-1, at 168.) APS received the amended form from Plaintiff on August
10, 2015. (Id.)

A.

The July 7 and August 10 Versions of the CHP Form

On the original form Morgan faxed to APS on July 7, Plaintiff filled out the top two lines,
which contain the employee's name and ID number, the patient's name (if different than the
employee) and date of birth, and the relationship of the patient to the employee. (ECF No. 26-1, at
132, 164.) Plaintiff also wrote "migraines" in response to the question "What are the medical facts
that support the patient's serious health condition?" in section 3a and "impedes ability to do job"
in response to the prompt "Please indicate type of leave the Employee needs for the serious health
condition stated in Section 3" in section 6. (Id. at 93, 132 (emphasis omitted); Keith Lavorgna
Dep. 43:10-12, ECF No. 26-1.)
The "amended" CHP form, received by APS on August 10, was significantly altered to
include information beyond what APS sought in its July 15th letter. (ECF No. 26-1, at 96.) Section

4

3a was updated to read "migraines-impedes ability to do job" instead of simply "migraines" as
it read in the initial July

7th

form submitted to APS. (Id.) Section 5 was updated to state that

Lavorgna' s migraines required two medical visits a year. (Id.) This section had been left blank in
the July

7th

form. (Id. at 93.) Section 6 was changed to indicate that Plaintiff suffered four to six

such episodes a month requiring "one/two" days off for each episode. (Id. at 96.) The July 7th form,
however, had only stated that he suffered one to two such episodes a month requiring one day off
each episode. (Id. at 93.) Lastly, the physician's assistant's title was filled in and initialed at the
bottom of the form Lavorgna mailed to APS, which APS received on August 10. (Id. at 96.) That
field had been left blank on the original July

B.

7th

form. (Id. at 93.)

APS's Response

On August 14, 2015, an APS employee entered notes into Lavorgna's APS file about the
differences between the original certification form and the amended version:
[S]ection 3c and 3d remain as previous, frequency/duration changed to 4-6x per
month for one/two days but only initials in section 12 where ... specialty added.
(ECF No. 26-1, at 168.) APS's employee "Getten" spoke to Morgan and concluded,
[she] was very receptive and stated the form was brought in with a star in section
12 stating she needed to provide her specialty (this was not addressed in cure sent)
and this was all that she provided, did NOT change :freq/duration.
(Id.) APS faxed the amended August 1oth certification form it received from Plaintiff to Morgan

for her "review/verification of changes." (Id.) On August 18, 2015, another APS employee entered
notes into APS's file about a conversation he/she had with Norfolk:
[I]nformed [Norfolk] that it appears [Lavorgna] altered med[ical] cert[ification]

(Id.) On August 20, 2015, Morgan sent APS a letter in response to its inquiry. Morgan stated,

5

I did not adjust this patient[']s FMLA papers in regards to writing 4-6 episodes per
month for migraines. The only correction I made on 7/31/15 was writing "Physician
Assistant" under field of specialization with my initials "SM" and date "7 /31/15."

(Id. at 97.)

C.

Norfolk's Response

Norfolk's Labor Relations department sent Plaintiffs supervisor, Hugh Dodd, "information that
pertained to Mr. Lavorgna's FMLA submissions and information from the healthcare provider
stating that they had not made specific changes." (Hugh Dodd Dep. 17:16-18:9, ECF No. 26-2.)
The information included Morgan's letter. (Id. at 18:24-25, 21:12-15.) On August 21, 2015,
Dodd charged Plaintiff with falsifying his FMLA documents and relieved him of his duties
without pay until an investigation concluded. (Keith Lavorgna Dep. 25:18-19, ECF No. 26-1;
ECF No. 26-1, at 98.) As the charging officer, Dodd was responsible for showing that the
charges were accurate. (Hugh Dodd Dep. 7:14-21, ECF No. 26-2.) Mr. Dodd did not know that
Plaintiff suffered a serious medical condition before charging him. (Id. at 29:7-17 .) Dodd
charged Plaintiff under Norfolk General Conduct Rule 900 and the general notice printed on the
Norfolk employee rule book. (Hugh Dodd Dep. 26:20-29:3, ECF No. 26-2.) Rule 900 states:
GENERAL CONDUCT REGULATIONS
900. Employee Conduct
Employees are to conduct themselves in a professional manner and not engage in
behavior or display material that would be considered offensive or inappropriate by
co-worker, customers, or the public. Offensive or inappropriate behavior includes
making disparaging remarks, telling jokes, or using slurs concerning race, religion,
color, national origin, gender, age, veteran status, sexual orientation, disability or
any other legally protected status. Offensive or inappropriate material includes that
which is sexually explicit or insulting to individuals because of race, religion, color,
national origin, gender, age, veteran status, sexual orientation, disability or any
other legally protected status.
Upon discovery, offensive or inappropriate material must be removed immediately
from Company property by its owner, or ifthe owner is unknown or fails to remove
it, must be destroyed.

6

(ECF No. 26-2, at 55 (emphasis omitted).) The general notice states,
GENERAL NOTICE
Safety is of the first importance in the discharge of duty.
Obedience to the rules is essential to safety.
Willingness to obey the rules is necessary in order to enter or remain in the
service. Past practices not in conformity with the rules are unacceptable as an
excuse for noncompliance.
The service demands the honest, intelligent, and courteous discharge of duty.
To obtain promotion, ability must be shown for greater responsibility.
Safety and General Conduct Rules have evolved from the experience of many
people on many railroads over many years. This process will be continuing, and
constructive suggestions to improve these rules should be submitted to officers of
the Company.
(ECF No. 26-2, at 54 (emphasis omitted).)
On the same day, Norfolk sent Plaintiff a letter requesting his presence for an investigative
hearing, required by the collective bargaining agreement with his Union, in connection with
"[ c]onduct unbecoming an employee" for falsifying information on his "application for coverage
under the Family and Medical Leave Act, submitted on August 7, 2015. 2 These incidents occurred
while [he worked] as [an] Engineer Trainee in Powhatan, Ohio." (ECF No. 26-1, at 98; Keith
Lavorgna Dep. 46:23-47:4, ECF No. 26-1.)
The bottom of that letter read, "Additionally, in accordance with the agreement, you are
advised that you have the option to waive the investigation." (ECF No. 26-1, at 98.) Plaintiff
interpreted this waiver to mean that if he accepted responsibility, he would not have a hearing and
would only be suspended. (Keith Lavorgna Dep. 55:11-17, ECF No. 26-1.)

2

Received by APS on August I 0, 2015.

7

Sometime after August 21, 2015, Plaintiff spoke to Dr. York about the certification and
Morgan's letter. (Id. at 63: 14-64: 12.) Dr. York told him, "[Morgan] did not do anything other than
put her certification on there." (Id. at 64:2-4.)

D.

Internal Hearing

At Plaintiffs hearing on August 26, 2015 (held five days after Dodd relieved him from
duty), Robert Williams, the Local Chairman for SMART (Plaintiffs union) and a conductor for
Norfolk, represented him. (Id. at 47; ECF No. 26-1, at 103.) Mark Wagner, the Hearing Officer,
presided over Plaintiffs hearing. (ECF No. 26-1, at 100.) Plaintiff had not met Wagner before the
hearing and did not have any problems with him in the past. (Keith Lavorgna Dep. 47, ECF No.
26-1.) Plaintiff told Williams he would not accept the waiver because he "didn't do anything
wrong." (Id. at 56, ECF No. 26-1.) Notwithstanding Plaintiffs declination, Dodd stated that the
waiver was a misprint and he had so notified Plaintiff days before the hearing. (Hugh Dodd Dep.
24, 33, ECF No. 26-2.) Moreover, according to Dodd, accepting a waiver meant an employee "did
effectively do what they were being charged with in accepting the discipline that was being offered
in the waiver." (Id. at 32.) Plaintiff would not have ordinarily been offered a waiver, according to
Dodd, because the discipline for his offense is termination and employees don't generally sign
waivers to be terminated. (Id. at 33.) 3
As the charging officer, Dodd "present[ed] the Rules of Conduct, the allegations, and any
evidence at the time of the investigative hearing" that supported the charge against Plaintiff. (Id.
at 35.) The evidence Dodd presented at the hearing included redacted copies of the original and
amended certification form. (Id. at 24.) Mr. Dodd "redacted information off the paperwork because

3

Given that Plaintiff said he would not accept the waiver in any event, this appears to be immaterial.

8

[he] believed it was personal and private to [Plaintiff] and [tried] to protect his privacy and did not
see it pertinent to the investigation." (Id. at 34.) During the hearing, Mr. Dodd stated:
On ... #3A, on both of them for the medical diagnosis that was written in there I
have whited out and took blue ink and scribbled it out to make ... the medical
diagnosis unreadable.
(ECF No. 26-1, at 151.)

E.

Plaintiff's Termination

On September 8, 2015, Wagner informed Plaintiff, via letter, that he was terminated from
employment. (ECF No. 26-1, at 100.) The letter stated, "The evidence in the transcript has proven
you are guilty as charged. For your responsibility in the incident outlined above, you are hereby
dismissed in all capacities with Norfolk Southern." (Id. at 182.) Plaintiff was terminated for
"[c]onduct unbecoming an employee when [he] falsified information in [his] application for
coverage under the Family and Medical Leave Act, submitted on August 7, 2015." (Id.)
Plaintiffs Union filed a series of appeals under the applicable labor contract in October
and November of2015. (ECF No. 26-1, pp. 182-90.) On May 17, 2016, the final appeal was denied
by the Public Law Board 7579, the neutral arbitration body with jurisdiction over the dispute under
the Railway Labor Act, 45 U.S.C. § 153 (2012). The Board concluded, "[s]ubstantial evidence
support[s] the charges against [Plaintiff]. [Plaintiff] denied altering the application, but had no
plausible explanation for how his application was changed. Regardless of how it became changed,
[Plaintiff] remains responsible for the accuracy of the information he submitted." (ECF No. 26-1,
at 191.) That was the final and binding arbitration award as to the dispute over Plaintiffs conduct
and the charges filed against him.
On September 24, 2015, Plaintiff filed a claim against Norfolk with the United States Equal
Employment Opportunity Commission (EEOC) Pittsburgh Area Office. (Id. at 192-96.) Plaintiff
alleged disability discrimination under the ADA, 42 U.S.C. §§ 12101-12203 (2012) and retaliation

9

for seeking FMLA leave pursuant to 29 U.S.C. §§ 2611-2619 (2012). (Id.) He averred that he
followed proper procedures, that Norfolk failed to accommodate him, and that Norfolk retaliated
against him for requesting FMLA leave. (Id.) Plaintiff alleged that Norfolk did not offer him a
leniency reinstatement, what he alleged was a railroad industry practice, which demonstrated that
he was treated differently that other similarly situated employees, and that Norfolk terminated him
for reasons other than falsifying documents. (Id.) Plaintiff believes he was also treated differently
because Dodd refused to honor the waiver in his charging letter and the investigative hearing did
not take place within ten (10) days, a requirement under the collective bargaining agreement.

4

(Keith Lavorgna Dep. 53-56, ECF No. 26-1.)
Plaintiff does not know any other Norfolk employee who falsified an FLMA leave
application or other important work-related information, was accused of falsifying information,
was charged with falsifying information, or was treated differently due to comparable behavior.
(Id. at 52.) Plaintiff also does not know if any Norfolk employee has received leniency when they

falsified information. (Id. at 58.) He testified that he does not know why Dodd would have had
any problem with him because he took FMLA leave. (Id. at 56.) Plaintiff believes "ifthere was a
problem with that form, all they had to do was tell [him] to take it back down" and correct it. (Id.
at 57.) Plaintiff has only been disciplined once prior to the present issue when a supervisor pulled
him out of service for taking a prolonged lunch break. (Id. at 24-25.)
Plaintiff filed this action on April 22, 2016, alleging two claims: (1) discrimination under
the ADA; and (2) FMLA retaliation. (ECF No. 1.) Plaintiff claims he was terminated because he
suffered migraine headaches and requested FMLA leave. (Id.) As to the first count, Norfolk
· allegedly "refused to work with Plaintiff in properly utilizing FMLA leave." (Id.

4

~

24(a).) As to

This timing issue would appear to be an issue only under the labor agreement, unless Plaintiff could show that his
case was treated less favorably than others, to his material prejudice. He offers no such evidence.

10

the second count, Norfolk allegedly retaliated against Plaintiff for requesting FMLA by accusing
him of falsifying documents. (Id.

~

26.) Plaintiff claims Norfolk terminated him as soon as he

submitted his FMLA request despite not having evidence that he falsified the documents. 5 (Id.)
In its Answer, Defendant Norfolk contends that Plaintiff was terminated because he
falsified information on his FMLA leave application. (ECF No. 9.) Norfolk further contends that
if it is found to have violated the FMLA, any such violation was not willful. (Id.)
Defendant then moved for summary judgment, filed a concise statement of material facts,
and filed a brief and exhibits in support of its Motion on March 15, 2017. (ECF Nos. 24-27.)
Plaintiff responded in opposition to Norfolk's Motion and filed a brief in support with exhibits on
April 10, 2017. (ECF Nos. 28-30.) As noted above, he filed no rebuttal to Defendant's statement
. of facts. Defendant filed its reply brief to address Plaintiffs arguments and submitted recent,
precedential case law with analysis to the Court on April 13, 2017. (ECF No. 31.) The Court has

5

During oral argument, Plaintiff conceded that he admitted at his disciplinary hearing to altering the certification form
to a degree (except for duration and frequency (ECF No. 26-1, at 132)) but seemingly argued that what was learned
and determined at that hearing should be considered "after-acquired evidence," which is evidence obtained after an
allegedly discriminatory adverse employment action that serves as a nondiscriminatory reason for such action. See
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63 (1995). The Court phrases the argument in that way
because Plaintiff has not invoked that doctrine at all in his briefing, and only sort of seemed to do that in his counsel's
rebuttal at oral argument. In essence, he alleges that Norfolk's falsification allegation could not have been valid until
he had admitted to some level of altering the CHP form during his first internal disciplinary hearing and/or that
hearing determined based on the evidence presented that he had acted as charged. Plaintiff, however, was not
terminated until after the hearing. He claims that "the" adverse employment action therefore would be the initial
suspension, and it would run until his first internal hearing. Generally, the after-acquired evidence doctrine serves to
limit recovery as of the time the nondiscriminatory reason is discovered. Id. at 362. If this were applied here, Plaintiff
could only recover damages for the time between his allegedly discriminatory suspension and his hearing. However,
Plaintiffs arguably/potentially newly crafted argument misses the mark for a couple of reasons. First, Plaintiffs
Complaint challenges his employment termination, not his suspension. (ECF No. 1~~22, 24(a), 27.) Plaintiff cannot,
in effect, amend his Complaint via his oral argument in opposition to Defendants' motion for summary judgment.
See, e.g., Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F .2d 173, 181 (3d Cir. 1988) (holding that a plaintiff
may not amend her complaint through arguments in opposition to a motion). Second, for the reasons noted above, at
the time of the suspension, Defendant had plenty of reasons based on the notices from APS, and an examination of
the various permutations of the submitted FMLA forms, to preliminarily reach the conclusion that was confirmed at
the initial disciplinary hearing, that is that Plaintiff violated Defendant's previously published and generally
applicable workplace rules. (ECF No. 26-1, at 132.) These events were essentially part of one transaction from the
outset of the applicable disciplinary process, and the matter cannot be sliced as thinly as Plaintiff belatedly suggests.

11

considered all of the parties' papers and held oral argument on the Motion on June 20, 2017. The
Motion is ripe for disposition.

II.

STANDARD ON SUMMARY JUDGMENT

Summary judgment is appropriate when "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their position by "citing
to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P.
56(c)(1 )(A).
Once that burden has been met, the nonmoving party must set forth "specific facts showing
that there is a genuine issue for trial," or the factual record will be taken as presented by the moving
party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 56(a), (e) (emphasis in Matsushita)). To
meet its burden, the "opponent must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586. The nonmoving party "must present
affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert
factually unsupported allegations." Williams v. Borough of West Chester, 891F.2d458, 460 (3d
Cir. 1989) (emphasis omitted). Moreover, a party's labelling or characterizing a fact as "disputed"
does not make it so-the record evidence the opposing party points to must support the dispute of
fact, whether through reasonable inference or otherwise. If the nonmoving party's evidence merely
is colorable or lacks sufficient probative force, summary judgment may be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

12

In other words, summary judgment may be granted only ifthere exists no genuine issue of
material fact that would permit a reasonable jury to find for the nonmoving party. See id. at 250.
"Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial."' Matsushita, 475 U.S. at 587 (quoting First
Nat 'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968); Huston v. Procter & Gamble
Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (quoting Matsushita, 475 U.S. at 587).

In reviewing the record evidence, the court draws all reasonable inferences in favor of the
nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Matsushita, 475 U.S. at 587-88; Huston, 568 F.3d at 104 (citations omitted). It is not the court's

role to weigh the disputed evidence and decide which is more probative, or to make credibility
determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247
(3d Cir. 2004); Boyle v. Cnty. ofAllegheny, 139 F.3d 386, 393 (3d Cir.1998). "Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson, 477 U.S. at 248. "Where the defendant is the moving
party, the initial burden is on the defendant to show that the plaintiff has failed to establish one or
more essential elements to his case." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir.
2005) (citing Celotex Corp., 477 U.S. at 322).
III. DISCUSSION

Lavorgna asserts a discrimination claim based on his disability pursuant to the ADA and a
retaliation claim pursuant to the FMLA. The Court will address his ADA claim first.
A.

Disability Discrimination

Plaintiffs disability claim is analyzed according the familiar burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Plaintiff must

13

first establish a prima facie case of discrimination. Id. Ifhe can, the burden of production shifts to
Norfolk to articulate a legitimate, nondiscriminatory rationale for the allegedly discriminatory
action. Id. at 802. The burden then shifts back to Plaintiff to establish by a preponderance of the
evidence that Norfolk's stated reason is pretextual. Id. at 804; Jones v. Se. Pa. Transp. Auth., 796
F.3d 323, 326 (3d Cir. 2015).
Count I of Plaintiffs Complaint alleges disability-based discrimination in violation of the
ADA, 42 U.S.C. § 12101, et seq. The ADA prohibits discrimination against a qualified individual
with a disability because of that disability. 42 U.S.C. § 12112(a). Thus, in order to establish his
prima facie case, Plaintiff must demonstrate that: (1) he is a disabled person within the meaning
of the ADA; (2) he is qualified to perform the essential functions of the job, with or without
reasonable accommodations; and (3) he has suffered an adverse employment decision as a result
of such discrimination. Gaul v. Lucent Techs., Inc., 134 F .3d 576, 580 (3d Cir. 1998). Norfolk only
challenges the third element of the prima facie case. Defs Br. in Supp. of Mot. for Summ. J. 17,
ECF No. 27.)
1. Prima Facie Case

Norfolk concedes that Plaintiff can satisfy the first two elements: Plaintiff is disabled under
the ADA and he was qualified to perform the essential job functions of a conductor. Norfolk
contends, however, that Plaintiff cannot establish that he has suffered an adverse employment
decision as a result of disability discrimination. The record reflects that none of Plaintiffs
supervisors, or any employee at Norfolk for that matter, were aware that he suffered migraine
headaches prior to the FMLA investigation. Plaintiffs FMLA application was processed by APS
and he requested FMLA through APS. When Plaintiff previously had asked his trainmaster what
he should do if he had to take medication for anything, the trainmaster responded, "[I]f you have

14

to mark off, we have an extra board that covers you. Don't worry about that. We want you to be
focused at work and not tear things up or damage things or get someone hurt." (Keith Lavorgna
Dep. 67, ECF No. 26-1.) In fact, it was Plaintiffs trainmaster who suggested that he apply for
FMLA leave.
Notably, in his Brief in Opposition, ECF No. 29, Plaintiff does not make any arguments to
support his claim for disability discrimination, and on that basis alone, the Court could treat it as
having been abandoned. Plaintiff instead devotes the entire brief to supporting his FMLA
retaliation claim. In his Complaint, Plaintiff summarily alleges that Norfolk terminated him in
violation of the ADA, 42 U.S.C. § 12114(b)(4), because he suffered from migraine headaches.
(Compl.

~

23, ECF No. 1.) According to Plaintiff, as soon as Norfolk "had a pre-text for

terminating Plaintiff they utilized it."

(Id.~

24(a), ECF No. 1.)

The record here is devoid of any factual support for what is, in reality, Plaintiffs
conclusory position that he was fired by Norfolk because he had migraine headaches. Plaintiff had
been approved for FMLA leave for five or six years for that very condition by the time his
certification form was called into question by APS, which addressed those FMLA issues
independently of Norfolk management. Plaintiff testified that prior to the investigation, his
supervisors were not aware of his claimed disability. (Keith Lavorgna Dep. 29-30, ECF No. 261.) Plaintiffs supervisor became aware of Plaintiffs claimed disability only during the
culmination of the inquiries through ASP's investigation. By the time his supervisor became aware
of Plaintiffs asserted disability, APS had obtained Ms. Morgan's letter, was in possession of the
conflicting forms, told Norfolk that Plaintiff likely altered the certification forms, and sent the
information to Norfolk's labor relations department. The factual record that has been presented to
the Court cuts in only one direction, which is that there is no basis to conclude that historically

15

Defendant had had any issue with Plaintiffs migraine headache condition, and the only allegation
made as to a relationship between that condition and Plaintiffs dismissal was that he had migraine
headaches (which his employer did not know previously) and was dismissed. He proffers no
factual basis to conclude that there was any causal link between those two things.
Because there is no sufficient record evidence advanced that would support a causal
connection between Plaintiffs termination and his claimed disability, Plaintiff fails to establish a
prima facie case for ADA-disability discrimination.
2. Pretext
Even if Plaintiff could make out a prima facie claim of ADA discrimination, Norfolk
provided a nondiscriminatory reason for his termination: Plaintiff falsified his FMLA certification
in violation of Norfolk's employee policies. In order to demonstrate that Norfolk's stated reason
for Plaintiffs termination was pretextual, Plaintiff 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." Burton v. Teleflex
Inc., 707 F.3d 417, 427 (3d Cir. 2013) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.

1994)). Plaintiff must do more than show that Defendant's decision was wrong or mistaken; rather,
he must "present evidence contradicting the core facts put forward by the employer as the
legitimate reason for its decision." Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)
(emphasis omitted).
The record here presents no evidence of pretext. Plaintiffs internal investigative hearing
required by his collective bargaining agreement and subsequent hearing under the jurisdiction of
the Public Law Board focused on his allegedly falsified FMLA certification fonn. Presiding

16

officers from both appeals believed there was sufficient documentation that Plaintiff falsified his
FMLA certification. The court does not analyze whether the results of these hearings were wrong.
See Burton, 707 F.3d at 427. The analysis is whether a factfinder could disbelieve Norfolk's reason

for terminating Plaintiff or an "invidious discriminatory reason was more likely than not a
motivating or determinative cause." Id. Plaintiff has failed to submit record evidence that Norfolk
terminated him for any reason other than for falsifying documents. Plaintiff, after all, essentially
admitted to doing what he was charged with doing by his acknowledgment that he had personally
added information to the submitted FMLA form. (ECF No. 26-1, at 132-33.) His further
explanation, offered at the first internal hearing on August 26, that it was possible that one of his
adult children or one of their friends might have added to that form while it was unattended on his
kitchen table during his absence was never more than an offer of rank speculation. (ECF No. 261, at 138). There is also no record basis advanced that the Norfolk decision makers actually did
not believe or rely on the conclusion that Plaintiff had in fact altered the FMLA form, which would
be the hallmark of a finding of pretext by a jury. Further, the final appeal level of his disciplinary
process, the neutral Public Law Board, reached the same conclusion. It is simply not pretextual for
Norfolk to reply upon the decision of that tribunal. See Collins v. NYC Transit Auth., 305 F.3d
113, 118-19 (2d Cir. 2002); Brinson v. N. Y C. Transit Auth., 60 F. Supp. 2d 23, 29 (E.D.N. Y.
1999). Finally, there is no record evidence that Norfolk somehow manipulated the outcome of the
disciplinary hearings, or that some novel procedure was used in Plaintiffs case. In fact, all of the
record evidence and Defendant's unrebutted concise statement of material facts cuts only in the
opposite direction.

17

There is no sufficient record evidence from which a reasonable jury could conclude that
Norfolk's proffered reason for Plaintiff's demotion was a pretext for unlawful discrimination under
the ADA.

3. Accommodation
In Count I, Plaintiff also alleges that "Defendant refused to engage in the interactive
process of accommodation in violation of the ADA." (Compl. ~ 24, ECF No. 1.) Plaintiff considers
his request for FMLA leave a reasonable accommodation under the ADA. (Id.

~

24(a).) "A plaintiff

bringing an ADA failure-to-accommodate claim must establish: '(l) he was disabled and his
employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make
a good faith effort to assist; and (4) he could have been reasonably accommodated."' Capps v.
Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette Tomlin
Mem 'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)).

Here, the record reveals that Plaintiff enjoyed five or six years of approved FMLA leave.
(ECF No. 26-1, at 88-91.) The Court need not make a conclusive determination as to whether
FMLA leave is a reasonable accommodation under the ADA in this case or others, but it certainly
seems that it would be in circumstances where that was what the employee sought, it was granted
by the employer, and doing so did not appear to negatively impact either the employee's working
conditions or the employer's operations. Plaintiff received that accommodation for ten (10) days
in 2013 and for fourteen (14) days in 2014. (Id.) The undisputed record here was that Norfolk was
more than willing to grant leave for Plaintiff's 2015 anticipated absences for the same condition,
and this would have happened in the normal course but for all of Plaintiff's machinations with his
FMLA form. There is zero record evidence that Norfolk was beginning to apply some new, harsher
standard to Plaintiff's 2015 FMLA request, or that it in any way erected some new or higher bar

18

for him to pass over. In all regards, the record before the Court demonstrates that the factual
account presented to Plaintiffs employer revealed that Plaintiff, and Plaintiff alone, is the author
of his own tale of woe. The only issues with his FMLA request were procedural and material-it
was incomplete (and he was given the chance to fix it), followed by his own addition of information
that was required to come from the medical provider, not him. In such circumstances, he cannot
now successfully claim at trial that Norfolk failed to reasonably accommodate him by not allowing
him to utilize FMLA leave for his migraines. It did just that for years, and the record is
uncontradicted that it was ready to do so again.
Because Plaintiff is unable to advance record evidence to support his claim that he was
discriminated against because of a migraine disability, no reasonable jury could find that Norfolk
violated the ADA. The Court grants Norfolk's Motion for Summary Judgment as to Count I.

B.

FMLA Retaliation

Plaintiff claims Norfolk retaliated against him for requesting FMLA leave by accusing him
of falsifying documents as a pretext to terminate him. To prevail on his retaliation claim under the
FMLA, Plaintiff must prove that: (1) he invoked his right to FMLA-qualifying leave; (2) he
suffered an adverse employment decision; and (3) the adverse action was causally related to his
invocation of rights. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691F.3d294, 301-02 (3d Cir.
2012); see also Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014). To the extent that FMLA
retaliation claims require a plaintiff to show proof of retaliatory intent on behalf of the employer,
courts assess these claims under the McDonnell burden-shifting framework. Lichtenstein, 691 F.3d
at 302. To that end, the Court will analyze Plaintiffs FMLA retaliation claim with the same
analysis that was applied to his ADA disability discrimination claim. At the prima facie stage,

19

however, "a plaintiff alleging retaliation has a lesser causal burden." Carvalho-Grevious v. Del.
State Univ., 851 F.3d 249, 259 (3d Cir. 2017).

In Carvalho-Grevious, our Court of Appeals "decline[d] ... to heighten the plaintiffs
prima facie burden to meet h[is] ultimate burden of persuasion." Id. The court analyzed the effect
of requiring the plaintiff to prove but-for causation at the preliminary, prima facie stage. Id.
Ultimately, it agreed with the analysis used by the Fourth Circuit: "[i]f plaintiff can prove but-for
causation at the prima facie stage, they will necessarily be able to satisfy their ultimate burden of
persuasion without proceeding through the pretext analysis." Id. (quoting Foster v. Univ. of
Maryland-£. Shore, 787 F.3d 243, 251 (4th Cir. 2015)). This would render the McDonnell
Douglas burden shifting unnecessary. Carvalho-Grevious, 851 F.3d at 259. Instead, the Court of

Appeals held that "the plaintiff must produce evidence 'sufficient to raise the inference that her
protected activity was the likely reason for the adverse [employment] action."' Id. (quoting
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (alteration in original)

(emphasis omitted)).
Here, the issue is whether Plaintiff has advanced evidence from which a reasonable jury
could conclude that Plaintiffs FMLA leave request was "the likely reason" Norfolk terminated

his employment. Then, whether a reasonable jury could find that Norfolk's nondiscriminatory
explanation (stage two) was pretext (stage three). See id.
Norfolk concedes for purposes of addressing this Motion that Plaintiff satisfies the first
two elements of his prima facie case under Lichtenstein. See Lichtenstein, 691 F.3d at 302. As to
the third element, Plaintiff must demonstrate a causal connection between his termination and his
request for FMLA leave. See id. A plaintiff can show a causal link by "proffering evidence of an
employer's inconsistent explanation for taking an adverse employment action, a pattern of

20

antagonism, or temporal proximity." Carvalho-Grevious, 851 F .3d at 260 (citing Waddell v. Small
Tube Prods., Inc., 799 F.2d 69, 73 (3d Cir. 1986); Woodson v. Scott Paper Co., 109 F.3d 913, 921
(3d Cir. 1997); Shaner v. Synthes, 204 F.3d 494, 505 (3d Cir. 2000).
The record shows that Norfolk was consistent, from "Day One," in its belief that Plaintiff
falsified his FMLA certification form based on the information provided to it by APS and then via
the various hearings held on the matter. Norfolk relied on the certification forms, Morgan's letter,
APS's information gleaned from Morgan's office, and the employee handbook during its
investigation. It reviewed the results of the initial hearing before terminating Plaintiffs
employment. The Public Law Board, a statutory arbitration body with jurisdiction over the dispute,
considered a developed record before affirming Plaintiffs termination. CSMF iJ 12, ECF No. 25;
ECF No. 26-1, at 191. At no point during the investigation, hearing, or appeals did Norfolk provide
or rely on any other basis for Plaintiffs termination, and Plaintiff fails to advance any evidence of
any inconsistent explanation by Norfolk for its decision. There is no evidence that Norfolk was
inconsistent in its explanation for terminating Plaintiffs employment.
The record also does not show any pattern of antagonism toward Plaintiff on the part of
Norfolk. In fact, the record reveals Norfolk was supportive of Plaintiffs taking FMLA leave for
years. Plaintiff did not begin requesting FMLA leave until his trainmaster introduced him to the
option. His trainmaster did not want him coming to work on medication and told him, "[I]f you
have to mark off, we have an extra board that covers you. Don't worry about that. We want you to
be focused at work and not tear things up or damage things or get someone hurt." (Keith Lavorgna
Dep. 67, ECF No. 26-1.) He asked Plaintiff, "Did you apply for FMLA?" (Id. at 26:19-20.)
Plaintiff then had not, but subsequently submitted an FLMA application and that application was
approved. Plaintiff enjoyed years of FMLA leave before this issue arose. Furthermore, Plaintiff

21

himself cannot recall any workplace issues with his supervisors other than a singular disciplinary
action after Plaintiff took a prolonged lunch break. The record evidence before the Court
demonstrates that there is not even a hint that Norfolk was going to be resistant to Plaintiffs 2015
FMLA request. The trouble only began when the doctoring of Plaintiffs FMLA form came to light
via APS. Plaintiff has failed to proffer record evidence that Norfolk had a pattern of antagonism
against him at all for any reasons, let alone for taking FMLA leave.
Plaintiff also claims there is a temporal connection between his request for FMLA leave
and his termination. He was taken off duty and charged on August 21, 2015, and terminated after
an investigative hearing on September 8, 2015, roughly two weeks later. Because his supervisor
became aware of his asserted disability only after Norfolk commenced its investigation, Plaintiff
claims this two-week window is the window of time to be considered and is evidence of a level of
temporal proximity supporting a causal link between his FMLA request and his termination. The
Court disagrees.
Our Court of Appeals has held that even a short time between a protected activity and an
adverse employment action alone is not "unusually suggestive of retaliatory motive." Motto v.
Wal-Mart Stores E., LP, 563 F. App'x 160, 163 (3d Cir. 2014) (quoting Shaner, 204 F.3d at 505).

In Motto, the plaintiff claimed that the eleven-day period between his sexual harassment complaint
and his termination proved causation. Id. at 163 ("The crux of [plaintiffs] causation argument on
this appeal is that the short time between his complaint about sexual harassment and his discharge,
eleven days, is sufficient by itself to show a causal link."). The Court of Appeals disagreed and
attributed the time period to "how long it took [plaintiffs supervisor] to properly investigate the
situation and reach a decision." Id.; see also Reid v. Sleepy's, LLC, No. 14-cv-2006, 2016 WL
3345521, at *19-20 (M.D. Pa. June 16, 2016) (citing Motto's temporal proximity analysis). The

22

Court of Appeals explained that "[i]n situations where the time between the protected activity and
the retaliation does not, standing alone, support a finding of causation, there is usually evidence of
antagonism or retaliatory animus in the intervening time." Motto, 563 F. App'x at 164. The Court
affirmed the district court's dismissal of the retaliation claim. Id. at 164-65.
Here, Plaintiff argues that there was a short period of time between when Norfolk (as
opposed to APS) became aware of Plaintiffs FMLA renewal application and his termination in an
effort to prove causation by temporal proximity. Similar to Motto, Plaintiffs termination was the
result of an investigation. It took Norfolk the two weeks at issue to conduct a hearing and reach a
decision. That short time period is not in and of itself"unusually suggestive of retaliatory motive."

Id. at 163. There is no evidence in the record to show "antagonism or retaliatory animus in the
intervening time." Id. at 164. The period of two weeks, standing alone, does not raise an inference
of causation. Id. Beyond that, arguably Plaintiffs protected FMLA activity was the submission of
his FMLA request on July 7, 2015, and the earliest possible adverse action was his suspension six
(6) weeks later, which longer period of time is also not suggestive of unlawful motivation.
But even if Plaintiff could make out a prima facie claim of FMLA retaliation, Norfolk has
provided a nondiscriminatory reason for its termination, which the record reveals it actually relied
upon: Plaintiff falsified his FMLA certification form in violation of Norfolk's employee policies.
Plaintiff responds that Norfolk never sufficiently proved that he falsified the form because they
relied on Morgan's letter that she did not change the form and Norfolk did not thereafter interrogate
her. Furthermore, Plaintiff argues that Norfolk really does not know who altered the form simply
because Morgan denied changing it.

It is well established, however, that Plaintiff "cannot simply show that the employer's
decision was wrong or mistaken" in proving pretext. Fuentes, 35 F.3d at 765; see Motto, 563 F.

23

App 'x at 164 ("It does not matter what a jury might conclude, based on evaluating the credibility
of witnesses .... The only question is whether [defendant's] stated reason for firing [plaintiff]
was pretext."); see also Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir.
1992). The record fails to show evidence of pretext on Norfolk's part. It appropriately relied upon
information received from APS before suspending him from duty, and terminated his employment
only after a further investigation and a hearing conducted under the applicable labor agreement. A
statutory arbitration body then affirmed that termination decision. Plaintiff has advanced no record
evidence that would support a finding that Norfolk used some new or different standard for how it
considered the statements provided by Morgan or the other information from APS as Norfolk was
making the suspension or discharge decisions. There is no record evidence that Plaintiff's
disciplinary proceedings were conducted in some novel fashion, and the Court is not aware of any
provision in federal law that would dictate some alternative evidentiary standards to be applied by
the employer in conducting its disciplinary proceedings (or that unique standards were applied to
Plaintiff here). The Court is not in a position to hold that pretext could be established simply by
the fact that Norfolk did not summon Morgan as a live witness at some stage of the disciplinary
proceeding, or by the fact that it elected to rely on what would appear to be a facially reliable
written submission from Morgan (along with all of the other evidence strongly suggestive of
Plaintiffs responsibility for the alterations), particularly when there is nothing advanced that
would call its reliability into question. 6 There is simply no evidence advanced by Plaintiff from
which a jury could rationally conclude either that Norfolk did not actually believe in, and then rely
upon, its stated reason for Plaintiffs dismissal, that such stated reason is unworthy of credence, or

6

Plaintiff did seem to allude both in his disciplinary hearings and then in the Complaint in this Court to an argument
that while he was away from home for work, friends of his adult daughter who were present at his house may have
altered the FMLA form. (Comp!.~ 13(d), ECF No. !.) He has at no point advanced any record facts to move that
assertion from highly implausible speculation to admissible evidence. (See ECF No. 26-1, at 138.)

24

that Norfolk (for the first time after years of approval) had in 2015 decided to fire him for
requesting FMLA leave. See Capps, 847 F.3d at 152. Thus, the Court concludes that the record
before it cannot plausibly support a conclusion that Norfolk's articulated reason of falsifying an
FMLA form was pretextually used to retaliate against him for requesting FMLA leave.
Considering the record in the light most favorable to Plaintiff, he has not produced, nor has
the Court's independent review of the record revealed, that there is sufficient record evidence to
allow Plaintiffs ADA discrimination or FMLA retaliation claims to go to a jury. He has offered
no sufficient record evidence that would support a verdict in his favor that Norfolk unlawfully
discriminated against him in contravention of the ADA or the FMLA. Summary judgment is
therefore appropriate as to all claims advanced by Plaintiff.

IV.

CONCLUSION

Accordingly, the Court grants Norfolk's
against Plaintiff as to all claims. An appropria

Mo~ion

for Summary Judgment at ECF No. 24

Order will issue.

Mark R. Hornak
United States District Judge
Date: October 31, 2017
cc:

All counsel of record

25