Opinion
CIVIL ACTION No. 03-1684
December 18, 2003
MEMORANDUM AND ORDER
Plaintiff Lisa Todd brings this action against her former employer New England Motor Freight, Inc. ("NEMF") and NEMF employees Steven McEvoy, David Hillman, Michael Solt, Nancy Shevell, Ernie Hahn, and Christine Serfass claiming violations of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). Presently before the Court is Defendants' motion for summary judgment. In Plaintiff's response to Defendants' motion, Plaintiff voluntarily withdrew her claims for sexual harassment under both Title VII and the PHRA, electing to proceed solely on her retaliation claims under Title VII and the PHRA. (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 1 n. 1.) For the reasons set forth below, Defendants' motion is granted with respect to the individual Defendants Hillman, Solt, and Hahn and denied in all other respects.
Nancy Shevell was dismissed from this action with prejudice by stipulation on September 5, 2003.
I. BACKGROUND
On November 28, 2001, Plaintiff Lisa Todd was terminated from her position as a Corporate Customer Representative for NEMF. (Todd Dep. at 70.) This action concerns whether Plaintiff was terminated in retaliation for her claims of sexual harassment or on the basis of her failure to provide an adequate doctor's note for an absence. The following facts, viewed in the light most favorable to the Plaintiff, are relevant to the instant motion.
Plaintiff alleges that she experienced three incidents of sexual harassment while she was employed at NEMF that occurred on June 20, 2001, August 3, 2001, and November 13, 2001 respectively. (Todd Dep. at 103-108, 112-113, 121-122.) Plaintiff claims that she reported the first two incidents to both her terminal manager, David Hillman, and the regional manager, Steven McEvoy. ( Id. at 109-111, 117.) Plaintiff admits that she did not report the final incident until after she was suspended from work on November 19, 2001. ( Id. at 124.) During this same year, Plaintiff was often absent from work due to, among other things, her own and her child's health problems. Beginning on March 14, 2001, Plaintiff commenced a thirteen-week leave period under the Family Medical Leave Act ("FMLA") for surgery due to a thyroid condition. ( Id. at 47.) When she returned from her FMLA leave, Plaintiff understood that she had exhausted all of her sick, personal, and vacation days for the year. ( Id. at 50.) Nonetheless, Plaintiff accrued additional absences that resulted in verbal warnings as well as one written warning on August 14, 2001. ( Id. at 43, 46.)
On November 18, 2001, Plaintiff called her immediate supervisor, Christine Serfass, to inform her that she could not come to work the following day because she needed to drive her mother to the doctor for a medical procedure. ( Id. at 57.) Ms. Serfass responded that the absence would be excused if Plaintiff produced a medical note from her mother's physician. ( Id.) The following day, Plaintiff drove approximately two hours to her mother's house and found out, after she had arrived, that the procedure had been cancelled. ( Id. at 60, 70.) Plaintiff's attempts to arrange a last minute babysitter were unavailing and Plaintiff could not go into work. ( Id. at 61-62.)
When Plaintiff returned to work the next day, she produced a note from her mother's doctor that stated: "Blockage of the urethra. Cystoscopy performed. Renal x Lasix to be performed after the holidays." (Pl.'s Resp. Ex. B.) Under the section entitled "Explanation of extent to which employee is needed to care for the ill spouse, child or parent," the doctor wrote "Mother unable to work for 3 days and asked daughter for assistance." ( Id.) Plaintiff was informed that the note was unacceptable because it did not specifically state that her mother's procedure had been scheduled for November 19, 2001 and subsequently cancelled. ( Id. at 65, 68.) According to Plaintiff, her mother called the doctor but he was unwilling to issue a new note as he believed that the note stated all that was required and because her mother did not want any additional personal information released. ( Id. at 68-69.) Plaintiff was officially terminated on November 28, 2001. ( Id. at 70.) In his deposition, Defendant McEvoy admits that if the doctor's note had been acceptable, Plaintiff would "probably" still be employed at NEMF. (McEvoy Dep. at 7.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c) (1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for him at trial. Id. at 248. In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
III. DISCUSSION
A. Retaliation Under Title VII and PHRA
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity; (2) she was subsequently or contemporaneously subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). After the plaintiff establishes a prima facie case, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse employment action. Jalil, 873 F.2d at 708. To meet its burden, the defendant must only articulate a legitimate reason; the defendant need not prove that the stated reason was in fact the actual reason. Woodson, 109 F.3d at 920. To sustain her retaliation claim, plaintiff must then show that any alleged nondiscriminatory reason proffered by the defendant is pretextual and that the real reason was retaliatory or otherwise present evidence from which a jury reasonably could find that retaliation was more likely than not a determinative cause of the adverse employment action. Jalil, 873 F.2d at 708.
Plaintiff's claim under PHRA is analyzed in accord with Title VII. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996); Allegheny Housing Rehabilitation Corp. v. Human Relations Comm'n, 516 Pa. 124 (1987).
In this case, Defendants do not dispute that Plaintiff has established a prima facie case of retaliation under Title VII. (Def.'s Reply at 2.) The central dispute is whether Plaintiff has offered evidence sufficient to rebut Defendants' proffered nondiscriminatory reason for Plaintiff's termination, namely excessive absenteeism and an inadequate doctor's note. As the Third Circuit stated in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994):
To defeat summary judgment when the defendant answers the Plaintiff's case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder 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.Id. at 764. As the Fuentes Court explained, a plaintiff can meet the first prong by presenting evidence demonstrating such weaknesses, implausibilities, inconsistencies, contradictions or incoherence in Defendants' nondiscriminatory reason that one could reasonably conclude it is incredible and unworthy of belief. Id. at 765.
Plaintiff has introduced sufficient evidence to raise a factual issue regarding Defendants' true motivation in discharging her and, accordingly, to defeat Defendants' motion for summary judgment. In her deposition, Plaintiff explains how Defendants' treatment of her changed substantially after she began to complain of sexual harassment. Specifically, Plaintiff has demonstrated that Defendants previously accepted another doctor's note for an absence on September 21, 2001 that was just as lacking in specificity as the November 19, 2001 note that Defendants rejected. (Pl.'s Resp. Ex. E; McEvoy Dep. at 5-6 (stating that determination of adequacy of medical notes is within discretion of manager and that there are no written standards).) In addition, after her complaints, Plaintiff claims that her caseload was reduced (Todd Dep. at 85), her internet privileges were removed ( Id. at 125), and her supervisors began to limit her long-distance telephone use ( Id.). Plaintiff understood these actions to be an effort to encourage her to quit her position and informed Defendant McEvoy that he would have to fire her instead. ( Id. at 85.) Plaintiff's impression was supported by a prior incident in which Defendant McEvoy, rather than firing a co-worker with medical problems, instructed Plaintiff to "make her want to quit." ( Id. at 82.) Finally, Plaintiff's termination occurred just seven days after her final complaint of sexual harassment. ( Id. at 121-22, 124); see Jalil, 873 F.2d at 709 (noting that temporal proximity of employee's complaints and discharge "may suggest discriminatory motives"). Thus, Plaintiff has demonstrated genuine disputes of material fact concerning Defendants decision to terminate her; it is within the sole province of the factfinder to weigh the facts and conduct of the parties and to determine whether Defendant's true motivation was in fact discriminatory. See Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000) (admonishing that summary judgment should rarely be granted when the motivation of an employer is at issue in a discrimination or retaliation case).
B. Individual Liability Under PHRA
Plaintiff has also brought claims against individual Defendants Ernie Hahn, David Hillman, Steven McEvoy, Christine Serfass, and Michael Solt for aiding and abetting the discriminatory acts of NEMF. Section 955(e) of PHRA forbids "any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice." 43 PA. CONS. STAT. § 955(e) (West 2003); see Did v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996).
Defendant moves for summary judgment arguing that Plaintiff has made no allegations that Defendants Hahn, Hillman, or Solt played any role in NEMF's decision to terminate her. As a result, Defendants suggest that Plaintiff cannot show that these Defendants aided or abetted in discriminatory retaliation. See Dici, 91 F.3d at 553 (finding that individual acts of sexual harassment by an employee are not actionable under § 955; plaintiff must show that employee aided or abetted employer's discriminatory conduct.) Plaintiff does not respond to this argument in any way and this Court finds no evidence in the record to suggest that Hahn, Hillman, or Solt aided and abetted NEMF's decision to terminate Plaintiff. See Saidu-Kamara v. Parkway Corp., 155 F. Supp.2d 436, 441 (granting summary judgment for manager in absence of any evidence he participated in disciplining or terminating plaintiff.) Therefore, summary judgment is granted in favor of Defendants Hahn, Hillman, and Solt.
I deny, however, summary judgment as to Defendants Serfass or McEvoy on Plaintiff's PHRA claim. Plaintiff has alleged that both her supervisors Serfass and McEvoy engaged in retaliatory conduct when they participated in the decision to suspend and then terminate her employment. (Compl. ¶ 24-28.) Furthermore, Plaintiff has presented evidence that both Serfass and McEvoy were aware of her complaints of sexual harassment (Todd Dep. at 106, 111, 118), participated in the handling of the medical note ( Id. at 64-66), and took part in the decision to terminate her (Serfass Dep. at 8; McEvoy Dep. at 3). Thus, a reasonable jury could find that Defendants Serfass and McEvoy aided and abetted NEMF's termination of Plaintiff in retaliation for her complaints of sexual harassment.
IV. CONCLUSION
Accordingly, Defendants' motion is granted with respect to the individual Defendants Hillman, Solt, and Hahn and denied in all other respects. An appropriate Order follows.
AND NOW, this 18 th day of December, 2003, upon consideration of Defendants' Motion for Summary Judgment, Plaintiff's Response, Defendants' Reply thereto, and for the foregoing reasons, it is hereby ORDERED that:
1. Plaintiff's voluntary withdrawal of her claims of sexual harassment under Title VII and PHRA is GRANTED.
2. Defendants' Motion for Summary Judgment (Document No. 10) is GRANTED in part and DENIED in part as follows:
a. Defendants' Motion for Summary Judgment for Defendants Hahn, Hillman, and Solt is GRANTED.
b. Defendants' Motion for Summary Judgment is DENIED in all other respects.
3. Judgment is entered for Defendants Hahn, Hillman and Solt and against Plaintiff.