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Deery v. Port Authority Transit Corp.

August 23, 2006

THEODORE DEERY, PLAINTIFF,
v.
PORT AUTHORITY TRANSIT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

Plaintiff Theodore Deery ("Deery") claims that his former employer, Defendant Port Authority Transit Corporation ("PATCO") violated the Family Medical Leave Act ("FMLA") by refusing to allow Deery to return to work after taking approved leave and then firing Deery, allegedly in retaliation for taking leave. PATCO moves for summary judgment. For the following reasons summary judgment will be granted.

I.

Deery was employed by PATCO as a Way and Power Maintainer,*fn1 under the supervision of Bill Shaw ("Shaw"). According to Deery, Shaw "was a highly abrasive person who would harass and abuse all of his subordinates." (Pls. Br. at 5) Deery claims it was Shaw's "relentless harassment" over two and a half years which caused Deery to become "mentally unstable" to the point where Deery required "stress leave pursuant to the FMLA." (Id.)

The stress Deery reports culminated in a series of telephone conversations that Deery had with Shaw on July 22, 2003. According to Deery, Shaw questioned Derry about recording 2 hours and 30 minutes of overtime when Derry was only entitled to 2 hours and 29 minutes of overtime. (Def. Ex. B Deery Dep. at 31-32) Deery got "upset" saying to Shaw, "this is a bunch of f'ing shit . . . I am going home sick." (Id.)

Shortly after this incident, Deery was evaluated by Dr. Hershenberg, Ph.D., who observed that Deery's "job stress" mainly arose out of his "deteriorating relationship with his supervisor, Bill Shaw." (Defs. Ex. C) Notably, Dr. Hershenberg observed, "[w]hile [Deery] has expressed thoughts of violence, I believe these threats are verbalizations that do not require legal intervention." (Id.) Dr. Hershenberg diagnosed Deery with "Adjustment Disorder with Mixed Emotional Features secondary to work related stress" and determined that his current functioning was sufficiently impaired to warrant 30 days of disability leave. (Id.)

On July 29, 2003, Deery reported to PATCO's Human Resources Department to pick up the requisite leave paperwork. He spoke with Denise Andrews, telling her, "I cannot work for this man [Shaw] anymore. He is just too much for anybody. . . . he drives you so damn crazy sometimes . . . you feel like you can just kill him."*fn2 (Def. Ex. B, Deery Dep. at 42-44) Andrews, concerned about Deery's comment, immediately contacted her director, Kelly Campbell. (Def. Exs. D and 1) Andrews and Campbell met with the General Manager, Robert Box that same day to report the incident. (Id.) Later that evening Box met with Ron Binder, apparently Shaw's supervisor, to talk about Deery's complaints. (Def. Ex. 1)

At PATCO's request, Dr. Walden Holl, Jr., M.D., evaluated Deery on August 28, 2003. Dr. Holl reported to PATCO that, "Deery is suffering from a mild mood disorder. At present his mood is slightly elevated and he is exhibiting pressure of speech and irritability. . . . Deery is able to work, however, given his emotional state, it would be best if he would work for someone other than Mr. William Shaw." (Def. Ex. G)

Similarly, in a report to PATCO dated September 8, 2003, Dr. Hershenberg stated,

At the present time, Mr. Derry's level of functioning is high enough for him to return to work and to handle his responsibilities as an Electrician. . . . [however] I do not believe that he is capable of returning to the same situation that he was previously in. My concern is that if he returns to work under Mr. Shaw's direct supervision he will once again show deterioration in his level of functioning. The deterioration that I described in my previous evaluation was serious and I placed Mr. Deery on Disability because I was concerned about his instability and possible work place violence.

(Def. Ex. H)

After receiving Dr. Holl's report, PATCO wrote to Dr. Holl asking him, "please advise whether we are correct in our understanding that it is your expert medical opinion that there was nothing in your examination of Mr. Deery or the documents we sent to you to review that would lead you to believe that Mr. Deery could pose a threat to his supervisors, co-workers or the general public that he serves if he should resume his duties at PATCO under the current management structure." (Def. Ex. I) Dr. Holl responded by telephone, stating, "there was no way I [can] determine whether or not Mr. Deery could pose a threat in his work situation." (Id.)

On October 22, 2003, PATCO sent Deery a "notice of pre- disciplinary hearing."*fn3 (Def. Ex. K) The letter briefly recounted the factual allegations against Deery, which included both the telephone conversation with Shaw about overtime and Deery's statements to Denise Andrews in the Human Resources Department. (Id.) The letter cited PATCO's "Zero-Tolerance Policy for Harassment, Violence or Threats of Violence" which prohibits all verbal or physical threats or acts of violence against people or property occurring on Enterprise premises . . . [and] any threats or acts of violence, bodily harm, or physical, written or verbal intimidation and/or coercion by Enterprise employees ...


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