Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-12-2007
Barclay v. Amtrak
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3482
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3482
________________
ROBERT A. BARCLAY,
Appellant
v.
AMTRAK
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 03-cv-02450)
District Judge: Honorable Anita B. Brody
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 1, 2007
Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES
(Filed July 12, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Robert Barclay appeals the order of the United States District Court for the Eastern
District of Pennsylvania granting summary judgment in favor of the defendant. We will
affirm the District Court’s order.
I.
Barclay, who suffers from irritable bowel syndrome (IBS), worked for many years
as a locomotive engineer for Amtrak. In 1997 Barclay sought permission from Amtrak’s
medical department to take Bentyl, a medication for IBS, while operating a locomotive.
Because Barclay’s doctor was unwilling to certify him to operate a train while taking the
medication,1 he was placed on medical restriction from December 1997 until 1999.
In February 1999 Barclay received medical clearance to return to work without
restriction, and in March 1999 he returned to work as a locomotive engineer. Between
April 16, 1999 and May 11, 1999, Barclay had 17 unexcused absences from work. In
August 1999, an Amtrak doctor confirmed that Barclay had been medically cleared to
return to work as an engineer, and on September 30, 1999, Barclay was given a “time-
served” suspension and a written warning as a disciplinary measure for his absences.
From January 4, 2000 to April 20, 2000, Barclay had 28 unexcused work absences.
The record shows two medical evaluations of Barclay during that time period: on
February 21, 2000, Barclay had a medical examination during which it was determined
that he was “medically acceptable” for his position as an engineer, and on March 27,
2000, Barclay’s personal physician at the time wrote a letter to Amtrak stating that (1)
Barclay’s IBS was well controlled, (2) his taking a 20 mg dose of Bentyl in the evening
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Barclay sometimes experienced light-headedness and drowsiness while on the drug.
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would not interfere with his operation of a locomotive, and (3) he was “unrestricted as a
locomotive engineer.” Supplemental Appendix at 33. After reviewing the medical
documentation, Amtrak began disciplinary proceedings against Barclay for his
absenteeism.
After rescheduling the disciplinary hearing three times due to Barclay’s repeated
failures to appear, the proceeding was held in absentia, with a representative from
Barclay’s union representing his interests. On July 25, 2000, the Amtrak hearing officer
issued a decision immediately terminating Barclay’s employment for excessive
absenteeism. The union appealed the decision to the National Mediation Board. On
February 21, 2001, the Board affirmed Barclay’s dismissal but ruled that he should be
given one final chance to work. Barclay felt incapable of performing the job due to
disability and did not return to work. Accordingly, the last day that Barclay worked for
Amtrak was May 21, 2000.
On April 24, 2003, Barclay filed a complaint in the Eastern District of
Pennsylvania, which the District Court construed as alleging violations of the Americans
with Disabilities Act (ADA), the Rehabilitation Act, the Pennsylvania Human Relations
Act (PHRA), and state law defamation and invasion of privacy claims. The District Court
granted Amtrak’s motion to dismiss as to all claims other than the ADA claims on the
basis of timeliness.2 Barclay raises three claims under the ADA: (1) that he was
2
Neither party contests this decision on appeal.
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wrongfully terminated on the basis of his disability, (2) that Amtrak failed to reasonably
accommodate his disability, and (3) that he was subjected to a hostile work environment
on the basis of his disability.
The parties engaged in discovery and Amtrak filed a motion for summary
judgment. The District Court granted the motion and Barclay now appeals.
II.
We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the
decision to grant summary judgment. See Torres v. Fauver, 292 F.3d 141, 145 (3d Cir.
2002). We must determine whether the record, when viewed in the light most favorable
to Barclay, shows that there is no genuine issue of material fact and that Amtrak was
entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56.
We first address Barclay’s termination claim. In order to establish a prima facie
case of disability discrimination within the meaning of the ADA, an employee must
demonstrate that he or she, (1) has a disability, (2) is otherwise qualified to perform the
essential functions of the job, with or without accommodations by the employer, and (3)
has suffered an adverse employment action because of his or her disability. See Williams
v. Philadelphia Housing Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004). If the
employee makes out a prima facie case of discrimination, the employer may prevail by
demonstrating a legitimate, non-discriminatory reason for the adverse action. See Salley
v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998).
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In granting the defendants’ motion for summary judgment, the District Court
appeared to agree with Amtrak that the evidence indicates that Barclay was not qualified
to perform his job at the time of his termination; the District Court also concluded that
Amtrak terminated Barclay for a legitimate nondiscriminatory reason. Because the
District Court’s second conclusion is sufficient to support summary judgment in favor of
Amtrak on this claim, we need not reach the question of Barclay’s qualifications at the
time of his termination.
We agree with the District Court. The record is clear that Barclay was disciplined
regarding his absenteeism and given a written warning. Shortly afterward, he had 28
unexcused absences in a four-and-a-half-month period. Amtrak’s decision to terminate
him for excessive absenteeism was upheld by the National Mediation Board. Though
Barclay claims that the unexcused absences occurred as a result of his disability and were
medically justified, there is no evidence in the record of medical excuses for the absences
during this time period, much less that Barclay presented any excuses to Amtrak. In fact,
Amtrak’s medical department relied upon two medical evaluations, both of which
occurred within the relevant time period, in concluding that Barclay’s absences were not
medically justified. Amtrak did not begin disciplinary proceedings against Barclay until it
determined that his absences were not medically justified. Because Barclay fails to
present any evidence from which a fact finder could reasonably conclude that the stated
reasons for his firing are pretextual, the District Court properly granted summary
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judgment in favor of Amtrak. See Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir. 2000).
With regard to Barclay’s second claim (reasonable accommodation), for the
reasons explained by the District Court, we agree that Barclay has failed to present
evidence of vacant, funded positions, at or below the level of his engineer position, the
essential functions of which he was capable of performing, as required in order to make
out a prima facie case of Amtrak’s failure to reasonably accommodate his disability. See
Donahue v. Consolidated Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000).
Finally, assuming that such claims are cognizable under the ADA, we turn to
Barclay’s hostile work environment/harassment claims. Among the elements that Barclay
must prove in order to make out a hostile work environment claim is that the harassment
to which he was subjected was based on his disability or a request for an accommodation.
See Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 667
(3d. Cir. 1999). As the District Court emphasized, the ADA does not protect an employee
from every kind of harassment, only harassment that is based upon the employee’s
disability. See id. (the fact that supervisor’s behavior toward the disabled plaintiff was
offensive does not indicate that it was based on plaintiff’s disability).
Barclay alleges several grounds for his harassment claim, the most potentially
problematic of which are related to the behavior of his supervisor, division road foreman
Carmine Palumbo. Barclay alleges, inter alia, that Palumbo wanted Barclay to regularly
obtain his permission before marking off sick, that he put Barclay on speakerphone and
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allowed other employees to listen when Barclay called in sick, and that he “openly
disclosed” personal medical facts (not about Barclay’s disability) that Barclay had told
him privately. Barclay also presented evidence that Palumbo tried to convince another
employee to regularly check Barclay’s books and make sure that he was fit for duty
because Palumbo thought Barclay was a “drunken bum,” and he wanted Barclay fired.
The District Court rightly characterized Palumbo’s behavior as ranging from insensitive
to obnoxious.
However, as Barclay himself states, he understood his supervisor’s actions to be a
“person[a]l grudge.” The record is devoid of any accusation that this grudge was due to,
or even related to, Barclay’s IBS. Indeed, as the District Court noted, Barclay could not
recall at deposition any statements by his supervisors indicating discrimination on the
basis of his disability. It appears from the record that the most significant motivating
factor for the unfortunate treatment Barclay received was his absenteeism. We note that
Barclay did not present evidence that the excessive absences for which he was fired were
due to a disability. However, even if the absences were due to Barclay’s IBS, we have
rejected a theory of harassment so broad as to dictate that any time a supervisor harasses
an employee for absences the employee claims are due to a disability, that harassment is
based on the employee’s disability under the ADA. See id. at 664, 667. Because we
conclude that Barclay fails to show that any harassment was due to his disability as
required by the ADA, we need not reach the District Court’s conclusion that Barclay fails
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to show the type of pervasive, severe conduct required.
Therefore, we will affirm the judgment of the District Court.
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