                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Barclay v. Amtrak" (2007). 2007 Decisions. Paper 774.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/774


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                                                                NOT PRECEDENTIAL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



   1
       Barclay sometimes experienced light-headedness and drowsiness while on the drug.

                                             2
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.

                                                3
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).



                                              4
       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



                                             5
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



                                               6
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



                                              7
to show the type of pervasive, severe conduct required.

      Therefore, we will affirm the judgment of the District Court.




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