Wevodau v. Commonwealth of Pennsylvania, Office of Attorney General et alBRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D. Pa.July 22, 2016Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 1 of 195 i TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………..…….……….………… ii INTRODUCTION………………………………………..…..…………………….1 PROCEDURAL BACKGROUND……………………...………………...…….…4 QUESTIONS PRESENTED……………………………..……………….………..4 A.) Whether Count II of the Complaint should be dismissed for failure to state a claim upon which relief can be granted? Suggested Answer: No B.) Whether Defendant Kane is entitled to qualified immunity as to Plaintiff’s FMLA Retaliation claim? Suggested Answer: No LAW AND ANALYSIS……………………………………………………………5 A.) Standard of Review…………………………..……..……….......................5 B.) Plaintiff states a valid claim for FMLA Retaliation……………...….……..6 C.) Defendant Kane is not entitled to qualified immunity……….…………. 14 CONCLUSION…………………………………………………….......…………17 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 2 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 3 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 4 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 5 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 6 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 7 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 8 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 9 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 10 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 11 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 12 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 13 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 14 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 15 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 16 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 17 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 18 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 19 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 20 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 21 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 22 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 23 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 24 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 25 of 195 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 26 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 2612985 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Eastern Division. Lee Ann CAMPBELL, Plaintiff, v. WASHINGTON COUNTY PUBLIC LIBRARY, et al., Defendants. No. 2:04-CV-0339. | Sept. 8, 2006. Attorneys and Law Firms Michael Allen Moses, Law Office of Michael Moses, Columbus, OH, for Plaintiff. John P. Petro, Williams & Petro Co LLC, Columbus, OH, for Defendants. OPINION AND ORDER TERENCE P. KEMP, Magistrate Judge. *1 This matter is before the Court on cross-motions for summary judgment filed by plaintiff Lee Ann Campbell 1 and defendants Washington County Public Library Board of Trustees, Larry Nash White, Kathryn Piekarski, and Doug Unsold (collectively known as the “library defendants”). This case has been referred to the Magistrate Judge for full disposition under 28 U.S.C. § 636(c). For the following reasons, the library defendants' motion for summary judgment will be granted, Ms. Campbell's motion for partial summary judgment will be denied, and this case will be dismissed. I. The following facts are taken from depositions and affidavits submitted in conjunction with the parties' motions for summary judgment. 2 Ms. Campbell was hired by the Washington County Library (“library”) in June 1995. Her most recent position before her termination in December 2003 was reference manager. Beginning in July 2001, pursuant to the Family Medical Leave Act of 1993 (“FMLA”), Ms. Campbell used accrued sick leave to take time off work to care for her mother. From July 2001 to May 2003, Ms. Campbell missed a total of thirty days of work. In 2002, the library hired a consultant, Terry Locy, 3 to conduct interviews with certain library staff members to improve intra-library communication and efficiency as well as the library's service to the general public. After learning of some problems in Ms. Campbell's department, Ms. Locy was instructed by the interim library director, Sandra Starr, to interview Ms. Campbell and her staff to evaluate their performances and identify problems. Ms. Locy's interviews and evaluations revealed, among other things, that Ms. Campbell lacked sufficient supervisory skills to be a successful and effective reference manager. During the same time period, library staff members were asked to fill out surveys and questionnaires regarding their supervisor's managerial skills. Consequently, Ms. Campbell evaluated Ms. Starr's performance and indicated that she felt that Ms. Starr was a “poor supervisor” who “supervised by gossip.” (Dep. of Sandra Starr at p. 76.) In September 2002, as a result of Ms. Locy's evaluations, Ms. Starr placed Ms. Campbell on probation for 120 days. Additionally, Ms. Starr implemented a corrective action plan to assist Ms. Campbell in improving her managerial skills. The record indicates that Ms. Campbell was the only known library employee placed on probation. 4 Ms. Campbell successfully completed her probationary period and demonstrated signs of improvement in supervising her department. At Ms. Campbell's request, she continued to have regular meetings with the new library director, Dr. White, to discuss library efficiency and her performance. The record states: Q. And in February she responds to your request for employee feedback: Larry, I'd like to have monthly coaching session-or monthly coaching sessions, meetings with you, and you say yes, and you conduct some of those meetings, which you say are partly coaching. How is-how are the monthly coaching sessions that she has, which you said was in response to her request for feedback, how are those related to the earlier coaching sessions with Terry Locy during her probationary period? Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 27 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 A. It is my understanding that a part of her training with Terry Locy was on learning how to work better with her staff members, and as part of our monthly meetings I would present her with feedback on what I felt was her improvement or areas of continued improvement in those areas. The topic had been brought up during the training with Terry and one of the things that Lee requested from me in the early meetings was please provide me feedback with how we're doing, in terms of relating to staff. And so, from our monthly meetings forward it-a part of the discussion was what is going on, clarification of questions. But part of it would also be feedback on her working relationships with staff in her department. (Dep. of Larry White at p. 73-74.) After Ms. Campbell's last FMLA leave in May 2003, she returned to work and resumed her full-time status. According to Ms. Campbell, Dr. White removed some of her supervisory responsibilities, and, as a result, Ms. Campbell filed a complaint with the United States Department of Labor on August 15, 2003. Ms. Campbell states: Prior to my most recent FMLA leave which began on May 17, 2003, for a total of nine (9) days in May 2003, but after I commenced this usage of FMLA leave, Larry Nash White, Director of the Library, attempted to remove and/or reduce my responsibilities before I completed this usage of FMLA leave. Dr. White told me that he was going to remove the lab duties from my responsibilities. I asked him if it was because I had been gone so much. He denied it. But when asked, he said it was because it was too hard to supervise two areas on different floors-Reference was one floor above the computer lab. He then told me he was going to give the duties to Susan Wells. This information caused me to believe it was because of my time off and not because of the physical location because Susan Wells worked three floors above the computer lab. As a result of disbelieving Dr. White's reasoning at the attempted reduction in duties, I requested that my sister in Connecticut and my sister-in-law in Virginia come to help care for my mother so that I would not lose my job or job responsibilities. * * * In May 2003, I was able to return to work from caring for my mother, after using my FMLA in intermittent fashion since July 2001. And again because of the attempted reduction in duties, I made every effort to reduce or completely eliminate the hours I needed to care for my mother. However, because this was not a realistic expectation given her illness, I took steps to ensure I could care for her without losing my job. Since the Board had refused to discuss any part of the 2002 probation in part resulting from the “she is often not even there” comment, and Dr. White had given deceptive information about the rationale for the reduction in responsibilities, I felt that I had no choice but to contact the United States Department of Labor to protect my rights under the FMLA. (Aff. of Lee Campbell at ¶¶ 8-9.) Moreover, prior to her termination, Ms. Campbell claims that her responsibilities were diminished beginning in September 2003. The record states: *3 On September 29, 2003 and thereafter, Dr. White proceeded to treat me differently from other Library employees who had not exercised their rights under the FMLA in the following manner, including, but not limited to: (1) Adding “MLS (Masters of Library Science degree) preferred” to the qualifications for the Library Assistant (reference department only), enabling Justin Mayo to apply, even though when Mr. Mayo advised me that he had an interest in working in Reference, I expressed to Dr. White that I had reservations about Mayo obtaining that position because of my prior observations of his performance (to which, Dr. White screamed at me saying “This is not being created for Justin Mayo!”); (2) Removing the Mezzanine Duty from my responsibilities on September 29, 2003 (Cathy Piekarski was aware of this removal of duties as I heard her testify in her deposition ... ); (3) Soon after September 29, 2003, Dr. White reduced my responsibilities as Reference Manager in several other respects; (4) On October 14, 2003, Dr. White violated the Board's Recruitment and Selection Policy regarding internal applicants relative to the Reference Department vacancy; (5) On October 16, 2003, Dr. White disbanded the Planning Team, of which I had recently been appointed coordinator; (6) On October 17, 2003, I was not permitted to distribute extra department hours as I had previously been given the discretion to do; (7) on October 17, 2003, and November 4, 2003, and November 8, 2003, with regard to position vacancies, Dr. White removed my authority to select, interview and then hire whom I chose for my staff, all of which I had been allowed to do in July 2003 before Dr. White learned of my complaint to the Department of Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 28 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Labor, which was also in violation of the Board policy of giving internal applicants “preferential consideration”.... (Id. at ¶ 15.) In November 2003, Ms. Campbell was designated to choose potential candidates to fill a library assistant position. Once the candidates were chosen, Ms. Campbell was instructed to interview the potential employees using a list of questions provided to her by Dr. White. It appears from the record that Ms. Campbell failed to choose qualified candidates for the position and also deviated from the set of questions provided. Further, Ms. Campbell also made inappropriate remarks about the potential employees. First, Ms. Campbell made comments to other library employees about a potential employee, Crystal Downer, who allegedly is covered under the Americans with Disabilities Act (“ADA”). Second, it appears that Ms. Campbell fabricated negative comments about Justin Mayo, the person ultimately hired for the position. Based on this conduct, Ms. Campbell received a verbal reprimand. A short time thereafter, Dr. White appeared in front of the library's board of trustees (“board”) to inform them of Ms. Campbell's conduct and her verbal reprimand. Based on this conduct, as well as Ms. Campbell's prior conduct, the board suspended Ms. Campbell for two weeks without pay. At the conclusion of her suspension, Ms. Campbell was notified that the library was restructuring and reorganizing and that the library no longer needed her services. *4 Ms. Campbell filed an appeal to the Ohio State Personnel Board of Review, but it concluded that it did not have jurisdiction over the matter. In March 2004, Ms. Campbell filed a complaint in Ohio state court asserting protections afforded to classified civil servants under Ohio law. The Ohio court dismissed the case, determining that Ms. Campbell was an at-will employee and not subject to special protections. Finally, Ms. Campbell filed a charge of discrimination with the Ohio Civil Rights Commission, and, after an investigation, the Commission issued Ms. Campbell a Dismissal and Notice of Rights. Ms. Campbell brought suit in this court alleging, inter alia, retaliation for advising the library that a potential employee may be covered under the ADA; retaliation in violation of the FMLA; and wrongful discharge in violation of Ohio public policy. Both parties have moved for summary judgment. II. Fed.R.Civ.P. 56(c) provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir .1984). Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). Therefore, summary judgment will be granted “only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, ... [and where] no genuine issue remains for trial, ... [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 467 (1962); accord, County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984). In making this inquiry, the standard to be applied by the Court mirrors the standard for a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477 U.S. at 250. The primary difference between the two motions is procedural: summary judgment motions are Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 29 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. *5 Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed “to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1). In a motion for summary judgment the moving party bears the “burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970) (footnote omitted); accord, Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.1984), cert. denied, 469 U.S. 1062 (1985). Inferences to be drawn from the underlying facts contained in such materials must be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U .S. 654, 655 (1962); Watkins v. Northwestern Ohio Tractor Pullers Association, Inc., 630 F.2d 1155, 1158 (6th Cir.1980). Additionally, “unexplained gaps” in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60; Smith v. Hudson, 600 F.2d 60, 65 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). If the moving party meets its burden and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251. As is provided in Fed.R.Civ.P. 56(e): When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Thus, “a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him.” First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 259 (1968) (footnote omitted). FMLA In Ms. Campbell's memorandum in support of her motion for summary judgment, she argues that “there is no genuine dispute of material fact as to the Defendants' retaliatory motive in suspending Ms. Campbell from her employment for purported performance deficiencies and misconduct. The evidence clearly demonstrates that Ms. Campbell was suspended and laid off in retaliation for her complaining to the U.S. Department of Labor over Family and Medical Leave Act violations.” (Plaintiff's Motion for Partial Summary Judgment at p. 15.) Additionally, Ms. Campbell highlights other examples of retaliation that allegedly resulted from her exercise of her protected FMLA rights. Conversely, the defendants assert that they did not violate the FMLA. Specifically, the defendants highlight the fact that Ms. Campbell was never denied FMLA leave nor was she retaliated against for using FMLA leave. *6 Because Ms. Campbell is attempting to prove a FMLA violation with indirect evidence, the Sixth Circuit Court of Appeals has adopted the burden-shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 492 (1973). Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 315 (6th Cir.2001). Under Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 30 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 this analysis, Ms. Campbell must first establish a prima facie case of retaliation in violation of the FMLA. To do this, Ms. Campbell must demonstrate that (1) she availed herself of a protected right under the FMLA; (2) she suffered an adverse employment action; and (3) that a causal connection exists between the adverse employment action and the exercise of her rights under the FMLA. See, e.g., Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir.2006); Skrjanc, 272 F.3d at 314. If Ms. Campbell satisfies these three requirements, then the burden shifts to the library defendants to proffer a legitimate, nondiscriminatory rationale for the adverse job actions. Id. Once the library defendants do this, the burden shifts back to Ms. Campbell to prove that the articulated reason is in reality a pretext to mask discrimination. See Skrjanc, 272 F.3d at 315. In the instant case, the library defendants admit that Ms. Campbell exercised the rights afforded to her under the FMLA. The library defendants argue, however, that Ms. Campbell did not suffer any adverse employment action. Further, assuming, arguendo, that Ms. Campbell did suffer adverse action, the library defendants claim that the adverse action was not causally connected to Ms. Campbell's use of FMLA leave. In order to demonstrate an adverse employment action, the plaintiff must show that the adverse action is material. Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405, 2415 (2006). A material adverse employment action is one which “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ “ Id. (citing Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006) and Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (7th Cir.2005)). This may include more than those actions that preclude “hiring,” prompt “discharge,” or alter “compensation, terms, conditions, or privileges of employment.” Burlington Northern, 126 S.Ct. at 2412-14. In support of their argument that Ms. Campbell did not suffer adverse employment action, the library defendants cite Soletro v. Nat'l Fed. of Ind. Businesses, 130 F.Supp.2d 906 (N.D.Ohio 2001), Robinson v. Franklin County Bd. of Commerce, No. 99-cv-162, 2002 WL 193576 (S.D.Ohio Jan. 28, 2002), and Darby v. Bratch, 287 F.3d 673 (8th Cir.2002). Those cases do not support the defendants' position. For example, in Soletro, the Court concluded that a forced transfer to another employment position after the plaintiff took FMLA leave was an adverse employment action. See Soletro, 130 F.Supp.2d at 913. Similarly, in Darby, the Court concluded that failing to promote a plaintiff or disciplining a plaintiff for using FMLA was adverse employment action. See Darby, 287 F.3d at 679-80; see also Robinson, 2002 WL 193576 at *10 (concluding that “[w]hile Robinson may be able to establish the first two elements of the claim,” there was no causal connection between the adverse employment action and the FMLA leave). *7 Like the Soletro and Darby courts, this Court concludes that, at a minimum, there is a factual issue about whether Ms. Campbell suffered material adverse employment actions prior to her termination. The actions which took away some of her duties and responsibilities [word missing from following insert? ? ] her suspension, and her termination in December 2003 could both be considered such actions. 5 (See Aff. of Lee Campbell at ¶ 15.) Thus, the question becomes whether there is any evidence of a causal connection between these adverse employment actions and the exercise of Ms. Campbell's FMLA rights. A causal connection may be established either through direct evidence or knowledge coupled with a closeness in time that creates an inference of causation. See Wrenn v. Gould, 808 F.2d 493, 501 (citing Burrus v. United Telephone Co., 683 F.2d 339, 342 (10th Cir.1982)). In proving a causal link between protected activity and adverse employment action, a plaintiff must demonstrate that the employer would not have taken the adverse action “but for” the employee's protected conduct. See, e.g., Allen v. Dep't of Corrections, 165 F.3d 405, 413 (6th Cir.1999)(“In order to show a causal connection, a plaintiff must produce sufficient evidence from which an inference can be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action”). “Although no one factor is dispositive in establishing a causal connection, evidence that the defendant treated the plaintiff differently from identically situated employees or that the adverse action was taken shortly after the plaintiff's exercise of protected rights is relevant to causation.” Id. However, temporal proximity alone is insufficient to support an inference of causation in a case where retaliatory discrimination is alleged. Nguyen v. City of Cleveland, 229 F.3d 559, 563-66 (6th Cir.2000). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 31 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 In the instant case, Ms. Campbell claims that the direct evidence of a causal connection is the fact that Dr. White was “upset” when he learned of Ms. Campbell's complaint to the U.S. Department of Labor. (Plaintiff's Motion for Partial Summary Judgment at p. 19.) Further, Ms. Campbell highlights a conversation that was overheard by another employee in which Dr. White and Ms. Starr mentioned the Department of Labor complaint and Ms. Campbell's suspension. (Id. at p. 20.) These instances are not direct evidence of retaliation, however. Specifically, according to the testimony cited by Ms. Campbell, Dr. White was “upset” because he felt that Ms. Campbell did not believe him when Dr. White told Ms. Campbell that her probation period was “something in the past” and that Dr. White “was not judging her on that.” (Dep. of Sandra Starr at p. 85.) Moreover, in that same deposition excerpt, Ms. Starr explains that Dr. White wanted to make sure that Ms. Campbell was never denied FMLA leave. (Id.) Finally, without more specifics about what was said between Ms. Starr and Dr. White, the second- hand conversation cited by Ms. Campbell, in which the suspension and the Department of Labor complaint were concomitantly discussed, do not constitute direct evidence of retaliation. *8 Additionally, Ms. Campbell failed to provide evidence that the library defendants treated her differently than other similarly situated employees. Ms. Campbell highlights examples where she allegedly received discipline that was more strict than required under the library's disciplinary policy. However, nowhere in the record does Ms. Campbell provide examples where other employees performed similar acts but received different discipline. In fact, to the contrary, the record contains examples of other employees who, like Ms. Campbell, were terminated or lost employment at the library. (Id. at pp. 59-64.) Perhaps, most importantly, the record does not contain any evidence that Ms. Campbell was treated differently than other employees who used FMLA leave. Ms. Campbell's burden of proving a prima facie case is not an onerous one. See, e.g., Skrjanc, 272 F.3d at 315 (“A plaintiff's burden of proving a prima facie case is not intended to be an onerous one”). Although there is no direct evidence of causation, the library defendants' knowledge of Ms. Campbell's use of FMLA leave and the filing of the Department of Labor complaint, coupled with the temporal proximity of the filing of that complaint- August 15, 2003-to the alleged retaliatory acts, most of which occurred in September to November 2003, is sufficient, in this case, to create an inference of causation. See, e.g., Jootsberns v. United Parcel Service, Inc., 166 Fed.Appx. 783, 793-94 (6th Cir .2006)(2 months sufficient to establish a causal connection in a FMLA claim); Parnell v. West, No. 95-2131, 1997 WL 271751 at *3 (6th Cir. May 21, 1997) (unpublished) (internal footnote omitted) (time lag of less than six months usually sufficient to establish causal connection); but see Cooper v. City of North Olmsted, 795 F.2d 1265, 1272-73 (6th Cir.1986)(four months is insufficient to establish causal connection). Accordingly, the burden shifts to the library defendants to proffer a legitimate, nondiscriminatory rationale for their actions. In proving a legitimate, nondiscriminatory rationale for discharging an employee or altering a material work condition, the library defendants bear only the burden of production, not the burden of persuasion. Put simply, the library defendants must articulate a “valid rationale” for the adverse employment action. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir.1996). In cases like this, where the defendants claim a reorganization or “reduction in force” as the reason the plaintiff suffered material adverse employment actions, the reorganization explains why the adverse employment action occurred but does not explain why the plaintiff was targeted. Tye v. Bd. of Ed. of the Joint Vocational School, 811 F.2d 315, 319 (6th Cir.1987). Additionally, therefore, the library defendant must proffer a legitimate reason why Ms. Campbell was chosen. Id. In the instant case, the record is clear that Ms. Campbell lost job duties, did not gain job duties, and ultimately lost her job, because the library was reorganizing and the reference manager position was being eliminated. Further, the record indicates that Ms. Campbell was not offered another position at the library because of Ms. Campbell's actions. In regards to the loss of job duties, which include the mezzanine service point, the record states: *9 Q. What is that document? A. It is a mem-appears to be a copy of a memo from myself to Lee Campbell. Q. And what's it about? A. Mezzanine service point. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 32 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Q. What is the Mezzanine Service Point? A. It was a service desk on the Mezzanine level of the building that we were planning on. It had been a point that had not been staffed in the past and we, through feedback from the public, felt that we could offer an extended service by providing staffing for that service point on the Mezzanine. Q. Now, you'll notice in the last section, last paragraph, Lee suggests that the Mezzanine supervisory duties remain under the reference manager purview; is that correct? A. That's correct. Q. Now, to what extent do these new duties relating to the Mezzanine service point, to what extent did they already exist, or were these brand new duties? A. There were going to be some existing duties and some new duties. Existing duties would have been circulating material, answering questions from the public. New duties would have been to provide readers advisory service and to provide bibliometric-or bibliographic instruction to teach people how to use the tools and resources of the library. Q. Now, would the existing duties have been duties that were under Lee's purview as reference manager? A. Circulation would have been-checking out materials in under circulation. Answering questions, depending on the question, would have been something that reference would have done. Q. Okay. And then what happened with her suggestion that these duties be under her, the Mezzanine service duties? A. I believe, if I recall correctly-yes, I believe it went to the extension services manager. Q. That's not Lee; right? A. That's correct. Q. Okay. Why at that point did you decide not to give those duties to Lee? A. The position was going to be more of an adult programming position. That was not something that reference was currently doing, and it was not something that Ms. Campbell expressed an interest in doing. When the concept was first brought up the extension services manager had also been a reference department staff member and had been dealing primarily with delivering library services to adults and to doing adult programming [ sic]. And it made more logical sense at that time to put that position under that person for supervision. (Dep. of Dr. White at pp. 64-66.) Dr. White also provided insight on how the computer lab was eventually eliminated. Q. Okay. And the extension service manager ends up effectively taking over some of the old duties of the reference department; correct? A. To some degree, yes. Q. Okay. Specifically, what duties of the old reference department were eliminated or are no longer being performed as a result of your reorganization? A. Well, the computer lab's no longer with us. That-that function of what reference used to do is no longer there. *10 Q. So it's not-it doesn't exist? A. Doesn't exist. (Id. at p. 137.) In reference to Ms. Campbell's termination due to reorganization, the record states: Q. Okay. So [Ms. Campbell], in your opinion, did not lose her job for disciplinary reasons; is that correct? A. From my understanding that position was restructured. The organization was undergoing a process and that position was viewed as unnecessary. * * * Q. Okay. Was Lee's separation from employment related to disciplinary reasons? Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 33 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 A. No. Q. Okay. A. It was organizational restructuring. Q. Okay. So the reference manager position was eliminated; correct? A. Correct. And it would-at this point-that point in time it would not have mattered whether Ms. Campbell was that person or not. It was position that was eliminated. Q. Okay. And then the duties of the reference manager position, were they being reassigned or redistributed? A. A little of both. And some of them are actually enhanced or eliminated because the-the focus of the department became providing access to information wherever you are, whether inside or outside the building. So that department is responsible for both indoor and outdoor programming, indoor and outside assistance, questions, bibliographic instruction, adult programming. So some things were added to the old reference department because we merged a lab from downstairs up to the reference area. We brought extension services over and put everybody under one roof. We basically combined two departments and three work sections in one department and one work section. And Barb Wainwright was asked to serve temporarily as the acting department head for access services. And some of the those responsibilities-I think the vast majority of the responsibilities for running that department were given to her. And Susan Wells was demoted from supervisor to assistant department head to-in access services to assist with running the department. * * * Q. Now, I want to get to the actual decision to reorganize. Tell me how the decision to reorganize came about. And I guess I want to start with Paragraph 28 and 29 where you seem to describe a reorganization process. And tell me how it led to-I understand this is kind of a long question. But I want you to explain to me how we get from a 14- day suspension on December 3rd to a layoff, pursuant to reorganization, two weeks later. A. The restructuring process actually begins in March or April 2003. When we started consolidating departments and moving staff around we consolidated the-as we reviewed earlier with your organizational chart we consolidated the collection development department and the technical processing department into one department called collection services. We took home bound delivery and outreach and merged them with the extension services department to create one department that dealt with adult outbound, or home bound delivery, in providing library service outside of the walls. *11 We were beginning the process of looking at how resourcing staff usage was conducted and done, matching them against need, and looking at predictions of what finances or resources would be available down the road. We started evaluating usage of activities and services the library provides. We conducted a library customer survey, requesting feedback on what was needed, what were the priorities, in terms of the patrons viewpoint of what the library should be doing. We conducted a great deal of analysis of what the organization was doing and started addressing resource issues. So the process actually starts in March or April of 2003 and is actually still in progress. We went through the merge of collection services and technical processing. We created a strategic information manager's position. We merged the three adult outbound groups into one department. We reduced hours at the New Matamoras location. We closed them on Thursdays because usage indicated that their workload on Thursdays was dramatically low. We have looked at closing other branches, Barlow and Belpre-or sorry, Barlow and Beverly, due to resource considerations over the last year. We have merged extension services with what used to be reference into what is now called access services. We have removed the computer lab, replaced it with a teen room. The teen room ran for about a year. And after usage assessment we decided that it was not productive, and so the teen room was also removed. We have not filled out hours and positions as we have moved things around. We have talked about merging circulation with access services, but that was not Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 34 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 something that we could prove to work out, in terms of did it make sense. There's very little of this library system that hasn't been either assessed, affected, or changed in the last two years. (Id. at pp. 135-37; 130-33) Moreover, Dr. White provided this explanation on why Ms. Campbell was not offered another position at the library. Q. In the proposal/recommendation portion you talk about your consideration of all of the aforementioned challenges and the organization's need to respond to these challenges; correct? A. Correct. Q. Isn't it clear that the restructuring is in part to address deficiencies you perceived on the part of the reference manager? A. In part. Q. Okay. A. But again, this was a process that started about eight months prior and was-and is actually still going on. Q. But specifically you reference in this document the suspension of the reference manager; correct? A. Correct. Q. Would you agree that the timing of the reorganization or restructuring, which resulted in the elimination of Lee's job, is coincidental, coming two weeks after her suspension? A. Some would view it that way. * * * Q. Okay. And in Paragraph 36 of your affidavit- A. Yes. Q. -you discuss why she was not offered another position within the library; correct? *12 A. Correct. Q. And you talk about the failure to obtain meaningful results, despite two years of effort to assist her in addressing significant deficiencies in her job skills; correct? A. Correct. Q. And by the effort to assist her in addressing significant deficiencies, you're talking about the coaching sessions? A. In part. Q. Okay. A. Also, the training sessions provided by Terry Locy, and anything else that may have been provided prior to my arrival. Q. Okay. But the training sessions by Terry Locy were in part successful, were they not, because Lee was released from probation? A. She completed and attended the classes, yes. Q. Okay. Well, if the completion of the classes was not satisfactory, in some other way didn't you have the ability to extend the probation? A. Yes. Q. Okay. So didn't you do some assessment of whether or not the attendance of the coaching sessions was successful- A. Yes. Q. -or satisfactory? A. Yes. Q. Okay. And at least to the extent necessary to get her off probation you deemed that she had satisfactorily completed those training sessions with Terry Locy; correct? A. Correct. Q. Okay. And you didn't again, determine that she was not performing satisfactory until November 8th of 2003; correct? Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 35 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 A. Correct. (Dep. of Larry White at pp. 157-60.) As evidence of Ms. Campbell's “significant deficiencies” in Ms. Campbell's job skills that precluded her from being rehired, the library defendants highlight Ms. Campbell's 2002 evaluation that led to her probationary period. Additionally, the library defendants cite Ms. Campbell's actions surrounding Justin Mayo's hiring, which include, inter alia, Ms. Campbell's alleged defamatory remarks about the applicants, her inability to follow Dr. White's explicit instructions, her desire to exclude Ms. Downer from the interview process, and her adamant rejection of Justin Mayo. First, with regards to her probationary period, the record states: Q. Okay. Did you direct [Ms. Locy] to interview any other employees specifically in relation to Lee Campbell? A. After she did her interviews with the current Reference employees, she asked me if there was anyone else she could talk to. And I referred her to previous Reference employees. Q. Were any of those not-I mean, not current employees of the library at that time? A. They were all current employees. Q. Okay. And what precipitated your volunteering these other names to be interviewed? A. Because Terri was concerned with the information she was getting from the current employees. Q. What was that information that she was concerned with? A. Part of it was the public service aspect and part of it was-I would say how they reported they were treated. Q. Did you believe at that point that Lee Campbell was mistreating her employees? A. Actually, this whole thing started because the employees complained that they couldn't-they weren't allowed to serve the public. They felt like there were time restraints on how much time they could spend with the patron. They were very restricted on what they could do; they weren't allowed to renew books for patrons. Lee had felt that was a Circulation job. *13 I think the whole thing started with a public service issue. And really, I didn't-they didn't share any of the information that they shared with Terry, with me. * * * Q. Do you know what Terry Locy's conclusion was as to Lee's department and Lee's behavior in particular? A. I think-a conclusion. I'd have to look at the report. Q. Do you remember if it contained anything negative about Lee? A. Yes, it did. Q. Do you recall if Lee was disciplined for anything as a result of the information that came out in Terri's report? A. There was a corrective action plan written in response to that report. * * * Q. Could you describe them? A. I had a corrective action plan with four points from Terry Locy's report. And I requested that Lee work with Terri to improve her performance. Q. Any specific areas where you recommended that her performance be improved? A. Supervisory skills. I think that was the main issue.... (Id. at pp. 31-32, 38, 47.) Second, with regards to the interviewing and hiring of Justin Mayo, the record states: Q. Do you recall anything about that discussion? A. I had some concerns that the-had some concerns that the right questions hadn't been used. I had some concerns about how the candidates had been evaluated in preparation for being interviewed. And also had some concerns about the characterization made by Mrs. Campbell of the applicants. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 36 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 Q. What were those concerns? Could you be more specific? A. I think that was-and I might be confusing two meetings. But I think that was in relation to a meeting we had in November where I related to her my concerns about the interview process; that qualified applicants had not been selected for interview, that nonqualified applicants had been placed ahead of qualified applicants, and that some of the comments made by Ms. Campbell during the process when the committee was meeting were inappropriate. Q. So you believe that she had selected the wrong applicants for interview, is that my understanding? A. In going through and rating applicants, according to the advertised criteria, the candidates that were rated highest among those advertised criteria, not all of them had been called to interview. Q. So this meeting we discussed though was after-was after the fact, wasn't it? I mean, Justin Mayo had already been selected by the time you had this meeting with-with Lee in November? A. No. I think we had this discussion, some of it, beforehand because- Q. Before what? I'm sorry. When you say beforehand? A. Before the interview session. Q. Go ahead. A. Because-because of the concerns I had and-in talking with Ms. Campbell about who she wanted to interview I had gone back and looked at the applications and had matched the applications up against the criteria, and when I went through and evaluated each of the candidates based on advertised criteria, we had qualified applicants who had not been interviewed. *14 * * * Q. And I think in another section of the affidavit ... you talk about the legality or input. And in Paragraph 20 you talk about the legality of certain language she used in her review of applicants. Tell me how these comments and the e-mail ... constitute either defamatory or illegal communications about Justin Mayo. * * * A. During the-this is a portion, but the vast majority was said verbally, and after the interview session, in the company of committee that was doing the review. Q. That would be Janet Becker and yourself and Lee; right? A. Correct. And Ms. Campbell indicated that she had talked to a variety of staff members who indicated that Justin had been a problematic employee and that she had spoken to his former supervisor, Carol Clark, and that Carol Clark had indicated that he was a very problem employee. In follow-up to what Ms. Campbell stated I met with Ms. Clark and I met with the Belpre employees about the three employees, and every person denied ever stating anything to Mrs. Campbell for any reason whatsoever. Indicated that everything that had been said was very erroneous. And the former supervisor produced a copy of Justin's evaluation for when he had previously worked at the library. That was a very good evaluation. And stated that she had never been approached by Mrs. Campbell for any comments or any information relating to Justin Mayo. * * * Q. What did she say in relation to Crystal Downer that you found improper? * * * A. And in discussing that with her Mrs. Campbell indicated that she had inquired of Crystal's medical condition and existing abilities from Carol Kulich, who was the circulation supervisor downstairs, and indicated that she had discovered that Crystal had had a stroke and would not really be able to be considered for the position because she had had a stroke. Q. So her improper inquiry was the inquiry directed to Carol Kulich; is that correct? Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 37 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 A. It's-for me it was deciding that-in her own words, deciding not to interview her, as we were discussing this, because she felt that Crystal Downer-because of the results of the stroke-would not be able to perform the work, and therefore she was not being interviewed. And in follow-up, she had mentioned that she had talked to Carol Kulich about this and that she did not feel that she would be able to do the work. Then she let me know she felt that her mental inabilities would not be appropriate for the position. * * * Q. Okay. What specifically did she say was objectionable verbally about Crystal Downer? A. That she was-that she had-basically that she was retarded. Q. Wait a minute. Did she say retarded? Did she say the word retarded? A. She said that there was-there-there was-that Crystal did not have the mental faculties or abilities to do that position, and that she was-retarded may not be the exact word, but that was the impression that she sure left with me. That she made the indication that because she was-she suffered brain damage from her stroke that she couldn't do the job. *15 * * * Q. * * * And do you believe that this part is objectionable or something improper for her to tell you: You do need to know that Crystal would fall under ADA. Is that proper? A. In the way it's written here potentially, but in the verbal discussions that were done while we were talking about this candidate it went much further than that. * * * Q. Okay. But here, that sentence telling you that as director that she could fall under ADA, that part's not objectionable or improper, is it? A. That's not-my interpretation of the statement was that she was letting me know that she felt she did not have to hire her because of ADA. Q. Okay. But that's not what that last sentence says, is it? A. My perception of that sentence is-in combination with what she said to me previously, verbally as well, my perception of that statement was that she felt she would not have to hire or interview Crystal because she would not have-it was because of reasonable-unreasonable accommodations. * * * Q. Okay. I want to move ahead on December 3rd. And let's-okay. You have in front of you documents which are marked from yesterday's deposition.... Dr. White, would you identify those documents for the record, please? A. No. 11 appears to be a copy called interview questions reference staff, has a note on it saying Lee's questions. The No. 12 appears to be a copy of the interview questions labeled correct questions for direct- per director's instructions. Q. Are those the questions that varied, which you were previously referencing, in the interview for position ultimately obtained by Justin Mayo? A. Yes. * * * Q. What were the questions that Lee prepared versus the instructions that you instructed her to ask? A. The-wasn't so much that the questions are objectionable as, per statement and previous direction. I had requested that she use the questions that have already been used in previous positions. And she, for whatever reason, did not use the same questions. Q. And how did you instruct her to use the questions from previous interviews? Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 38 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 A. I explained to her that I wanted her to use the questions labeled 12, as per normal interviewing practice. These are the questions that we had used for all library assistant- most library assistants, if not all. Most I would say. Q. How did you ask her to-or instruct her to ask just the questions which are marked Exhibit 11 I believe? A. I stated you will use these questions in the interview process. Q. So you told her verbally? A. Yes, I told her verbally. * * * Q. * * * Okay. Have we reviewed everything for which you gave her a verbal reprimand; the comments about Crystal Downer, the comments about Justin Mayo, the difference in the questions from the ones you instructed her to answer-to ask? A. No. Q. Okay. We are not-go ahead. What else? A. The last item was when the committee was voting to-after completing all the interviews the committee was ranking the candidates. The committee voted two to one that Justin Mayo had been the best interviewed candidate. Lee noted that-she informed me she would not accept that decision, that she wanted to reopen the interviews and interview people that she wanted to interview, because she did not want to work with Mr. Mayo. I explained that the committee had voted two to one and that we weren't going to reopen interviews to go back after people, especially since the people that we had interviewed had been more exceptional than the people she wanted to interview. *16 Q. Okay. A. I was then informed that she would not abide by that decision. (Dep. of Larry White at pp. 88-90; 97-98; 105-08, 110-12, 116-17.) Given the library defendants' restructuring scheme and Ms. Campbell's conduct, which included alleged defamatory remarks and insubordination, this Court concludes that the library defendants met their burden of production by articulating a valid rationale for why Ms. Campbell experienced adverse employment actions. Additionally, the record is clear and uncontradicted that the library defendants have provided legitimate reasons for not giving Ms. Campbell supervision duties over the mezzanine area of the library and why Ms. Campbell was not offered employment after the reference manager position was eliminated. These reasons are bolstered when supplemented by the fact that the library was continually reorganizing, which included other employees' losing hours and vacancies not being filled. (Id. at p. 86.) Thus, the burden is now shifted to Ms. Campbell to prove that the articulated reason is in reality a pretext to mask discrimination. In order for Ms. Campbell to demonstrate that the library's rationale is in reality a pretext for discrimination, Ms. Campbell may establish that the library's reasons have no basis in fact, did not motivate the discharge, or were insufficient to warrant discharge. Wexler v. White's Fine Furniture, 317 F.3d 564, 576 (6th Cir.2003). Ms. Campbell may also meet her burden by showing that the library's reason for discharge were not credible. Peters v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir.2002). Prevailing in demonstrating that the library defendants proffered reasons are a pretext for discrimination only permits, but does not compel, the Court to find discriminatory intent, which is Ms. Campbell's ultimate burden of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). Here, Ms. Campbell argues “pretext” by claiming that her actions were insufficient to justify taking away her supervising duties or to warrant her discharge. Specifically, Ms. Campbell argues that the questions she used in the interview were the exact same questions Dr. White previously gave her. (Plaintiff's Motion for Partial Summary Judgment at pp. 20-21.) Moreover, Ms. Campbell contends that her comments about Ms. Downer and the ADA were to inform Dr. White that Ms. Downer could potentially be covered by the ADA, so the library should accommodate her to prevent a potential lawsuit. (Id. at 22.) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 39 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 Beginning with the interview questions, this Court notes that some of Ms. Campbell's argument is supported by evidence outside the record. For example, Ms. Campbell asks the Court to compare the questions Ms. Campbell asked at the interview to the questions presented to her by Dr. White to prove that the question sets were identical. Those questions are not in the record. The only evidence the Court has concerning the questions is Dr. White's deposition testimony that the questions were different. Further, Ms. Campbell refers the Court to the Ethan Frank-Collins' deposition, which, again, is not in the record. Therefore, this Court rejects Ms. Campbell's “pretext” argument based on Ms. Campbell's use of incorrect questions during the interview process. *17 Turning to the ADA argument, Ms. Campbell cites the Court to an excerpt from Ms. Starr's deposition. That excerpt states: Q. So it's your belief she was trying to point out. “Hey, here's a potential liability issue because she is covered under the ADA;” is that correct? A. Yes. (Dep. of Sandra Starr at p. 92.) This excerpt, alone, could appear to bolster Ms. Campbell's argument that she did not make defamatory remarks about this employee and was attempting to alert the library to a potential ADA problem. However, this excerpt is taken out of context. The entire relevant portion states: Q. * * * And because the suspension and the termination occurred, like, within a couple weeks of each other, was it in the same first occasion that you learned of plans of possibly terminating Lee or was the suspension first by itself? A. The suspension was discussed in relation to the E mail and the interview process. Yes. Q. “In relation to the E mail and the interview process.” Could you describe more specifically what you mean? A. There was the E mail where Lee did not want to interview Crystal Downer. * * * Q. And do you recall, in essence, why she didn't want to interview Crystal Downer? A. She did make note that Crystal would fall under ADA. Q. All right. And then in Email she made a note that Crystal would fall under ADA, that's why she didn't want to interview her? * * * A. Well, I know she said-Larry had said he wanted to interview her and Lee said, I think, that her list was different. Q. Her-okay. A. And that she didn't feel that Crystal was capable. She had talked to Carol Kulich in Circulation, and there was a determination that she probably couldn't keep up the pace. * * * Q. Did you gather from that why [Ms. Campbell] was reluctant to interview [Ms. Downer]? Or did [Ms. Campbell] see a problem for the library in interviewing [Ms. Downer]? What was the gist of what you got from Lee's E mail? A. I think the part about where she had talked to another supervisor. Q. Who had? A. Lee had talked to-and I think it was Carol Kulich. Q. Okay. A. And I think there was something said about not being able to keep up. Q. In your mind, was Lee raising concerns about ADA problems or liability on the part of the library? A. I don't know why else she would have mentioned it. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 40 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 Q. So it's your belief she was trying to point out, “Hey, here's a potential liability issue because she is covered under the ADA;” is that correct? A. Yes. Q. And in addition you believe that she felt that [Ms. Downer], from her information from Carol Kulich, couldn't do the job? A. Uh-huh. Q. Is that correct? A. Yes. (Id. at pp. 89-92.) According to Ms. Campbell, she claims: I was suspended, in part, for my comment via an electronic mail transmission to Dr. White that he needed to know that an applicant would “fall under [the] ADA” ... in order to make certain that he followed all procedures to ensure fairness in hiring. Prior to this, another manager, Belpre Branch Manager, Leslie McKernan, failed to hire a hearing impaired applicant, requiring the Library to add another position when the applicant's father, who was an attorney, complained. She received no discipline whatsoever, a fact I heard Sandra Starr confirm in her deposition. *18 (Aff. of Lee Campbell at ¶ 16.) Ms. Campbell claims that her remarks about Ms. Downer and the ADA were to “inform” the library defendants about a possible ADA applicant. However, this claim is rebutted by Dr. White's testimony, which revealed that Ms. Campbell sought to exclude Ms. Downer from being interviewed because she fell under the ADA. Ms. Starr's deposition testimony corroborates this statement. Significantly, nowhere in the record does Ms. Campbell deny this allegation, and, without such evidence, a jury could not reasonably reject Dr. White's explanation. See Manzer v. Diamond Shamrock Chemical Co., 29 F.3d 1078, 1083 (6th Cir.1994)(“Accordingly, once the employer has come forward with a nondiscriminatory reason for firing the plaintiff, we hold that the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation”). Thus, based on Ms. Starr's and Dr. White's deposition testimony regarding Ms. Campbell's remarks about Ms. Downer, which testimony has not been refuted by Ms. Campbell, this Court concludes that there are no genuine issues of material fact regarding whether the library defendants reason for Ms. Campbell's discharge was a pretext for discrimination. In sum, no genuine issues of material fact exist regarding whether the library defendants violated Ms. Campbell's FMLA rights. ADA 42 U.S.C. § 12203(a) prohibits an employer from retaliating against an employee engaged in ADA protected activity. The statue states: No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. 42 U.S.C. § 12203(a). Like a FMLA claim, an ADA retaliation claim utilizes the burden-shifting analysis established in McDonnell Douglas. See, e.g., Kuriatnyk v. Township of Bazetta, Ohio, 93 Fed.Appx. 683, 687 (6th Cir.2004)(citing Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir.1990))(applying Title VII burden-shifting analysis to ADA retaliation claim); Clark v. City of Dublin, Ohio, 178 Fed.Appx. 522, 525 (6th Cir.2006) (same). In the instant case, Ms. Campbell claims that “having heard of the Library's legal entanglement with a hearing impaired applicant, and not being fully educated on the provisions of [the ADA], she presumed that Crystal Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 41 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 Downer would be entitled to the ADA's protections, and advised her superior so that the hiring process would be correctly and lawfully handled.” (Plaintiff's Partial Motion for Summary Judgment at p. 23.) Contrarily, the library defendants contend that Ms. Campbell's ADA claim fails because she did not engage in protected activity. Specifically, the library defendants argue that Ms. Campbell's words and conduct did not encompass the type of activity that the ADA was enacted to prevent. *19 According to the wording of 42 U.S.C. § 12203, it is unlawful for the library to discriminate against Ms. Campbell if Ms. Campbell “opposed any act or practice made unlawful” by the ADA. Assuming Ms. Campbell's testimony to be true-i.e. her comments were designed to alert Dr. White of a candidate who may be protected under the ADA-this Court concludes that such information does not constitute the opposition to an unlawful act or practice. Instead, it appears that Ms. Campbell merely “alerted” the library defendants that one potential employee could be covered by the ADA. Put simply, nowhere in the record does Ms. Campbell offer evidence that the library was engaged in conduct prohibited by the ADA, and Ms. Campbell does not suggest that she opposed any alleged illegal conduct by the library that is prohibited under the ADA. Without such allegations and supporting evidence, Ms. Campbell has failed to establish a prima facie case for retaliation under the ADA. 6 Discharge in Violation of Ohio Public Policy According to the record, Ms. Campbell was an at-will employee working for the Washington County Library at the time of her discharge. See Campbell v. Washington County Library, No. 04CA44, 2005-Ohio-2992 (4th Dist. June 10, 2005). Under Ohio law, at-will employees may be terminated for any reason except when the termination contravenes clear public policy. See, e.g., Painter v.. Graley, 70 Ohio St.3d 377, 382 (1994). In order to prove a wrongful termination in violation of public policy, a plaintiff must demonstrate that (1) there is a clear public policy; (2) that the circumstances surrounding the employee's dismissal jeopardize that public policy; (3) that the dismissal was motivated by conduct related to the public policy; and (4) that the employer lacked an overriding legitimate justification for dismissal. Id. at 384-85. In the instant case, Ms. Campbell argues that being terminated for using FMLA leave violates public policy. Moreover, she contends that disciplining an employee for “expressing that an individual may be covered by the ADA” jeopardized the public policy that the ADA was enacted to protect. Conversely, the library defendants contend that because Ms. Campbell cannot successfully prove her FMLA and ADA claims, she cannot maintain an additional claim for wrongful discharge in violation of public policy. Additionally, the library defendants argue, alternatively, that assuming the first three elements of Painter are met, Ms. Campbell cannot prove the fourth element because the library defendants have articulated an overriding legitimate justification for Ms. Campbell's dismissal. As this Court previously highlighted, the record supports only an inference that Ms. Campbell was terminated because the library reorganized and restructured. Further, the record is clear that Ms. Campbell was not offered another job after the reorganization because of insubordination and her actions and comments surrounding the interviewing and hiring of Justin Mayo. Based on Ms. Campbell's conduct, which is described in detail, supra, this Court cannot conclude that the circumstances surrounding Ms. Campbell's dismissal jeopardize employees from utilizing FMLA leave or alerting an employer that a potential employee could be covered by the ADA. Additionally, because of Ms. Campbell's conduct, most of which superseded her FMLA use, this Court cannot conclude that her dismissal was related to the FMLA or the ADA. Finally, assuming, arguendo, that Ms. Campbell could prove the first three Painter elements, as this Court previously noted, Ms. Campbell failed to prove that library defendants lacked a legitimate justification for her discharge. There are no genuine issues of material fact relating to whether the library defendants wrongfully discharged Ms. Campbell in violation of public policy. III. *20 Based on the foregoing, the library defendants' motion for summary judgment (# 37) is GRANTED. Ms. Campbell's motion for partial summary judgment (# 42) is DENIED. The case is DISMISSED WITH PREJUDICE. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 42 of 195 Campbell v. Washington County Public Library, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 All Citations Not Reported in F.Supp.2d, 2006 WL 2612985 Footnotes 1 Ms. Campbell moves for summary judgment only the issue of liability. 2 This Court notes that both parties cited depositions that were not part of the record in their supporting memoranda accompanying their respective motions for summary judgment. Pursuant to this Court's local rules and the Federal Rules of Civil Procedure, those depositions will not be considered in this Opinion and Order. 3 There are two variations of Ms. Locy's first name in the deposition transcripts-Terry and Terri. Both variations are referring to the same person. 4 The record is unclear as to whether Ms. Starr saw Ms. Campbell's evaluation of her prior to implementing the corrective action plan. 5 Given the facts of this case, adding “Master of Library Science degree preferred” to a job description is not a material adverse employment action. See Burlington Northern, 126 S.Ct. at 2415 (“We speak of material adversity because we believe it is important to separate significant from trivial harms”)(emphasis in original). 6 The Court also highlights Dr. White's and Ms. Starr's uncontradicted testimony regarding Ms. Campbell's conduct and statements about Ms. Downer. In particular, the Court points to Dr. White's deposition testimony, which indicated that Ms. Campbell did not want to interview Ms. Downer because of her alleged disability. (Dep. of Dr. White at pp. 108-10.) End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 43 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 1345439 United States District Court, E.D. Pennsylvania. John CICHONKE, Plaintiff, v. BRISTOL TOWNSHIP, et al., Defendants. Civil Action No. 14-4243. | Filed March 25, 2015. Attorneys and Law Firms Joshua P. Rubinsky, Brian R. Brotman, Brodie & Rubinsky, Philadelphia, PA, for Plaintiff. Joseph J. Santarone, Jr., Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendants. MEMORANDUM BUCKWALTER, Senior District Judge. *1 Currently pending before the Court is the Motion by Defendants 1 Bristol Township, William McCauley, and Scott Swichar (collectively, “Defendants”) to Dismiss Plaintiff John Cichonke (“Plaintiff”)'s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted in part and denied in part. I. FACTUAL BACKGROUND Plaintiff John Cichonke (“Plaintiff”) was employed by Defendant Bristol Township from December 1988 through June 18, 2013 in its Sewer Treatment Plant operations. (Am.Compl.¶¶ 3, 19.) Defendant William McCauley (“McCauley”) has been employed by Defendant Bristol Township as Township Manager since early 2012. (Id. ¶ 10.) Defendant Scott Swichar (“Swichar”) has been employed by Defendant Bristol Township as a Sewer Department Project Manager and Operations Analyst since early 2012. (Id. ¶ 11.) Defendant Swichar was one of Plaintiff's direct supervisors. (Id .) In 2010, Plaintiff was diagnosed with Trigeminal Neuralgia, a condition which caused him to regularly have severe and debilitating pain and which is listed as a Serious Health Condition under the Family and Medical Leave Act (“FMLA”). (Id. ¶ 20.) Plaintiff underwent surgery for that condition in February 2011, but continued to suffer from frequent, severe, and debilitating flare-ups. (Id. ¶¶ 21-22.) As a result of those flare-ups, Plaintiff occasionally needed to be out of work. (Id. ¶ 23.) In January 2013, Plaintiff was performing work duties when he experienced sudden and severe chest pain. (Id. ¶ 24.) He went to a local hospital and was incorrectly diagnosed with a pulled muscle. (Id.) Plaintiff was thereafter placed on light duty for several weeks. (Id.) On February 19, 2013, 2 Plaintiff applied for Intermittent FMLA leave by filling out and submitting to Bristol Township the required FMLA form and Certification of Employee's Serious Health Condition, signed by Doctor Dani S. Bidros (“First Certification”), which listed Plaintiff's Trigeminal Neuralgia as the Serious Health Condition. (Id. ¶ 25.) On February 20, 2013, Plaintiff had severe chest pain and went to a local hospital where doctors determined that he had blood clots and immediately admitted him to the intensive care unit. (Id. ¶ 28.) Several days later, he returned to work. (Id. ¶ 29.) On March 4, 2013, the Bristol Township Human Relations Director told Plaintiff that he would need to obtain a second Certification of Employee's Serious Health Condition (“Second Certification”) because the First Certification was not being accepted by Defendant McCauley, the Bristol Township Manager. (Id. ¶¶ 30, 32.) Plaintiff was told that Defendant McCauley would not approve FMLA leave related to Plaintiff's Trigeminal Neuralgia because he did not believe that it was a serious medical condition. (Id. ¶ 32.) Plaintiff did not receive written notification regarding what additional information was necessary to make the First Certification complete and sufficient. (Id. ¶ 31.) On March 4, 2013, Plaintiff obtained a Second Certification and later provided it to the Bristol Township Human Relations Director. (Id. ¶ 37.) *2 On June 6, 2013, Plaintiff called in sick to work due to a flare-up of Trigeminal Neuralgia. (Id. ¶ 45.) At some point that day, he left his house to pick up medicine at a local drug store. (Id. ¶ 46.) While Plaintiff was at the drug store, the president of his local Veterans of Foreign Wars chapter (“VFW”) called Plaintiff and asked for his assistance with some paperwork at the VFW office. (Id.) Plaintiff agreed to stop by the VFW office on his way Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 44 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 home from the drug store. (Id. ¶ 47 .) He parked his truck in the VFW parking lot and spent approximately thirty minutes to one hour assisting the VFW president with paperwork in the club office. (Id.) The VFW is a members-only club that permits outside guests on a limited basis. (Id. ¶ 48.) Security measures include a closed-circuit security camera, locked doors, a buzzer system, and a VFW employee responsible for security enforcement. (Id. ¶ 49.) To gain entrance to the club, visitors ring the buzzer and present a membership card to the security enforcement employee. (Id. ¶ 50.) Those seeking entry to the VFW who are not members must explain the purpose of their visit and are permitted to enter on a limited basis. (Id. ¶ 51.) On June 6, 2013, at the direction of Defendant McCauley, 3 Defendant Swichar and former Human Resources Officer Paula Kearns drove to the VFW to investigate whether Plaintiff was drinking alcohol. (Id. ¶ 52.) Defendant Swichar rang the buzzer and told the VFW employee who answered that Bristol Township was interested in potentially renting the VFW space for an event, even though that was not true and he was actually there to look for Plaintiff. (Id. ¶¶ 57-58.) Plaintiff alleges that Defendant Swichar provided a false reason for his presence because he did not believe he would have been allowed in for the purpose of looking for Plaintiff. (Id. ¶ 59.) After gaining entry to the VFW, Defendant Swichar looked for Plaintiff. (Id. ¶ 60.) According to Plaintiff, Defendant Swichar did not locate him inside the VFW. (Id. ¶ 143.) On the evening of June 6, 2013, Defendant Swichar drove past Plaintiff's house at least two times. (Id. ¶ 62.) On June 10, 2013, Defendant Swichar, acting under Defendant McCauley's orders and/or authorization, required Plaintiff to submit to a Breathalyzer alcohol test during work hours. (Id. ¶¶ 63, 71.) Defendant Swichar stated that the basis for the test was reasonable suspicion. (Id.) Defendant Bristol Township's policy 4 regarding alcohol testing states the following: The required observations for alcohol and/or controlled substances reasonable suspicion testing must be based on specific contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee and must be made by a supervisor or manager who is trained in accordance with the following requirements: *3 (a) Supervisors/managers designated to determine whether reasonable suspicion exists to require an employee to undergo alcohol or controlled substance testing must receive at least one hour of training on alcohol misuse and at least one hour of training on controlled substances. (b) The training provided by the contractor must cover the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. (Id. ¶ 64.) Plaintiff alleges that Defendant Swichar did not have reasonable suspicion sufficient to require Plaintiff to undergo testing, and that Defendant Swichar had not received Bristol Township's mandatory training regarding alcohol testing for employees. (Id. ¶¶ 66-68.) Plaintiff alleges, upon information and belief, that Defendants have not required employees who are younger than Plaintiff to undergo alcohol testing during work hours, even though those employees had previously been suspected of drinking alcohol during work hours, including but not limited to former employee K.T. (Id. ¶ 76.) Plaintiff's Breathalyzer test was negative for alcohol, and Defendant Swichar directed Plaintiff to return to work. (Id. ¶ 75.) Plaintiff was “extremely upset” by the testing, so he requested, and was approved for, four days of vacation time for June 11, 2013 to June 14, 2013, “to recover from the stress” he experienced. (Id. ¶ 77.) Defendant Bristol Township did not compensate Plaintiff for the four days of vacation time. (Id.) On June 18, 2013, Plaintiff attempted to take one day of FMLA leave due to his medical conditions. (Id. ¶ 78.) Plaintiff completed and submitted the FMLA forms, but Defendant Swichar gave Plaintiff a letter informing him that he had exhausted his sick leave, that his sick leave had not been approved, and that he must report to work or face disciplinary action or discharge. (Id. ¶¶ 79-80.) Plaintiff resigned from his position on June 18, 2013, due to what Plaintiff believes was retaliation and harassment, as well as prior complaints of retaliation and harassment that had not been addressed. (Id. ¶ 85.) Plaintiff alleges that when he left his position, he was eligible for accrued and unused vacation time totaling 144 hours, to be paid at Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 45 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 his hourly rate of $22.47 for a total amount of $3,235.68. (Id. ¶ 89.) Pursuant to a Collective Bargaining Agreement, Bristol Township is required to provide bargaining unit member employees with one hundred percent of accrued and unused vacation time upon resignation or retirement. (Id. ¶ 90.) Plaintiff requested his accrued and unused vacation time on several occasions, and though he was told payment was forthcoming, he has not yet received payment. (Id. ¶¶ 91-92.) Defendant Bristol Township printed a check for Plaintiff's vacation time, but Defendant McCauley refused to allow the payment to be made. (Id. ¶ 93.) Plaintiff alleges, upon information and belief, that Defendant McCauley refused to process and make payment for Plaintiff's accrued and unused vacation time because Plaintiff had asserted claims with state and federal agencies under the Collective Bargaining Agreement, as well as under other state and federal laws. (Id. ¶ 94.) Plaintiff further alleges, upon information and belief, that Defendants have provided one hundred percent of accrued and unused vacation time to employees who are younger than Plaintiff upon their resignation or retirement, including but not limited to B.G., Z.M., and K.T. (Id. ¶ 95.) *4 On June 19, 2013, Plaintiff requested copies of his FMLA documents, but was told “it's all still on [Defendant McCauley's] desk” awaiting signature, and he did not receive copies of the requested documents. (Id. ¶ 86.) On several occasions throughout the weeks of June 20, 2013 through July 10, 2013, Plaintiff called Bristol Township to ask about his documents, and was told each time that the documents were still on Defendant McCauley's desk. (Id. ¶ 87.) Plaintiff alleges, upon information and belief, that Defendants have not failed to sign and/or process FMLA documents for employees who are younger than Plaintiff, including but not limited to W.B. and K.B. (Id. ¶ 88.) Plaintiff filed a Complaint in this case on July 15, 2014, and filed an Amended Complaint on October 14, 2014. Defendants filed a Motion to Dismiss the Amended Complaint on November 3, 2014. Plaintiff filed a Response in Opposition on November 14, 2014. Defendants filed their Reply on December 12, 2014. Plaintiff filed a Sur-reply on December 24, 2014. Defendants' Motion to Dismiss is now ripe for judicial consideration. II. STANDARD OF REVIEW Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b) (6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the United States Supreme Court recognized that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), subsequently defined a two-pronged approach to a court's review of a motion to dismiss. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Second, the Supreme Court emphasized that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-34 (3d Cir.2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's “ ‘factual allegations must be enough to raise a right to relief above the speculative level.’ ” (quoting Twombly, 550 U.S. at 555)). *5 Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D.Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 46 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006). Finally, the court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). III. DISCUSSION Defendants move to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Having considered the Amended Complaint and the parties' briefs, the Court finds that Plaintiff has sufficiently pled Counts Two, Three, and Seven through Twenty, and will deny Defendants' Motion to Dismiss with respect to those Counts. Counts One, Four, Five, and Six are not legally cognizable claims and therefore Defendants' Motion to Dismiss with respect to those Counts will be granted. The Court discusses each of Plaintiff's claims in turn. A. Alcohol Testing Without Reasonable Suspicion (Counts I, II, and III) Plaintiff asserts Fourth Amendment claims, pursuant to 42 U.S.C. § 1983, against all Defendants for requiring him to take a Breathalyzer test on June 10, 2013 against his will and without the required training and knowledge and articulable observations. (Am.Compl.¶¶ 98, 100, 112-14, 120-25.) Plaintiff further alleges that Defendant Bristol Township delegated authority to Defendant McCauley to override the procedural safeguards in Bristol Township's drug and alcohol testing policy with knowledge that no supervisory employees had received the requisite training, and that Defendant Bristol Township failed to provide that training to Defendant Swichar. (Id. ¶¶ 101-02.) Plaintiff asserts his Fourth Amendment claims against Defendants McCauley and Swichar in their official and individual capacities. (Id. ¶¶ 118, 128.) 1. Defendant Bristol Township With respect to Count One against Defendant Bristol Township, Defendants' Motion to Dismiss must be granted. Plaintiff essentially alleges that Defendant Bristol Township is liable for violations of Plaintiff's Fourth Amendment rights because it gave Defendant McCauley authority as Township Manager, which he used to order Defendant Swichar to violate Bristol Township's drug and alcohol testing policy, and thus Plaintiff's Fourth Amendment rights, in the absence of adequate training. 5 First, the fact that Defendant McCauley had some degree of authority over certain Township matters does not mean that Defendant Bristol Township gave Defendant McCauley the authority to “override” Bristol Township's written drug and alcohol testing policy. Second, Plaintiff cannot state a Fourth Amendment violation claim for municipal liability against Defendant Bristol Township solely on the basis of Defendants McCauley's and Swichar's conduct, because a claim for respondeat superior liability against a municipality is not a legally cognizable claim. See, e.g., Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“[A] municipality may not be held liable under § 1983 solely because it employs a tortfeasor.”). 6 Accordingly, Count One must be dismissed. 7 2. Defendant McCauley and Defendant Swichar *6 As stated above, in Counts Two and Three Plaintiff asserts § 1983 claims against Defendants McCauley and Swichar in their official and individual capacities for violating his Fourth Amendment rights by requiring him to take a Breathalyzer test in the absence of reasonable suspicion. “Cases interpreting the scope of the Fourth Amendment establish that drug testing of public employees may raise search and seizure issues.” Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564, 1567 (3d Cir.1995) (citing Skinner v. Ry. Labor Execs.' Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). “It is equally clear that the Fourth Amendment applies only to unreasonable searches and seizures.” Id. (citing Skinner, 489 U.S. at 619). “What is reasonable ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’ “ Id. (quoting Skinner, 489 U.S. at 619). Where an employee alleges that an employer's drug and/or alcohol testing policy was not followed and that the employer sought to have the employee submit to testing in the absence of reasonable suspicion, “[i]t is [the employer's] violation of its own policy that allegedly renders the proposed search unreasonable.” Dykes, 68 F.3d at 1568. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 47 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 “Ultimately, the question of whether a particular search is reasonable for purposes of the Fourth Amendment is not a question of fact.” Dykes, 68 F.3d at 1568 (citing Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807, 822 (3d Cir.1991) (en banc) (“Unlike a determination of ‘reasonableness' in ordinary tort cases and some other contexts, this balancing process presents a question of law ....”), cert. denied, 504 U.S. 943, 112 S.Ct. 2281, 119 L.Ed.2d 206 (1992)). In order to decide whether a search was reasonable, it must first be determined whether there was reasonable suspicion underlying an employer's request that an employee submit to testing. 8 Dykes, 68 F.3d at 1568. “If there was reasonable suspicion, and [the employer], therefore, complied with the terms of its drug and alcohol testing policy, there is no Fourth Amendment issue; the policy, evaluated against the background of precedent, is reasonable in the broad constitutional sense.” Id. The dispositive issue is thus whether an employer had reasonable suspicion to subject the employee to testing. Id. As stated above, Defendant Bristol Township's policy regarding drug and alcohol testing for its employees includes the following guidelines: The required observations for alcohol and/or controlled substances reasonable suspicion testing must be based on specific contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee and must be made by a supervisor or manager who is trained in accordance with the following requirements: (a) Supervisors/managers designated to determine whether reasonable suspicion exists to require an employee to undergo alcohol or controlled substance testing must receive at least one hour of training on alcohol misuse and at least one hour of training on controlled substances. *7 (b) The training provided by the contractor must cover the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. (Am.Compl.¶ 64.) Plaintiff alleges that Defendants did not have reasonable suspicion 9 and did not even observe him prior to requiring him to undergo a Breathalyzer test, which would be a clear violation of the Bristol Township policy as well as a Fourth Amendment violation. See Dykes, 68 F.3d at 1568. Accordingly, Defendants' Motion to Dismiss Counts Two and Three must be denied. Defendants argue that Plaintiff's claims against Defendants McCauley and Swichar in their individual capacities must be dismissed because they are entitled to qualified immunity. (Defs.' Mem. Supp. Mot. Dismiss 13.) At this stage, it would be premature to find that Defendant McCauley and Defendant Swichar are entitled to qualified immunity, and thus the Motion to Dismiss with respect to the claims against Defendants McCauley and Swichar in their individual capacities is denied. Defendants also assert that “[a]ny allegations that the breathalyzer was administered improperly do not support a constitutional violation; rather, at most, it may constitute a violation of the [Collective Bargaining Agreement (“CBA”) ] that is not actionable here.” 10 (Defs.' Mem. Supp. Mot. Dismiss 5; see also Defs.' Reply 2.) Defendants further assert in their Reply that “[p]ursuant to the explicit terms of the Collective Bargaining Agreement, any violation arising from the administrators [sic] training would necessarily have to be raised as a violation of the Collective Bargaining Agreement, not a constitutional violation” and that Article XXIII of the CBA provides the sole and exclusive remedy for the resolution of disputes arising under or related to the CBA. (Defs.' Reply 2.) It is not clear, however, that Plaintiff's § 1983 Fourth Amendment claims would have been subject to the CBA. Defendants provided an excerpted page from a 2006- 2010 Collective Bargaining Agreement that details the Grievance Procedure but which does not indicate that the CBA contained terms and conditions regarding drug and alcohol testing. (See Defs.' Mem. Supp. Mot. Dismiss Complaint (Docket No. 9), Ex. B, 2006-2010 Collective Bargaining Agreement.) 11 Moreover, the Court cannot determine from Defendants' submission whether there was a Collective Bargaining Agreement in place in 2013 when Plaintiff was required to take the Breathalyzer test, or whether that version of the Collective Bargaining Agreement contained provisions pertaining to drug and alcohol testing. The parties have not indicated whether the Bristol Township drug and alcohol testing policy referenced in the Amended Complaint is part of the Collective Bargaining Agreement or whether it is a separate policy. Accordingly, on the basis of the CBA excerpt that Defendants submitted, the Court cannot Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 48 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 determine its jurisdiction to consider Plaintiff's Fourth Amendment claims under § 1983, and thus declines to grant Defendants' Motion to Dismiss Counts Two and Three on that basis. B. Search of Private VFW Club to Which Plaintiff Belongs as a Member (Counts IV, V, and VI) *8 Plaintiff also asserts Fourth Amendment claims via § 1983 against all Defendants for their violations of his reasonable expectation of privacy by subjecting him to a search 12 in a secured members-only facility without a search warrant or other court approval and/ or supervision. (Am.Compl. ¶¶ 130-33, 138-144, 147- 154.) Plaintiff further alleges that Defendant Swichar “provided a knowingly false pretense for seeking entrance to the VFW facility,” and did so under instructions from Defendant McCauley. (Id. ¶¶ 141, 151.) Plaintiff asserts his Fourth Amendment claims against Defendants McCauley and Swichar in their official and individual capacities. (Id. ¶¶ 145, 155.) Defendants assert that Plaintiff's Fourth Amendment claims related to the “search” of the VFW fail as a matter of law because Plaintiff did not have a reasonable expectation of privacy after entering the VFW; the club's admission of entry to Defendant Swichar constituted consent to his presence; Defendant Swichar's entry under false pretenses would not implicate Plaintiff's Fourth Amendment Rights; and Defendant Swichar's conduct did not actually amount to a “search” because there was no interference with any of Plaintiff's possessory interests. (See Defs.' Mem. Supp. Mot. Dismiss 5-7.) Plaintiff responds by arguing that he had a reasonable expectation of privacy while inside a private club that takes the security measures described in the Amended Complaint, and that Defendant Swichar entered under false pretenses and without a warrant or other court approval to conduct a search. (Pl.'s Resp. Opp'n Mot. Dismiss 16, 18-19.) Plaintiff notes that the United States Court of Appeals for the Third Circuit has not addressed “the privacy interests of club members within the confines of members-only areas” in a Fourth Amendment context, relying instead on Pennsylvania state court cases addressing motions to suppress evidence obtained during searches by police. (Id. at 17-18.) Plaintiff's claims, however, presents unique facts which are distinct from the circumstances analyzed in the cases he cites in support of them. As Defendants point out, Plaintiff's Fourth Amendment violation claims are presented in the context of a civil matter, the Defendants are not police officers, and the VFW consented to Defendant Swichar's presence in the club based on the reason he provided. (Defs.' Reply 2.) While Plaintiff has alleged that Defendant Swichar gained entry to the VFW under false pretenses, Defendant Swichar had express permission to enter the club. Notably, and as Plaintiff alleged, Defendant Swichar did not even find Plaintiff when he entered the VFW. Thus, the cases Plaintiff relies on do not demonstrate that he has stated a legally cognizable Fourth Amendment claim. Plaintiff also relies on O'Connor v. Ortega for the proposition that the Fourth Amendment is violated where a public employer's search violates an employee's reasonable expectation of privacy, regardless of whether the search is to investigate violations of criminal law or breaches of other statutory or regulatory standards. (Pl.'s Sur-reply 4 (citing O'Connor, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1986).) In O'Connor, however, the Court considered an employee's expectation of privacy in the workplace, where the search of the employee's papers and effects occurred in his office, not at a non-workplace location belonging to the plaintiff or a third-party. Id. at 713. Thus, O'Connor does not support Plaintiff's attempt to bring Fourth Amendment claims based on Defendant Swichar's entry into the VFW. *9 In short, Plaintiff has not provided case law support for his claim that a search of a private club by his employer under the circumstances alleged constitutes a violation of his Fourth Amendment rights. It is not clear how Defendant Swichar's conduct constitutes a Fourth Amendment violation rather than something akin to trespass onto VFW property. Even then, Defendant Swichar received consent to enter the VFW. Accordingly, with respect to Counts Four, Five, and Six, Plaintiff has not stated claims for which relief can be granted, and Defendants' Motion to Dismiss those Counts is granted. 13 C. Failure to Train in Violation of § 1983 (Count VII) Plaintiff asserts that Defendant Bristol Township failed to instruct, supervise, control, or discipline Defendants McCauley and Swichar with regard to alcohol and drug testing of employees without reasonable suspicion and in violation of Plaintiff's rights. 14 (Am.Compl.¶ 158.) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 49 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Plaintiff further alleges that Defendant Bristol Township “knew or should have known that its failure to provide [necessary] training” for testing “would predictably lead to violation of the constitutional rights of employees such as Plaintiff,” and that Bristol Township was on notice of that possibility because of a prior settlement agreement related to random testing of employees. (Id. ¶ 159.) Finally, Plaintiff alleges that Defendant Bristol Township approved or ratified the “unlawful, malicious, reckless, and wanton conduct of Defendants McCauley and Swichar.” (Id. ¶ 162.) 15 Defendants argue that Plaintiff's failure to train claim must be dismissed because there is no underlying constitutional violation with regard to the alcohol testing, 16 Plaintiff has not identified a municipal policy or custom to support his claims, Plaintiff's allegations that Defendant McCauley was a “final policy decisionmaker” are “grossly insufficient as a matter of law,” and Plaintiff failed to allege a pattern or practice sufficient to support a failure to train claim. (Defs.' Mem. Supp. Mot. Dismiss 7; Defs.' Reply 3-4.) The Supreme Court has “recognized that a municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Rather, the Court “required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal “policy” or “custom” that caused the plaintiff's injury.” Id. (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Pembaur v. Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). “A government policy or custom can be established in two ways. Policy is made when a ‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the action’ issues an official proclamation, policy, or edict.” Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir.1990), superseded in part by statute, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1072 (1991) (quoting Pembaur, 475 U.S. at 481). “[W]here action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.” Pembaur, 475 U.S. at 481 (1986) “[M]unicipal liability under § 1983 attaches where -and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 483. “A course of conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state officials [are] so permanent and well settled’ as to virtually constitute law.” 17 Andrews, 895 F.2d at 1480 (quoting Monell, 436 U.S. at 690 (internal citations and quotations omitted)). “In either of these cases, it is incumbent upon a plaintiff to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom.” Id. *10 In this case, Plaintiff argues that Defendant McCauley is a final decisionmaker who established a “policy” with respect to alcohol testing in the workplace by ordering Defendant Swichar, who lacked the appropriate training, to conduct a Breathalyzer test on Plaintiff without reasonable suspicion. (Pl.'s Resp. Opp'n Mot. Dismiss 20.) The determination of who is a “policymaker” is a question of state law. Id. at 1481 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 142, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). “In looking to state law, a court must determine which official has final, unreviewable discretion to make a decision or take an action.” Id. (emphasis added). Bristol Township is organized under Pennsylvania's First Class Township Code. (Accord. Defs.' Reply 3.) Under that Code, the “corporate power of a township of the first class shall be vested in the board of township commissioners.” 53 Pa. Cons.Stat. § 56502. “[A] township manager shall serve at the pleasure of the board of commissioners.” 53 Pa. Cons.Stat. § 56504. “The powers and duties of the township manager shall be regulated by ordinance,” and “[t]he commissioners may delegate, subject to recall, any of their respective non-legislative and non-judicial powers and duties to the township manager.” Id. Pursuant to the Bristol Township Administrative Code, the Township Manager “shall be the chief executive and administrative official of the Township.” Administrative Code for the Township of Bristol, Art. IV, § 5-15. 18 Some of the executive duties of the Township Manager include: A. To execute all laws and ordinances. ... Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 50 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 F. To make such recommendations to Council concerning policy formulation as he or she deems desirable and keep Council and the public informed as to the conduct of municipal affairs. ... I. To be responsible to Council for carrying out all policies established by it and for the proper administration of all affairs of the Township within the jurisdiction of Council. ... K. Developing, justifying and recommending Township objectives and policies to Council and promulgating, implementing and delineating approved policies into operating procedures. L. Planning, organizing, administering, and directing all operations under the jurisdiction of the Township. Id. (emphasis added). The Administrative Code provisions pertaining to the role of the Township Manager make clear that Defendant McCauley does not have “final, unreviewable discretion” to make policy. See Andrews, 895 F.2d at 1481. In addition, Bristol Township had an official policy in place regarding the appropriate procedures for requiring employees to undergo drug and alcohol testing. (See Am. Compl. ¶ 64.) As discussed above in connection with Count One, finding that Defendant McCauley's decision as Township Manager to order Defendant Swichar to violate that policy was itself a “policy” attributable to Bristol Township would result in an impermissible respondeat superior claim against Defendant Bristol Township. See Canton, 489 U.S. at 387 (“Nor ... would a city automatically be liable under § 1983 if one of its employees happened to apply the policy in an unconstitutional manner, for liability would then rest on respondeat superior.”). Accordingly, Plaintiff cannot state a claim for municipal liability against Defendant Bristol Township on the basis that Defendant McCauley acted as a final decisionmaker who can establish policy on behalf of the Township, resulting in a violation of Plaintiff's Fourth Amendment rights. *11 Though Defendant McCauley did not act as a final decisionmaker, the above discussion does not end the inquiry into the viability of Count Seven. Although Defendants' arguments focus on the fact that Defendant McCauley is not a final decisionmaker who can establish policy, Plaintiff's specific municipal liability allegations against Defendant Bristol Township are based on its alleged failure to train Defendants McCauley and Swichar in the appropriate administration of the Bristol Township drug and alcohol testing policy. “[I]f a concededly valid policy is unconstitutionally applied by a municipal employee, the city is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train.” Canton, 489 U.S. at 387. “[A] municipality can only be liable under § 1983 where the failure to train demonstrates a ‘deliberate’ or ‘conscious' choice by the municipality.” Doe, 660 F.3d at 179 (citations omitted). “To determine whether a municipality's alleged failure to train its employees amounted to a deliberate or conscious choice, it must be shown that ‘(1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.’ “ Id. at 179-80 (citing Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir.1999) (additional citation omitted)). “Moreover, the identified deficiency in [the] training program must be closely related to the ultimate [constitutional] injury.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 325 (3d Cir.2005) (internal citations and quotations omitted). Here, Plaintiff's allegations have established all the elements of the Third Circuit's test for failure to train claims. First, Bristol Township policymakers knew that their employees would confront a situation where they would need to require employees to undergo drug or alcohol testing, which is evidenced by the establishment of a Township policy regarding such testing. Second, there was a history of employees mishandling situations of drug and alcohol testing, which resulted in the establishment of the Township's policy pursuant to a settlement agreement. The third element is also present here because the wrong choice by an employee in implementing the policy-for example by ordering an employee to undergo drug or alcohol testing in the absence of reasonable suspicion-could frequently cause the deprivation of employees' Fourth Amendment rights. Finally, if, as Plaintiff alleges, Defendant Bristol Township failed to train its employees, such as Defendant Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 51 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 McCauley and Defendant Swichar, regarding the drug and alcohol testing policy, the deficiency in training would be very closely related to the ultimate constitutional injury that Plaintiff claims. Defendants have not set forth any arguments regarding any training that Defendants McCauley and Swichar received. Accordingly, on the basis of Plaintiff's allegations that there was a failure to train, Defendant's Motion to Dismiss with respect to Count Seven must be denied. D. FMLA Violations for Interference by Failing to Process Plaintiff's FMLA Documents (Counts VIII and IX) *12 Plaintiff claims that Defendant Bristol Township, through Defendant McCauley, violated 29 U.S.C. § 2615(a)(1) by (a) refusing to accept Plaintiff's first submitted Certification of Employee's Serious Health Condition, “dismissing it as ‘just’ Trigeminal Neuralgia;” (b) failing to provide Plaintiff with written notification that it considered Plaintiff's First Certification incomplete and without indicating what additional information was necessary to make the certification complete and sufficient; (c) failing to sign and process Plaintiff's completed FMLA forms in a reasonable timeframe, thus causing unreasonable delay; (d) incorrectly informing Plaintiff that his FMLA documents had been properly handled and processed when his application was never processed; and (e) failing to notify Plaintiff of any defects in his Second Certification, and failing to notify him what additional information was necessary to make the certification complete and sufficient. (Am.Compl.¶¶ 172, 183.) “In order to assert a claim of deprivation of entitlements, the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them.” Callison v. City of Phila. ., 430 F.3d 117, 119 (3d Cir.2005) (citing 29 U.S.C. §§ 2612(a), 2614(a)). The FMLA provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). To assert an FMLA interference claim, “the employee need not show that he was treated differently than others.” Callison, 430 F.3d at 119. “Further, the employer cannot justify its actions by establishing a legitimate business purpose for its decision.” Id. at 119-20. Ultimately, “[a]n interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Id. at 120. “To prove an interference claim, it is the plaintiff's burden to show (1) he was an eligible employee under the FMLA, (2) defendant was an employer subject to the requirements of the FMLA, (3) he was entitled to leave under the FMLA, (4) he gave notice to the defendant of his intention to take FMLA leave, and (5) the defendant was denied benefits to which he was entitled under the FMLA.” Lombardo v. Air Prods. & Chems., Inc., No. Civ.A 05- 1120, 2006 WL 1892677, at *3 (E.D.Pa. July 7, 2006) (citation omitted). Defendants incorrectly assert that Plaintiff failed to establish any of the prima facie elements of an FMLA interference claim. (Defs.' Mem. Supp. Mot. Dismiss 8.) Plaintiff was an FMLA-eligible employee because he had been employed by Bristol Township for longer than twelve months, and had worked at least 1,250 hours during the previous twelve months. (See Pl.'s Resp. Opp'n Mot. Dismiss 24 (citing 29 C.F.R. § 825.110); Am. Compl. ¶¶ 26-27.) Plaintiff alleges that all three named Defendants are employers within the meaning of Family and Medical Leave Act (“FMLA”), and that Defendant Bristol Township may be sued pursuant to 53 Pa.C.S. § 5607(d)(2) and 42 U.S.C. § 1983. (Am.Compl.¶¶ 5-9.) Defendants Bristol Township and McCauley are covered employers under FMLA. See 29 U.S.C. §§ 2611(4)(A)(i)- (ii)(I). Plaintiff alleges that he was entitled to FMLA leave because he suffers from serious health conditions that require continuing treatment by a health care provider, specifically Trigeminal Neuralgia and blood clots. (Pl.'s Resp. Opp'n Mot. Dismiss 25 (citing 29 C.F.R. § 825.113); Am. Compl. ¶¶ 20-28).) Thus, on the basis of the Amended Complaint, Plaintiff established the first three elements of an FMLA interference claim. *13 With respect to the fourth element, Defendants assert that Plaintiff submitted incomplete requests for intermittent leave, and therefore was not entitled to FMLA leave and did not give proper notice of his intention to take FMLA leave. (Defs.' Mem. Supp. Mot. Dismiss 8.) Plaintiff alleges that he provided notice of his intention to take FMLA leave by submitting a complete and sufficient application for Intermittent FMLA leave, as well as a Certification of Employee's Serious Health Condition signed by Dr. Dani S. Bidros, which were submitted on February 19, 2013. (Pl.'s Resp. Opp'n Mot. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 52 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 Dismiss 25; Am. Compl. ¶ 25.) Plaintiff submitted a second Certification on March 4, 2013. (Am.Compl.¶ 37.) Thus, on the basis of Plaintiff's allegations in the Amended Complaint, Plaintiff has satisfied the fourth element of giving notice to Defendants of his intent to take FMLA leave. 19 As to the fifth element, Defendants argue that Plaintiff has failed to allege that he suffered a cognizable injury arising from Defendants' alleged interference, and that Plaintiff voluntarily retired on June 28, 2013. (Defs.' Mem. Supp. Mot. Dismiss 9.) Defendants assert, therefore, that Plaintiff cannot state a valid claim for interference in the absence of any injury. 20 (Id. at 8-9.) Plaintiff responds by arguing that he suffered multiple injuries as a result of Defendants' alleged interference with his FMLA rights. First, he was allegedly denied the opportunity to make informed decisions about his leave options and limitations as a result of Defendants' failure to notify him that they considered his FMLA applications and certifications insufficient. Second, Plaintiff asserts that even though he submitted applications and certifications for FMLA leave, Defendants told him he had exhausted his sick leave and threatened him with disciplinary actions or discharge via a June 18, 2013 letter. Finally, Plaintiff alleges that he was subject to a constructive discharge because of harassment and retaliation related to his use of sick leave and attempts to use FMLA leave. (Pl.'s Resp. Opp'n Mot. Dismiss 27.) Thus, Plaintiff has adequately alleged both a denial of FMLA benefits to which he was entitled, as well as a resulting injury, such that the fifth element of a prima facie case is satisfied. Plaintiff's allegations are therefore sufficient to establish a prima facie case for his FMLA interference claim against Defendants for their failure to process his FMLA documents. Accordingly, Defendants' Motion to Dismiss with respect to Counts Eight and Nine is denied. E. FMLA Violations for Interference by Counting FMLA-Qualifying Leave Against Plaintiff (Counts X and XI) Plaintiff claims that Defendant Bristol Township and Defendant Swichar violated 29 U.S.C. § 2615(a)(1) by (a) giving Plaintiff a letter informing him that he had exhausted his sick leave, that his sick leave had not been approved, and that he must report to work or face disciplinary action or discharge; (b) failing to provide Plaintiff with written notification that his Certifications were incomplete and failing to inform him about what additional information was necessary, as required by 29 C.F.R. § 825.305(c); and (c) by counting FMLA-qualifying leave against Plaintiff for purposes of disciplinary action and termination. (Am.Compl.¶¶ 188, 189-193, 197, 198-202.) *14 Defendants made the same arguments urging dismissal of Counts Ten and Eleven as those discussed above with regard to Counts Eight and Nine, and Plaintiff relied on the same arguments in response. Accordingly, for the same reasons stated above, Plaintiff sufficiently alleged claims for FMLA interference in Counts Ten and Eleven. Thus, Defendants' Motion to Dismiss with respect to Counts Ten and Eleven is denied. F. FMLA Violations for Interference by Requiring Plaintiff to Obtain a Second Certification of Serious Medical Condition in Violation of 29 U.S.C. 2615(a)(1) (Counts XII and XIII) Plaintiff alleges that Defendant Bristol Township and Defendant William McCauley violated 29 U.S.C. § 2615(a)(1) by requiring Plaintiff to obtain a Second Certification of Employee's Serious Health Condition, failing to inform Plaintiff in writing that the First Certification was insufficient or incomplete, and by not providing Plaintiff with written notification of what additional information would be needed to make the certification complete and sufficient, as is required by 29 C.F.R. § 825.307(b)(1). (Am.Compl.¶¶ 206-213, 217-223.) Plaintiff further alleges that Defendant Bristol Township did not cover the costs Plaintiff incurred in obtaining a Second Certification. (Id. ¶ 224.) 29 C.F.R. § 825.307(b)(1) provides that: An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 53 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. 29 C.F.R. § 825.307. 21 Defendants made the same arguments urging dismissal of Counts Twelve and Thirteen as they did for Counts Eight, Nine, Ten, and Eleven, and Plaintiff asserted the same arguments in response. Accordingly, for the same reasons stated above, Plaintiff sufficiently alleged claims for FMLA interference and Defendants' Motion to Dismiss with respect to Counts Twelve and Thirteen is denied. G. FMLA Violations for Retaliation (Counts XIV, XV, and XVI) Plaintiff's final category of FMLA claims are against Defendants Bristol Township, McCauley, and Swichar for retaliation in violation of 29 U.S.C. § 2615(a)(2) for taking adverse action against Plaintiff for requesting and/or using FMLA leave. (Am.Compl.¶¶ 231-32, 240- 41, 251-52.) Plaintiff alleges that (1) Defendants Bristol Township and McCauley harassed Plaintiff about the severity of his condition, including by telling Plaintiff that he would not be approved for FMLA leave for “just” Trigeminal Neuralgia, and by requiring him to obtain a Second Certification; (2) all Defendants conducted undue and harassing surveillance of Plaintiff; (3) all Defendants forced Plaintiff to undergo an unnecessary and baseless Breathalyzer test during work hours “for the purpose of harassment;” (4) all Defendants threatened Plaintiff with disciplinary action or discharge for using FMLA leave, and (5) Defendant McCauley refused to provide written notice to Plaintiff that his FMLA application was incomplete and that additional information was necessary to make it complete and sufficient. (Id . ¶¶ 231, 240, 251.) Plaintiff alleges further that the conditions of his employment became so intolerable that a reasonable person in Plaintiff's situation would be forced to resign, and that, under the circumstances, Plaintiff's resignation on June 18, 2013 was involuntary and amounted to a constructive discharge. (Id. ¶¶ 233-34, 242-43, 253-254.) *15 The FMLA provides that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). To establish a prima facie case of retaliation 22 under FMLA, Plaintiff must show that “(1) [ ]he invoked [his] right to FMLA-qualifying leave, 23 (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., 691 F.3d 294, 302 (3d Cir.2012). “[T]he elements of a prima facie case depend on the facts of the particular case.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir.1999). Defendants argue that Plaintiff has failed to establish a prima facie case of retaliation because Plaintiff voluntarily left his position in order to retire and therefore no adverse employment action took place. (Defs.' Mem. Supp. Mot. Dismiss 9.) According to Defendants, Plaintiff's voluntarily retirement constituted an intervening event similar to “job abandonment” that broke the causal link between the protected activity and the adverse employment action. (Id. (citing Weiler v. R & T Mech., Inc., 255 F. App'x 665, 668-69 (3d Cir.2007)).) An adverse employment action is “an action by an employer that is serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir.2004), as amended (Dec. 20, 2004) (quotations omitted). “To find constructive discharge, a court ‘need merely find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.’ ” Lebofsky v. City of Phila., 394 F. App'x 935, 939 (3d Cir.2010) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984). Plaintiff alleges that Defendants harassed him about the severity of his medical condition and required him to obtain an additional certification, conducted “undue and harassing” surveillance of him, forced him to undergo “an unnecessary and baseless” Breathalyzer test during work hours for the purpose of harassment, and threatened him with disciplinary action or discharge for using FMLA eligible leave. (Pl.'s Resp. Opp'n Mot. Dismiss 29-30.) Plaintiff further alleges that “as a direct result” of Defendants' actions, he was forced to resign due to intolerable employment conditions and that as such, his resignation was involuntary and amounted to a constructive discharge. (Id. at 30.) Plaintiff's claim that he was constructively discharged Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 54 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 undermines Defendants' argument that the intervening event of Plaintiff's resignation prevents him from stating an FMLA retaliation claim. On the basis of Plaintiff's allegations, therefore, the constructive discharge that ended his employment with Bristol Township was not an intervening event, but rather was an adverse employment action that establishes the second element of a prima facie case of FMLA retaliation. *16 Defendants argue in the alternative that, if an adverse employment action did take place, it occurred more than three months after Plaintiff “allegedly submitted” incomplete applications for FMLA leave, resulting in “insufficient temporal proximity present under the circumstances to establish a claim for retaliation.” (Id. (citing Allen v. Nutrisystem, Inc., No. Civ.A. 11-4107, 2013 WL 1776440, at *8 (E.D.Pa. Apr.25, 2013) for the proposition that two months is too long to demonstrate causation between protected activity and retaliation).) Thus, according to Defendants, Plaintiff cannot establish the causation element of the prima facie case. In the Third Circuit, there are “two main factors in finding the causal link necessary for retaliation: ‘timing and evidence of ongoing antagonism.’ “ Miller v. Thomas Jefferson Univ. Hosp., 565 F. App'x 88, 91 (3d Cir.2014) (quoting Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir.2001). To establish a causal link and thus state a prima facie case of retaliation, “temporal proximity between the protected activity and the termination is sufficient.” Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997) overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345, (2006); see also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir.2007) (discussing the general requirement that timing be “unusually suggestive” but noting that “temporal proximity alone, when ‘very close,’ can in some instances establish a prima facie case of retaliation.”) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). “A plaintiff can [also] establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism in the intervening period.” Id. at 920-21 & n. 3 (noting that because “the evidence is sufficient to establish a pattern of antagonistic behavior linking the discrimination complaints and [the plaintiff's] discharge, we need not consider whether other types of evidence might also support a causal link finding in the absence of temporal proximity.”); see also Reaves v. Pa. State Police, No. Civ. A. 14-1555, 2015 WL 109833, at *5 (3d Cir. Jan.8, 2015). (“Such evidence may include a temporal proximity between the protected activity and the adverse action, antagonistic behavior on the part of the employer, inconsistencies in the employer's articulated reasons for taking the adverse action, or any other evidence that supports an inference of retaliatory animus.”) Plaintiff argues that Defendants' conduct, as described above, shows that he experienced ongoing antagonism between the time that he first sought FMLA benefits on the basis of his Trigeminal Neuralgia and the date on which he alleges he was constructively discharged. (Pl.'s Resp. Opp'n Mot. Dismiss 30-31.) Plaintiff first applied for intermittent FMLA leave on February 19, 2013, after which he was required to submit a second certification. After Plaintiff called in sick because of a flare-up of his condition on June 6, 2013, Defendants surveilled him and required him to take a Breathalyzer test at work. Then, on June 18, 2013, Plaintiff was told that he could not take one day of FMLA leave as requested, and that he would face disciplinary action or discharge if he did not report to work. Plaintiff resigned that same day, constituting what Plaintiff alleges was a constructive discharge. Plaintiff has therefore sufficiently alleged facts demonstrating that he experienced ongoing antagonism during a four-month period, which was causally related to the invocation of his FMLA rights, and thus has established the third element of a prima facie case of retaliation. *17 Defendants next argue that Plaintiff's FMLA retaliation claim must be dismissed because it does not meet the “but-for” causation standard articulated by the United States Supreme Court. (Defs.' Reply 5 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, --- U.S. ----, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)).) In Nassar, the Court stated that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m).” Id. at 2533. While some courts within the Third Circuit have applied Nassar to FMLA claims in addition to Title VII claims, other courts have merely noted that the Third Circuit has not yet reached the issue of whether Nasser applies to retaliation claims other than those brought under Title VII. See, e.g., Latta v. U.S. Steel-Edgar Thompson Plant, No. Civ.A. 11-1622, 2013 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 55 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 WL 6252844, at *5 (W.D.Pa. Dec.4, 2013) (citing Nasser and stating that plaintiff must prove traditional “but- for” causation in FMLA claim); Rubano v. Farrell Area Sch. Dist., 991 F.Supp.2d 678, 705 (W.D.Pa.2014) (finding it likely that the Third Circuit would apply Nasser to ADA claims in addition to Title VII claims because “the language of the ADA's anti-retaliation provision is almost identical”); Berkowitz v. Oppenheimer Precision Prods., Inc., No. Civ.A. 134917, 2014 WL 5461515, at *8 (E.D.Pa. Oct.28, 2014) (doubting whether in that case imposing a “but-for” standard to the plaintiff's ADA and FMLA claims would have any effect on resolution of the pending summary judgment motion because the plaintiff's claims survived regardless of whether Nasser applied). In this case, three of the five factual allegations underpinning Plaintiff's FMLA retaliation claim are directly connected to Plaintiff's requests to use FMLA leave, and the conduct alleged would not have occurred in the absence of Plaintiff's FMLA leave requests. As Plaintiff argued in his Sur-reply, he “alleged employment actions for which his request for FMLA leave” would satisfy a “but-for” causation standard. (Pl.'s Sur-reply 8.) Specifically, in arguing that he established “but- for” causation, Plaintiff points to Defendants' refusal to approve his FMLA request because it was “just” Trigeminal Neuralgia, Defendants' requirement that he obtain a second certification, and Defendants' threats of disciplinary action or discharge if he missed work when he requested FMLA leave on June 18, 2013. (Id. at 8- 9.) As stated above, it is not clear whether the “but-for” causation standard articulated in Nassar applies to an FMLA retaliation claim. Nonetheless, if it does, Plaintiff's allegations are sufficient to survive a motion to dismiss, and are also sufficient to establish the third element of a prima facie case-that “the adverse action was causally related to [his] invocation of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d at 302. Finally, in their Reply, Defendants argue that Plaintiff's Amended Complaint and Response “are replete with allegations that he allegedly suffered an adverse employment action due to personal conflicts with several employees, including the individual Defendants,” and that therefore “Plaintiff's retaliation claim does not have a good faith basis to survive [a motion to dismiss] because, at most, his purported request for FMLA was merely a motivating factor to any alleged adverse employment action.” (Defs.' Reply 5-6.) Defendants' characterization of Plaintiff's factual allegations as evidence of “personal conflicts” is not substantiated by the contents of the Amended Complaint or the parties' briefs, and that characterization does not negate Plaintiff's allegations that Defendants acted contrary to the FMLA prohibitions against retaliation. As Plaintiff has established a prima facie case of retaliation, this argument is not persuasive. *18 Accordingly, on the basis of the above discussion, Plaintiff established a prima facie case of retaliation in violation of the FMLA, and Defendants' Motion to Dismiss with respect to Counts Fourteen, Fifteen, and Sixteen is denied. H. Breach of Contract (Count XVII) Plaintiff also asserts a breach of contract claim against Defendant Bristol Township for failure to provide him with payment for accrued and unused vacation time totaling $3,237.18, which Plaintiff maintains is in violation of the Collective Bargaining Agreement (“CBA”) between the Transportation Workers Union of America, Local 281, and Defendant Bristol Township. (Am.Compl.¶¶ 256-59.) Defendant Bristol Township urges dismissal of this claim, arguing that, under Pennsylvania law, a union employee cannot state a claim for breach of a CBA against an employer, and that allegations of a breach of contract should be resolved by an arbitrator pursuant to the CBA's grievance procedures. (Defs.' Mem. Supp. Mot. Dismiss 10 (citing Philips v. Babcock & Wilcox, 349 Pa.Super. 351, 503 A.2d 36, 38 (Pa.Super.1986), appeal denied, 514 Pa. 618, 521 A.2d 933 (Pa.1987); AFSCME v. Pa. Labor Rels. Bd., 41 A.3d 213, 217 (Pa.Commw.Ct.2012)).) Defendant asserts that Article XXIII of the CBA provides that “the sole and exclusive remedy for the resolution of any disputes or disagreements or claims made under or related to the Agreement or arising is the grievance and arbitration procedure set forth in the Agreement.” (Id. at 10 (citing Defs.' Ex. B, 24 2006-2010 Collective Bargaining Agreement, at Article XXIII).) Defendants' Exhibit B is the cover page and one excerpted page from the Collective Bargaining Agreement for January 1, 2006 to December 31, 2010. (Defs.' Ex. B at Cover Page.) Defendants do not indicate whether this particular version of the CBA was still in effect in 2013 at the time that Plaintiff's claims arose. Even assuming that the language regarding grievance procedures in whatever CBA was in effect in 2013 is identical to the language Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 56 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 in Article XXIII of the 2006-2010 CBA, it is not clear that the grievance procedure applies to Plaintiff's claim regarding accrued and unused vacation time because there is no mention of any policy regarding accrued and unused vacation time on the only page of the CBA included in Exhibit B. Plaintiff has alleged that, pursuant to the Collective Bargaining Agreement, presumably the version in effect in 2013, Bristol Township is required to provide bargaining unit member employees with one hundred percent of accrued and unused vacation time upon resignation or retirement. (Am.Compl.¶ 90.) On that basis, and in light of Defendant Bristol Township's argument, it is likely that there was a Collective Bargaining Agreement in effect at the time that Plaintiff tendered his resignation, and that payment of accrued and unused vacation time was a term or condition of that agreement. However, as neither party has submitted documentation demonstrating that arbitration is the exclusive means by which Plaintiff may pursue that claim, Defendants' Motion to Dismiss Count Seventeen must be denied. I. ADEA Violation for Disparate Treatment (Counts XVIII, XIX, and XX) *19 Plaintiff asserts claims that Defendants violated the Age Discrimination in Employment Act (“ADEA”) as follows: (1) Defendants Bristol Township and Defendant McCauley failed and refused to process Plaintiff's FMLA application, even though they had done so for employees younger than Plaintiff; (2) Defendants Bristol Township and McCauley required Plaintiff to obtain a Second Certification of Employee's Serious Health Condition, even though they did not do so for employees younger than Plaintiff; (3) Defendants Bristol Township and McCauley refused to provide written notice that they considered Plaintiff's FMLA application incomplete, even though they had done so for employees younger than Plaintiff; (4) Defendants Bristol Township and McCauley failed to provide Plaintiff with payment for accrued and unused vacation time, even though they had done so for employees younger than Plaintiff; (5) all Defendants ordered Plaintiff to undergo “an illegal” Breathalyzer test during work hours, even though they did not subject employees younger than Plaintiff to “illegal” Breathalyzer tests during work hours despite suspicion of alcohol use; and (6) all Defendants threatened Plaintiff with termination or discipline for being absent from work in spite of his qualification for FMLA leave, when they did not similarly threaten employees younger than Plaintiff. (Am.Compl.¶ 263-68, 277-82.) Plaintiff further alleges that as a result of Defendants' conduct, Plaintiff's conditions of employment became so intolerable that a reasonable person in Plaintiff's situation would be forced to resign such that Plaintiff's resignation was involuntary and amounted to a constructive discharge. (Id. ¶¶ 272-73; 286-87; 296-97.) The ADEA provides that “[i]t shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1) (emphasis added). “In an ordinary employment termination case under the ADEA to establish a prima facie case of age discrimination at the first step of the McDonnell Douglas burden shifting framework a plaintiff must show that he or she: (1) was a member of the protected class, i.e., was over 40 [years old], (2) was qualified for the position, (3) suffered an adverse employment decision, and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir.2004). In the context of an ADEA claim where the plaintiff claims discrimination on grounds other than termination or failure to hire, the fourth element of the prima facie case can be satisfied with a showing that “a sufficiently younger person ... was not subjected to the adverse action.” See Madden v. Runyon, 899 F.Supp. 217, 223 (E.D.Pa.1995). “When, as here, a plaintiff alleges that he has suffered age discrimination predicated on disparate treatment, liability under the ADEA depends on whether age ‘actually motivated the employer's decision.’ ” Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)) (additional citation omitted). *20 Defendants first argue that Plaintiff's ADEA disparate treatment claims must be dismissed based on case law which applies to disparate impact claims. (See Defs.' Mem. Supp. Mot. Dismiss 11-12.) As Defendants' argument applies the incorrect legal analysis, the Court does not address it. Defendants then argue in their Reply that Plaintiff's claims must be dismissed because he has failed to set forth any allegations either that he was replaced by a younger employee or that he was treated less favorably than younger comparators. (Defs.' Reply 6.) In fact, Plaintiff's Amended Complaint contains more than thirty paragraphs of allegations pertaining to his ADEA Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 57 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 claims, and, as Plaintiff points out, “[t]he specific younger employees who were treated more favorably than Plaintiff in similar situations are identified by initial.” (Pl.'s Sur- reply 10.) Defendants are correct, however, that Plaintiff does not allege that he was replaced by a younger employee. The absence of any such allegation results in a failure to establish a prima facie case for constructive discharge, but it is not fatal to Plaintiff's claim to the extent that his allegations establish that he was “otherwise discriminate[d]” against. Plaintiff should note that in order to prove the alleged ADEA violations, he will need to show that Defendants' conduct was motivated by age and that he experienced disparate treatment “because of” age. Nonetheless, Plaintiff has established a prima face case of disparate treatment under the ADEA, which is sufficient to survive a motion to dismiss. Thus, Defendants' Motion to Dismiss with respect to Counts Eighteen, Nineteen, and Twenty is denied. J. Punitive Damages Claims Finally, Defendants argue that Plaintiff's punitive damages claims must be dismissed on numerous grounds. Defendants first point out that punitive damages are not available under the ADEA or FMLA, which Plaintiff conceded in his Sur-reply. (See Defs.' Mem. Supp. Mot. Dismiss 12; Pl.'s Sur-reply 11.) Accordingly, Plaintiff's claims for punitive damages in connection with Counts Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Eighteen, Nineteen, and Twenty are dismissed. Defendants also assert that punitive damages are not available in connection with Plaintiff's breach of contract claim. (Defs.' Mem. Supp. Mot. Dismiss 12), an argument to which Plaintiff did not respond. Defendants are correct that according to Pennsylvania law, Plaintiff's claim for punitive damages in connection with Count Seventeen must be dismissed. See Johnson v. Hyundai Motor Am., 698 A.2d 631, 639 (Pa.Super.1997) (“The law of Pennsylvania clearly provides, however, that punitive damages are not recoverable in an action solely based upon breach of contract.”) (citing Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928, 932 (Pa.Super.1984)) (additional citation omitted); see also Yellow Transp., Inc. v. DM Transp. Mgmt. Servs., Inc., No. Civ.A. 06-1517, 2006 WL 2871745, at *4 (E.D.Pa. July 14, 2006) (noting that “punitive damages are unavailable for a breach of contract action under Pennsylvania law.”) (citations omitted). *21 Defendants also argue that Plaintiff's claims for punitive damages in connection with his § 1983 claims, for Fourth Amendment violations and his failure to train claim, must also be dismissed on the grounds that (1) punitive damages are not available against governmental entities or officers acting in their official capacities and (2) Plaintiff has not pled sufficient allegations against Defendants McCauley and Swichar to support punitive damages claims against them in their individual capacities. (Defs.' Mem. Supp. Mot. Dismiss 13.) Defendants are correct that Plaintiff may not assert punitive damages claims against Defendant Bristol Township or against Defendants McCauley and Swichar in their official capacities. See Smith v. Borough of Dunmore, 633 F.3d 176, 183 (3d Cir.2011) (stating that “a municipality is immune from punitive damages under 42 U.S.C. § 1983”) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir.1988) (“Punitive damages cannot be recovered from defendants in their official capacities.”). With respect to Plaintiff's claims for punitive damages against Defendants McCauley and Swichar in their individual capacities, Defendants argue that they were acting in their official capacities and that Plaintiff did not sufficiently allege “that their actions involved reckless or callous indifference to Plaintiff's federally protected rights.” (Defs.' Mem. Supp. Mot. Dismiss 13.) Plaintiff responds by arguing that Defendants McCauley and Swichar showed callous disregard for Plaintiff's Fourth Amendment right to be free from unreasonable search and seizure when they ordered that Plaintiff be required to take a Breathalyzer test without reasonable suspicion and in the absence of proper training for supervisors. (Pl.'s Resp. Opp'n Mot. Dismiss 37-38.) In order “for a plaintiff in a section 1983 case to qualify for a punitive award, the defendant's conduct must be, at a minimum, reckless or callous.” Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir.1989) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (“We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”)). “Punitive damages might also be allowed if the conduct is intentional or motivated by evil motive, but the defendant's action need not necessarily Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 58 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 meet this higher standard.” Id. At the motion to dismiss phase, and in light of Plaintiff's allegations supporting Counts Two and Three, the Court declines to dismiss Plaintiff's claim for punitive damages against Defendants McCauley and Swichar in their individual capacities for alleged violations of Plaintiff's Fourth Amendment rights. IV. CONCLUSION In light of the foregoing, Defendants' Motion to Dismiss is granted in part and denied in part. Defendants' Motion is granted with respect to Counts One, Four, Five, and Six, which are dismissed pursuant to Rule 12(b)(6). Defendants' Motion is denied with respect to Counts Two, Three, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, and Twenty. *22 An appropriate Order follows. ORDER AND NOW, this 25th day of March, 2015, upon consideration of the Motion to Dismiss by Defendants Bristol Township, William McCauley, and Scott Swichar (Docket No. 12), Plaintiff's Response in Opposition (Docket No. 13), Defendants' Reply (Docket No. 14), and Plaintiff's Sur-reply (Docket No. 15), it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows: 1. As to Counts II, III, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and XX of the Amended Complaint, the Motion is DENIED; As to Counts I, IV, V, and VI of the Amended Complaint, the Motion is GRANTED and those claims are DISMISSED. It is so ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 1345439, 2015 Wage & Hour Cas.2d (BNA) 179,813 Footnotes 1 In the “Parties” section of the Amended Complaint, Plaintiff also lists five John Doe Defendants and one Jane Doe Defendant who he is suing in their individual capacities and in their official capacities as Township Council Members for Bristol Township. (Id. ¶¶ 12-17.) Plaintiff does not indicate which, if any, of the factual allegations in the Amended Complaint are alleged as to the John and Jane Doe Defendants. 2 At that time, Plaintiff had been employed by Defendant Bristol Township for more than twelve months and had worked at least 1,250 hours in the previous twelve month period. (Am. Compl. ¶¶ 26-27 .) 3 In 2012, Bristol Township adopted the “Manager-Council” form of municipal governance, in which the Township Manager acts as the “chief executive and administrative official of the Township.” (Am. Compl. ¶ 53 (quoting Bristol Township Administrative Code § 5-15(L).) The Township Manager is responsible for “planning, organizing, administering, and directing all operations under the Jurisdiction of the Township.” (Id.) Defendant McCauley has been Acting Township Manager or Township Manager for Bristol Township since 2012. (Id. ¶ 54.) 4 Bristol Township adopted the policy pursuant to a Settlement Agreement not related to this case. (Id. ¶ 65.) 5 The factual allegations supporting Count One are also duplicative of those supporting Plaintiff's claim in Count Seven, the failure to train claim, which is discussed below in Section III.C. 6 The parameters of municipal liability are discussed more thoroughly below in Section III.C, which addresses Plaintiff's “failure to train” claim. 7 While Defendants argued for dismissal of Count One on other grounds, the Court need not address those arguments because Count One states an impermissible type of municipal liability claim. 8 Defendants assert that Plaintiff could be tested for drugs or alcohol in the absence of reasonable suspicion because of the nature of his job. Specifically, Defendants argue that because Plaintiff formerly held “a leadership position in the Department of Sewers' Treatment Plant,” he “cannot set [sic] a Fourth Amendment claim for submitting to a breathalyzer test.” (Defs.' Mem. Supp. Mot. Dismiss 4.) Contrary to Defendants' argument, Plaintiff's workplace conditions and Defendants' claimed “special needs” do not equate to a justification of suspicion-less testing like that which the Supreme Court found in Skinner and similar cases. Cf. Stanziale v. Cnty. of Monmouth, 884 F.Supp. 140, 147 (D.N.J.1995) (finding that “the nexus between the [sanitary] inspector's misconduct and the potential injury is too attenuated to justify the Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 59 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 removal of the protection afforded the employee by the individualized suspicion requirement,” that the sanitary inspector's “job responsibilities do not pose an immediate threat to the public,” and that unlike in cases such as Skinner, there would be an “opportunity to notice signs of impairment before significant harm occurs.”). As Defendants provide no elaboration regarding any safety considerations of Plaintiff's job position, or why suspicion-less testing was appropriate under the circumstances, this argument is not persuasive. Moreover, Bristol Township adopted a policy requiring reasonable suspicion before employees are subject to drug and alcohol testing. (See Am. Compl. ¶ 64.) The existence of that policy negates Defendants' arguments that Plaintiff could be subjected to testing without the presence of reasonable suspicion because of safety concerns. Defendants also argue that because Plaintiff submitted to a breath test, rather than a blood or urine test, privacy concerns are not implicated. But Defendants' assertion that Plaintiff's claim should be dismissed because a urinalysis test implicates greater privacy concerns than a breath test ignores the Supreme Court's statement that “[s]ubjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis ... implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search.” Skinner, 489 U .S. at 616-17 (citations omitted). Defendants are correct that the Court also stated “[i]n all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns.” That latter statement, however, does not require a conclusion that the lesser privacy concerns implicated by a breath test mean that a breath test is never a search subject to the requirements of the Fourth Amendment. (See Defs.' Reply 2 (quoting Skinner, 489 U.S. at 626).) 9 Defendants assert that “Plaintiff concedes that the administrator of the breathalyzer did find that reasonable suspicion existed.” (Defs.' Reply 2.) Plaintiff responds that Defendants' assertion is incorrect. (Pl.'s Sur-reply 3.) The Court is unable to locate any statement in the Amended Complaint or in Plaintiff's Response in Opposition that would constitute a concession by Plaintiff that Defendants had reasonable suspicion to require Plaintiff to submit to testing. 10 In support of that contention, Defendants cite an unpublished Southern District of Ohio case without providing any specific page citations or an indication of how that case supports their argument. (Id. (citing to Murray v. City of Columbus, No. 10-Civ.A.797, 2012 WL 4475718 (S.D.Ohio Sept.26, 2012).) Even if Defendants had explained how that case might apply to the circumstances here, it is not binding on this Court. 11 Defendants apparently did not attach the Collective Bargaining Agreement as an exhibit to their Motion to Dismiss the Amended Complaint. Nonetheless, as a portion of that document was attached as Exhibit B to their Motion to Dismiss the original Complaint, the Court will review the contents of the excerpted pages. 12 Plaintiff alleges that Defendants conducted a search even though they failed to locate Plaintiff within the VFW facility. (Am.Compl.¶ 143.) 13 In addition, Count Four, like Count One, is essentially a claim for municipal liability against Bristol Township based on respondeat superior liability, and is dismissible on that ground as well. 14 Plaintiff also argues that the failure to train claim applies to Defendants' conduct with respect to the “search” of the VFW. (See Pl.'s Resp. Opp'n Mot. Dismiss 20.) As Plaintiff's claims related to Defendant Swichar's entry into the VFW are dismissed, there is no underlying constitutional violation to support a failure to train claim on those grounds. 15 This aspect of Plaintiff's failure to train claim is not supported by the factual allegations in the Amended Complaint. As the other allegations supporting Count Seven are sufficient to withstand Defendants' Motion to Dismiss, however, this finding is not fatal to Plaintiff's claim. 16 As Plaintiff's Fourth Amendment claims with respect to the Breathalyzer test are not being dismissed, the Court does not address this aspect of Defendants' argument. 17 Plaintiff has only alleged one incident-his own-where the Bristol Township policy on drug and alcohol testing was violated since its adoption, and therefore the allegations in the Amended Complaint are insufficient to support municipal liability against the Township on the basis of a custom of ordering unconstitutional Breathalyzer tests for employees. See Doe v. Luzerne Cnty., 660 F.3d 169, 180 (3d Cir.2011) ( “Similarly, the record is devoid of any evidence that there has been a history of County employees mishandling the production of training videos or videotaping in general; indeed, there is no evidence that there has ever been another incident like the one [the plaintiff] experienced.”) (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (stating that a “single incident of unconstitutional activity” is generally insufficient to make out a claim unless there is proof that the incident “can be attributed to a municipal policymaker” ) (emphasis added)). As discussed below, Defendant McCauley is not a final decisionmaker, and thus is not a municipal policymaker. 18 An electronic version of the Administrative Code for the Township of Bristol is available at http://www.bristoltownship.o rg/Documents/Council% 20Adopted% 20Code_030212.pdf. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 60 of 195 Cichonke v. Bristol Tp., Not Reported in F.Supp.3d (2015) 2015 Wage & Hour Cas.2d (BNA) 179,813 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 19 Defendants argue in their Reply that because Plaintiff's certification was insufficient, he was therefore ineligible for FMLA, and that they provided him with both notice and a reasonable opportunity to correct it. (Defs.' Reply 5.) Defendants further assert that rather than correct his incomplete FMLA application, Plaintiff voluntarily resigned in order to begin his retirement. (Id.) At the motion to dismiss phase, Defendants' unsupported assertions cannot contradict Plaintiff's allegations in the Amended Complaint. 20 Defendants rely on Alifano v. Merck & Co. for the proposition that “[c]ourts have refused to recognize a valid claim for interference in the absence of any injury.” Alifano v. Merck & Co., 175 F.Supp.2d 792, 794 (E.D.Pa.2001). In that case, however, the plaintiff's complaint “[did] not allege that the [d]efendants denied her entitlement to leave nor does it allege that [d]efendants failed to restore her to her previous position. Thus, she ha[d] not successfully alleged any forfeiture of her FMLA rights .” Id. By contrast, Plaintiff alleged several ways that Defendants denied his entitlements to FMLA leave and several ways in which he was injured by Defendants' interference with his rights under FMLA. Accordingly, Defendants' reliance on Alifano is misplaced. 21 See also 29 U.S.C.A. § 2613 (“In any case in which the employer has reason to doubt the validity of the certification provided under subsection (a) of this section for leave under subparagraph (C) or (D) of section 2612(a)(1) of this title, the employer may require, at the expense of the employer, that the eligible employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (b) of this section for such leave.”). 22 “Because FMLA retaliation claims require proof of the employer's retaliatory intent, courts have assessed these claims through the lens of employment discrimination law. Accordingly, claims based on circumstantial evidence have been assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), while claims based on direct evidence have been assessed under the mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring).” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir.2012). At the motion to dismiss phase, Plaintiff need only establish a prima facie case of retaliation under FMLA. 23 As discussed above, Plaintiff's allegations satisfy the first element that he was qualified to take FMLA leave and that he had invoked his right to do so. 24 As previously stated, Defendants did not attach the Collective Bargaining Agreement as an exhibit to their Motion to Dismiss the Amended Complaint; however as a portion of that document was attached as Exhibit B to their Motion to Dismiss the Complaint, the Court will review the excerpted pages and consider their contents. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 61 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2005 WL 850855 United States District Court, D. Delaware. Michelle COLLIER, Plaintiff, v. TARGET STORES CORPORATION, Defendant. No. CUV. 03-1144-SKR. | April 13, 2005. Attorneys and Law Firms William D. Fletcher, and Noel E. Primos, of Schmittinger & Rodrigues, P.A., Dover, Delaware, for Plaintiff. Sherry Ruggiero Fallon, of Tybout, Redfearn & Pell, Wilmington, Delaware, for Defendant, Abbey G. Hairston, of Seyfarth Shaw, L.L.P., Washington, District of Columbia, of counsel. MEMORANDUM OPINION ROBINSON, Chief J. I. INTRODUCTION *1 On December 17, 2003 plaintiff Michele Collier instituted this litigation against defendant Target Stores Corporation, alleging in her complaint: (1) violation of the Family and Medical Leave Act (“FMLA”); (2) breach of the implied covenant of good faith and fair dealing; (3) violation of 19 Del. C. § 709; and (4) slander. (D .I. 1) On July 12, 2004, plaintiff filed a second lawsuit against defendant, alleging the same set of facts as in the first lawsuit, but including a new claim for alleged violation of the Americans with Disabilities Act (“ADA”). Based on a stipulation by the parties (D.I.30), this court consolidated the two lawsuits, thereby adding plaintiff's ADA claim to the present matter. This court has jurisdiction over plaintiff's FMLA and ADA claims under 28 U.S.C. § 1331 and over plaintiff's breach of the implied covenant of good faith and fair dealing, violation of 19 Del. C. § 709, and slander claims under 28 U.S.C. § 1367(a). Presently before the court is defendant's motion for summary judgment. (D.I.46) For the reasons set forth below, the court grants defendant's motion for summary judgment against plaintiff's ADA, breach of implied covenant of good faith and fair dealing, slander, and 19 Del. C. § 709 claims, but denies defendant's motion for summary judgment against plaintiff's FMLA claim. II. BACKGROUND In March 2001, defendant opened a new store in Dover, Delaware (the “Dover Store”). (D.I. 48, ex. 1 at A3) In addition to selling goods to the general public, the Dover Store also offered a pharmacy. Plaintiff was hired by defendant as Head Pharmacist in the Dover Store in December of 2000. (D.I. 1 at 2; D.I. 47 at 3) At or around the same time, Ellicia Weber (“Weber”) was transferred to the Dover Store as a part-time pharmacist. (D.I. 48 at A14-A15, A182) The pharmacy staff at the Dover Store included plaintiff, Weber, and pharmacy technicians. (D.I. 47 at 4-5; D.I. 48 at A8-A9) At all times relevant to this action, plaintiff was supervised by Area Pharmacy Manager Michael Thomas (“Thomas”), Store Team Leader James Bellamy (“Bellamy”), and Regional Human Resources Director Todd Landis (“Landis”). (D.I. 48 at A4, A172, A282-A283) During 2001, Bellamy and Thomas noted that plaintiff and Weber were having problems getting along. (D.I. 48 at A6-A14, A187-A189) On February 26, 2002, plaintiff submitted her resignation to Bellamy and Thomas. (D.I. 48 at A270) Thomas asked plaintiff to withdraw her resignation and she agreed. (D.I. 48 at A208-A210) In March 2002, plaintiff became aware that Weber had incorrectly filed a Class II narcotic prescription. (D.I. 48 at A18-A20, A191) Specifically, a customer received a generic prescription but did not like the medication and returned it to the pharmacy. Weber accepted the medication, which was a violation of Delaware law. (D.I. 48 at A18-A20, A192) Plaintiff reported the misfiling of the prescription to the Delaware State Board of Pharmacy (the “State Board”). (D.I. 48 at A298) Despite investigating the complaint, the State Board took no formal action against either Weber or defendant regarding this incident. (D.I. 48 at A196-A197) *2 In late March of 2002, plaintiff experienced migraine headaches and sought FMLA leave from April 3 through April 22. (D.I. 48 at A127-A128, A207) Neither Bellamy nor Landis were aware of the reason why plaintiff sought leave. (D.I. 48 at A39-A43, A301-A302) Thomas was aware that plaintiff's leave was taken due to stress, but was not told that the stress was work related. (D.I. 48 at A207- Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 62 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 A208) Plaintiff sought an extension of her FMLA leave up through May 13, 2002, which defendant approved. (D.I. 48 at A271-A272) In seeking the extended period of leave, plaintiff released her medical history to defendant. (D.I. 48 at A273) Plaintiff's physician filled out a statement indicating that plaintiff suffered from “major depression” and “generalized anxiety.” (D.I. 48 at A274) Plaintiff's physician had begun treating her for anxiety attacks in May 1998. (D.I. 48 at A275) While plaintiff was on leave, Thomas telephoned her at home. (D.I. 48 at A211-A212, A277) Since defendant had a policy of not contacting employees on leave, plaintiff filed a complaint regarding this call. (D.I. 48 at A214, A277-A278; D.I. 53 at B37) Although plaintiff was scheduled to return to work on May 13, 2002, she did not report for work or provide notice from her doctor of the need for additional leave. On May 13, Thomas sent an email to Landis inquiring whether he could “act fast and consider [plaintiff] a no show and abandoned her job [.]” (D.I. 53 at B1) Defendant contacted plaintiff and requested that she provide additional information to support her need for more leave. On May 16, 2002, while plaintiff was still on leave, Thomas sent an email to Landis inquiring whether he could remove plaintiff from the Pharmacy Third Party Committee (the “Committee”), 1 “as she has been unavailable to the team for many weeks.” (D.I. 48 at A280) On May 18, 2002, Landis responded by indicating that he supported removing plaintiff's Committee responsibilities. (D.I. 48 at A279) On May 24, 2002, plaintiff sent an email to Thomas confirming that she would not be back to work until June 24, 2002. (D.I. 48 at A335; D.I. 53 at B38) On June 7, 2002, defendant issued a new policy on pharmacy lunch breaks. The policy required that pharmacists remain in the store during their lunch period. (D.I. 48 at A340- A349) This policy was published on defendant's intranet and Weber informed plaintiff of the policy change when plaintiff returned to work on June 24, 2002. (D.I. 48 at A136) On July 23, 2002, Thomas verbally reprimanded plaintiff for allegedly not using “FFF” (“Fast, Fun, and Friendly”) communications with Weber. (D.I. 48 at A350) In an August 17, 2002 email, plaintiff confirmed that she was still having trouble communicating with Weber. (D.I. 48 at A351-A352) In October 2002, plaintiff closed the pharmacy during her lunch break in order to fill a prescription at another pharmacy. 2 In so doing, plaintiff violated defendant's policy on pharmacy lunch breaks. When plaintiff returned to the pharmacy, she was questioned by Rod Rodriguez (“Rodriguez”), Assets Protection Team Leader. (D.I. 48 at A232-A235) Thomas was present when Rodriguez confronted plaintiff about violating the store's policy. (D.I. 48 at A232) *3 Before any final decision was made regarding possible sanctions for plaintiff's violation of the pharmacy lunch break policy, plaintiff sought and obtained a second FMLA leave of absence. On October 10, 2002, plaintiff's doctor provided defendant with a note indicating that plaintiff needed two weeks of leave due to the “situation and stress work represents.” (D.I. 48 at A355) On October 14, 2002 Thomas sent an email to Landis stating plaintiff's leave of absence would “take her up to [her requested] vacation [time] (convenient)[.] It will be forever before we can address her!” (D.I. 53 at B3) On October 23, 2002, plaintiff's doctor provided additional information to support her request for leave extended beyond October 26, 2002 to November 23, 2002. (D.I. 48 at A356) Plaintiff then sought leave through January 1, 2003. (D.I. 48 at A358) Defendant approved these requests. (D.I. 48 at A357-A358) During plaintiff's second FMLA leave, Landis contacted her concerning certain checks she had presented to defendant which allegedly were returned for insufficient funds. (D.I. 48 at A376) Defendant classifies an employee's issuance of a dishonored check as a minor offense. (D.I. 48 at A373-A374) When plaintiff investigated the matter, she found that two of the checks were not accepted by defendant's bank because they had been presented electronically. (D.I. 48 at A376) Plaintiff returned to work on January 6, 2003, on a reduced work schedule of four hours per day for three to four days per week. (D.I. 48 at A377) Even though this reduced work schedule continued up until plaintiff ceased working for defendant, she continued to be paid as a full- time employee. 3 (D.I. 48 at A321-A322; A377-A381) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 63 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Sometime after plaintiff's return from her second FMLA leave, defendant installed a camera over the pharmacy so that activities of the pharmacy employees could be observed. (D.I. 48 at A64-A82, A147, A388-390; D.I. 53 at B14) On January 24, 2003, Bellamy and Landis met with plaintiff and provided her with two final warnings- one related to the passing of bad checks and the other related to violation of the policy regarding pharmacy lunch breaks. (D.I. 48 at A382-A384) In February 2003, defendant issued an evaluation of plaintiff's 2002 work performance (the “2003 Evaluation”). (D.I. 52 at 13; D.I. 53 at B6-B12) Plaintiff received an overall score of sixty-nine, which translated to “Satisfactory.” (D.I. 53 at B7) In plaintiff's only previous evaluation (the “2002 Evaluation”), she received a score in the eighties, which corresponded to “Excellent.” (D.I. 53 at B7, B98) In May 2003 plaintiff filed an incident report on Weber when Weber issued a medication with an improperly high dosage. (D.I. 48 at A82-A83, A151-A154) While plaintiff continued to work on a reduced schedule, Weber was charged with creating the work schedule for the pharmacy technicians. (D.I. 48 at A95, A157-A159, A245) One of the technicians complained to plaintiff about her schedule and plaintiff changed the schedule without consulting with Weber. (D.I. 48 at A157) On May 12, 2003, Thomas met with plaintiff and informed her that she was to leave the scheduling to Weber. (D.I. 48 at A391) *4 On June 2, 2003, plaintiff submitted her two weeks' notice. (D.I. 48 at A394-A395) Bellamy accepted her resignation and advised her that she need not report to work, but would be paid for the two weeks. (D.I. 48 at A97-A98, A161-A162, A328) III. STANDARD OF REVIEW A court shall grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then “must come forward with ‘specific facts showing that there is a genuine issue for trial.” ’ Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e)). The court will “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). IV. DISCUSSION A. The Family and Medical Leave Act Congress enacted the FMLA to help working men and women balance the conflicting demands of work and personal life. 29 U.S.C. § 2601(b)(1). The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: ... (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612. The FMLA also provides for “intermittent” leave, which allows an employee to take such leave intermittently when medically necessary. 29 U.S.C. § 2612(b). There are two types of claims an employee can bring against an employer under the FMLA, “interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, see 29 U.S.C. § 2615(a)(1), and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 64 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 (2); 29 C.F.R. § 825.220(c) (‘An employer is prohibited from discriminating against employees ... who have used FMLA leave.’).” Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206-07 (11th Cir.2001); see also Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir.2001); Thomas v. Pearle Vision, Inc., 251 F .3d 1132, 1139 (7th Cir.2001); Peter v. Lincoln Technical Inst., Inc., 255 F.Supp.2d 417, 438 (E.D.Pa.2002); Marrero v. Camden County. Bd. of Social Servs., 164 F.Supp.2d 455, 463 (D.N .J.2001). *5 Retaliation claims under the FMLA are analyzed under the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bearley v. Friendly Ice Cream Corp., 322 F.Supp.2d 563, 571 (M.D.Pa.2004); Baltuskonis v. U.S. Airways, Inc., 60 F.Supp.2d 445, 448 (E.D.Pa.1999); Lepore v. Lanvision Sys., Inc., No. 03-3619, 2004 WL 2360994, at *3 (3d Cir.2004). McDonnell Douglas sets forth a three-step analysis for retaliation claims. First, the plaintiff must establish a prima facie case of retaliation. A prima facie case of retaliation under the FMLA is established by showing: (1) plaintiff availed herself of a protected right under the FMLA; (2) plaintiff suffered an adverse employment action; and (3) there was a causal connection between the employee's protected activity and the employer's adverse employment action. Conoshenti v. Pub. Serv. Elec & Gas Co., 364 F.3d 135 (3d Cir.2004); Bearley, 322 F.Supp.2d at 571; Baltuskonis, 60 F.Supp.2d at 448. “After establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action.” Bearley, 322 F.Supp.2d at 571; see also Baltuskonis, 60 F.Supp.2d at 448. “Finally, if a legitimate non-discriminatory reason is provided, the plaintiff must present evidence to show that the defendant's proffered reasons were not its true reasons, but were merely a pretext for its illegal action.” Baltuskonis, 60 F.Supp.2d at 448; see also Bearley, 322 F.Supp.2d at 571. In order to survive summary judgment, a plaintiff must “either (i) discredit[ ] the [defendant's] proffered reasons ..., or (ii) adduc [e] evidence ... that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Torre v. Casio, 42 F.3d 825, 830 (3d Cir.1994) (discussing McDonnell Douglas shifting burden in an Age Discrimination in Employment Act (“ADEA”) case). Third Circuit opinions that have dealt with the FMLA have only involved termination of the plaintiff. Conoshenti v. Pub. Serv. Elec & Gas Co., 364 F.3d 135 (3d Cir.2004); Rinehimer v. Cemcolift, Inc., 292 F.3d 375 (3d Cir.2002); Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d 223 (3d Cir.2000); Churchill v. Star Enters., 183 F.3d 184 (3d Cir.1999); Victorelli v. Shayside Hosp., 128 F.3d 184 (3d Cir.1997); Lepore v. Lanvision Sys., Inc., No. 03- 3619, 2004 WL 2360994, at *3 (3d Cir.2004); Conroy v. Township of Lower Merion, No. 02-3217, 2003 WL 22121002 (3d Cir.2003); Katekovich v. Team Rent A Car, No. 00-2389, 2002 WL 1288766 (3d Cir.2002); Barcola v. Interim Healthcare Servs., Inc., No. 01-1993, 2002 WL 463286 (3d Cir.2002). Thus, the Third Circuit has not had the opportunity to explain what constitutes an adverse employment action under the FMLA. However, several Third Circuit opinions have examined the meaning of “adverse employment actions” under Title VII, the ADA, and the ADEA. *6 In order for retaliatory conduct to rise to the level of an adverse employment action under Title VII, it “must be serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment....” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir.1997). “An adverse employment action necessarily encompasses all tangible employment actions such as ‘hiring, firing, failing to promote, reassignment or a decision causing a significant change in benefits.” ’ Sherrod v. Phila. Gas Works, No. 02- 2153, 2003 WL 230709, *4 (3d Cir.2003) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)); see also Abramson v. William Patterson Coll., 260 F .3d 265, 288 (3d Cir.2001) (finding termination of employment is clearly an adverse employment action). Constructive discharge is also an adverse employment action. 4 Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir.1984). Paying an individual a lower salary for discriminatory reasons can also be an adverse employment action. Sherrod, 2003 WL 230709 at *4 (citing Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.2000)). Job transfers, even without loss of pay or benefits, may, in some circumstances, constitute an adverse employment action. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir.1999) (finding that each of two separate transfers, the first depriving a teacher of the opportunity to teach physics and the second placing the teacher in a “difficult school,” constituted adverse employment actions); DiIenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir.1998) (“Transfer to a job that an employer knows an employee cannot do may constitute adverse employment action for purposes of Title VII retaliation Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 65 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 action.”); Torre, 42 F.3d at 831 n. 7 (finding that transfer to a dead end job because of age may constitute an adverse employment action for ADEA claim); see also McGrenaghan v. St. Denis Sch., 979 F.Supp. 323 (E.D.Pa.1997) (finding an adverse employment action under the ADA where transfer resulted in “significantly diminished job responsibilities.”). The Third Circuit has found that oral and written reprimands are insufficient to establish an adverse employment action. Robinson, 120 F.3d at 1300 (finding that oral reprimands did not rise to the level of what Third Circuit cases have described as adverse employment action); Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (“Weston failed to establish how these two [written] reprimands effect a material change in the terms or conditions of his employment. We cannot, therefore, characterize them as adverse employment actions.”). Furthermore, “unnecessary derogatory comments” do not amount to adverse employment actions. Robinson, 120 F.3d at 1300 (3d Cir.1997) (finding that “unnecessary derogatory comments” do not rise to the level of what Third Circuit cases have described as adverse employment actions). *7 The Third Circuit also has not had the opportunity to discuss causation, the third step in the McDonnell Douglas burden shifting framework, for a FMLA claim. Once again, the Third Circuit's analysis of causation under Title VII, the ADA, and the ADEA provides helpful guidance. Cases examining causation under Title VII, the ADA, and the ADEA have often focused on the “temporal proximity between the employee's protected activity and the adverse employment action, because this is an obvious method by which a plaintiff can proffer circumstantial evidence ‘sufficient to raise the inference that her protected activity was the likely reason for the adverse action.” ’ Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997) (citing Zanders v. Nat'l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir.1990)). In Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989), the Third Circuit found that where an alleged retaliatory action occurred two days after the plaintiff engaged in a protected activity, the plaintiff demonstrated a causal link. However, the Third Circuit has subsequently limited the applicability of Jalil: We believe that, if Jalil is to be interpreted as holding that timing alone can be sufficient [to establish causation], that holding must be confined to the unusually suggestive facts of Jalil. Thus, even if timing alone can prove causation where the discharge follows only two days after the complaint, the mere fact that the adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events. Robinson, 120 F.3d at 1302; see also Weston, 251 F.3d at 431 n. 5. B. FMLA Analysis With respect to the FMLA, plaintiff only alleges a retaliation claim against defendant. (D.I. 1 at 6; D.I. 52 at 16) There is no dispute that the first element of a prima facie case of retaliation has been established. Plaintiff and defendant are in agreement that on two separate occasions, plaintiff took leave under the FMLA. (D.I. 47 at 7, 11; D.I. 52 at 7, 9). Plaintiff has identified the following adverse employment actions: (1) Bellamy's “constant” harassment of plaintiff 5 (D.I. 52 at 18); (2) Bellamy's reference to plaintiff as “psycho” and “mental” in conversations with management level employees and a temporary pharmacist (id.); (3) Bellamy's “invasion of plaintiff's privacy” by having a camera installed to surveil plaintiff's work (id.); (4) the final warnings that plaintiff received (id. at 19); (5) the 2003 Evaluation, which was lower than the 2002 Evaluation (id.); (6) relieving plaintiff of her scheduling duties and her Committee position (id.); (7) instigation of a false incident report filed by Weber against plaintiff (id. at 19); 6 (8) plaintiff's constructive discharge (id.); (9) Thomas' call to plaintiff's home while she was on leave (id. at 20); and (10) verbal reprimands for alleged negative communications with Weber (id.). *8 Of the adverse employment actions identified by plaintiff, only her claim of being constructively discharged is “serious and tangible enough” to be considered as altering plaintiff's terms, conditions or privileges of employment. Robinson, 120 F.3d at 1300-01. 7 Moreover, the court finds that plaintiff has adduced minimally sufficient evidence 8 to support the inference that she Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 66 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 was in fact constructively discharged and that there is a causal connection between her discharge and her FMLA leave, when considering the totality of the circumstances described by plaintiff during her employment in 2002- 2003. Having demonstrated a prima facie case of retaliation under the FMLA, it is defendant's burden to articulate a legitimate, nondiscriminatory reason for the employment action. In this regard, defendant denies the allegations that derogatory comments were made and argues in large measure that it was justified in its responses to plaintiff's job performance as Head Pharmacist. Especially in light of defendant's arguments that plaintiff's 2003 Evaluation and the change in her job responsibilities were due, at least in part, to her long absences from work (when she happened to be on FMLA leave), the court declines to make the credibility determinations a jury should make under these circumstances, and concludes that there are genuine issues of material fact that preclude the entry of a summary judgment in favor of defendant. C. Americans with Disabilities Act The ADA prohibits discrimination by an employer against a “qualified individual.” 42 U.S.C. § 1112 (2003). To establish a prima facie case, a plaintiff must demonstrate that: (1) she has a disability within the meaning of the statute; (2) she is otherwise qualified to perform the essential functions of the job, with or without accommodations by the employer; and (3) as a result of her disability, she has suffered an adverse employment action. See Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751 (3d Cir.2004); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000); Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir.1998). The ADA defines a disability as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (c) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2003). In the present case, plaintiff claims relief under the third classification of covered individuals, namely, those who are regarded as having a substantially limiting impairment. 9 (D.I. 52 at 24) To be “disabled” under the “regarded as” portion of the ADA's definition of disability, plaintiff must demonstrate either that: (1) although she had no impairment at all, defendant erroneously believed that she had an impairment that substantially limited major life activities; or (2) she had a non-limiting impairment that the defendant mistakenly believed limited a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514 (3d Cir.2001). *9 Plaintiff claims that defendant, through its agent Bellamy, regarded plaintiff as having a disability. (Id.) Specifically, plaintiff states, “Bellamy constantly referred to [p]laintiff as ‘psycho’ and ‘mental’ both with management-level employees and with those assigned to substitute for [p]laintiff during her periods of leave.” 10 (Id.) Plaintiff claims that “it is certainly plausible that Bellamy regarded [p]laintiff as having a severe mental impairment, and that this constituted at least a partial and substantial motivation in the numerous and adverse employment actions ... that Bellamy took against plaintiff.” (D.I. 52 at 24) The record does not support plaintiff's position in this regard. The Siler affidavits, plaintiff's sole source of evidence that Bellamy made these statements (D.I. 52 at 10), classified Bellamy's statements as “derogatory,” suggesting that Bellamy did not genuinely believe that plaintiff suffered a mental impairment. (D.I. 53 at B13) Indeed, the record, seen in a light most favorable to plaintiff, indicates that Bellamy expressed frustration and anger over plaintiff's FMLA leave, that plaintiff was getting paid to sit at home during the holidays while other employees were working, and that plaintiff was abusing the system for reasons that had nothing to do with a valid medical condition. (D.I.59) Consequently, the record demonstrates that if Bellamy did refer to plaintiff as “psycho” and “mental,” he did so disparagingly, and did not believe that plaintiff suffered a serious mental impairment. As a result, the court grants defendant's motion for summary judgment with respect to plaintiff's ADA claim. D. Implied Covenant of Good Faith and Fair Dealing Under the common law, an employee is considered “at- will” and may be dismissed from employment at any time without cause and regardless of motive. See Merrill v. Crothall-Am., Inc., 606 A.2d 96 (Del.Super.1992). Delaware law, however, has evolved from the harshness of the “employment-at-will” doctrine. It now recognizes a limited implied covenant of good faith and fair dealing Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 67 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 exception to protect at-will employees from wrongful termination. Id. Nevertheless, the Delaware Supreme Court has limited the application of this exception to four narrowly defined categories: (1) where the termination violated public policy; (2) where the employer misrepresented an important fact and the employee relied thereon either to accept a new position or to remain in her present one; (3) where the employer used its superior bargaining power to deprive an employee of clearly identifiable compensation related to the employee's past services; and (4) where the employer falsified or manipulated employment records to create fictitious grounds for termination. Lord v. Souder, 748 A.2d 393, 400 (Del.2000) (citing E.I. Dupont de Nemours & Co. v. Pressman, 679 A.2d 436, 442-44 (Del.Super.1996)). “Plaintiff's breach [of implied covenant of good faith and fair dealing] claim rests squarely under the first category, the public policy exception.” (D.I. 52 at 25) The court, therefore, focuses its analysis solely on whether defendant's alleged constructive discharge of plaintiff violated public policy. *10 To demonstrate a breach of the covenant of good faith and fair dealing under the public policy category, an employee must satisfy a two-part test: (1) the employee must assert a public interest recognized by some legislative, administrative, or judicial authority; and (2) the employee must occupy a position with responsibility for advancing or sustaining that particular interest. Lord, 748 A.2d at 401 (citing Pressman, 679 A.2d at 441- 42). The parties agree for purposes of this motion that plaintiff was in a position with responsibility for ensuring that defendant's pharmacy operated in compliance with Delaware law, thereby satisfying the second prong of the two-part test. (D.I. 47 at 28; D.I. 52 at 26) Consequently, the court need only decide the first prong, namely, whether defendant terminated plaintiff's employment in violation of a clearly mandated public policy recognized by some legislative, administrative or judicial authority. (D.I. 47 at 28-29; D.I. 2 at 26) Plaintiff claims she was subjected to severe harassment in retaliation for reporting to the State Board that Weber accepted a returned generic narcotic medication and substituted a brand-name narcotic medication without contacting the physician for the issuance of a new prescription. (D.I. 52 at 26) Plaintiff claims the following acts were harassment: (1) Thomas telling her that she should have pushed the medication to the back of the safe rather than reporting the problem to the State Board (D.I. 53 at B33-B34); (2) Thomas telling plaintiff that she handled the situation improperly (id. at B35); (3) Thomas telling plaintiff that he was not disturbed by Weber's failure to know all of Delaware's pharmacy laws (id. at B86); (4) Thomas removing plaintiff from the Committee (id. at B38-B39); (5) Thomas verbally reprimanding plaintiff for negative communications with Weber (id. at B2, B88-B89); (6) Thomas' email expressing a desire to “act fast and consider [plaintiff] a no show and abandoned her job[ ]” (id. at B1). Plaintiff claims these activities amounted to constructive discharge in violation of public policy. Even assuming that these acts amount to harassment, plaintiff has not produced any evidence that she experienced this harassment because she fulfilled her responsibilities pursuant to Delaware law. Consequently, plaintiff has failed to show she was terminated in violation of public policy. E. Slander and 19 Del. C. § 709 Plaintiff claims that defendant violated 19 Del. C. § 709 11 by providing false and misleading information to prospective employers of plaintiff. (D.I. 1 at 8) Plaintiff also claims that defendant slandered plaintiff by making false oral statements to plaintiff's potential employers. (D.I. 1 at 9; D.I. 52 at 28) After plaintiff ceased working for defendant, she completed two rounds of interviews with a prospective employer, the Delaware Hospital for the Chronically Ill (“DHCI”). (D.I. 53 at B56) According to plaintiff, DHCI initially expressed interest in hiring plaintiff, but this interest abruptly ended after representatives of DHCI spoke with a male member of management at the Dover Store. (Id.) Plaintiff claims to have subsequently spoken with two male managers at the Dover Store other than Bellamy, and each of these male managers stated they had not been contacted by a representative of DHCI. (Id.) Plaintiff surmises that “Bellamy was likely the only other mal[e] manager at the Dover [S]tore.” (D.I. 52 at 28) However, plaintiff admits that she is not certain, one way or the other, whether Bellamy provided any information to DHCI and, if he did, what information was provided. (D.I. 53 at B56) Consequently, plaintiff has failed to establish a genuine issue of material fact for both her slander and her 19 Del. C. § 709 claims. See, e.g., Layfield v. Beebe Med. Ctr., Inc., No. 95C-12-007, 1997 WL 716900, *7 (Del.Super.Ct.1997) (“Plaintiff fails to identify Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 68 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 a specific false or defamatory communication made by any Beebe employee to a third party.... [S]imply alleging that there is circumstantial evidence of defamation is insufficient to overcome Beebe's motion for summary judgment, because [p]laintiff must allege specific facts which demonstrate a genuine issue of material fact.”). Defendant's motion to dismiss plaintiff's slander and 19 Del. C. § 709 claims is granted. V. CONCLUSION *11 For the reasons set forth above, the court grants defendant's motion for summary judgment against plaintiff's ADA, breach of implied covenant of good faith and fair dealing, slander, and 19 Del. C. § 709 claims. The court denies defendant's motion for summary judgment against plaintiff's FMLA claim. An appropriate order shall issue. ORDER At Wilmington this 13th day of April, 2005, consistent with the memorandum opinion issued this same date; IT IS ORDERED that: 1. Defendant's motion for summary judgment against plaintiff's ADA, breach of implied covenant of good faith and fair dealing, slander, and 19 Del. C. § 709 claims (D.I.46) is granted. 2. Defendant's motion for summary judgment against plaintiff's FMLA claim (D.I.46) is denied. All Citations Not Reported in F.Supp.2d, 2005 WL 850855, 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 Footnotes 1 The Pharmacy Third Party Committee was responsible for marketing to help drive pharmacy sales, and to help pharmacists at other stores with third-party (i.e., insurance) billing questions. (D.I. 47 at 8; D.I. 52 at 7) 2 Defendant had a policy forbidding pharmacists from filling their own prescriptions. (D.I. 53 at B41) 3 Plaintiff contests this statement, alleging that she returned to full-time status before she ceased working for defendant. However, plaintiff fails to point to any evidence to support her position. In contrast, defendant points to several notes from plaintiff's psychiatrist from January 27, 2003 through plaintiff's last day working for defendant which only allowed plaintiff to work part-time. (D.I. 48 at A378-A381) 4 Under Title VII, an employer constructively discharges an employee if “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984). 5 Plaintiff described “constant” harassment as including “a two and one-half hour meeting in January 2003 (soon after [p]laintiff had returned from taking her second FMLA leave), when Bellamy called plaintiff a ‘b-ch’ and told [p]laintiff that she was “nasty” and ruined [Bellamy's] life and career, as well as instruct[ed] other employees to ostracize [p]laintiff.” (D.I. 52 at 18) 6 The court finds this allegation is not supported by the record. See D.I. 53 at B54. 7 Third Circuit caselaw indicates that derogatory statements and verbal reprimands do not amount to adverse employment actions. Robinson, 120 F.3d at 1300; Weston, 251 F.3d at 431. Similarly, such conduct as a single telephone call in violation of company policy and the installation of surveillance cameras in the general work place do not constitute tangible alterations in plaintiff's conditions or privileges of employment. There is no evidence of record that plaintiff's 2003 Evaluation had a tangible effect on her compensation. Finally, there is no convincing evidence of record that the scheduling duty and the Committee position were significant enough responsibilities among those plaintiff held as Head Pharmacist that relieving her of these duties while she was on leave constituted an adverse employment action. Of course, this conduct may be considered in evaluating plaintiff's claim of constructive discharge. 8 In addition to her allegations in this regard, plaintiff has presented two affidavits of Joan Siler, a former Target employee, in support of her allegations. (D.I.57, 59) To the extent that Ms. Siler avers to her knowledge of facts, the affidavits shall be considered by the court for purposes of the motion practice. To the extent Ms. Siler draws legal conclusions from these Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 69 of 195 Collier v. Target Stores Corp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1192, 16 A.D. Cases 1319, 30 NDLR P 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 facts, the court has not considered such. Defendant's motion to strike (D.I.60) is granted in this regard, but otherwise denied, as Ms. Siler was sufficiently identified through discovery. Plaintiff's motion for leave to file (D.I.64) is granted, consistent with the above. 9 Plaintiff concedes that, given the current state of ADA law, it would be difficult for her to establish that she has a physical or mental impairment that substantially limits one or more of her major life activities. (D.I. 52 at 24) According to plaintiff, her “life history since her constructive discharge by [d]efendant has exhibited an improvement of her mental health. Thus, given the apparent non-permanence of her mental impairment, it is unlikely that she could establish an actual substantial limitation of one or more of her major life activities due to the impairment.” (Id.) 10 Bellamy, however, denies having ever made such statements. (D.I. 53 at B100-B101) Furthermore, Jane Webb testified in her deposition that she never heard Bellamy refer to plaintiff as “psycho” or “mental.” (D.I.57, ex. 23) 11 According to 19 Del. C. § 709: An employer or any person employed by the employer who discloses information about a current or former employee's job performance to a prospective employer is presumed to be acting in good faith; and unless a lack of good faith is shown, is immune from civil liability for such disclosure or its consequences ... the presumption of good faith may be rebutted upon a showing that the information of good faith by such employer was knowingly false, was deliberately misleading or was rendered with malicious purpose.... Plaintiff does not provide, and the court is unaware of, any precedent applying 19 Del. C. § 709. Consequently, it remains unclear what plaintiff's burden of proof is under 19 Del. C. § 709. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 70 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 4093696 United States District Court, W.D. Virginia, Harrisonburg Division. Christy B. DOWNS, Plaintiffs, v. WINCHESTER MEDICAL CENTER, et al., Defendants. Civil Action No. 5:13cv00083. | Signed Aug. 18, 2014. Attorneys and Law Firms Annette Kay Rubin, Law Office Of Annette Kay Rubin, Leesburg, VA, for Plaintiffs. Andrew Baugher, Cathleen P. Welsh, Lenhart Pettit, Harrisonburg, VA, for Defendants. MEMORANDUM OPINION MICHAEL F. URBANSKI, District Judge. *1 This matter is before the court on defendants Valley Health System's and Valley Regional Enterprises, Inc.'s (collectively “Valley Health”) 1 motion to for summary judgment. Dkt. No. 79. In this matter, plaintiff Christy B. Downs (“Downs”) alleges that Valley Health, her former employer, unlawfully retaliated against her for exercising her rights under the Family Medical and Leave Act, 29 U.S.C. §§ 2601 et seq., (“FMLA”), and discriminated against her in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (“ADA”). For the reasons stated herein, the court will GRANT defendants' motion. I. Downs worked at Valley Health for approximately sixteen years. From 1994-1999 she worked as a secretary. In 1999, she transferred to a new office and became the executive secretary (or “executive assistant”) to Frank Heisey, the President of Valley Regional Enterprises, Inc. Heisey retired in 2008. He was succeeded by Dena Kent in 2009, and Downs then worked as Kent's executive secretary. However, Heisey temporarily returned to the position when Kent had to take medical leave due to a cancer diagnosis. Kent returned to work full time in November of 2009. Also in 2009, Downs, at Kent's suggestion, began using FMLA leave due to migraine headaches. Valley Health paints a picture of Downs as a rather poor employee: frequently late to work, often having unexcused absences (not including her FMLA absences), unable to complete her work in a timely manner, and sometimes making critical errors. Downs, for her part, maintains that she received good performance reviews until Kent grew tired of her increased FLMA usage. As evidence of Kent's animus towards her, Downs points to her allegations that Kent frequently subjected her to demeaning comments about her “never being” at work. The evidence reflects that Downs did receive “generally exceeds standards” performance evaluation scores in 2009 and 2010. However, these same evaluations, along with Downs' corresponding self-evaluations, noted certain performance issues-namely tardiness and unscheduled absences as well as failing to complete certain tasks in a timely manner. See generally, Kent Dep. Exs., Dkt. No. 87-16, at Ex. 13 (Downs 2009 Self-Evaluation); id. at Ex. 19 (Downs 2010 Performance Evaluation); id. at Ex. 20 (Downs 2010 Self-Evaluation); Exs. to Resp. in Opp'n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 2 (Downs 2010 Performance Evaluation); id. at Ex. 8 (Down 2009 Performance Evaluation). In fact, after her 2009 evaluation, Heisey placed Downs on a sixty day “action plan” to improve her performance, which was later extended to a ninety day plan. Kent Dep. Exs., Dkt. No. 87-16, at Ex. 11; Downs Dep. Exs., Dkt. No. 87-18, at Ex. 20. In August of 2010 Kent gave Downs a written “corrective action” for poor attendance. Kent Dep. Exs., Dkt. No. 87-16, at Ex. 22. As a result, Downs was placed on another ninety day “action plan.” Kent gave Downs a second “correction action” for poor attendance in February of 2011. Id. at Ex. 24. Downs was then “written up” in April of 2011 for not completing work in a timely manner and missed “punches” on her time card, i.e., tardiness. Down Dep. Exs., Dkt. No. 87-18, at Ex. 35. Around March of 2011, Downs' migraines increased and she consequently increased her usage of FMLA leave. Downs Dep., Dkt. No. 87-17, at 196:24-197:4. In June of 2011, Downs' received another performance evaluation, which reflected a decrease from her performance in 2009 and 2010. She Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 71 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 received only a “meets standards” performance evaluation score and Kent wrote that “overall [Downs] has declined in her performance over the last year in almost all aspects of her job.” Kent Dep. Exs., Dkt. No. 87-16, at Ex. 25. *2 The penultimate week of June 2011, Downs emailed Elizabeth Savage-Tracy (“Savage”), the Vice President of Human Resources (“HR”). Downs stated that she felt she was being treated unfairly due to her use of FMLA leave and that a request she had made for annual paid leave (“APL”) had been cancelled because of her FMLA usage. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 9. Savage responded via email on June 28, 2011. Id. at Ex. E. In her email, Savage stated that “the FML[A] [leave] you have taken in the past only plays a role in approval or denial of an APL request to the extent that you deplete your paid leave accruals whenever you take FML[A] [leave] and may not have sufficient APL available to cover vacation” 2 or “because prior FML[A] [leave] delayed projects or work such that additional non- FML[A] APL cannot be justified in order to meet the organization's business needs.” Id. Savage stated “[w]e do not punish employees for taking FML[A], however, that leave can affect [sic] non-FML[A] leave requests under the circumstances described above.” Id. Ultimately, Savage recommended that Kent conditionally approve Downs' APL request subject to Downs accruing the full amount of APL necessary prior to its start and “getting her work caught up and sustaining her established work standards.” Id.; see also id. at ¶ 11. In August of 2011 Kent began discussing Downs' performance with the HR Department. Kent crafted a document outlining what she believed to be Downs' inadequate job performance entitled “Corrective Action Suspension or Termination? ? ?” Kent Dep. Exs., Dkt. No. 87-16, at Ex. 33. Significantly, at this time Kent was also communicating with legal counsel about Downs' employment situation by phone and by email. Kent Dep., Dkt. No. 87-15, at 250:17-251:9. However, HR never made a decision on what if any action to take based on Kent's assessment of Downs' performance. Instead, Downs was terminated after she was confronted about unauthorized access of Kent's email. The events regarding Downs' access of Kent's email began on August 17, 2011. After Kent had been communicating with legal counsel about Downs' possible termination via email, Downs sent a rebuttal of her 2011 evaluation and the two corrective actions from August 2010 and February 2011 to Kent and to the HR Department. See Exs. to Resp. in Opp'n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 4. In her rebuttal, she asserted that she understood that her job was in jeopardy, but that she had not any “write ups” for sixteen years at Valley Health and that “when FML[A] [leave] is introduced all of a sudden every little thing is being written up and [she] has performance issues which were not present before.” Id. She also stated that she and Kent could “make a great team if [they] could get past the harsh feelings [her] being out on FML[A] [leave] has caused.” Id. The next day, Downs spoke with another executive secretary, Patricia Shanholtz. She told Shanholtz that Kent was “talking to an attorney and trying to figure out a way to get rid of her.” Shanholtz Aff., Dkt. No. 87- 4, at ¶ 14. Shanholtz believed that Downs had acquired this information by reading Kent's email and informed Kent of the conversation. Id. Kent testified that she did not understand how this was possible, as she had recently changed her email password. Kent then contacted Savage. Shanholtz, Kent, and Savage investigated Kent's email settings. They discovered that Downs was also listed as an “owner” of Kent's Microsoft Outlook email account, giving her unrestricted access to Kent's email inbox and all of her emails. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 12; Shanholtz Aff., Dkt. No. 87-4, at ¶ 15; Kent Dep., Dkt. No. 87-15, at 202:13-203:1. That same day, Valley Health's Information Technology (“IT”) Department investigated Downs' email usage and found that she had forwarded emails outside its internal network to her personal email addresses and other non-Valley Health email accounts in violation of Valley Health policy. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 13; Huffman Aff., Dkt. No. 87-8, at ¶ 6; Kent Dep., Dkt. No. 87-15, at 208:18-209:17. *3 The following morning, Downs was called into a meeting with Kent, Savage, and Chuck Walton (“Walton”), the HR representative for Valley Regional Enterprises, Inc. Kent Dep., Dkt. No. 87-15, at 215:1- 14. At the meeting, Downs freely admitted accessing Kent's email inbox “daily” but claimed it was with Kent's authorization and that it was Kent who, with Downs' assistance, listed Downs as an additional “owner” of her account when she had returned from medical leave in 2009. Kent denied doing this. Id. at 216:3-18; Downs Dep., Dkt. No. 87-17, at 287:2-288:14. Downs and Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 72 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Kent argued, and Walton informed Downs that she was suspended. Downs Dep., Dkt. No. 87-17, at 289:19-290:7. Downs submitted her resignation that day, Exs. to Resp. in Opp'n to Mot. for Summ. J., Dkt. No. 91-1, at Ex. 5, but Valley Health rejected it by a letter from Savage dated August 23, 2011. See Savage-Tracy Aff., Dkt. No. 87-2, at Ex. F. In relevant part, Downs' termination letter states that Valley Health is “deeply disappointed that you were reading your supervisor's email, acting as her surrogate in Outlook without her knowledge, and forwarding Valley Health information to your multiple personal email address.” Id. The letter notes that Kent “disputes that she knew that you had access to her Outlook account,” but continues on to say: Regardless of how you accessed these emails, as soon as you saw one email related to your own personal personnel situation or from which you would know that your supervisor was not aware that you had this access, you had an ethical and professional obligation to go to her and let her know that you had access to these confidential emails. Your failure to do so is inexcusable and ... surreptitiously reviewing these emails and forwarding Valley Health information outside of its secure network to your multiple personal email addresses plainly calls your character into question. Id. Downs continues to strongly assert that Kent had given her access to her inbox and that, furthermore, her ability to access to Kent's email inbox was widely known by other Valley Health employees and was in fact essential to her job as Kent's executive secretary. Indeed, she repeatedly made this assertion, at times going into great detail, throughout her deposition. See, e.g., Downs Dep., Dkt. No. 87-17, at 166:4-167:5; id. at 168:17-24; id. at 172:4- 9; id. at 172:13-25; id. at 183:23-25; id. at 184:1-6; id. at 233:11-15; id. at 234:8-14; id. at 235:14-20. 3 Valley Health vehemently denies that Kent ever gave Downs access to her email account, an assertion echoed by Kent at her deposition. Kent Dep., Dkt. No. 87-15, at 216:11 (“I did not give [Downs] inbox access ever.”); see also id. at 204:8-19; id. at 207:7-15; id. at 229:18-20. In any event, it is undisputed that Downs was not permitted to access emails in Kent's inbox regarding her own personal personnel situation; it is likewise undisputed that Downs was obligated to inform Kent if she did in fact access such an email. Downs Dep., Dkt. No. 87-17, at 297:4-16. II. *4 Pursuant to Federal Rule of Civil Procedure 56(a), the court must “grant summary judgment if the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir.2013). When making this determination, the court should consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with ... [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.2011)). Indeed, “[i]t is an ‘axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’ “ McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S Ct. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 73 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 1861, 1863 (2014) (per curiam)). Moreover, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge....” Anderson, 477 U.S. at 255. However, the nonmoving party “must set forth specific facts that go beyond the ‘mere existence of a scintilla of evidence.’ “ Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that “there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party.” Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.2005) (quoting Anderson, 477 U .S. at 249). The FMLA provides both substantive, i.e., prescriptive rights, along with proscriptive protections against retaliation for the exercise of such rights. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir.2006). Claims alleging violations of proscriptive FMLA rights are known as “retaliation” or “discrimination” claims. Id. “To succeed on an FMLA retaliation claim, a plaintiff must prove: ‘(1) that [s]he engaged in protected activity, (2) that the employer took adverse action against [her], and (3) that the adverse action was causally connected to the plaintiff's protected activity.’ “ Greene v. YRC, Inc., No. CIV.A. MJG-13-0653, 2013 WL 6537742, at *8 (D.Md. Dec. 12, 2013) (quoting Yashenko, 446 F.3d at 551). An FMLA retaliation claim also requires proof retaliatory intent. Bosse v.. Baltimore Cnty., 692 F.Supp.2d 574, 588 (D.Md.2010) (quoting Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006)); see also Edusei v. Adventist Healthcare, Inc., No. CIV.A. DKC 13-0157, 2014 WL 3345051, at *5 (D.Md. July 7, 2014) (quoting Bosse, 692 F.Supp.2d at 588) (same); Ainsworth v. Loudon Cnty. Sch. Bd., 851 F.Supp.2d 963, 977 (E.D.Va.2012) (quoting Bosse, 692 F.Supp.2d at 588) (same). To succeed on her ADA discrimination claim, Downs “must prove that: (1) she was disabled as defined in the ADA; (2) she was a ‘qualified individual’ for the employment in question; and (3) her employer discharged her or took other adverse employment action against her because of her disability. Shively v. Henry Cnty., Va., No. 4:10-CV- 00053, 2011 WL 3799548, at *4 (W.D.Va. Aug. 29, 2011) (citing E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.2000)). *5 Both FLMA retaliation claims and ADA discrimination claims are analyzed under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792. See Perry v. Computer Sciences Corp., 429 F. App'x 218, 219-20 (4th Cir.2011) (unpublished per curiam opinion) (citing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir.2006); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, 53 F.3d 55, 57-58 (4th Cir.1995)) (holding that the McDonnell Douglas framework applies to ADA discrimination and retaliation claims); Yashenko, 446 F.3d at 551 (holding that the McDonnell Douglas framework applies to FMLA retaliation claims). “Under the McDonnell Douglas proof scheme, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence.” Ennis, 53 F.3d at 58. “If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory explanation which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Id. “If the defendant meets this burden of production, the presumption created by the prima facie case ‘drops out of the picture,’ and the plaintiff bears the ultimate burden of proving that she has been the victim of intentional discrimination.” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). Bennett v. Kaiser Permanente, 931 F.Supp.2d 697, 713-14 (D.Md.2013). 4 III. Valley Health first argues that Downs' poor performance is a legitimate non-discriminatory reason for her termination. The problem with this argument, Downs counters, is that she was not terminated for poor performance. The court agrees. Poor performance is nowhere mentioned in Downs' termination letter. See Savage-Tracy Aff., Dkt. No. 87-2, at Ex. F. Indeed, elsewhere in its own pleadings Valley Health seems to concede that, while poor performance may have been part of the background for the decision, it was Downs' email usage that prompted her termination. See, e.g ., Am. Br. in Supp. of Summ. J., Dkt. No. 87, at 2 (“Downs' conduct violated numerous policies governing the terms and conditions of her employment and resulted in her discharge in short order.”); id. at 14 (“Downs' access of Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 74 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Kent's e-mail, her review of Kent's confidential e-mails, her forwarding of Kent's e-mails to her own personal e- mail accounts, and her failure to let Kent know that she had read her confidential e-mails violated multiple policies governing her employment, including those listed above. As a result of these policy violations, Savage decided to terminate Downs' employment.”); Reply Br. in Supp. of Summ. J., Dkt. No. 92, at 4 (“Defendants terminated Downs based solely on her knowing failure to comply with their policies, after months of underperforming in her job.”); id. at 15 (“Downs' performance was spiraling downward, and she was terminated for a plain violation of Defendants' employment policies, a violation that also resulted in the immediate termination of at least two other employees during the same time frame.”); id. at 19 (“Downs violated policy and was terminated”). *6 Downs argues that this case presents a genuine issue of disputed material fact because the parties disagree as to whether Downs had authority to routinely access Kent's email. A jury, she asserts, could reasonably conclude that Valley Health's proffered reason for her termination was a pretext for retaliating against her for her use of FMLA leave and discriminating against her based on her perceived disability. Downs also alleges that pretext may be inferred from the timing of her suspension. In particular, she argues that her August 19 suspension came only two days after she sent an email responding to concerns over her use of FMLA leave. This timing, Downs argues, is suggestive of pretext, and that the real motive for her suspension was retaliation for her exercise of FMLA rights. A close examination of the complete record, however, dispels the notion that either the timing of or the justification given for Downs' termination raises any reasonable inference of pretext. First, the timing of Downs' termination does not suggestion pretext as she alleges. To be sure, in and of itself, the two day gap between Down's email and her suspension naturally raises some eyebrows. When the complete record is examined, however, no suggestion of pretext is permissible from the timing alone. In her deposition, Downs admitted that she sent the August 17 email to stave off impending adverse employment actions she learned about by overhearing Kent's conversations with counsel and reviewing Kent's emails. Q: This is an August 17th, 2011 email. Do you recall this email? A: Oh, yeah. Q: And- A: Yes. Q:-this email was to Dena Kent. And why did you send this to her? A: Because between overhearing the conversation she had on the speaker phone about me and whatever she was talking about and accidentally seeing what I was supposed to not see, I felt like I hadn't submitted anything in my favor, that this two, three things that she had on me in my file didn't have me saying anything to the contrary. And therefore, if this went somewhere, somebody could say, “Well, you never disputed these things, so if you didn't dispute them, you must have agreed with them.” Downs Dep., Dkt. No. 87-17, at 276:8-24. Thus, the record reveals that Downs' email of August 17 was not so much an assertion of rights under the FMLA, but rather an attempt to use the FMLA to shield herself from impending adverse employment action. If this is suggestive of pretext by anyone, it is not on the part of Valley Health. Second, the justification given by Valley Health for Downs' termination likewise fails to suggest pretext. To be sure, Downs is quite correct that if her termination was based solely on general unauthorized access to Kent's inbox, there would be a jury question as to pretext and summary judgment would be inappropriate. Plainly, there is dispute of fact as to whether Kent gave Downs routine access to her email, as their testimony is contradictory on that issue. While Valley Health points to evidence that it argues corroborates Kent's version of events, a reasonable jury could find Downs' version more creditable. 5 *7 However, despite Downs' assertion to the contrary, the evidence clearly shows that she was not terminated merely for generally accessing Kent's inbox. While Downs' termination letter does mention that Kent disputes the fact that she had given Downs access to her inbox, it goes on to state that Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 75 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 [r]egardless of how you accessed these emails, as soon as you saw one email related to your own personal personnel situation or from which you would know that your supervisor was not aware that you had this access, you had an ethical and professional obligation to go to her and let her know that you had access to these confidential emails. Savage-Tracy Aff., Dkt. No. 87-2, at Ex. F (emphasis added). This point was re-emphasized in Savage's affidavit. Referring to Downs' claim that she had been granted access to Kent's inbox, Savage averred as follows: As I explained to Ms. Downs, even if she was telling the truth-which [Valley Health] did not believe-as soon as she saw one email related to her own personnel situation or from which she would know that [Kent] was not aware that she was reading [Kent's] email, of which there were many, then she had an ethical and professional obligation to bring the matter to [Kent's] attention. I also explained to her that reviewing these emails and forwarding Valley Health information outside of its secure network to her personal email addresses violated multiple policies and also called her character into question.... Ms. Downs' egregious breach of [Kent's] trust permitted only one action: her termination. Id. at ¶ 15 (emphasis added). Thus, Valley Health would have terminated Downs' employment even if it were true that she had authority to access Kent's email inbox because she had misused that access to read email related to her own personal employment difficulties. Critically, Downs conceded at her deposition that she did not have Kent's permission to read emails about herself, and that regardless she read such an email between Kent and legal counsel, printed it, and took a copy of it home. Q. And ultimately-you mentioned this earlier-you saw an email between Dena Kent and an attorney for Valley Health discussing you and your job; is that right? A. I saw an email that I thought was mine because I had sent her an email, and my emails I always do in all caps, the subject line, so I thought it was mine. And what drew my attention to it was the font was a different color. And I thought, “Why would my font change when it goes to Dena?” And that's what drew my attention to the preview pane in the first place. And then when I saw what it was, then I was like, “Oh.” So yes, I did see that. Q. And you-you opened it just because you were curious about the font? A. No. I saw it on the screen because I was curious about the font. When I saw what it said, then I panicked. Q. And what did you do with that email? You can say what you did. A. I panicked. I printed it out thinking, “Oh, my gosh. What is this? I can't look at this right now because I'm going to have a panic attack and I've got to get this stuff done for the board.” And I threw it in my bag and went on about my business. *8 I went home that night and read it and just decided that I was not going to remember seeing that email and put it in my personal file. Q. Did you think you were permitted to take that email? A. No. I regretted it once I did it, but I panicked. I had a weak human moment of basically, “Oh, crap.” Q. Did taking that email do you believe violate any policies of Valley Health? A. Apparently, yes, sir. Downs Dep., Dkt. No. 87-17, at 184:17-186:3. Downs made similar concessions when asked about her termination letter. Q. This letter is from Elizabeth Savage-Tracy, vice- president of human resources. And I want to ask you, in this second paragraph on the first page, about three-quarters of the way down, she tells you, “regardless of how you accessed these emails, as soon as you saw one email related to your Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 76 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 own personal personnel situation or from which you would know that your supervisor was not aware that you had this access, you had an ethical and professional obligation to go to her and let her know that you had access to these confidential emails.” Do you agree or disagree with that? A. The way I understood it, Dena knew that I had access to her emails, just like Mr. Heisey knew that I had access to her emails. People sent stuff to them all the time that may or may not have been about me. The only time that I accessed something that I should not have, and I knew I shouldn't have, and I panicked and I made a mistake and did it, was the email that I saw that I wasn't supposed to. Q. Okay. And Ms. Savage-Tracy says, “As soon as you saw one email related to your own personal personnel situation, you had an ethical and professional obligation to go to Dena and let her know you had access.” Do you agree or disagree with that? A. Probably, but I panicked. Q. Do you probably-I'm sorry. Do you agree with what she's telling you here, that you had an ethical and professional obligation to go to Dena and let her know what you had seen? A. Yes. Q. Is that consistent, that obligation, with the STARS code of ethics, integrity policy and the other policies we looked at? A. Yes. But like I said, I panicked. I was scared, and I did the wrong thing. I made a mistake. Id. at 296:8-297:22. Thus, Downs concedes that she violated Valley Health policy both by accessing an email between Kent and legal counsel about her own personnel situation and by failing to alert Kent after she did so. Downs counters that Kent testified at her deposition that Downs was not fired for accessing a particular email. See Kent Dep., Dkt. No. 91-2, 239:24-25 (“It was-there was no one email. It was the unauthorized access to the entire inbox.”). As an initial matter, it must be noted that while Kent participated in the meeting on August 19, 2011, she did not make the decision to fire Downs. Id. at 224:4-5 (”[T]he decision was made by HR to terminate [Downs] ); see also id. at 145: 24-25 (Q: Did-could you independently fire people? A: No. Oh, absolutely not.”). That decision was made by Savage in the HR department. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 15 (“I made the decision to terminate [ ] Downs' employment.”). Thus, Kent's testimony establishes only her understanding of HR's reasoning. *9 Moreover, elsewhere in her deposition Kent make clear that Downs' termination was justified even if she had authorized Downs to have full access to her inbox: Q: Assuming you had given Ms. Downs permission to access her email- A: I gave her isolated access when I would call in and say, Can you pull this email. That's very different than access 24/7 to email, in my opinion. Q: I'm going to go a little broader and ask you to assume that you had given her 24/7 access. Would the conduct that you discovered still have violated the policies that we looked at? A: Yes, because the minute she saw information that was not-that she did not need to know, and especially information about her particular situation or discussions with counsel, she should have disclosed that, according to human resource [sic]. Id. at 229:16-230:4. Most importantly, however, the full context of Kent's answer makes clear that she was not denying that the email between her and counsel that Downs accessed did not impact the decision to terminate Downs. Instead, Kent was merely expressing her opinion that the decision to terminate Downs was based on “more than the [i]nternet issues and the inbox,” but was also “the cumulative of the corrective actions and the more recent [performance issues] and the integrity policy.” Id. at 239:6-12. Kent's assertion that Valley Health had multiple reasons to terminate Downs does not change the fact that Downs has conceded that one of those reasons was valid. To give an extreme example: A hypothetical employee is terminated. He makes a primia facie case of unlawful Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 77 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 retaliation and/or discrimination. His employer alleges that it had two legitimate reasons for his termination, (1) that he was often late to work and (2) he embezzled some money. The employee contests that he was often late, but concedes that he embezzled. Such an employee could not defeat summary judgment merely because his employer stated that he was fired for both proffered reasons. The uncontested reason alone is plainly sufficient grounds for the decision and therefore the dispute of fact as to the other proffered justification is not material. Such is the case here. Plaintiff's counsel also countered at oral argument that Valley Health did not know that Downs read, printed out, and took home the email between Kent and legal counsel at the time of her termination. Specifically, Downs argues Valley Health only knew for certain that Downs had a copy of the email when it was produced back to Valley Health in the course of discovery. This argument misses the mark. While Valley Health concedes that it did not know that Downs had read and taken that particular email when it terminated her, it quite reasonably strongly suspected that she had. Savage averred that the conversation reported by Shanholtz raised suspicion that Downs was reading Kent's email. Savage-Tracy Aff., Dkt. No. 87-2, at ¶ 13. Additionally, Downs submitted a rebuttal to her prior negative performance evaluation from a year prior the day after Kent received an email from counsel about Downs' employment situation. At her deposition, Kent explained why this fact also raised suspicion in her mind: *10 [T]hat made me kind of suspicious that she knew somehow that I was talking with legal counsel. And I never put it on my calendar, and the only way she would know that is either through my inbox-you know, so I just thought it was really unusual that the day after I spoke to the lawyer is when I got her rebuttal the next-that night is, you know, when that email came. Kent Dep., Dkt. No. 87-15, at 219:2-8; see also id. at 218:23-25 (“I thought it was really unusual that I was speaking to HR and counsel, and that next day is when [Downs] submitted her rebuttal from a year ago[.]”); id. at 251:2-5 (“I thought[:] How odd is it that I got this after a year and-a-half, soon after I was talking to legal counsel about her situation.”). An employer may validly terminate an employee for a serious violation of company policy even without 100% certainty. Indeed, it is immaterial if “the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Leonard v. ElectroMech. Corp., No. 1:13CV00029, 2014 WL 1385356, at *7 (W.D.Va. Apr. 9, 2014) (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir.2000)). Here, Downs has presented no evidence that Valley Health did not genuinely suspect her of intercepting communications between her supervisor (and the company the president) and legal counsel regarding her own personal personnel situation at the time of her termination. 6 Of course, an employer cannot defeat a plaintiff employee's claim at summary judgment by merely noting it had a scintilla of evidence of misconduct at the time it took adverse employment action, even if a later investigation proves that the employee in fact engaged in the suspected misconduct. A jury could reasonably infer pretext based on the lack of evidence the employer had at the time. Here, however, Valley Health had more than sufficient evidence to take action against Downs. As such, under the particular facts and circumstances of this case, no reasonable juror could conclude that the reason for Downs' termination was pretextual. Furthermore, it is clear that Valley Health knew that Downs was forwarding emails of Kent's outside of its secure network prior to taking adverse employment action against her. This is noted in both Downs' termination letter and in the affidavits of Savage and Brian Huffman, a member of Valley Health's IT Department. Savage- Tracy Aff., Dkt. No. 87-2, at Ex. F; id. at ¶ 13; Huffman Aff., Dkt. No. 87-8, at ¶ 6. This also violated company policy and further bolsters Valley Health's assertion that it terminated Downs for a legitimate non-discriminatory reason. Finally, Valley Health has provided evidence that it terminated two other employees for similar conduct. Specifically, a departmental secretary “knowingly accessed a confidential calendar appointment that fell well outside her right to know.” Kagarise Aff., Dkt. No. 92-3, at Ex. A2. 7 The employee than forwarded the confidential calendar appointed to another employee, who then “accepted” it. The “accepting” employee then Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 78 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 “unsuccessfully attempted to cover up the electronic trial of this breach of confidentiality.” Id. Both employees were terminated for breach of confidentiality, (although the “accepting” employee was told she would be permitted to re-apply for a job at Valley Health). Records indicate the “accepting” employee was told that HR could accept her explanation of mistakenly accepting the appointment, but that the “the major issue became the unsuccessful attempt to cover up the electronic trail.” Id. IV. *11 Taking all facts in the light most favorable to Downs, and thus assuming that she had authorized access to Kent's inbox, Valley Health has put forward a legitimate non-discriminatory reason for her termination: accessing confidential emails in Kent's inbox between Kent and legal counsel about her own personnel situation. 8 Downs has conceded that her actions violated Valley Health policy even assuming she generally had access to Kent's inbox and Valley Health has put forwarded evidence that other employees were terminated for similar misuse of Outlook access. 9 Furthermore, the timing of Downs' termination fails to provide any evidence of pretext. As such, Downs has failed to put forward sufficient evidence that the reason for her termination was pretextual such that a reasonable jury could find in her favor. For the foregoing reasons, the court will grant Valley Health's motion for summary judgment by an appropriate Order entered this day. The clerk is directed to send a copy of this Memorandum Opinion to all counsel of record. All Citations Not Reported in F.Supp.3d, 2014 WL 4093696, 2014 Wage & Hour Cas.2d (BNA) 166,329 Footnotes 1 Winchester Medical Center was terminated as a defendant on April 14, 2014. 2 The FMLA only guarantees unpaid leave. Thus, an employee who receives pay while on FMLA leave would also be using paid leave, which federal law does not require. 3 Valley Health asserts in its pleadings that Downs “contradicted her claim that Kent knew about the e-mail access, testifying in her deposition, ‘I don't know what she knew.’ “ Am. Br. in Supp. of Summ. J., Dkt. No. 87, at 15 (quoting Downs Dep., Dkt. No. 87-17, at 183:13-14). This assertion does not accurately reflect the testimony, as Downs was responding to the question: “Did [Kent] know you had auto-preview setting on her email?” Downs Dep., Dkt. No. 87-17, at 183:9-10. 4 To succeed on an ADA claim a plaintiff must show “but-for” causation. Gross v. FBI Fin. Servs., Inc., 557 U.S. 167, 177 (2009). The Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), extended the “but-for” causation requirement to Title VII claims. Id. at 2533. Valley Health, relying primarily on Taylor v. Rite Aid Corp., No. CIV. WDQ-12-2858, 2014 WL 320214 (D.Md. Jan. 27, 2014), argues that “but-for” causation should also be applied FMLA claims. However, Taylor applied Nassar to both Title VII and FMLA claims without any analysis or explanation. Id. at *9-10. Moreover, other post-Nassar decisions have expressly declined to extend Nassar to FMLA claims. See, e.g., Kendall v. Walgreen Co., No. A-12-CV-847-AWA, 2014 WL 1513960, at *6 (W.D.Tex. Apr. 16, 2014). Thus, “the question of whether a mixed-motive claim survives in the FMLA context after Nassar is unsettled.” Edusei v. Adventist Healthcare, Inc., No. CIV.A. DKC 13-0157, 2014 WL 3345051, at *11 (D.Md. July 7, 2014) (citing Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *8 (M.D.N.C. Mar. 7, 2014)). However, the court need not attempt to resolve this issue because the evidence does not present a genuine dispute of material fact under either the “but-for” standard or the less demanding “mixed-motive” standard. 5 It is worth noting that while Valley Health argues that it is totally implausible that Downs would have access to Kent's inbox, it concedes that another Valley Health secretary has her supervisor's email password. Am. Mem. in Supp. of the Mot. for Summ. J., Dkt. No. 87, at 16; Shanholtz Aff., Dkt. No. 87-4, at ¶ 12. 6 Downs claims that she was prompted to speak with Shanholtz when she overheard Kent talking on the phone about terminating her. Downs Dep., Dkt. No. 87-17, at 232:15-233:3; id. at 294:18-295:8. However, because there is no evidence that either Kent or Savage had any reasons to think that this was how Downs learned that Kent was talking with an attorney, this fact does not negate the reasonableness of their-quite correct-suspicion that Downs had interpreted an email between Kent and legal counsel. 7 Valley Health uses the same Microsoft Outlook program for both email and electronic calendaring purposes. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 79 of 195 Downs v. Winchester Medical Center, Not Reported in F.Supp.3d (2014) 2014 Wage & Hour Cas.2d (BNA) 166,329 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 8 At oral argument, Downs argued that her access of the email was a legitimate form of self-help in gathering evidence of her employer's misconduct. Even assuming such a self-help right exists, intercepting attorney-client communications is clearly well outside its scope. 9 Indeed, Downs herself acknowledged that she thought that she could be terminated for simply accessing this email -let alone doing so and then failing to inform Kent or HR-although she immediately attempted to backtrack on that concession. See Downs Dep., Dkt. No. 87-17, at 282:7-21. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 80 of 195 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 3390306 United States District Court, D. Arizona. Wayne F. FORAKER, Plaintiff, v. APOLLO GROUP, INC. dba University of Phoenix, Defendant. No. CV04-2614-PHX-DGC. | Nov. 22, 2006. Attorneys and Law Firms Rosemary Stathakis Cook, Law Ofice of Rosemary Cook, Phoenix, AZ, for Plaintiff. Lisa Marie Coulter, William R Hayden, Christy Lin Rosensteel, Snell & Wilmer LLP, Phoenix, AZ, for Defendant. Opinion DAVID G. CAMPBELL, District Judge. *1 Defendant has filed a Motion for Judgment as a Matter of Law (Renewed) re Promotion Claim and a Motion for Judgment as a Matter of Law (Renewed) re Administrative Claim. Dkt. # 244, 245. Responses and replies have been filed. Plaintiff has filed a Brief Regarding Monetary Judgment, Prejudgment Interest, Liquidated Damages and Present Value of Future Loss Damages. Dkt. # 230. Defendant has filed two responses. A. Defendant's Motion on the Promotion Claim. Following trial, the jury found that Plaintiff had been denied a promotion and 10% pay increase for taking a 2004 leave of absence under the Family Medical Leave Act (“FMLA”). Defendant argues that Plaintiff presented no evidence to support his claim that he was promised or denied a promotion. Defendant's argument is premised on the meaning of the word “promotion” within Defendant's employment practices. Defendant asserts that a promotion occurs within its organization only when an employee receives a change in his or her position classification. Changes in job title or job responsibilities that do not include a new position classification do not, in Defendant's nomenclature, constitute a promotion. Defendant asserts that the evidence presented at trial established that Plaintiff did not receive a promised or actual change in his position classification. Rather, Defendant contends, Plaintiff received a change in his working title from Senior Director of Assessment to Senior Director of Learning Assessment and Analysis. Because Plaintiff presented no evidence that he was promised nor received a change in his position classification, Defendant asserts that the jury's verdict finding that Plaintiff was denied a promotion is not support by the evidence. Plaintiff readily admitted during his testimony at trial that he received no change in his position classification. Plaintiff instead asserted that he received new job responsibilities, including management and budgetary responsibilities for the area of learning assessment within Defendant's business. Plaintiff also asserted that he was promised a 10% pay raise in connection with these new job responsibilities. Plaintiff asserts that these increases in job duties and pay constituted a promotion within the ordinary meaning of the word. The Court concludes that the jury reasonably found that the change in Plaintiff's employment responsibilities constituted a promotion. The Court does not equate this finding with a change in Plaintiff's position classification. Indeed, as noted above, Plaintiff did not assert at trial that he received an increased position classification. But the jury reasonably concluded that Plaintiff was given increased management and budgetary responsibilities and a corresponding pay increase, and that these increases were subsequently withdrawn when Plaintiff's took FMLA leave in 2004. The evidence reasonably supported the jury's findings. Plaintiff personally testified that Defendant's Vice President, William Pepicello, assigned him the increased job responsibilities and promised him the 10% pay increase. Although Mr. Pepicello denied promising the pay increase, a jury reasonably could have believed Plaintiff rather than Mr. Pepicello. Plaintiff also introduced exhibits in which Mr. Pepicello referred to Plaintiff's new responsibilities as a promotion, and a congratulatory note from Defendant's President also referring to the changes as a promotion. This evidence reasonably supported the jury's verdict in favor of Plaintiff on the promotion and pay increase claims. As a result, Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 81 of 195 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Defendant's motion for judgment as a matter of law will be denied. B. Defendant's Motion on Administrative Leave Claim. *2 Defendant makes two arguments. First, Defendant contends that Plaintiff's involuntary placement on paid administrative leave did not constitute an adverse employment action for purposes of the FMLA. Second, Defendant contends that Plaintiff failed to prove monetary damages resulting from his paid administrative leave and that such a failure requires judgment as a matter of law on the administrative leave claim. As part of this second argument, Defendant contends that equitable relief is not available under the FMLA for placement on paid administrative leave. 1. Adverse Employment Action. The Supreme Court recently addressed the requirements for an adverse employment action. The Court held that a plaintiff seeking to establish an adverse employment action “must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from [engaging in protected activity].’ “ Burlington Northern v. White, 126 S.Ct. 2405, 2415 (2006) (citations omitted). This test is the same as that previously adopted by the Ninth Circuit in Ray v. Henderson, 217 F.3d 1234 (9th Cir.2000). Although Burlington and Ray are Title VII cases, Defendant does not dispute that this definition of an adverse employment action applies under the FMLA. Defendant does contend that the remedial purposes of the FMLA are narrower than those of Title VII, but does not dispute that the relevant inquiry is whether the challenged action might have dissuaded a reasonable worker from engaging in protected conduct- in this case, taking leave under the FMLA. Plaintiff was placed on paid administrative leave on September 16, 2005. Although he continued to receive full compensation and other benefits, he was relieved of all job responsibilities, ceased to function in his employment position or any other capacity for Defendant, and was not permitted to come to the workplace. His interaction with fellow employees ceased, as did any on-the-job experience and training he normally would have received. Plaintiff did not receive regular employment reviews that might have laid the foundation for increased responsibilities or pay. As of the date of trial, Plaintiff had remained on paid administrative leave for almost one year, with no indication from Defendant as to when he might be permitted to return to work. The Court concludes that a reasonable employee likely would find such an administrative leave to be “materially adverse” as required by Burlington. The elimination of all job responsibilities, all contact with co-workers, all experience and education that would come from fulfilling one's job responsibilities, and all periodic performance reviews for an indefinite period of at least 12 months “well might have dissuaded a reasonable worker” from requesting FMLA leave. Burlington, 126 S.Ct. at 2415. The Court therefore cannot conclude as a matter of law that Plaintiff's paid administrative leave was not an adverse employment action. The issue was appropriately presented to the jury, and, on the basis of sufficient evidence, the jury found that Plaintiff had experienced an adverse employment action in retaliation for requesting additional FMLA leave. *3 Defendant cites a few cases for the proposition that paid administrative leave can never constitute an adverse employment action. Defendant overstates the import of these cases. None of them addressed a circumstance like Plaintiff's, and none of them was decided after Burlington or addressed the standard articulated in Ray. Although there may well be circumstances where a court can conclude that a particular instance of paid administrative leave does not constitute an adverse employment action under Burlington and Ray, this is not such a case. The Court's decision to submit this issue to the jury was correct. 2. Plaintiff's Lack of Economic Damages. Plaintiff failed to present any evidence that he suffered economic damages as a result of his paid administrative leave. Plaintiff has received full pay and benefits during the leave, and, as Defendant notes, the FMLA does not permit recovery of non-economic damages such as pain and suffering. The jury's verdict was consistent with this lack of evidence. The jury found that Plaintiff had been placed on paid administrative leave in retaliation for requesting FMLA leave, but declined to award Plaintiff any damages. Defendant contends that economic damages constitute an element of Plaintiff's prima facie case and that his failure to prove such damages dooms his retaliation claim Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 82 of 195 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 as a matter of law. But the FMLA expressly authorizes injunctive relief. Any employer who violates the statute is liable to the employee for economic damages or “for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B). The primary case cited by Defendant, Dawson v. Leewood Nursing Home, Inc., 14 F.Supp.2d 828 (E.D.Va.1998), states that employees suing under the FMLA have the right to recover “damages or to seek equitable relief for violations of the Act.” Id. at 832. Defendant's own authority thus makes clear that an FMLA claim may be sustained by a claim for equitable relief. Defendant argues that the statute does not authorize equitable relief in a case of paid administrative leave, but cites no authority to support this proposition. Defendant instead argues that equitable relief has been afforded only in cases of termination. The fact that equitable relief is available when the adverse employment action is termination does not mean, however, that it is unavailable when the adverse employment action is indefinite paid administrative leave. The plain language of the statute authorizes equitable relief when a violation of the FMLA occurs. Because the jury found that Defendant retaliated against Plaintiff by placing him on paid administrative leave, and because the statute authorizes equitable relief, the Court cannot conclude that Plaintiff's retaliation claim fails as a matter of law. Defendant's motion for judgment as a matter of law on Plaintiff's administrative leave claim will be denied. C. The Parties' Briefs on Monetary Damages. *4 Plaintiffs asks the Court to award him $9,189.00 in back pay (as awarded by the jury), to double this amount in light of the jury's finding that Defendant did not act in good faith, and to award prejudgment interest, all totaling $22,583.70. Dkt. # 230 at 4. Plaintiff also asks the Court to award him $35,387.00 in lost future earnings for loss of his pay raise, $10,224.00 in future losses to his 401k plan, and to double this amount as a result of Defendant's bad faith, for damages totaling $91,222.00. Defendant does not address these damage numbers. Consistent with the Court's instructions, Defendant instead addresses whether monetary damages or injunctive relief constitutes the appropriate remedy for Plaintiff's loss of the 10% pay raise. Defendant argues that the Court should enter an injunction requiring Defendant to pay the 10% raise in the future. The Court will not decide at this time whether injunctive relief or front pay constitutes the appropriate remedy for Plaintiff's loss of the 10% pay raise. This decision instead will be made when the Court addresses and decides the appropriate remedy for Plaintiff's administrative claim. If the Court orders equitable relief on the administrative claim, equitable relief on the lost pay raise might also be appropriate. If Plaintiff does not seek equitable relief on the administrative claim, front pay might be appropriate. 1 To conclude this case, the Court will hold a hearing to address the relief warranted by the jury's verdict. In preparation for the hearing, Plaintiff and Defendant shall file memoranda, no longer than 7 pages in length by December 8, 2006. The parties shall file reply memoranda, no longer than 3 pages in length, by December 15, 2006. A hearing will be held of December 19, 2006, at 2:00 p.m. Plaintiff's memoranda shall address the following issues: (1) Does Plaintiff seek equitable relief on the basis of his administrative claim and, if so, in what form? (2) If Plaintiff does seek equitable relief, what relief can be fashioned consistent with the teaching of federal cases that courts should be reluctant to assume business management responsibilities or to become entangled in the affairs of businesses? (3) How does Plaintiff respond to Defendant's argument that front pay damages should not be doubled under the FMLA (see Dkt. # 232 at 2, n. 1)? (4) How does Plaintiff respond to Defendant's argument that good faith is an issue for the Court, not the jury (id.)? (5) When and how did Plaintiff make timely disclosure to Defendant of his 401k plan damages? (6) Any other arguments bearing on the appropriate remedy in this case. Defendant's memoranda shall address the following issues, among others: Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 83 of 195 Foraker v. Apollo Group, Inc., Not Reported in F.Supp.2d (2006) 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 (1) If the Court does impose equitable relief on Plaintiff's administrative leave claim, what should be the appropriate form of that relief? (2) How does Defendant respond to the various damages calculations asserted by Plaintiff's expert? *5 (3) Any other arguments related to the appropriate remedy in this case. If the parties believe that oral testimony is required on the issue of damages, they shall be prepared to present such testimony at the hearing on December 19, 2006. They shall confer in advance about the most efficient way to present such testimony. Upon review of these additional submissions by the parties and consideration of the evidence and argument to be presented on December 19, 2006, the Court will enter a final order concerning the relief to be awarded Plaintiff in this case. Following this decision and entry of judgment, Plaintiff may apply for attorneys' fees and costs. IT IS ORDERED: 1. Defendant's Motion for Judgment as a Matter of Law (Renewed) Re Promotion Claim (Dkt.# 245) is denied. 2. Defendant's Motion for Judgment as a Matter of Law (Renewed) Re Administrative Leave Claim (Dkt.# 244) is denied. 3. The parties shall submit additional briefing and participate in the hearing as set forth above. All Citations Not Reported in F.Supp.2d, 2006 WL 3390306, 153 Lab.Cas. P 35,223, 12 Wage & Hour Cas.2d (BNA) 135 Footnotes 1 It appears that Plaintiff does not seek the equitable remedy of reinstatement on his administrative leave claim. His brief on monetary damages states: “It is not the job of the Court to monitor the practices of the parties. It is impractical to expect Plaintiff to return to work for an employee [sic] who violated his federal rights in bad faith.” Dkt. # 230 at 6. Moreover, the Court is uncertain about the kind of equitable relief that could be fashioned on the administrative leave claim. The Court is mindful of the fact that it does not possess the expertise or experience to make employment management decisions for Defendant or other employers. The Court is also mindful that the FMLA does not guarantee that an employee may return to the exact position vacated before a leave of absence. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 84 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Fleck v. WILMAC Corp., E.D.Pa., May 19, 2011 2007 WL 951473 Only the Westlaw citation is currently available. United States District Court, W.D. Pennsylvania. Rhonda GIBSON, Plaintiff, v. LAFAYETTE MANOR, INC., Defendant. Civil Action No. 05-1082. | March 27, 2007. Attorneys and Law Firms Gregory G. Paul, Peirce Law Offices, Robert W. Gillikin, II, Robert Peirce & Associates, P.C., Pittsburgh, PA, for Plaintiff. Paul J. Walsh, III, Trisha A. Zaken, Walsh, Collis & Blackmer, Pittsburgh, PA, for Defendant. MEMORANDUM ORDER JOY FLOWERS CONTI, United States District Judge. *1 Plaintiff's complaint was received by the Clerk of Court on August 4, 2005, and was referred to United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges. The Magistrate Judge's Report and Recommendation (Doc. No. 32), filed on March 5, 2007, recommended that the Defendant's Motion for Summary Judgment (Doc. No. 19) be granted as to Plaintiff's FLMA retaliation claim, but denied in all other respects. Service was made on all counsel of record. The parties were informed that in accordance with Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrate Judges, that they had ten (10) days to file any objections. No objections have been filed. After review of the pleadings and the documents in the case, together with the report and recommendation, the following order is entered: AND NOW, this 27th day of March, 2007, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Doc. No. 19) is GRANTED as to Plaintiff's FLMA retaliation claim. IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Doc. No. 19) is DENIED in all other respects. IT IS FURTHER ORDERED that the Report and Recommendation (Doc. No. 32) of Magistrate Judge Lenihan, dated March 5, 2007, is adopted as the opinion of the Court. REPORT AND RECOMMENDATION LISA PUPO LENIHAN, United States Magistrate Judge. I. RECOMMENDATION It is respectfully recommended that Defendant's Motion for Summary Judgment (Doc. 19) be granted in part and denied in part. It is recommended that Defendant's Motion for Summary Judgment be granted as to Plaintiff's FLMA retaliation claim, but denied in all other respects. II. REPORT This case involves a claim for disability discrimination under the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA ”), and a retaliation claim under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA ”). Immediately prior to her termination, Plaintiff, Rhonda Gibson (“Gibson ”), was employed by Defendant, Lafayette Manor, Inc. (“Lafayette ”), as a medical records clerk. Gibson instituted this action against Lafayette alleging that Lafayette violated the ADA by failing to provide reasonable accommodations, including an extended leave of absence, and violated the FMLA by interfering with and retaliating against her exercise of family medical leave. This Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12188. Venue lies in this district pursuant to 28 U.S.C. § 1391(b)(2) and 42 U.S.C. § 2000e-5(f). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 85 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Lafayette requests that the Court grant summary judgment in its favor and in support thereof, submits the following arguments: (1) Gibson cannot meet the standard of a “qualified individual” under the ADA because she was not able to work in any capacity at the expiration of her FMLA leave; (2) there was no reasonable accommodation that would have enabled Gibson to return to work; (3) the grant of indefinite leave would have been an unreasonable burden and undue hardship on Lafayette; (4) Gibson's ADA claim is precluded by judicial estoppel; (5) Gibson cannot establish an interference claim under the FMLA; (6) Gibson has failed to prove any retaliatory conduct in support of her claim under FMLA; (7) Gibson's claim for economic damages must fail because she has failed to present any evidence of economic loss; and (8) Gibson's claim for punitive and liquidated damages must also fail because she failed to prove any malicious or bad faith conduct. (Def.'s Br. at 4-5.) Each of these arguments is addressed below. A. Statement of Facts *2 Gibson has held a number of positions with Lafayette since she was hired in August 1998. Immediately prior to her termination, Gibson occupied the position of medical records clerk, which was considered a sedentary position. She was the only employee working in that department. Beginning in 1999 and continuing through 2004, Plaintiff had requested and received leave under FMLA, for her own medical conditions 1 as well as to care for her husband 2 who suffers from a chronic illness. In 2004, Plaintiff was granted twelve weeks of FMLA leave, which she used intermittently from January 2004 through August 30, 2004. Of the twelve weeks of FMLA leave in 2004, Gibson used nine weeks to cope with her major depressive disorder and three weeks to care for her chronically ill husband. Sometime in August of 2004, Gibson underwent emergency surgery for a hernia, at which time the presence of other medical conditions was detected. 3 On August 27, 2004, Gibson submitted a written request to Frank Geramita for additional leave to begin after expiration of her FMLA leave on August 30, 2004. The relevant portion of Gibson's written request states: I ... hereby request a continuance of my leave of absence because I am medically unable to return to my duties ... before the end of the allotted twelve week LOA.... ... I have used a total of 9 weeks to allow myself to recuperate from certain psychological stresses and physical ailments. The other 3 weeks was used intermittently for a chronically ill spouse who frequently required critical care. Because I had to use these extra 3 weeks for the care of my husband, I am now unable to recover sufficiently in the remaining time given to me in the LOA in order to return to work. It is with this in mind that I am requesting this continuance of my LOA.... I sincerely hope that you will consider granting me this extension. I know that the decision is not sole[l]y your[s] to make and understand if it can not be granted. I do, however, hope that you will keep me in mind for any position that may arise once my hea[l]th has been recovered. (Ex. E to Def.'s Mot. for Summ. J.) Lafayette submits that the above request constitutes a request for additional leave for an indefinite period of time because she was unable to return to work at that time. Gibson argues that reasonable jurors could conclude that her August 27, 2004 request was for three additional weeks. 4 In any event, Lafayette denied Gibson's request for additional FMLA leave on August 31, 2004, and advised her that her position was being terminated at that time. (Ex. F attached to Def.'s Mot. for Summ. J.) However, Geramita encouraged her to submit an employment application once she was able to return to work. (Id.) To date, Gibson has not submitted a return to work slip, or a new employment application to Lafayette. While Gibson was out on FMLA leave, Lafayette assigned either a “Green Thumb” worker 5 or an employee needing a light duty position, 6 depending on whether the leave was intermittent or continuous, 7 to cover Gibson's job duties. (Geramita Dep. at 42, 117-18.) It was the practice of Lafayette to require all employees taking intermittent leave under FMLA to obtain a doctor's slip every time intermittent leave was taken. (Bowser Dep. at 12.) For continuous leave under FMLA, it was Lafayette's policy Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 86 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 to require a doctor's certification upon the employee's return stating that the employee is able to return to work in his or her position. (Id.) *3 The medical evidence shows that on September 2, 2004, Dr. Mehta, a psychiatrist, and Scott Tracy, M.Ed., LPC, provided a written opinion to the effect that Gibson suffered from a medical condition that prevented her from working. (Ex. G attached to Def.'s Mot. for Summ. J.) They reported that they were treating Gibson for Major Depressive Disorder and noted she also has severe family stressors. (Id.) Subsequently, in a letter dated August 28, 2006, Gibson's physician, Dr. Mary Beth Drafty, opined that Gibson was not able to work for six to eight weeks post-operatively due to her recovery from abdominal surgery in August 2004 and a post-operative infection in September 2004. (Ex. 1 to Pl.'s Resp. to Def.'s Stmt. of Facts.) Dr. Krafty further opined that Gibson also suffered from ongoing family stressors and depression. (Id.) Despite Gibson's continuing significant family stressors, battles with depression, sleep apnea, morbid obesity, hypoxia and oxygen dependency, osteoarthritis, and digestive problems since November 2004, Dr. Krafty opined that Gibson could resume a sedentary job. (Id.) However, Dr. Krafty's letter does not specify an effective date for her return to work. At approximately the same time as Lafayette terminated Gibson's employment, Gibson filed a claim for social security disability benefits, which was subsequently approved on December 3, 2004. (Ex. B to Def.'s Reply Br.) In addition, since her termination from Lafayette, Gibson has worked part-time as a personal care attendant for the Department of Public Welfare in its “Workers with Disability” Program in order to earn money to pay for health insurance in the plan of her choice. 8 (Gibson Dep. at 7.) Beginning on January 1, 2006, Lafayette negotiated a new collective bargaining agreement (“CBA”) with its union employees, which includes a provision for an additional three months of medical leave beyond what is provided under the FMLA. (Ex. D to Def.'s Reply Br.) Since January of 2006, Lafayette has extended medical leave beyond the period provided by FMLA by an additional three months to CBA employees. The medical records clerk position that Gibson occupied at the time of her termination was not, and is not now, a CBA position. Prior to January 1, 2006, Lafayette's policy was to fire any employee the day after their FMLA leave expired if they were unable to return to work. (Geramita Dep. at 64 (Pl.'s Ex. 2).) However, as of January 1, 2006, that is no longer the policy vis a vis CBA employees-Lafayette now waits until the expiration of the additional three months of unpaid leave before terminating CBA employees who are unable to return to work. (Bowser Dep. at 14 (Pl.'s Ex. 3).) The evidence shows that three employees requested an extension of their medical leave after the expiration of their FMLA leave and Lafayette granted their requests. (Bowser Dep. at 13-14.) These requests were made subsequent to the January 1, 2006 change in the CBA and apparently made by CBA employees. (Id.) *4 Gibson filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and, on May 6, 2005, the EEOC issued its Dismissal and Notice of Right to Sue. Gibson filed a timely appeal by instituting the present action on August 4, 2005. Discovery is now complete and Lafayette has moved for summary judgment. The positions of the parties have been fully briefed and the motion is ripe for disposition. B. Summary Judgment Standard Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. 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. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 87 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). C. Analysis As stated earlier, Lafayette raises eight arguments in support of its motion for summary judgment, four of which relate to Gibson's ADA claim; two of which relate to Gibson's FMLA interference and retaliation claims, and the remaining two arguments related to her claims for economic and punitive/liquidated damages. Each of these arguments is addressed below. 1. Gibson's ADA Claim Gibson's ADA claim is predicated on Lafayette's alleged failure to make a reasonable accommodation, i.e., denying Gibson's request for an extension of unpaid medical leave after the expiration of her FMLA leave. Lafayette moves for summary judgment on this claim, arguing in support that Gibson has failed to show that she is a “qualified individual” under the ADA because she was not able to work in any capacity at the expiration of her FMLA leave. In the alternative, Lafayette submits that it did not fail to accommodate Gibson because there were no reasonable accommodations that would have enabled her to return to work. Also in the alternative, Lafayette argues that a grant of indefinite leave would have been an unreasonable burden and undue hardship on it. Finally, Lafayette submits that Gibson's receipt of social security disability insurance benefits estops her from asserting an ADA claim. Viewing the facts in the light most favorable to Gibson, the Court concludes that material issues of fact exist with regard to whether Gibson's request for extended leave is a reasonable accommodation and whether it will cause an undue hardship to Lafayette. In addition, the Court concludes that Gibson's ADA claim is not subject to judicial estoppel. *5 The ADA was enacted in 1990 to “prevent otherwise qualified individuals from being discriminated against in employment based on a disability.” Gaul v. Lucent Techs. Inc., 134 F.3d 576, 579 (3d Cir.1998) (citing 29 C.F.R. pt. 1630, app. at 347-48 (1997)). Under the ADA, employers are prohibited from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (1995). A “qualified individual with a disability” is defined under the ADA as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires.” 42 U.S.C. § 12111(8). In addition, it is well established that ADA discrimination encompasses the failure to make reasonable accommodations for a plaintiff's disabilities. 42 U.S.C. § 12112(b)(5)(A); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999). In this regard, the ADA specifically provides that “an employer discriminates against a qualified individual with a disability when the employer does ‘not mak[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].’ “ Taylor, 184 F.3d at 306 (quoting 42 U.S.C. § 12112(b)(5)(A)). In addition to modifying existing facilities to make them readily accessible by individuals with disabilities, the term “reasonable accommodation” may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, ... or other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). The ADA defines the term “undue hardship” to mean: an action requiring significant difficulty or expense, when considered in light of the [following] factors ... (i) the nature and cost of the accommodation ...; (ii) the overall financial resources of the facility ... involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the [employer]; the overall size of the business of the [employer] with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the [employer], including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 88 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 relationship of the facility ... in question to the [employer]. *6 42 U.S.C. § 12111(10). To prove a prima facie case of disability discrimination under the ADA, 9 a plaintiff must show: “ ‘(1) [s]he is a disabled person within the meaning of the ADA; (2)[s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3)[s]he has suffered an otherwise adverse employment action as a result of discrimination.’ “ Taylor, 184 F.3d at 306 (quoting Gaul, 134 F.3d at 580 (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996)). The ADA claim in the instant matter turns on the second prima facie element, that is, whether Gibson is a “qualified individual.” The courts employ a two-part test in determining whether an ADA plaintiff is a qualified individual with a disability. Gaul, 134 F.3d at 580 (citing 29 C.F.R. pt. 1630, app. § 1630.2(m)). First, the plaintiff must show that she meets “ ‘the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.’ “ Id. (quoting 29 C.F.R. pt. 1630, app. § 1630.2(m) at 351)); Taylor, 184 F.3d at 311 (citing same). Second, the plaintiff must demonstrate that she is “able to ‘perform the essential functions of the position held or desired, with or without reasonable accommodations.’ “ Id.; Taylor, 184 F.3d at 311. 10 Moreover, this determination is made at the time of the employment decision. Gaul, 134 F.3d at 580 (citing 29 C.F.R. pt. 1630, app. § 1630.2(m)) (other citation omitted). To withstand summary judgment, the plaintiff/employee bears the initial burden of proving that she is otherwise qualified. Walton v. Mental Health Ass'n of Sw. Pa., 168 F.3d 661, 670 (3d Cir.1999). However, if the employee alleges that an accommodation is needed, she must also prove that an effective accommodation exists that would make her otherwise qualified. Id. As to the issue of whether the requested accommodation is reasonable, the plaintiff/employee must only establish the existence of “an ‘accommodation’ [that] seems reasonable on its face, i.e., ordinarily or in the run of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (citing Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir.2001); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.1995); Barth v.. Gelb, 2 F.3d 1180, 1187 (D.C.Cir.1993)); see also Gaul, 134 F.3d at 580 (citing Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.1996) (plaintiff can satisfy his burden of showing a material issue of fact exists as to his ability to perform the essential functions of his job with reasonable accommodation by making at least a facial showing that his proposed accommodation is possible)). Once the plaintiff has met this burden, the burden shifts to the defendant/employer, who must then establish “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.” Id. (citing Reed, Borkowski, and Barth, supra ). a. Qualified Individual *7 In the case at bar, the Court finds that a material issue of fact exists as to whether Gibson is a “qualified individual” under the ADA. The Court is not persuaded by Lafayette's argument that an essential function of Gibson's job is regular attendance at work and since she could not return to work in any capacity at the expiration of her FMLA leave, she could not perform the essential functions of her job, with or without reasonable accommodations. Although for most jobs regular attendance at work is an essential function, 11 where the reasonable accommodation requested is leave from work, regular attendance at work is not the relevant inquiry. Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, *5 (E.D .Pa. Nov. 23, 1999) (citing Rascon v. U.S. West Commc'ns, Inc., 143 F.3d 1324, 1333 (10th Cir.1998)) (other citations omitted). In Rascon, the court of appeals stated that “the question of whether attendance is an essential function is equivalent to the question of what kind of leave policy the company has.” Id. The evidence here shows that at the time Gibson requested an extension of her FMLA leave in August of 2004, Lafayette had a policy of automatically terminating employees who could not return to work at the expiration of FMLA leave. 12 However, that does not end the inquiry here. According to the EEOC, modification to “no-fault' leave policies 13 of employers, such as the one in effect at Lafayette in August of 2004, is a form of reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, *15, 19 (Oct. 17, 2002) (“EEOC Enforcement Guidance ”). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 89 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Indeed, the EEOC Enforcement Guidance provides that “[i]f an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.” Id. Therefore, the fact that Gibson could not return to work in any capacity at the expiration of her FMLA leave is not dispositive of whether she is a “qualified individual.” Accordingly, Lafayette's motion for summary judgment on this ground should be denied. b. Reasonable Accommodation-Interactive Process Moreover, the Court finds no merit to Lafayette's alternative argument that it did not fail to accommodate Gibson because there were no reasonable accommodations that would have enabled Gibson to return to work. 14 Lafayette's argument is flawed because it assumes that Gibson requested an indefinite leave of absence which it claims is unreasonable, and that no other reasonable accommodations exist. 15 The Court finds that Lafayette may have put the proverbial cart before the horse, as the evidence shows that Lafayette failed to participate in the interactive process upon learning of Gibson's request for an extension of her medical leave as an accommodation. *8 The case law in this Circuit holds that the employer's duty to participate in a good faith interactive process is triggered upon receiving notice of an employee's disability and request for accommodation. Taylor, 184 F.3d 314. The regulations implementing the ADA clearly establish that the “purpose of the interactive process is to determine the appropriate accommodations: ‘This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.’ “ Id. at 316 (quoting 29 C.F.R. § 1630.2(o)(3)). Although the interactive process contemplates a good faith exchange of information on both sides, the courts have interpreted the regulations to place the burden on employers to take the initiative and request additional information that it believes it needs. Id. at 315. The Court of Appeals in Taylor reasoned that “[t]he interactive process would have little meaning if it was interpreted to allow employers, in the face of a request for accommodation, simply to sit back passively, offer nothing, and then, in post-termination litigation, try to knock down every specific accommodation as too burdensome. That's not the proactive process intended: it does not help avoid litigation by bringing the parties to a negotiated settlement, and it unfairly exploits the employee's comparative lack of information about what accommodations the employer might allow.” Id. 315-16 (footnote omitted). Nonetheless, since participation is the obligation of both parties, the employer will have fulfilled its obligation if, after conferring with the employee to find possible accommodations, the employee fails to supply requested and/or necessary information. Id. at 317. In all events, the interactive process does not alleviate the employee's burden of proving that a particular accommodation rejected by the employer would have made the employee qualified to perform the job's essential functions. Id. (citing Walton, 168 F.3d at 670). To establish that an employer failed to participate in the interactive process, a disabled employee must prove: “1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith” Id. at 319-20 (citing Mengine, 114 F.3d at 420; Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1285 (7th Cir.1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.1996)). On the other hand, employers can demonstrate that they participated in good faith in the interactive process by showing, for example, that they met with the employee who requested the accommodation, requested information about the condition and what limitations the employee has, asked the employee specifically what she wanted, that they considered the employee's request, and offered and discussed available alternatives when the request is too burdensome. Id. at 317 (citing 29 C.F.R. pt. 1630, app. § 1630.9). *9 Viewing the facts in the light most favorable to Gibson, the Court finds that material issues of fact exist as to whether Lafayette made a good faith effort to assist Gibson in seeking the accommodation of extended leave and whether Gibson could have been reasonably accommodated but for its lack of good faith. Once Lafayette received Gibson's August 27, 2004 letter, it had a duty, at a minimum, to request from Gibson Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 90 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 additional information regarding the treatment needed, the prognosis for recovery and the length of the extended leave requested, prior to making a decision. Had it done so, Lafayette would be on more solid ground. It certainly is not clear from the record whether Gibson could have returned to work at her medical records clerk position within a period of time that would not have been unreasonable. Although Dr. Mehta and Scott Tracy opined that she could not return to work as of September 2, 2004, Lafayette did not have the benefit of this information at the time it terminated Gibson, nor did Lafayette, upon receipt of this letter, request Gibson to obtain additional information from these practitioners as to the duration of her leave. Lafayette cannot now argue, with the benefit of hindsight, that its actions were justified. 16 The record is completely devoid of any evidence showing that at the time of Gibson's termination on August 31, 2004, Lafayette participated in the interactive process. Rather, the record shows that it did not possess any information upon which to conclude that Gibson's request for extended leave was indefinite and therefore unreasonable. Lafayette merely acted on its “no- fault” policy of terminating employees who were unable to return to work at the expiration of their FMLA leave. This alone violates the EEOC Enforcement Guidance. In response, Lafayette argues that it was excused from engaging in the interactive process because Gibson was unable to work in any capacity at the expiration of her FMLA leave, and therefore, no reasonable accommodations existed that would have enabled her to perform the essential functions of her job. 17 In support of this argument, Lafayette cites the Court of Appeals decision in Mengine, stating that “ ‘if reasonable accommodation is impossible, nothing more than communication of this fact is required .’ “ Taylor, 184 F.3d at 317 (quoting Mengine, 114 F.3d at 420-21). However, Lafayette omits the crucial part of the court of appeals' holding which immediately followed: “ ‘Nonetheless, if an employer fails to engage in the interactive process, it may not discover a way in which the employee's disability could have been reasonably accommodated, thereby risking violation of the Rehabilitation Act.’ “ Id. (citing Mengine, supra ). The Court of Appeals in Taylor further opined: We explained that whether an employer's duty to participate in the interactive process has been discharged will often be a matter of “timing”: i.e., the employer will almost always have to participate in the interactive process to some extent before it will be clear that it is impossible to find an accommodation that would allow the employee to perform the essential functions of a job. *10 ... When an employee has evidence that the employer did not act in good faith in the interactive process, however, we will not readily decide on summary judgment that accommodation was not possible and the employer's bad faith could have no effect. To assume that accommodation would fail regardless of the employer's bad faith would effectively eliminate the requirement that employers must participate in the interactive process. An employer who acted in bad faith would be in essentially the same, if not better, position than one who participated; that is, both employers would be arguing that the employee failed to find an accommodation making him or her able to perform the essential function of the job. The less the employer participated, the easier this would become, and as a result, the requirement that employers participate in the interactive process would be toothless. Thus, where there is a genuine dispute about whether the employer acted in good faith, summary judgment will typically be precluded. Taylor, 184 F.3d at 317-18 (citations omitted). Because Gibson has presented evidence that Lafayette did not act in good faith in the interactive process, a material issue of fact exists thereby precluding summary judgment on the issue of whether a reasonable accommodation existed that would have allowed Gibson to perform her job. With regard to Gibson's burden in opposing summary judgment on her ADA claim, the Court finds that Gibson has met her initial burden of proving that an effective accommodation exists that would enable her to perform the essential functions of her position as medical records clerk, and that such accommodation appears reasonable on its face. The requested accommodation-extension of her unpaid medical leave-arguably could have allowed her to return to work after seeking necessary medical treatment within a reasonable period of time and therefore is effective. 18 Second, the requested accommodation here appears reasonable on its face, as a number of courts and other authority have recognized that a leave of Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 91 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 absence for medical treatment may constitute a reasonable accommodation under the ADA. See, e.g., Wilson v. Lemington Home for the Aged, 159 F.Supp.2d 186, 201 (W.D.Pa.2001)(recognizing that medical leave of absence can be a reasonable accommodation) (citing Basith v. Cook County, 241 F.3d 919, 932 (7th Cir.2001); Humphrey v. Mem. Hospitals Ass'n, 239 F.3d 1128 (9th Cir.2001); Criado v. IBM Corp., 145 F.3d 437 (1st Cir.1998) (“stating that leave may constitute reasonable accommodation”); Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 782 (6th Cir.1998) (citing Criado, supra); Rascon v. U.S. West Commc'ns, Inc., 143 F.3d 1324, 1334 (10th Cir.1998) (“stating that ‘time for medical care or treatment may constitute a reasonable accommodation’ ”); Dockery v. North Shore Med. Ctr., 909 F.Supp. 1550, 1560 (S.D.Fla.1995) (“recognizing that unpaid leave may constitute reasonable accommodation”); Schmidt v. Safeway, Inc., 864 F.Supp. 991, 996 (D.Or.1994) (“reasonable accommodation may include leave of absence for treatment”)). In addition to the above authority, the Interpretive Guidance on Title I of the ADA provides that a reasonable accommodation could include “additional unpaid leave for necessary medical treatment.” 29 C.F.R. pt. 1630, app. § 1630.2(o). Similarly, the regulations promulgated by the Department of Labor indicate that a reasonable accommodation may require an employer “to grant liberal time off or leave without pay when paid sick leave is exhausted and when the disability is of a nature that it is likely to respond to treatment of hospitalization.” 29 C.F.R. pt. 32, app. A(b). Therefore, because Gibson has met her burden of proving the requested accommodation is facially reasonable, the burden shifts to Lafayette to prove that the requested accommodation is unreasonable and/or would cause it undue hardship under the particular facts of this case. c. Undue Hardship *11 In its next argument, Lafayette contends that a grant of indefinite leave would have been an unreasonable burden and undue hardship on it, and therefore, it did not violate the ADA in denying Gibson's request for an extended leave. The Court finds, however, that Lafayette's argument raises material issues of fact thereby precluding summary judgment on Gibson's ADA claim. Lafayette's argument erroneously assumes that the leave requested was for an indefinite period of time. Because Lafayette failed to participate in the interactive process, the term of leave had not been determined at the time it denied the request. Had Lafayette engaged in the interactive process, it could have requested that Gibson provide it with the necessary information needed to determine the reasonableness and/or undue hardship of the request. The fact that Gibson never provided this information at the time is irrelevant as there is no evidence that she was ever asked to provide it. Had the evidence showed that Lafayette requested the information from Gibson and she failed to provide it, then the result here would be different. However, the record is void of any evidence showing that Lafayette requested any clarification from Gibson regarding the nature of treatment, prognosis and expected duration of her medical conditions. Indeed, the record shows that Lafayette made the decision to terminate Gibson on August 31, 2004, one day after it claims to have received her request for accommodation, without the benefit of any of the medical evidence in the court record. 19 In addition, Lafayette's decision to deny Gibson's request for accommodation and terminate her employment, without further input from Gibson or her physicians, contravenes the purpose behind the interactive process. 20 Moreover, Lafayette provides no real evidence of undue hardship, choosing instead to rely on its legal argument that a leave of absence for an indefinite duration is not a reasonable accommodation as a matter of law. Having rejected that argument, the Court is left with Lafayette's conclusory statement that granting Gibson's request for an indefinite leave of absence would have been unreasonable and unduly burdensome. The only evidence offered in support of this statement is Mr. Geramita's testimony to the effect that Gibson worked in a one-person medical records department and in her absences, her duties were shifted to other employees and departments, and to continue this for an indefinite period would impose a substantial burden on Lafayette and would be wholly unreasonable. (Def.'s Br. at 15.) Lafayette's argument is flawed in two respects: (1) it again assumes that the evidence establishes, unequivocally, that the requested leave was for an indefinite period of time; and (2) it fails to provide the required evidentiary support to prove undue hardship. While the Court acknowledges that leave for an indefinite period of time has been found to be an unreasonable accommodation, 21 the undisputed evidence here does not show that the requested leave was for an indefinite period of time. As explained above, Lafayette did not attempt to obtain information in Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 92 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 August/September 2004 that would have established that the requested leave was, in fact, for an indefinite period. On the other hand, Plaintiff has presented some evidence to suggest that she was able to return to work in 2004. 22 Thus, a material issue of fact exists as to whether the requested leave was for an indefinite period of time and therefore, Lafayette's reliance on this factor in support of its burden to show undue hardship is misplaced. *12 Nor does the record otherwise contain sufficient evidence to prove undue hardship. According to the EEOC: Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: • the nature and cost of the accommodation needed; • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; • the impact of the accommodation on the operation of the facility. EEOC Enforcement Guidance at * 28 (citing 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997)) (footnote and other citations omitted). Other than the testimony of Mr. Geramita noted above, the record does not contain any evidence showing exactly how the proposed accommodation would cause it undue hardship. The Green Thumb workers were not paid by Lafayette. Also, Lafayette has in the past created light duty positions for employees to reduce the costs of workers compensation. A CNA who needed light duty filled in for Gibson during her continuous FMLA leave, who otherwise would have still been collecting workers' compensation, which also appears to have benefitted Lafayette. Moreover, the fact that Lafayette now allows CBA employees to take an additional three months of unpaid medical leave suggests that allowing additional leave may not be as much as a hardship as Lafayette contends. In light of the record and applicable legal authority, the Court concludes that Lafayette has not met its burden to prove undue hardship. d. Judicial Estoppel Perhaps recognizing the futility of its prior arguments, Lafayette raises for the first time in its reply brief a judicial estoppel argument to Gibson's ADA claim. In particular, Lafayette attempts to foreclose Gibson's ADA claim by arguing that under Detz v. Greiner Industries, Inc., 346 F.3d 109 (3d Cir.2003), she is estopped from claiming in this litigation that she is a qualified individual with a disability because she was collecting social security disability insurance (“SSDI”) benefits at the same time. (Def.'s Reply Br. at 2.) Lafayette asserts that because Gibson applied for SSDI benefits on August 24, 2004, and she was awarded and continued to receive SSDI benefits until at least January 2006 (the date of Gibson's deposition), this Court should a fortiori conclude that she is automatically estopped from claiming she could have returned to work in November of 2004 with reasonable accommodation. However, neither Detz nor controlling Supreme Court authority, supports this conclusion. Detz, 346 F.3d at 116 (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797-98 (1999)). *13 In response, Gibson correctly points out that the Supreme Court addressed the exact issue of the relationship between SSDI benefits and claims under the ADA in Cleveland v. Policy Mgmt. Sys. Corp., and determined that “pursuit, and receipt of, SSDI benefits does not automatically estop the recipient from pursing an ADA claim. Nor does the law erect a strong presumption against the recipient's success under the ADA.” 526 U.S. at 797-98. Gibson argues that Lafayette has failed to identify any statements, sworn or otherwise, in her SSDI application, that are genuinely inconsistent, but rather, rests merely on the fact that she collected SSDI benefits, which it cannot do. In any event, Lafayette offers an explanation as to why her receipt of SSDI benefits and her ADA claim do not genuinely conflict. The Court Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 93 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 finds that Lafayette has failed to produce evidence that a genuine conflict exists, and nonetheless, Gibson has met her burden under Cleveland to withstand summary judgment on judicial estoppel. 23 In Cleveland, the Supreme Court explained that on summary judgment, an “ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions of her previous job, at least with ‘reasonable accommodation.’ “ 526 U.S. at 798. As to the adequacy of the explanation, the Supreme Court found that the ADA plaintiff's “explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions' of her job, with or without ‘reasonable accommodation.’ “ Id. at 807. In Detz, the Third Circuit found the Court of Appeals for the Seventh Circuit aptly summarized the Cleveland analysis: Explanations of the sort Cleveland requires are, in short, contextual- they resolve the seeming discrepancy between a claim of disability and a later claim of entitlement to work not by contradicting what the plaintiff told the Social Security Administration, but by demonstrating that those representations, under stood in light of the unique focus and requirements of the SSA, leave room for the possibility that the plaintiff is able to meet the essential demands of the job to which he claims a right under the ADA. Detz, 346 F.3d at 118 (quoting Lee v. City of Salem, Ind., 259 F.3d 667, 674-75 (7th Cir.2001)). In light of this authority, the Court must initially determine whether the positions taken by Gibson in her SSDI application and her ADA claim genuinely conflict. The only evidentiary support proffered by Lafayette is the Disability Determination and Transmittal, dated December 3, 2004 (“SSA Disability Determination”), from the Social Security Administration (“SSA”). (Ex. B to Def.'s Reply Br.) According to the SSA Disability Determination, Gibson's disability began on July 2, 2004, not on November 5, 2004 as contended by Lafayette. The SSA Disability Determination does not contain any statements or representations by Gibson as to her limitations or inability to work. Lafayette fails to point to any statements, sworn or unsworn, made by Gibson either in her application for SSDI benefits or elsewhere, let alone statements which genuinely conflict with her ADA claim, despite having apparently received a copy of her SSDI application. Lafayette attempts to rely merely on the fact that SSDI benefits were applied for and received by Gibson to satisfy its burden. However, the Supreme Court in Cleveland specifically rejected this approach. *14 Thus, this case is factually distinguishable from Detz and other Third Circuit cases applying Cleveland. In those cases, the court record contained sworn statements from the employees' applications for disability benefits, which were reviewed to determine whether a genuine conflict existed between the positions taken in the disability applications and the ADA claims, or in the case of Detz, his ADEA claim. Detz, 346 F.3d at 118-20; see also Turner v. Hershey Chocolate USA, 440 F.3d 604, 608 (3d Cir.2006) (holding plaintiff was not judicially estopped from asserting she was a qualified individual with a disability under the ADA where statements in SSDI application did not state categorically that she could not work at all or take into account employee's entitlement to reasonable accommodation); Motley v. N.J. State Police, 196 F.3d 160, 166-67 (3d Cir.1999) (finding plaintiff failed to proffer a reasonable explanation for his inconsistent statements in application for accidental disability pension with his ADA claim). Unlike in those cases, Lafayette has not produced any such statements, sworn or otherwise, despite having a copy of Gibson's SSDI file. Therefore, Lafayette has not presented any statements for the Court to review for genuine conflict. Notwithstanding the lack of evidentiary support from Lafayette, Gibson proffers an explanation for the apparent inconsistency between applying for and receiving SSDI benefits and the elements of her ADA claim. She explains that her attempt to return to work while receiving SSDI benefits is both consistent with the law and adequately explained by the improvement in her condition as evidenced by Dr. Krafty's release to return to work, albeit with restrictions and after a period of recovery. She asserts that her part-time employment with Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 94 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 the Department of Public Welfare since December 2004 further supports that her condition has improved and that she has not taken inconsistent positions. The Court finds that under the circumstances of this case, in particular, that the requested accommodation was an extended leave of absence, Gibson's explanation is sufficient under the standard enunciated in Cleveland to withstand summary judgment. Gibson's request for an extended leave of absence as a reasonable accommodation is consistent with her position with SSA that she could not return to work in August 2004. She further explains that there was a change in her condition since she applied for SSDI, such that she could return to work with accommodation in November 2004. Moreover, as in Cleveland, Gibson identified several differences between the analysis conducted under the SSA and the ADA, as recognized in Cleveland, such as: (1) the different standards of a legally disabling condition because the SSA does not solicit any information about whether any kind of work can be performed with accommodation; (2) SSDI benefits may be awarded solely on whether an applicant's impairment(s) meet or medically equal a listed impairment; 24 (3) the nature of an individual's disability may change over time, so that the statement made in the application may not reflect the individual's capacities at the time of the relevant employment decision; and (4) it is not inconsistent for an individual who is receiving SSDI benefits to simultaneously seek training and placement through the Commonwealth's OVR program and attempt to return to work, as the SSA encourages this and permits a nine-month trial work period during which SSDI recipients may receive full SSDI benefits. Thus, in the specific factual context of this case, the Court finds that Gibson has sufficiently explained the different positions taken in her SSDI application and her ADA claim here. Accordingly, the Court finds that Gibson's ADA claim is not judicially estopped. *15 Because Gibson's ADA claim is not judically estopped by her application for and receipt of SSDI benefits, and given that material issues of fact remain as to whether she is a qualified individual under the ADA, whether the requested accommodation was reasonable and not an undue hardship, and whether Lafayette failed to engage in the interactive process in bad faith, the Court recommends that Lafayette's motion for summary judgment as to Gibson's ADA claim be denied. 2. Gibson's Interference and Retaliation Claims under FLMA Under FMLA, an eligible employee is granted the right to 12 workweeks of leave over any 12-month period, in order to care for a spouse, child or parent who has a serious health condition, or because a serious health condition makes the employee unable to perform the functions of his or her position, among other things. Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006) (citing 29 U.S.C. § 2612(a)(1)). “After a period of qualified leave, an employee is entitled to reinstatement to his former position or an equivalent one with ‘equivalent employment benefits, pay and other terms and conditions of employment.’ “ Id. (quoting 29 U.S.C. § 2614(a)(1)). In this case, Gibson asserts two claims under the FMLA. First, she contends that Lafayette interfered with her right to benefits under the FMLA in two respects: (1) Lafayette attempted to deny her eligibility for benefits by requiring a marital certificate despite prior approval of FMLA for her common law husband; and (2) Lafayette required her to obtain a doctor's slip for each day she took intermittent leave under FMLA, in violation of 29 C.F.R. § 825.308. With regard to her retaliation claim, Gibson asserts that she was terminated and denied the chance to return to work in retaliation for exercising her rights under the FMLA. For the reasons set forth below, the Court concludes that summary judgment should be granted as to Gibson's retaliation claim, but denied as to her claim of interference with her rights under the FMLA. a. Interference Claim Under 29 U.S.C. § 2615(a)(1), the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” in the FMLA. See also, Sommer, 461 F.3d at 399 (citing same). A claim for violation of this provision is typically referred to as an “interference claim.” Sommer, 461 F.3d at 399 (citation omitted). The Court of Appeals has held that to establish an interference claim, an employee must show: (1) “that he was entitled to benefits under the FMLA and [2] that he was denied.” Id. (citing Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005) (citing 29 U.S.C. §§ 2612(a), 2614(a)). The Court of Appeals further opined: Under this theory, the employee need not show that he was Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 95 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 treated differently than others[, and] the employer cannot justify its actions by establishing a legitimate business purpose for its decision. [Callison, 430 F.3d] at 119-120. An interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA. Id. at 120. Because the FMLA is not about discrimination, a McDonnell-Douglas burden-shifting analysis is not required. See Parker v. Hanhemann Univ. Hosp., 234 F.Supp.2d 478, 485 (D.N.J.2002) (citing Hodgens v. Gen'l Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998)). *16 461 F.3d at 399. The Department of Labor, which has promulgated regulations to implement the FMLA, has stated that unlawful FMLA interference “includes ‘not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.’ “ Id. (quoting 29 C.F.R. § 825.220(b)) (footnote omitted); see also Sabbrese v. Lowe's Home Centers, Inc., 320 F.Supp.2d 311, 327 (W.D .Pa.2004) (citing same). 25 Several courts in this Circuit have opined that an employee may bring an interference claim for actions that could “chill” the desire to take FMLA leave, even though the leave is subsequently granted. See, e.g., Williams v. Shenango, Inc., 986 F.Supp. 309, 320-21 (W.D.Pa.1997) (“where employer denied request for FMLA leave and suggested that employee take leave on a different week, but retroactively approved the leave after it was taken, reasonable person could conclude that employer interfered with FMLA rights”); Shtab v. Greate Bay Hotel and Casino, Inc., 173 F.Supp.2d 255, 267-68 (D.N.J.2001) ( “where authorization for FMLA leave was denied after leave occurred, noting that a jury could conclude that employer's suggestion that employee take different date of leave chilled plaintiff's assertion of rights under FMLA”). But compare Alifano v. Merck & Co., Inc., 175 F.Supp.2d 792 (E.D.Pa.2001) (holding “plaintiff could not bring claim for interference in the absence of any adverse employment action where employer allegedly discouraged but did not deny leave”). The decisions in Williams and Shtab appear to be in accord with the Court of Appeals holdings in Callison and Sommer, while Alifano does not. As noted by the Sommers court, the absence of discipline, i.e., an adverse employment action, does not defeat a claim for interference with rights under FMLA. 461 F.3d at 399 (citing Callison, 430 F.3d at 119-120); see also Williams, 986 F.Supp. at 320 n. 9. Therefore, Alifano does not appear to state the current law of this Circuit. 26 In addition, the Court of Appeals decision in Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 73 n. 6, 2003 WL 230709, *3 n. 6 (3d Cir. Jan. 29, 2003), although not precedential, is particularly instructive here. In that case, the employee requested FMLA leave to care for a grandparent. At the time she submitted her leave request, the employee did not provide any explanation regarding her relationship with her grandparent to allow the employer to determine her eligibility for FMLA leave, as required under FMLA. The employer initially denied the employee's request for FMLA leave, but subsequently approved the leave after the employee explained that her grandparent had raised her, thereby meeting the “loco parentis” definition of parent under 29 U.S.C. § 2611(7). Based on 29 C.F.R. § 825.208(a)(1), 27 the court of appeals found that the initial denial of leave was not improper because the employee failed to provide an adequate explanation to show she met the eligibility requirements for leave. The Court of Appeals further found the initial denial of leave was not so discouraging that it interfered with the employee's FMLA rights. Sherrod, 57 Fed. Appx. at 72, 2003 WL 230709 at *3 (quoting 29 C.F.R. § 825.208. (a)(1)). *17 In the present case, Lafayette argues that Gibson cannot establish an interference claim because it continually permitted her to use her FMLA time through 1999 to 2004, up to the point of exhaustion in 2004. (Def.'s Br. at 20.) In addition, Lafayette submits that FMLA does not provide leave to care for an unmarried, co-habitant and therefore, it had no obligation to allow spousal leave prior to March 27, 2003, because Gibson and her husband were not married and common law marriage has been abolished in Pennsylvania. (Def.'s Br. at 20; Def.'s Reply Br. at 4.) Lafayette further argues that the FMLA provides express authorization for requesting and receiving medical certifications or excuses to verify Gibson's absences, citing 29 U.S.C.A. § 2613. (Def.'s Br. at 21.) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 96 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 Lafayette's argument overlooks a critical element of an actionable interference claim, that is, discouraging an employee from using FMLA leave. As noted above, the Third Circuit in Sommer and Callison held that an employee can prove the second element of an interference claim, denial of benefits, by showing that the employer discouraged her from using FMLA leave, such that her desire to use such leave was “chilled.” In this case, Gibson testified that on several occasions prior to her official marriage, she was told she could not use FMLA leave to care for her common law husband because they were not officially married, 28 even though FMLA leave had been approved for such use in the past and was subsequently approved. Prior to Gibson's official marriage on March 27, 2003, common law marriage in Pennsylvania was still recognized, 29 and the regulations specifically include in the definition of “spouse” common-law spouses in states that recognize common-law marriage. 29 C.F.R. § 825.113(a). Therefore, any reliance by Lafayette on the abolition of common law marriage in Pennsylvania was unjustified. 30 In addition, Gibson contends she was required to obtain a doctor's excuse/slip every time she took intermittent leave, which violates 29 C.F.R. § 825.308, and that this amounts to discouragement from using her FMLA leave. Under the FMLA, an employer may require that a request for leave, either to care for a spouse or because of a serious health issue that prevents the employee from working, be supported by a certification from a health care provider. 29 U.S.C. § 2613(a). Section 2613 also defines what constitutes a sufficient certification. 29 U.S.C. § 2613(b). 31 After the initial certification, an employee may require subsequent recertifications subject to the restrictions set forth in 29 C.F.R. § 825.308. In the case of FMLA leave taken intermittently, the regulations provide that an employer may not request recertification more frequently than the minimum period specified on the initial certification as necessary for such leave, including treatment, and if no period is stated, no more frequently than every 30 days. 29 C .F.R. § 825.308(b) (2) and (c). However, employers are not so limited where the “employee requests an extension of leave; ... [c]ircumstances described in the previous certification have changed significantly (e.g., the duration ... [and] the nature of the illness, the complications); or ... [t]he employer receives information that casts doubt upon the continuing validity of the certification.” 29 C.F.R. § 825.308(b)(2) and (c). The regulations further provide that “[a]n employer is not entitled to certification of fitness to return to duty when the employee takes intermittent leave as described in § 825.203.” See 29 C.F.R. § 815.310(g). *18 The record shows that Ms. Bowser testified that it was Lafayette's practice to require all employees taking intermittent leave under FMLA to obtain a doctor's slip every time intermittent leave was taken. (Bowser Dep. at 12.) However, the record does not indicate the purpose of or the information that must be included on the doctor's slip. Preliminarily, the Court notes that where an employer's internal policies conflict with the FMLA, the FMLA governs. Callison, 430 F.3d at 121 (citing 29 U.S.C. § 2652(b)) (other citations omitted). Thus, in order to invoke the protections of the FMLA, the employee must only comply with the requirements of FMLA where there is a conflicting employment policy. Id. The Court must therefore determine whether Lafayette's policy regarding doctors' excuses for intermittent leave conflicts with the FMLA. Unfortunately, the record does not provide sufficient information for the Court to determine whether the doctors' excuses/slips required for intermittent leave are the equivalent of the certifications/ recertifications regulated under the FMLA. 32 Thus, a material question of fact exists as to this point. Thus, the Court finds that based on Williams and Sabbrese, Gibson has alleged sufficient facts to establish a prima facie claim of interference with her rights under FMLA, because reasonable persons could conclude that Lafayette's conduct in requiring a marriage certificate discouraged her from using FMLA leave. In addition, a material issue of fact exists as to whether the doctor's excuses required by Lafayette for intermittent leave constitute certifications/recertifications and/or fitness for duty certifications. A question of fact remains as to whether Gibson was actually discouraged in exercising her FMLA rights. Accordingly, the Court recommends that Lafayette's motion for summary judgment as to Gibson's interference claim be denied. b. Retaliation Claim Under FMLA, Congress also grants employees a cause of action against employers who discriminate against them based on the exercise of their FMLA rights; these claims are referred to as “retaliation claims.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 97 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 Cir.2004) (citing 29 U.S.C. §§ 2615(a)(2) 33 & 2617); Grosso v. Fed. Express Corp., 467 F.Supp.2d 449, 2006 WL 3759714, *5 (E.D.Pa. Dec. 19, 2006) (citing same). Section 825.220(c) of the regulations implementing the FMLA further provides: An employer is prohibited from discriminating against employees ... who have used FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. *19 29 C.F.R. § 825.220(c). Retaliation claims are analyzed under the familiar burden-shifting framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of retaliation under FMLA, a plaintiff must show that: “(1) [s]he took an FMLA leave; (2)[s]he suffered an adverse employment decision; and (3) the adverse decision was causally related to [her] leave.” Conoshenti, 364 F.3d at 135. Once plaintiff has established her prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. McDonnell Douglas, 411 U.S. at 802; see also Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). If the employer meets its burden, then the burden shifts back to plaintiff to show that the employer's reasons are pretextual. Burdine, 450 U.S. at 255-56. With regard to Gibson's prima facie case of retaliation, the first element of the three-part test is not disputed- Gibson took FMLA leave. However, Lafayette submits that Gibson has failed to meet her burden with respect to the second and third elements of her retaliation claim. The Supreme Court recently clarified the showing necessary to satisfy the adverse employment action requirement in Title VII retaliation cases in Burlington N. & Santa Fe Ry. v. White, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The Supreme Court in Burlington explained: The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces any injury or harm ... In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means is well might have ‘dissuaded a reasonable worker from [engaging in protected activity].’ “ 126 S.Ct. at 2414-15 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Although the Third Circuit has not yet had an opportunity to consider whether the new standard announced in Burlington Northern applies to FMLA retaliation claims, several other courts have considered this issue and applied Burlington Northern to retaliation claims under FMLA. Grosso, 2006 WL 3759714 at *6 (citing Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n. 2 (10th Cir.2006); Foraker v. Apollo Group, Inc., 2006 WL 3390306, *2 (D.Ariz. Nov. 22, 2006); Campbell v. Washington County Public Library, 2006 WL 2612985, *6 (S.D.Ohio Sept. 8, 2006)). This Court agrees that the standard enunciated in Burlington Northern should guide its determination here as to whether Gibson was the subject of an adverse employment action. Turning now to this case, Lafayette argues that Gibson cannot show she has suffered an adverse employment action because it is undisputed that Gibson was unable to return to work at the expiration of her FMLA leave and at the time of her termination. In support of this argument, Lafayette submits that in order for Gibson to show that her termination was adverse, she must be able to perform the essential functions of her job at the time of her termination, citing Dogmantis, 413 F.Supp.2d at 463. (Def.'s Br. at 17.) The Court agrees with Lafayette. Several district courts in this Circuit that have considered this issue have all concluded that an employee, who is terminated after the expiration of FMLA leave because the employee is unable to perform the essential functions of the job at the time of termination, has failed to establish the requirement of an adverse employment action for a FMLA retaliation claim. See, Dogmantis, 413 F.Supp.2d at 463 (employee was unable to return to work at time of termination and could not obtain a work release from her doctor until over a month after her termination, thereby failing to establish that she suffered an adverse employment action); Alifano v. Merck Co., 175 F.Supp.2d 792, 795 (E.D.Pa.2001)(citing Clark v. Germantown Hosp. & Med. Ctr., No. Civ. A. 00-3862, 2001 WL 122221 (E.D.Pa. Feb. 13, 2001); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (1st Cir.1998); 29 C.F.R. § 825.214(b) 34 ) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 98 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 (“Because Plaintiff was not qualified for her job at the time of her termination, she has not shown that she suffered an adverse employment action.”); Smith v. UBS Fin. Serv., Inc., No. Civ. 06-03048, 2006 WL 2668203, *3 (D.N.J. Sept. 12, 2006) (citing Dogmantis and Alifano, supra ) (employee who was unable to return to work until nearly two months after his FMLA leave expired failed to show that he suffered an adverse employment action and therefore failed to state a FMLA retaliation claim). In response, Gibson argues that even though she concedes she was unable to return to work at the expiration of her FMLA leave, that factor is not dispositive of whether she suffered an adverse employment action. Rather, Gibson contends that in the context of a request for an accommodation in the form of extended leave, Gibson would have remained an employee but for the denial of the leave. Gibson's argument completely misses the mark. It is clear that the FMLA, unlike the ADA, does not require an employer to reasonably accommodate an employee's serious health condition. Alifano, 175 F.Supp.2d at 795 (citing 29 C.F.R. §§ 825.702(a) and 825.214(b)). Therefore, she cannot side-step the requirement of an adverse employment action simply by arguing that she could have returned to work with reasonable accommodation in the form of an extended leave. Because it is undisputed that Gibson was unable to return to work at the expiration of her FMLA leave, and in fact, could not return to work in any capacity for some time thereafter, she did not suffer an adverse employment action. Stated another way, Gibson has failed to show that her termination was materially adverse, such that it might well have dissuaded a reasonable employee from exercising her rights under the FMLA. Accordingly, the Court finds that Gibson has failed to satisfy her burden of proving a prima facie case of retaliation under the FMLA, Therefore, the Court recommends that Lafayette's motion for summary judgment be granted as to the FMLA retaliation claim. 35 3. Gibson's Claim for Economic Damages *20 Lafayette argues that it is entitled to summary judgment on Gibson's claim for economic damages under the ADA 36 and/or FMLA 37 because she has failed to offer any evidence that she sustained an economic loss. Although she is claiming lost wages, Lafayette submits she does not know the amount of those lost wages. Lafayette contends that her damages are therefore speculative and such damages are not recoverable. (Def.'s Br. at 21-22.) Lafayette further argues that Gibson's claims for back and/or front pay should be dismissed because at the time of her termination, she was unable to work in any capacity, has never presented a return to work slip or new employment application, and she has been deemed disabled by the Social Security administration since 2004. (Def.'s Br. at 22.) In addition, Lafayette contends that Gibson is not entitled to back pay for periods of time that she otherwise would not have been working even if the alleged discrimination had not occurred. 38 Finally, Lafayette submits that Gibson's claim for front pay should be dismissed even if the Court were to find that her termination was discriminatory because the salary loss, if any here, is attributable solely to her inability to work. In response, Gibson argues that she has been capable of working since November 2004, and in support of this statement, proffers her employment as a personal aide through the Pennsylvania Department of Public Welfare since December 2004 to the present, and Dr. Krafty's August 28, 2006 letter, which according to Gibson, states that she is capable of sedentary work since November of 2004. (Pl.'s Br. in Opp'n at 12.) In addition, Gibson submits that Lafayette's argument erroneously rests on the fact that Gibson was unable to work at the time of her termination, but because she requested an extension of her leave as an accommodation, the central issue is whether she could have returned to work with additional leave. (Id. at 13.) However, Gibson concedes that she cannot claim back wages for any period of time that she was hospitalized or otherwise incapable of working. (Id.) Gibson clarifies that she is seeking lost wages from November of 2004 through the present with an appropriate charge for mitigation of damages, and that these issues should be decided by a jury. (Id.) In its reply brief, Lafayette correctly points out that Dr. Krafty's August 28, 2006 letter does not expressly state that Gibson was able to return to work in November 2004. Lafayette further contends that the medical records 39 and social security disability records for 2004 show that she was disabled and do not mention her return to work. Moreover, given Dr. Mehta's letter of September 2, 2004 indicating she was unable to work, and that Dr. Krafty did not release her to return to work until August 28, 2006, Lafayette argues she is precluded from an award of back pay and front pay. The parties agree that Gibson cannot claim back wages for any period of time that she was hospitalized or Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 99 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 otherwise incapable of working. Nonetheless, the parties disagree as to when Gibson was able to return to work and whether her request for extended leave was a reasonable accommodation. The Court does not construe Dr. Krafty's letter to state that Gibson could not return to work prior to August 28, 2006, as Lafayette suggests. Dr. Krafty does indicate that “[Gibson] was not able to work 6-8 weeks post operatively due to recovery [from] abdominal surgery and post operative infection.” (Ex. 1 to Pl.'s Resp. to Def.'s Stmt. of Facts.) Moreover, the medical records of Dr. Sunyecz indicate on October 7, 2004, he received a telephone call from Gibson requesting medical records be sent to her PCP for completion of a disability form; on October 12, 2004, the note indicates Gibson's incision from the surgery was healing well; the progress notes were otherwise unremarkable. Dr. Krafty's medical records were, for the most part, undecipherable; however the progress note on September 29, 2004 appears to indicate an infection near her incision from surgery. This notation appears early on in the 6 to 8 week recovery period. Contrary to Lafayette's assertion, the fact that the progress notes do not indicate a return to work date is of no relevance because the entries 40 are 3 to 6 weeks prior to when Gibson claims she was able to return to work. In any event, a question of fact remains for the jury on this issue, as reasonable persons could find that based on Dr. Krafty's letter, Gibson could have returned to work 6 to 8 weeks after her surgery in September of 2004. Therefore, it is premature at this time to rule as a matter of law that Gibson is not entitled to any back pay because factual issues remain to be determined by the jury. *21 As to Lafayette's claim that Gibson's economic losses are speculative, the Court finds no merit to this argument. Gibson has articulated her theory of damages-she is seeking lost wages from November 2004 to the present, with an appropriate mitigation of damages. Although not brimming with detail, Gibson's claim for economic damages sufficiently apprises Lafayette of the basis of her claim, i.e., lost wages, and as her employer, Lafayette is aware of her rate of pay, and therefore can easily calculate the economic damages prior to offsets 41 and mitigation. Nonetheless, the exact extent of the economic damages cannot be ascertained until the jury resolves the outstanding the factual issues noted above. Moreover, front pay is awarded by the Court and only if it finds that reinstatement is not possible. Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253, 261 (3d Cir.1986). 42 At this juncture, the facts are not sufficiently developed to determine whether or not Gibson is entitled to front pay. Therefore, summary judgment on the issue of front pay is inappropriate at this time. Accordingly, the Court recommends that Lafayette's motion for summary judgment with regard to Gibson's claim for economic damages under the ADA and/or FMLA be denied. 4. Gibson's Claim for Punitive and Liquidated Damages Finally, Lafayette requests summary judgment as to Gibson's claim for punitive and liquidated damages under the ADA and the FMLA. In support, Lafayette relies on 42 U.S.C. § 1981a(b)(1), which provides that punitive damages may be awarded only if the plaintiff “demonstrates that the [employer] engaged in a discriminatory practice or ... practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Lafayette also relies on case law in the Third Circuit holding that liquidated damages “are punitive in nature and designed to deter willful conduct.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1102 (3d Cir.1995) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)). According to Lafayette, because the record contains no evidence that its conduct was at any time willful, malicious, reckless, or in bad faith, it is entitled to summary judgment on Gibson's claims for punitive and liquidated damages. In response, Gibson argues that a jury could find that Lafayette's failure to engage in the interactive process in any manner supports a reckless indifference to her federally protected rights. Gibson further argues that at this juncture, the evidence shows that Lafayette did not have a reasonable basis to deny FMLA leave to care for her common law spouse, to require medical certifications/recertifications for each use of intermittent leave, and to terminate her employment despite a request for an extended leave of absence which she maintains was reasonable. As these issues present material factual questions for the jury, Gibson urges the Court to deny Lafayette's motion for summary judgment on her claim for punitive and liquidated damages. *22 The FMLA provides that monetary damages, 43 including interest and liquidated damages, as well as equitable relief, may be recovered in the event of a Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 100 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 violation of Section 2615. See 29 U .S.C. § 2617. With regard to liquidated damages, such damages will be awarded unless the employer “proves to the satisfaction of the court that the act or omission which violated section 2615 ... was in good faith and that the employer had reasonable ground for believing that the act or omission was not a violation of section 2615....” 29 U.S.C. 2617(a)(1)(A)(iii). However, punitive damages cannot be recovered under the FMLA. Zawadowica v. CVS Corp ., 99 F.Supp.2d 518, 540 (D.N.J.2000) (citations omitted); Oby v.. Baton Rouge Marriott, 329 F.Supp.2d 772, 788 (M.D.La.2004) (same) . 44 Under the ADA or Title VII, there is no provision for liquidated damages; however, Congress did provide for recovery of punitive damages under the ADA, but only if the violation concerns the provision of a reasonable accommodation. 42 U.S.C. § 1981a(a)(2) and (b). Thus, in order to recover punitive damages under Section 1981a, the employee must show that the employer “engaged in a discriminatory practice or ... practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). However, punitive damages may not be awarded if the employer “demonstrates good faith efforts, in consultation with the person with the disability who has informed [it] that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.” 42 U.S.C. § 1981a(a)(3). In Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534-35 (1999), the Supreme Court construed the punitive damages provision in Section 1981a(b) and found that plaintiffs are not required to show egregious or outrageous discrimination in order to recover punitive damages under Title VII, but that proof of intentional discrimination alone will not be sufficient to justify an award of punitive damages. Id. at 534-35. Thus, the Supreme Court concluded that to be liable in punitive damages, “[t]he employer must act with ‘malice or with reckless indifference to the [plaintif's] federally protected rights.’ The terms ‘malice’ or ‘reckless indifference’ pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Id. at 535. Moreover, the Third Circuit has opined that in determining whether the employer's conduct meets this standard, the focus is on the employer's state of mind. Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 573 (3d Cir.2002) (citing Kolstad, supra ). Although Gibson's amended complaint is not a model of clarity, the Court construes her request for punitive damages to be limited to her ADA claim, based on the allegations set forth in paragraph 29 of the amended complaint and in paragraph (e) in her prayer for relief, and the case law holding punitive damages are not recoverable under the FMLA; the Court reads her request for liquidated damages to be limited to her FMLA claims, based on the allegations set forth in paragraph 30 of her amended complaint and in paragraph (d) of her prayer for relief, and the absence of any provision for such damages under Title VII or the ADA. That being said, Lafayette's motion for summary judgment on Gibson's claim for punitive damages is viewed as applying to Gibson's ADA claim; the summary judgment motion on liquidated damages is viewed as applying to Gibson's FMLA claims. *23 With regard to Gibson's ADA claim, the Court has already found that a material issue of fact exists with regard to whether Lafayette engaged in the interactive process in good faith. The evidence shows that Lafayette did not attempt to obtain any information regarding Gibson's condition to allow it to consider the reasonableness of the request for accommodation. Additionally, Lafayette does not content that it was not aware of its obligations under the ADA. Therefore, the Court concludes that reasonable persons could find that Lafayette's denial of Gibson's request for extended leave without participating in the interactive process constitutes reckless indifference to federally protected rights. As to Gibson's interference claim under the FMLA, the Court earlier determined that a material issue of fact exists as to whether Lafayette's conduct discouraged and therefore interfered with the exercise of Gibson's rights under the FMLA. Arguably, reasonable persons could find that Lafayette's unjustified initial denial of leave to care for her spouse and alleged violations of certification/ recertification regulations, demonstrates a lack of good faith and that Lafayette did not have a reasonable basis for believing its actions were not a violation of the FMLA. The Court cannot conclude at thus juncture that Gibson is not entitled to liquidated damages on her FMLA interference claim. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 101 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 Accordingly, because material issues of fact exist with regard to whether Gibson is entitled to punitive damages as to her ADA claim and liquidated damages as to her FMLA interference claim, the Court recommends that Lafayette's motion for summary judgment on these issues be denied. III. CONCLUSION For the reasons set forth above, it is recommended that Defendant's Motion for Summary Judgment be granted in part and denied in part. It is recommended that Defendant's Motion for Summary Judgment be granted as to Plaintiff's FLMA retaliation claim, but denied in all other respects. In accordance with the Magistrates Act, 28 U.S.C. § 636(b) (1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates Judges, the parties are allowed ten (10) days from the date of service to file objections to this report and recommendation. Any party opposing the objections shall have ten (10) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights. All Citations Not Reported in F.Supp.2d, 2007 WL 951473 Footnotes 1 Gibson suffers from a history of mental and physical impairments, including but not limited to, major depressive disorder and respiratory ailments. 2 Prior to their marriage on March 27, 2003, Gibson and her husband lived together for sixteen years and during that time, Gibson held him out to be her husband under Pennsylvania common law. Lafayette argues that Pennsylvania has abolished common law marriage, but nonetheless contends that it granted FMLA leave to Gibson to take care of her husband, prior to their official marriage. Gibson disputes this, and alleges that although she was granted FMLA leave to care for her husband, she was subsequently told she could not use FMLA leave for her husband because they were not officially married. Gibson admitted that Lafayette did subsequently approve her requests for FMLA leave to care for her common law husband. (Gibson's Dep. at 51-52 (Ex. B to Def.'s Mot. for Summ. J.).) 3 During the hernia operation, several large cysts were found on her pelvis, and she was also diagnosed with low oxygen deficiency and sleep apnea. 4 Gibson also describes a conversation that occurred in the parking lot at the end of August 2004 between Frank Geramita and her during which she claims to have told Geramita that she gave Ms. Bowser the August 27, 2004 letter requesting an extension of her medical leave, and that Geramita responded that she should come back and reapply when she gets better. (Gibson Dep. at 65, 67 (Ex. 4 to Pl.'s Resp. to Def.'s Stmt. of Facts; Ex. B to Def.'s Mot. for Summ. J.).) Gibson further claims Geramita did not specifically ask her when she believed she would be able to return to work, nor did he request that information. Mr. Geramita does not specifically recall what Gibson told him regarding her medical condition during this conversation, however, he stated he wished her a speedy recovery and welcomed her reemployment when she was able to return to work. (Geramita Dep. at 69-74 attached as Ex. C to Def's Mot. for Summ. J .) Gibson further contends that she informed Ms. Bowser of the nature of her serious medical condition and assumed she would have been aware of the recovery period given her medical background. (Gibson Dep. at 65-67, 82.) However, Bowser stated she only knew of Gibson's hernia operation through another employee and was not aware she underwent a laparotomy. (Bowser Dep. at 34-35 attached as Ex. 3 to Pl.'s Resp. to Def.'s Stmt. of Facts.) 5 The local Area Agency on Aging provides retired individuals through its “Green Thumb” program to nonprofit organizations for temporary work free of charge. (Geramita Dep. at 40-41; Gibson Dep. at 68-69.) These “Green Thumb” workers do not, however, have any special knowledge or experience in medical records. (Geramita Dep. at 118-19.) 6 Lafayette created permanent light duty positions for employees who have been off work due to work related injuries, in order to cut down on the costs of workers' compensation. (Geramita Dep. at 66, 99.) 7 Lafayette assigned a “Green Thumb” worker to cover Gibson's job when she was out on intermittent FMLA leave, and assigned a light duty CNA to her position when the leave was continuous. (Geramita Dep. at 42.) 8 Gibson turns over the money she earns to DPW which applies her earnings toward the cost of her health insurance. 9 A claim for discrimination based on disability under the ADA is analyzed under the legal framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), which employs the familiar burden shifting analysis. See Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156-58 (3d Cir.1995). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 102 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 19 10 There is no question here that Gibson satisfies the first part of this test. Rather, the focus in this case is on the second element-the ability to perform the essential functions of the medical records clerk position with or without reasonable accommodation. Therefore, the Court must determine whether Gibson has demonstrated a material issue of fact with regard to her ability to perform the essential functions of the medical records clerk position with reasonable accommodation. 11 “Essential functions” are defined under the ADA as the “fundamental job duties” of a particular position. 29 C.F.R. § 1630.2(n)(1). Whether a certain function is essential is determined by consideration of the following factors: (1) “the employer's judgment as to what functions of a job are essential;” (2) “the amount of time spent on the job performing a particular function;” (3) “the consequences of not requiring the job holder to perform the function;” and (4) “the number of other employees available among whom the performance of a particular function may be distributed.” Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, *5 (E.D.Pa. Nov. 23, 1999) (citing 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n)(3)) (other citations omitted). Whether a particular function is essential to a job is determined based on the particular facts of each case. Id. (citing 29 C.F.R. pt. 1630, app. § 1630.2(n)). 12 Although Gibson alleges that Lafayette extended leave for three other employees at the expiration of FMLA leave, the evidence shows that the extended leave occurred after implementation of a new CBA in January of 2006 which now provides for an additional 3 months of unpaid medical leave for CBA employees. The evidence further shows that the three employees who requested and were granted such leave were CBA employees. The medical records clerk position that Gibson occupied prior to her termination is not a CBA position, and therefore, is not eligible to the extended leave under the CBA. 13 A “no-fault” leave policy is one in which employees are automatically terminated after they have been on leave for a certain period of time. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, * 14 (Oct. 17, 2002). 14 Lafayette submits that other than extended medical leave, which it contends is unreasonable because it was for an indefinite period of time, no other reasonable accommodations existed that could have enabled Gibson to return to work at the expiration of her FMLA leave, nor did Gibson request any other possible accommodation. Gibson does not appear to dispute Lafayette's statement that no other reasonable accommodations existed that would have enabled her to return to work. 15 See discussion, infra in Part 1.c. regarding Lafayette's argument that Gibson's requested accommodation amounted to indefinite leave and therefore was unreasonable and/or would cause it undue hardship. 16 In determining whether a leave request is a reasonable accommodation, the prospect of the employee's recovery from treatment or enablement to return to work should not be judged by hindsight, but rather, by what reasonably appears at the time the leave is requested. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 655 (1st Cir.2000) (citing Evans v. Fed. Express Corp., 133 F.3d 137, 140 (1st cir.1998)). 17 Lafayette also appears to argue by implication that failing to engage in the interactive process where a reasonable accommodation does not exist, demonstrates, at most, that it was behaving callously which, based on Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997), does not give rise to liability under the ADA. (“The ADA, as far as we are aware, is not intended to punish employers for behaving callously if, in fact, no accommodation for the employee's disability could reasonably have been made.”) Lafayette appears to have taken this statement in Willis out of context. The Third Circuit's reference to this statement by the Eleventh Circuit in Mengine and Taylor was to emphasize that once the facts have been developed, a jury may reasonably conclude from the evidence that there is no job that the disabled employee can perform with or without accommodation, despite the employer's bad faith in the interactive process. In that situation, the employer will not be punished for behaving callously. At this stage of the litigation, however, a material issue of fact exists as to whether Lafayette participated in bad faith in the interactive process, thereby precluding summary judgment on Gibson's ADA claim. 18 In order to constitute an effective accommodation, a proposed period of leave “must be instrumental to effect or advance a change in the employee's disabled status with respect to the job, so that the employee is enabled to do it. A period of leave would meet this criterion if it permitted the employee to receive therapy or treatment that would succeed in removing the obstacle to employment the particular disability posed.” Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 655 (1st Cir.2000) (citing Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir.1998); 29 C.F.R. pt. 1630, app.; 29 C.F.R. pt. 32, app. A(b)). 19 Lafayette did not possess the September 2, 2004 letter from Dr. Mehta and Scott Tracy, or the August 28, 2006 letter from Dr. Krafty at the time it denied Gibson's request for accommodation. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 103 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 20 The interactive process can be thought of as a less formal, less costly, form of mediation, and when taken seriously be the parties, can obviate the need for litigation. Taylor, 184 F.3d at 315-16 & n. 6 (citing Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d Cir.1998)). 21 See, e.g., Dogmantis v. Capital Blue Cross, 413 F.Supp.2d 452, 460 (E.D.Pa.2005) (citing Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581, 585 (3d Cir.2004) (“holding that an indefinite or open-ended leave ‘does not constitute a reasonable accommodation’ ”); Peter v. Lincoln Tech. Inst., 255 F.Supp.2d 417, 437 (E.D.Pa.2002) (citing to decisions in the Fourth, Fifth, Sixth, and Tenth Circuits holding that indefinite leave is “inherently unreasonable”)). However, Dogmantis is distinguishable in that the employer in that case actually participated in the interactive process prior to denying the requested accommodation. In Fogleman, the plaintiff failed to present any evidence that she could eventually return to work after treatment. 122 Fed. Appx. at 586. In Peter, the court found the employer did not have an obligation to engage in the interactive process because the plaintiff never initiated the process by requesting accommodation. 255 F.Supp.2d at 437. 22 Dr. Krafty's August 28, 2006 letter does not foreclose the possibility that Gibson was capable of returning to work at an earlier date; rather, Dr. Krafty merely indicates that Gibson was capable of returning to work at a sedentary position as of the date of her letter. Moreover, Dr. Krafty's letter does indicate that the anticipated recovery period for Plaintiff's medical condition in September 2004 was six to eight weeks. This evidence is sufficient to raise a material issue of fact as to the duration of the leave that would have accommodated Gibson's disability. 23 In support of her argument that she is not judicially estopped from asserting her ADA claim, Gibson applies the traditional judicial estoppel approach utilized by the Third Circuit in Montrose Med. Group Participating Savings Plan v. Bulger, 243 F.3d 773, 779 (3d Cir.2001). However, as explained by the Court of Appeals in Detz, the situation here more closely resembles Cleveland and Motley v. N.J. State Police, 196 F.3d 160, 164-66 (3d Cir.1999). Detz, 346 F.3d at 117-18 & n. 2. Therefore, the Court will apply the judicial estoppel test used in Cleveland. 24 The SSA applies a five step sequential evaluation process to determine whether a person is disabled under the Social Security Act. See 20 C.F.R. §§ 404.1501-1529 At step 3, if the SSA determines that a claimant's impairments meet or medically equal a listing, disability is established, and there is no further inquiry as to whether the claimant can perform her past relevant work (Step 4) or whether jobs exist in the national economy which the claimant can perform given her impairments (Step 5). There is no indication here at what step Gibson was found to be disabled by the SSA. 25 In Sabbrese, the employer did not deny a request for leave or suggest that he wait to take leave. Rather, the employer disciplined the employee for taking permitted leave (a required break to eat in order to control his blood sugar/diabetes), which Judge Conti found was “arguably a more eggregious ‘chilling’ of his rights under the FMLA because he was actually penalized for exercising his right to take intermittent leave when medically necessary.” 320 F.Supp.2d at 330. Thus, Judge Conti concluded that reasonable persons could conclude that the discipline imposed “chilled” or otherwise discouraged the employee from asserting his FMLA rights, and therefore, a material issue of fact existed as to whether the employee was actually discouraged from asserting his rights. Id. 26 With all due respect to the district court in Alifano, the Court of Appeals decisions in Callison and Sommer were not issued until 2005 and 2006, respectively. 27 Under 29 C.F.R. § 825.208(a)(1), “[a]n employee giving notice of the need for unpaid FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act.” 28 Lafayette does not claim that it was not aware of Gibson's common law marriage when she requested FMLA leave to care for her common law husband. Therefore, the initial denia here was improper, unlike in Sherrod, supra. 29 In 2004, the Pennsylvania legislature amended the Marriage Law to abolish common law marriages contracted after January 1, 2005. See 23 Pa.C.S.A. § 1103 (West Supp.2005). Common law marriages contracted on or before January 1, 2005 and otherwise lawful remain valid. Id.; see also Costello v. W.C.A.B. (Kinsley Constr. Co.), 916 A.2d 1242, 2006 WL 4043525, *5 (Feb. 13, 2007). 30 The present case is distinguishable from Sherrod in this respect because in that case, the Court of Appeals found the employer's initial denial was justified. 31 In the case of certification for intermittent leave to care for a spouse, FMLA provides that sufficient certification consists of a statement that intermittent leave is necessary to care for a spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave. 29 U.S.C. § 2613(b)(7). In the case of certification for intermittent leave because of a serious health condition that makes the employee unable to perform the functions of her job, FMLA provides that sufficient certification consists of a statement of the medical necessity for and expected duration of the intermittent leave. 29 U.S.C. § 2613(b)(6). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 104 of 195 Gibson v. Lafayette Manor, Inc., Not Reported in F.Supp.2d (2007) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 21 32 In the event the doctors' excuses are determined to be a form of certification or recertification, the Court notes that the record does not contain any evidence to show that any of the exceptions under 29 C.F.R. § 825.308(c) apply with regard to Gibson that would allow for more frequent recertifications. To the extent the doctors' excuses required by Lafayette's policy for intermittent leave more closely resemble a certification for fitness to return to duty, they are likewise prohibited under 29 C.F.R. § 825.310(g). 33 Section 2615(a)(2) makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). 34 Section 825.214(b) provides that if the “employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.” 29 C.F.R. § 825.214(b). 35 Because the Court has concluded that Gibson failed to show an adverse employment action, it need not reach the question of whether the adverse employment action was causally related to her FMLA leave. 36 The remedies available under the ADA are the same as those provided in Title VII. See 42 U.S.C. § 12117. 37 The remedies available under the FMLA are set forth in 29 U.S.C. § 2617. However, the standard for “willfulness” in the liquidated damages provision under the FMLA is the same as that applied to the liquidated damages provision in the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), i.e., whether the employer “knew or showed reckless disregard” for the employee's statutory rights. See Hoffman v. Profl Med Team, 394 F.3d 414, 417 (6th Cir.2005); see also THIRD CIRCUIT MODEL CIVIL JURY INSTRUCTIONS, § 10.4.2 at 41-42 (Dec.2006). 38 Lafayette cites Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3d Cir.1995), for the proposition that generally, “ ‘[an employment discrimination plaintiff] will not be allowed back pay during any periods of disability’ and ‘an employer who has discriminated need not reimburse the plaintiff for salary loss attributable to the plaintiff and unrelated to the employment discrimination.’ “ Id. (quoting Mason v. Ass'n for Indep. Growth, 817 F.Supp. 550, 554 (E.D.Pa.1993)). Starceski involved a claim under the ADEA, and the remedies thereunder derive from the Fair Labor Standards Act, not Title VII. Rogers v. Exxon Research & Eng ‘g Co., 550 F.2d 834, 842 & n. 13 (3d Cir.1977); see also Lorillard v. Pons, 434 U.S. 575, 584 (1978). Nonetheless, authority does exist supporting reliance on the standard used under the ADEA for similar provision under the FMLA. See note 37, supra. 39 The medical records referred to consist of Dr. Krafty's office notes on 9/29/04 and 2/3/05; and Dr. Sunyecz's office notes from 10/1/04 to 10/12/04. (Def.'s Ex. F to its Reply Br.) These records were submitted to the Court in camera due to privacy concerns. 40 The noted exception is Dr. Krafty's February 5, 2005 progress note. While this note indicates Gibson was being treated for severe abdominal pain, there is no indication as to her work status on that date. 41 The Court notes that the Third Circuit has held that collateral benefits, such as unemployment compensation and social security benefits, generally are not deducted from a back pay awards in Title VII cases. See Craig v. Y & Y Snacks, Inc., 721 F.2d 77, (3d Cir.1983) (citing Smith v. United States, 587 F.2d 1013, 1015 (3d Cir.1978) (social security)) (other citations omitted). 42 The FMLA does not provide recovery for front pay. 29 U.S.C. § 2617. 43 Under Section 2617, monetary damages consist of lost wages, employment benefits, or other compensation denied or lost as a result of a violation under FMLA; however, if none of these items have been lost or denied, then the employee may recover any actual monetary losses incurred as a direct result of the violation, such as the cost of providing care, limited to the equivalent of 12 weeks of wages. 29 U.S.C. § 2617(a)(1)(A)(i). 44 In addition, the Court notes that nominal damages are not an available remedy under the FMLA. See Walker v. UPS, 240 F.3d 1268, 1278 (10th Cir.2003) (finding no grounds for relief under FMLA where the employee admittedly suffered no actual monetary losses as a result of the alleged violation of FMLA and presented no claim for equitable relief); Lapham v. Vanguard Cellular Sys., Inc ., 102 F.Supp.2d 266, 270 (M.D.Pa.2000)(while plaintiff had a cause of action for interference, she suffered no wage or other monetary loss, therefore “she cannot obtain relief under the FMLA and her claim must be dismissed.”); Oby, 329 F.Supp.2d at 788 (“It is clear that nominal damages are not available under the FMLA because the statutory language of the FMLA specifically limits recovery to actual monetary losses.”) If Gibson is unable to prove some actual monetary loss or entitlement to some equitable relief as a result of Lafayette's alleged interference with her rights under the FMLA at trial, she will not be entitled to recovery on this claim. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 105 of 195 Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Graves v. Ancora Psychiatric Hosp., D.N.J., December 11, 2012 346 Fed.Appx. 774 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7) United States Court of Appeals, Third Circuit. Adel GUIRGUIS, Appellant v. MOVERS SPECIALTY SERVICES, INC., Appellee. No. 09-1104. | Submitted Under Third Circuit LAR 34.1(a) Sept. 24, 2009. | Filed: Sept. 24, 2009. Synopsis Background: Terminated employee, who was of Arab descent and a native of Egypt, brought action against former employer under Title VII and Pennsylvania Human Relations Act (PHRA), alleging that he was terminated on the basis of his national origin. The United States District Court for the Eastern District of Pennsylvania, Stewart Dalzell, J., dismissed his complaint. Employee appealed. Holdings: The Court of Appeals, Jordan, Circuit Judge, held that: [1] allegations were insufficient to state claim for national origin discrimination, and [2] district court did not abuse discretion in failing to grant employee leave to amend. Affirmed. West Headnotes (2) [1] Civil Rights Pleading Civil Rights Employment practices Employee's allegations that he was an Egyptian native of Arab descent, that employer discharged him, and that his termination occurred in violation of his civil rights, were insufficient to state claim against employer, under Title VII or Pennsylvania Human Relations Act (PHRA), for national origin discrimination; complaint never intimated in any way why employee believed that national origin motivated employer's actions. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; 43 P.S. §§ 951-63. 43 Cases that cite this headnote [2] Federal Civil Procedure Pleading over District court did not abuse its discretion in failing to sua sponte grant employee leave to amend Title VII and Pennsylvania Human Relations Act (PHRA) claims upon dismissal for failure to state a claim, where employee had filed two motions for reconsideration, revealing an intent to stand on the complaint. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; 43 P.S. §§ 951-63; Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. 209 Cases that cite this headnote *774 On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 08- cv-4154), District Judge: Honorable Stewart Dalzell. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 106 of 195 Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Attorneys and Law Firms Paul J. Drucker, Esq., Metzger & Kleiner, Philadelphia, PA, for Appellant. Mark S. Halpern, Esq., Lisanne L. Mikula, Esq., Halpern & Levy, Drexel Hill, PA, for Appellee. Before: BARRY, FISHER and JORDAN, Circuit Judges. OPINION OF THE COURT JORDAN, Circuit Judge. **1 Adel Guirguis appeals from the order of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint under Rule 12(b) (6) of the Federal Rules of Civil Procedure. For the reasons that follow, we will affirm. *775 I. Background Guirguis brought suit against his former employer, Movers Specialty Services, Inc. (“Movers”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. §§ 951-63. 1 Guirguis, who is of Arab descent and a native of Egypt, contends that Movers terminated his employment on the basis of his national origin. 2 Paragraphs 7 through 9 of the complaint, which read as follows, contain the entirety of Guirguis's factual averments: 7. Plaintiff began working for the defendant in 2000 in the accounting department. Plaintiff was employed by the defendant from that day until February 14, 2006, when he was terminated by the defendant in violation of his civil rights. 8. Plaintiff is foreign born, is an Arab, having been born in Egypt on June 20, 1947. 9. On February 14, 2006, plaintiff was terminated by the defendant in violation of his rights due to the fact he is Arab, due to his native origin, having been born in Egypt. (App. at 11.) Movers sought dismissal, charging that Guirguis had neglected to exhaust administrative remedies and that his complaint failed to state a claim upon which relief could be granted. Guirguis did not respond to the latter argument, and the District Court held that he had conceded Movers' challenge by failing to say how his complaint made out a cognizable claim for relief. The Court nevertheless went on to review the substance of Guirguis's allegations, determining that the complaint indeed lacked sufficient factual content to raise a plausible right to relief under the pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court thus dismissed the complaint and closed the case. 3 Guirguis did not request an opportunity to file an amended complaint but filed two motions for reconsideration 4 of the Court's Rule 12(b) (6) ruling. The District Court denied both motions. This timely appeal followed. II. Discussion 5 Guirguis argues that the District Court erred when it dismissed his complaint, *776 which he contends adequately stated a claim. He also claims that the Court committed error when it closed his case without sua sponte granting him leave to amend, which effectively dismissed his claims with prejudice. A. Failure to State a Claim We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal, a complaint must set forth facts that raise a plausible inference that the defendant inflicted a legally cognizable harm upon the plaintiff. See Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Twombly, 550 U.S. at 556, 127 S.Ct. 1955; Phillips, 515 F.3d at 234. 6 Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 107 of 195 Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 discovery for a plaintiff armed with nothing more than conclusions”). **2 A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the nonmovant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). Legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading's factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950; Wilkerson, 522 F.3d at 321-22. [1] Guirguis's complaint fails to cross the threshold established by Twombly and Iqbal. It alleges that Guirguis is an Egyptian native of Arab descent, that Movers discharged him, and that his termination occurred in violation of his civil rights. The final allegation is precisely the type of factually unsupported legal conclusion that is inadequate to surmount a Rule 12(b)(6) challenge. The remaining averments contain no facts supporting an inference that Movers terminated Guirguis on the basis of his national origin. Indeed, the complaint never intimates in any way why Guirguis believes that national origin motivated Movers' actions. In the absence of factual averments supporting his discrimination claims, the District Court properly found that Guirguis failed to raise a plausible right to relief under the pleading standard established by Twombly. 7 *777 B. Standing on the Complaint [2] Guirguis also contends that under Phillips the District Court should have granted him leave to amend his complaint sua sponte, before closing his case. We review for abuse of discretion the District Court's failure to grant leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). In Phillips, which presented a claim under 42 U.S.C. § 1983, we broadly instructed that “if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Prior to Phillips, however, we had limited this principle to cases arising under § 1983 and opined that “it is hardly error for a district court to enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not properly requested leave to amend its complaint.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007). The interaction between Phillips and Fletcher-Harlee Corp. presents an interesting question but one that we need not resolve on this appeal. Guirguis filed two motions for reconsideration of the District Court's Twombly holding, arguing that his complaint “is not insufficient in its allegations.” (Appellee's Supplemental App. at 4, 9.) These motions never sought leave to amend and instead revealed an intent to stand on the complaint. See Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir.2007) (holding that a plaintiff elected to stand on her complaint by repeatedly asserting the validity of her averments and by failing to seek leave to amend following dismissal). Having expressed a desire to adhere to his pleading, Guirguis cannot persuasively ascribe error to the District Court for not providing him an unsolicited opportunity to amend his complaint. III. Conclusion **3 Guirguis's complaint contains only a factually unsupported averment of discrimination, and he clung to that version of his pleading. The District Court was thus correct to grant dismissal and did not abuse its discretion by not sua sponte affording him leave to amend. We will affirm the order dismissing his complaint, as *778 well as the order denying reconsideration of the dismissal. All Citations 346 Fed.Appx. 774, 2009 WL 3041992 Footnotes 1 The legal analysis governing Guirguis's PHRA claim is identical to that under Title VII, and the discussion that follows applies to both claims. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n. 3 (3d Cir.2000) (“The analysis required for adjudicating [plaintiff's] claim under PHRA is identical to a Title VII inquiry ..., and we therefore do not need to separately address her claim under the PHRA.”). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 108 of 195 Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 2 The complaint alleges that Movers discriminated against Guirguis due to his “native origin,” which is not a defined class under Title VII. (App. at 11.) The District Court construed this averment as a disparate treatment claim on the basis of national origin. The parties do not contest that characterization. 3 In light of its disposition, the District Court did not discuss the exhaustion issue. 4 Guirguis filed the first motion on December 15, 2008 and an amended motion on December 22. 5 The District Court exercised federal question jurisdiction over Guirguis's Title VII claim under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f) and supplemental jurisdiction over his PHRA claim under 28 U.S.C. § 1367. We have appellate jurisdiction over the final decision of the District Court under 28 U.S.C. § 1291. 6 We have applied Twombly and Iqbal's pleading requirements to employment discrimination claims, see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-12 (3d Cir.2009); Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (3d Cir.2008), but the quantum of facts that a discrimination complaint should contain may bear further development. This case, though, provides a poor vehicle for that task because Guirguis relies in large measure upon bare legal conclusions that would likely have been insufficient even under the pre-Twombly pleading standard. See, e.g., Papasan, 478 U.S. at 286, 106 S.Ct. 2932 (holding, prior to Twombly, that courts were not required to accept the truth of legal conclusions contained in a plaintiff's complaint). They are certainly deficient in the post-Twombly era. Accordingly, we have no occasion in this case to address the character or weight of the factual allegations that a Title VII complaint must contain to survive a Rule 12(b)(6) motion to dismiss. 7 Guirguis contends that Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), and our decision in Wilkerson compel a contrary result. Swierkiewicz was decided pursuant to the pre-Twombly pleading standard of Conley v. Gibson, under which a complaint satisfied Rule 8 unless “it appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We have re-assessed Swierkiewicz in the wake of Twombly, Iqbal, and Phillips and have concluded “that because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley.” Fowler, 578 F.3d at 211. Nevertheless, Swierkiewicz remains instructive because Guirguis's complaint contains significantly less factual content than the pleading at issue in that case. The Swierkiewicz plaintiff “detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination.” 534 U.S. at 514, 122 S.Ct. 992. Guirguis's complaint omits such information, bolstering our conclusion that his claims would not have survived under the pre-Twombly pleading regime. See supra note 6. Wilkerson also confirms the inadequacy of Guirguis's pleading. In Wilkerson, the plaintiff alleged that her employer instituted a ceremony in which participants worshiped their ancestors, that she objected to this ceremony due to her religious beliefs, and that her supervisor subsequently terminated her without explanation. 522 F.3d at 318, 322. Guirguis's complaint contains no similar discussion supporting an inference that Movers acted with a forbidden motivation. The District Court correctly decided that the absence of context from the complaint warranted dismissal under Rule 12(b)(6). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 109 of 195 Huggard v. Crown Bank, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 529548 Only the Westlaw citation is currently available. NOT FOR PUBLICATION United States District Court, D. New Jersey. Ernest HUGGARD, Plaintiff, v. CROWN BANK and Jacinto Rodrigues, Defendants. Civ. No. 11-6194. | Feb. 17, 2012. Attorneys and Law Firms Stephen G. Console, Laura C. Mattiacci, Console Law Offices LLC, Philadelphia, PA, for Plaintiff. Marion B. Cooper, Paul G. Nittoly, Joshua David Rinschler, Florham Park, NJ, for Defendants. MEMORANDUM OPINION & ORDER THOMPSON, District Judge. *1 This matter has come before the Court on Defendants Crown Bank and Jacinto Rodrigues' Motion to Dismiss [docket # 8] certain claims 1 for failure to state a claim upon which relief can be granted. In that Motion and subsequent reply brief [19], Defendants argue that Count I of Plaintiff s Complaint should be dismissed as Plaintiff has not pled factual matter sufficient to show that Crown Bank terminated his employment because of his father's disability, a required element for a claim of association discrimination under the ADA. (Defs.' Reply Br., at 1) [19]. With respect to Count III, Defendants contend that Plaintiff fails to state a plausible claim to relief under the NJLAD because he has not pled that Defendants sought to replace him with a person who was not associated with a disabled person, nor has he pled any facts that give rise to an inference of discrimination. (Id. at 5- 7). Plaintiff opposes the Motion, contending that at this stage he has adequately pled circumstances that raise a reasonable inference that his father's disability was a determining factor in the decision to terminate him. (Pl.'s. Opp'n Br., at 6). Furthermore, Plaintiff argues Defendants' Motion is premature because the parties have not yet engaged in discovery. (Id. at 5). For the reasons set forth below, the court finds that the appropriate course is to convert Defendants' Motion to Dismiss into a Motion for Summary Judgment and provide limited discovery for such purpose. See Fed.R.Civ.P. 12(b). I. BACKGROUND This matter arises out of Plaintiff Ernest Huggard's termination by his former employer, Crown Bank, following a three day absence from work, which Plaintiff took in order to care for his disabled father. For purposes of this motion the Court considers as true all of Plaintiff's well-pleaded factual allegations. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). Plaintiff was employed by Crown Bank from May 2009 to June 2010. (Compl.¶¶ 18-19)[1]. On or about April 16, 2010, Plaintiff requested three days off from work-June 16 to June 18, 2010-in order to take care of his ill father in Florida. (Id. ¶ 20). Plaintiff's father (now deceased) suffered from dementia and Parkinson's disease. (Id. ¶ 21). Plaintiff had previously requested leave to care for his father. (Id. ¶ 26). During the week of June 7, 2010, Plaintiff had discussions with his supervisor, Defendant Jacinto Rodrigues, and several other employees of Crown Bank concerning the requested leave. (Id. ¶¶ 24-25). Plaintiff explained that he would be his father's primary caregiver during this period. (Id.). On or about June 14, 2010, Plaintiff received an email from the human resources messaging system advising him that his request for leave had been denied. (Id. ¶ 27). In response, Plaintiff called Defendant Rodrigues and explained that the leave was necessary for Plaintiff to care for his father and he further claimed that the requested leave should be granted under the FMLA. (Id. ¶¶ 29-30). Defendant Rodrigues responded that FMLA leave did not apply to this situation. (Id. ¶ 31). Defendant Rodrigues then asked Plaintiff if he was still planning on leaving to take care of his father. (Id.). Plaintiff responded that his father needed him. (Id. ¶ 32). Defendant Rodrigues then told Plaintiff that he (i.e., Defendant Rodrigues) would “have to do what [he] need[ed] to do.” (Id. ¶ 33). *2 In spite of Defendants' pronouncements, Plaintiff went to Florida to care for his father. (Id. ¶ 34). During the days that Plaintiff was caring for his father, he continued ase 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 110 of 195 Huggard v. Crown Bank, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 to perform work for Defendant Crown Bank, including participation in some email and telephone exchanges. (Id.). On June 18, 2010, Plaintiff was informed that he was suspended without pay. (Id. ¶ 35). Plaintiff requested that his accrued but unused vacation days be applied to the three day leave. (Id. ¶ 37). This request was denied. (Id.). Finally, on or about June 25, 2010, Defendants sent Plaintiff a letter advising him that his employment had been terminated. (Id. ¶ 38). Based on these events, Plaintiff seeks relief against Crown Bank and Defendant Rodrigues under several statutes including the ADA and NJLAD on the basis of discrimination resulting from his association with a disabled person as well as the FMLA and the NJFLA for improperly denying him leave and for retaliating against him for seeking to take leave. II. DISCUSSION On a motion to dismiss for failure to state a claim, a “defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005). When considering a Rule 12(b) (6) motion, a district court should conduct a three- part analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011). “First, the court must ‘take note of the elements a plaintiff must plead to state a claim.’ “ Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009)). Second, the court must accept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler, 578 F.3d at 210-11. But, the court should disregard any conclusory allegations proffered in the complaint. Id. Finally, once the well-pleaded facts have been identified and the conclusory allegations ignored, a court must next determine whether the “facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’ “ Id. at 211 (quoting Ashcroft v. Iqbal, 129 S.Ct. at 1949). This requires more than a mere allegation of an entitlement to relief. Id. “A complaint has to ‘show’ such an entitlement with its facts.” Id. A claim is only plausible if the facts pleaded allow a court reasonably to infer that the defendant is liable for the misconduct alleged. Id. at 210 (quoting Iqbal, 129 S.Ct. at 1948). Facts suggesting the “mere possibility of misconduct” fail to show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 129 S.Ct. at 194). Ultimately, the issue on a Rule 12(b)(6) motion is not whether a plaintiff eventually will prevail, but whether the plaintiff is entitled to offer evidence in support of his or her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). “Dismissal under Rule 12(b)(6) ... is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved.” Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir.1990) (emphasis added). *3 Defendant Crown Bank contends that it is entitled to a Rule 12(b) (6) dismissal because Plaintiff has not alleged facts sufficient to establish a plausible prima facie case under the ADA, particularly with regard to the ADA's infrequently litigated association provision. Under 42 U.S.C. § 12112(b)(4), an employer is prohibited from discriminating against an employee as a result of “the known disability of an individual with whom [the employee] is known to have a relationship or association.” However, “the association provision does not obligate employers to accommodate the schedule of an employee with a disabled relative.” Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir.2009). Although refusal to make reasonable accommodations may constitute illegal discrimination against a disabled employee, “the plain language of the ADA indicates that the accommodation requirement does not extend to relatives of the disabled.” Id. (emphasis in original); see also 29 C.F.R. § 1630.8 (“It should be noted [ ] that an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities.”); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1084 (10th Cir.1997) (“[T]he plain language of [§§ 12112(b)(5)(A) and (B) ]-the only two provisions requiring ‘reasonable accommodation’ in Title I of the ADA-suggests that only job applicants or employees, but not their relatives or associates, need be reasonably accommodated.”); Larimer v. Int'l Bus. Machs., 370 F.3d 698, 700 (7th Cir.2004) (“[T]he right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person.”). Consequently, a plaintiff must show that the defendant was motivated by the disability rather than by the plaintiff's absence from work; in other words, that he would not have been fired if he had requested time off for a different reason. See Erdman, 582 F.3d at 510; Den Hartog, 129 F.3d at 1083 (recognizing ase 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 111 of 195 Huggard v. Crown Bank, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 that dismissal for absence or tardiness is not actionable “even if the reason for the absence or tardiness is to care for [a disabled relative]”). In analyzing employment discrimination claims brought pursuant to the ADA, courts generally apply the burden shifting analysis first proscribed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Reddinger v. Hosp. Cent. Servs., 4 F.Supp.2d 405, 408 (E.D.Pa.1998). Under this framework, a plaintiff must first make out a prima facie case of discrimination. Upon establishing a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee's termination. Id. In order to establish a prima facie case of association discrimination, a plaintiff must prove that: (1) he was in a protected class (i.e., an individual known to have an association or relationship with an individual who has a known disability); (2) he was discharged; (3) at the time of his discharge, he was performing his job at a level that met his employer's legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir.2011). *4 However, there is a genuine question of law as to when a plaintiff must establish his prima facie case. In employment discrimination cases, the Supreme Court of the United States has previously held that a plaintiff is not required to establish a prima facie case at the pleadings stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“The prima facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading requirement.”). While there is some question as to the applicability of Swierkiewicz post Twombly and Iqbal, see Fowler, 578 F.3d at 211-13, the United States Court of Appeals for the Third Circuit has noted that “the quantum of facts that a discrimination complaint should contain” continues to be a question ripe for further development. See Guirguis v. Movers Specialty Servs., 346 F. App'x 774, 776 n. 6 (3d Cir.2009). This Court finds persuasive one court's analysis: “[r]econciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.” Barbosa v. Continuum Health Partners Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010). Particularly here, where the Court recognizes that “the McDonnell Douglas test is not easily adaptable to claims under the section of the ADA that permits causes of action for association discrimination[; i]t's a bit like a mean stepsister trying to push her big foot into one of Cinderella's tiny glass slippers,” Dewitt v. Proctor Hosp., 517 F.3d 944, 948 (2008), the Court believes further fact finding is appropriate. The Court notes the majority of cases cited by Defendants (i.e., Stansberry, Erdman, Den Hartog, and Larimer, supra ) were decided on summary judgment and not on a motion to dismiss. Because many of the allegations in the Complaint require a context specific inquiry and necessitate the development of a factual record before the Court can decided whether, as a matter of law, Defendant Crown Bank could be held liable for association discrimination under the ADA, the Court believes a Motion to Dismiss may be an inappropriate vehicle to foreclose this claim. Similarly, Defendants contention that Plaintiff has failed to state an association claim under the NJLAD 2 because of his failure to meet the fourth element of his prima facie case 3 is unavailing. (Defs.' Br., at 9). When it comes to determining what should be required, if anything, to constitute the fourth element of a plaintiff's prima facie case, courts have considerable discretion in determining whether such an element is absolutely necessary for a plaintiff to make out a case of discrimination. See, e.g., Viscik v. Fowler Equip. Co. Inc., 173 N.J. 1, 800 A.2d 826, 834 (N.J.2002) (noting that “[t]he precise elements of a prima facie case must be tailored to the particular circumstances”); Williams v. Pemberton Twp. Pub. Sch., 323 N.J.Super. 490, 733 A.2d 571, 578 (N.J.Super.Ct.App.Div.1999) (“In light of the various contexts in which employment discrimination claims arise, we consider it unwise to require a plaintiff to establish unfailingly as part of the prima facie case that plaintiff was replaced by an individual outside the plaintiff's protected class[; t]he appropriate fourth element of a plaintiff s prima facie case requires a showing that the challenged employment decision (i.e ., failure to hire, failure to promote, wrongful discharge) took place under circumstances that give rise to an inference of unlawful discrimination[; t]hat formulation permits a plaintiff to satisfy the fourth element in a variety of ways.”). ase 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 112 of 195 Huggard v. Crown Bank, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 *5 Reviewing Plaintiff's Complaint in light of these principles, the Court finds that it would be inappropriate to dismiss these Counts at present. The plausibility standard of Iqbal does not require total certainty. Instead, it is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. While Defendants have argued the temporal proximity of the events in this case is not unusually suggestive, the Court currently is without a record to determine whether “the proffered evidence, looked at as a whole, may suffice to raise the inference [of causation].” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir.2007); see also Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.2007) (“Where the time between the protected activity and adverse action is not so close as to be unusually suggestive of a causal connection standing alone, courts may look to the intervening period for demonstrative proof [of causation], such as actual antagonistic conduct or animus against the employee.”). The Court concludes that limited discovery as well as additional briefing will assist with resolution of the pending Motion. Because on a motion to dismiss pursuant to Rule 12(b)(6), a court ordinarily cannot consider matters outside of the pleadings, the Court believes converting this Rule 12(b)(6) motion into a motion for summary judgment pursuant to Rule 56 is an appropriate use of its case management authority. See Fed.R.Civ.P. 12(b)(6); In re Rockefeller Ctr. Properties, 184 F.3d 280, 28789 (3d Cir.1999) (discussing conversion of motions to dismiss into motions for summary judgment). III. CONCLUSION For the reasons set forth above, IT IS on this 17th day of February, 2012, ORDERED that the parties engage in limited discovery, as of the entry of this order, related to the issues presented in Defendants' converted Motion for Summary Judgment. Such discovery may include up to five (5) requests for the production of documents, up to five (5) interrogatories, up to ten (10) requests for admission, and up to four (4) depositions; and it is further ORDERED that the parties submit simultaneous letter briefs, not to exceed seven (7) pages each, on April 16, 2012, addressing the Motion for Summary Judgment, in light of matters learned in the course of the discovery ordered above and any other subsequent developments. All Citations Not Reported in F.Supp.2d, 2012 WL 529548 Footnotes 1 Initially, Defendants moved to dismiss Count I (violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq.), Count III (violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq.), and Count V (violation of the Paid Family Leave Act (PFLA), N.J.S.A. § 43:21-25, et seq.) as to both Crown Bank and Rodriguez. (Defs.' Br.). Defendants also moved for dismissal of Count IV (violation of the New Jersey Family Leave Act (NJFLA), N.J.S.A., § 34:11B-4, et seq., as to Defendant Rodriquez. (Id.). In response, Plaintiff agreed to withdraw Count V (violation of the PFLA) as to both Defendants and Counts I (violation of the ADA), and IV (violation of the NJFLA) as it relates to Defendant Rodriguez. (Pl.'s Opp'n Br., at 1 n. 1) [18]. However, Plaintiff opposes the dismissal of Count I (violation of the ADA) as to Defendant Crown Bank and Count III (violation of NJLAD) as it relates to both Defendants. (Id.). 2 In Count III, Plaintiff has alleged that he was discriminated against by Defendants under the NJLAD because of his association with a person with a disability. As an initial matter, Defendants note that it is unclear whether an association claim is even cognizable under the NJLAD, as NJLAD does not contain any association provision comparable to the ADA. (See Defs.' Br., at 8-9 (citing Kennedy v. Chubb Group of Ins. Cos., 60 F.Supp.2d 384, 395 (D.N.J.1999) (dismissing an association claim asserted under the NJLAD and holding that “there is no indication that the New Jersey Supreme Court would endorse” the creation of such a claim)). A number of courts, however, have concluded that an association claim is cognizable under NJLAD. See, e.g., Downs v. U.S. Pipe & Foundry Co., 441 F.Supp.2d 661 (D.N.J.2006); Pailleret v. Jersey Constr. Inc., No. 09-1325, 2011 WL 1485402, at *7 (D.N.J. Apr.19, 2011) (“The NJLAD affords protection to both disabled persons as well as individuals associated with disabled persons.”). 3 Defendants argue that Plaintiff ignores Pailleret in which the court held that in order to state a prima facie association claim under the NJLAD, a plaintiff must prove that “the employer sought to, or did fill the position with a similarly- qualified person.” (See Defs.' Reply Br., at 9 (citing Paillert, 2011 WL 1485402, at *10)). Plaintiff, by contrast, contends ase 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 113 of 195 Huggard v. Crown Bank, Not Reported in F.Supp.2d (2012) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 that the appropriate standard would require him to show “circumstances that give rise to an inference of discriminatory action.” (Pl.'s Opp'n Br., at 10). Defendants argue that even under this standard Plaintiff's claim should be dismissed because Plaintiff alleges that Defendants learned of Plaintiff's father's disability at least a year prior to his termination, yet continued employing Plaintiff, which undermines any inference that Plaintiff's termination was motivated by his father's disability. (Defs.' Br., at 6). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. ase 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 114 of 195 Johnson v. Potter, 323 Fed.Appx. 467 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 323 Fed.Appx. 467 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Seventh Circuit Rule 32.1. (Find CTA7 Rule 32.1) United States Court of Appeals, Seventh Circuit. Kenneth L. JOHNSON, Plaintiff-Appellant, v. John E. POTTER, Postmaster General of the United States, Defendant-Appellee. No. 08-3348. | Submitted April 16, 2009. * | Decided April 17, 2009. Synopsis Background: Former Postal Service employee brought action against employer under Title VII, alleging that employer terminated his employment because he was black. The United States District Court for the Southern District of Indiana, Larry J. McKinney, J., granted summary judgment in favor of employer. Employee appealed. Holdings: The Court of Appeals held that: [1] there was no evidence that a similarly situated employee was treated more favorably than plaintiff, and [2] there was no evidence that plaintiff was meeting the legitimate expectations of his employer. Affirmed. West Headnotes (2) [1] Civil Rights Disparate Treatment There was no evidence that a similarly situated employee was treated more favorably than a black employee who was terminated from his employment with the Postal Service, as required to support employee's discrimination claim under Title VII. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [2] Civil Rights Discharge or Layoff There was no evidence that terminated Postal Service employee was meeting the legitimate expectations of his employer, as required to establish a prima facie case of employment discrimination under Title VII. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote *468 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis, Division. No. 1:07-cv-0567-LJM-JMS. Larry J. McKinney, Judge. Attorneys and Law Firms Kenneth L. Johnson, Chicago, IL, pro se. Shelese M. Woods, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant-Appellee. Before JOEL M. FLAUM, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge and ANN CLAIRE WILLIAMS, Circuit Judge. ORDER **1 Kenneth Johnson claims that the United States Postal Service terminated his employment because he is black. See 42 U.S.C. § 2000e-2(a)(1). The district court granted summary judgment to the Postal Service, and we affirm. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 115 of 195 Johnson v. Potter, 323 Fed.Appx. 467 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Johnson had worked for several years with the Postal Service before resigning in 2003. He was rehired in October 2004 as a letter carrier, subject to a 90-day period of probation. In mid-January 2005, the office manager for a doctor on Johnson's route complained that Johnson had yelled at her and acted in a threatening manner. Robert Booher, manager of customer service and Johnson's second-level supervisor, initiated an investigation. Two postal inspectors interviewed the office manager, who also stated that Johnson had physically shoved patients in her waiting area. Two supervisors, Mark Stevens and Ronald Lair, interviewed Johnson, who acknowledged that he had a disagreement with a customer but denied any pushing or yelling. Stevens also called two employment references Johnson had provided, and both gave unfavorable assessments. *469 Based on this investigation, Stevens and Booher concluded that Johnson had engaged in unacceptable conduct during his probationary period and should be discharged. On January 26, one day before his probation period would have ended, the Postal Service terminated his employment, citing unacceptable conduct based on the altercation with the customer. After Johnson exhausted his administrative remedies, he filed suit in the district court. The Postal Service moved for summary judgment, attaching transcripts of Johnson's interview and deposition; sworn statements from Booher, Lair, and Stevens; a record of the customer's complaint; and the customer's written statement. Johnson, who relied on the indirect, burden-shifting analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), did not submit any relevant evidence in response. The district court granted the Postal Service's motion, concluding that Johnson had not established a prima facie case of discrimination because he lacked evidence that he was meeting his employer's legitimate expectations or that similarly situated employees were treated differently. To establish a prima facie case, an employee must show that (1) he is a member of a protected class, (2) he performed his job satisfactorily, (3) he suffered an adverse employment action, and (4) the employer treated similarly situated employees outside of his protected class more favorably. Maclin v. SBC Ameritech, 520 F.3d 781, 787 (7th Cir.2008); Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir.2007). If he succeeds, the employer must offer a legitimate, nondiscriminatory reason for the action, and summary judgment for the employer will then be appropriate unless the employee counters with evidence suggesting that the asserted basis for the adverse action is actually a pretext for a discrimination. Burks v. Wis. Dep't of Transp., 464 F.3d 744, 751, 754 (7th Cir.2006). On appeal, Johnson argues that the district court erred in concluding that he was not meeting the Postal Service's legitimate expectations. **2 [1] [2] Johnson does not challenge in his opening brief the district court's conclusion that he also failed to introduce evidence of a similarly situated employee who was treated more favorably, and that is reason enough to affirm the judgment. See Maher v. City of Chi., 547 F.3d 817, 821 (7th Cir.2008); Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir.1998). Moreover, the court's analysis of the performance element is sound. Whether or not Johnson was meeting the Postal Services's expectations is a question that goes both to the second prong of the prima facie case and to the question of pretext, see Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006); Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179-80 (7th Cir.1997), but either way we view it, the result is the same. Booher, Stevens, and Lair provided declarations detailing the customer's complaint and their ensuing investigation. That investigation substantiated the complaint, and Booher and Stevens then concluded Johnson had behaved unacceptably toward a customer during his probationary period and should be discharged. Johnson provided no evidence to suggest that their account is inaccurate or that his race had anything to do with the decision. Instead, he contends that the customer complaint was not adequately proven and that under the Postal Service's progressive discipline policy he should have received a lesser punishment. But we evaluate only whether the employer honestly believed the justification it gave for discharging him, not whether it was consistent with the employer's own policies, *470 fair, or even correct. Fane v. Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir.2007); Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410-11 (7th Cir.1997). Summary judgment for the Postal Service was therefore appropriate. We have considered Johnson's other arguments and conclude they are meritless. AFFIRMED. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 116 of 195 Johnson v. Potter, 323 Fed.Appx. 467 (2009) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 All Citations 323 Fed.Appx. 467, 2009 WL 1025987 Footnotes * After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R.APP. P. 34(a)(2). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 117 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 777917 Only the Westlaw citation is currently available. United States District Court, District of Columbia. Jerry W. Jones, Plaintiff v. Julian Castro, Defendant Civil Action No. 15-310 (CKK) | Signed February 29, 2016 Synopsis Background: African-American employee of United States Department of Housing and Urban Development (HUD) brought action alleging that his employer discriminated against him on basis of his race and gender and retaliated against him, in violation of Title VII. Employer moved for judgment on the pleadings. Holdings: The District Court, Colleen Kollar-Kotelly, J., held that: [1] placement on paid administrative leave was not adverse action with respect to discrimination or retaliation claims; [2] placement of employee under investigation was not adverse action; [3] purported loss of annual leave did not qualify as adverse action; [4] purported loss of performance bonuses was not adverse action; [5] failure to dismiss notice of proposed removal at particular time desired by employee was not adverse action; but [6] employee stated discrimination claims based on five- day suspension and reassignment. Motion granted in part and denied in part. West Headnotes (29) [1] Civil Rights Practices prohibited or required in general; elements Title VII establishes two elements for an employment discrimination case: (1) the plaintiff suffered an adverse employment action (2) because of the employee's race, color, religion, sex, or national origin. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [2] Civil Rights Adverse actions in general “Adverse employment action” that would support Title VII discrimination claim is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [3] Civil Rights Practices prohibited or required in general; elements To prove unlawful retaliation under Title VII, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII, (2) that the employer took a materially adverse action against him, and (3) that the employer took the action because the employee opposed the practice. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [4] Civil Rights Adverse actions in general “Materially adverse action,” as element of Title VII retaliation claim, would dissuade a Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 118 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 reasonable worker from making or supporting a charge of discrimination. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [5] Civil Rights Adverse actions in general To be materially adverse, as element of Title VII retaliation action, employer's action must be more than those petty slights or minor annoyances that often take place at work and that all employees experience. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [6] Civil Rights Exhaustion of Administrative Remedies Before Resort to Courts Before filing a claim for discrimination or retaliation under Title VII, an individual must seek administrative adjudication of the claim. Civil Rights Act of 1964 § 717, 42 U.S.C.A. § 2000e-16(c); 29 C.F.R. § 1614.106. Cases that cite this headnote [7] Civil Rights Scope of administrative proceedings; like or related claims In context of administrative exhaustion requirement, Title VII lawsuit following Equal Employment Opportunity Commission (EEOC) charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations. Civil Rights Act of 1964 § 717, 42 U.S.C.A. § 2000e-16(c); 29 C.F.R. § 1614.106. Cases that cite this headnote [8] Federal Civil Procedure Judgment on the Pleadings Standard for reviewing a motion for judgment on the pleadings is virtually identical to that applied to a motion to dismiss for failure to state a claim. Fed. R. Civ. P. 12(b)(6), 12(c). Cases that cite this headnote [9] Federal Civil Procedure Insufficiency of claim or defense Because a motion for judgment on the pleadings would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation, district court must approach such motions with the greatest of care and deny them if there are allegations in the complaint which, if proved, would provide a basis for recovery. Fed. R. Civ. P. 12(c). Cases that cite this headnote [10] Federal Civil Procedure Matters considered District court deciding motion for judgment on the pleadings is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. Fed. R. Civ. P. 12(c). Cases that cite this headnote [11] Civil Rights Adverse actions in general Civil Rights Adverse actions in general Standards are not identical for adverse actions with respect to retaliation and discrimination claims. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [12] Civil Rights Adverse actions in general In context of adverse action element of Title VII discrimination claim, for employment actions that do not obviously result in a Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 119 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 significant change in employment status, such as giving a poor performance evaluation, reassigning office space and equipment, or, for that matter, fielding a company softball team, an employee must go the further step of demonstrating how the decision nonetheless caused such an objectively tangible harm. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [13] Civil Rights Adverse actions in general Civil Rights Adverse actions in general Because only claims before district court in federal employee's Title VII action were discrimination and retaliation claims, not hostile work environment claim, court was required to analyze each alleged adverse action, individually, to determine whether it constituted an action that could form basis of discrimination claim or retaliation claim in circumstances of case. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [14] Civil Rights Adverse actions in general With respect to Title VII retaliation claims, it is appropriate to analyze adverse actions under framework of action by action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [15] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's placement on paid administrative leave for two-week period followed by periodic extensions, amounting to 19 months of paid administrative leave, while investigation into employee's conduct was ongoing, was not adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [16] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation Federal employer's placement of African- American employee under investigation for purported misconduct did not constitute adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [17] Civil Rights Adverse actions in general Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 120 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 With respect to Title VII discrimination claims, the mere initiation of an investigation into an employee may not constitute adverse action. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [18] Civil Rights Compensation and benefits Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's purported inability to use all of his accrued annual leave as result of his placement on paid administrative leave pending investigation into his conduct did not qualify as adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a).; 5 C.F.R. § 630.202(a). Cases that cite this headnote [19] Federal Civil Procedure Amendments by briefs or motion papers Federal Civil Procedure Matters considered A plaintiff may not amend his complaint through his opposition to motion for judgment on the pleadings, and district court need not consider any claims presented for the first time in opposition. Fed. R. Civ. P. 12(c). Cases that cite this headnote [20] Civil Rights Compensation and benefits Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's purported loss of performance bonuses as result of being placed on paid administrative leave pending investigation into his conduct did not amount to adverse action for purposes of his Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a) (1), 2000e-3(a). Cases that cite this headnote [21] Civil Rights Pleading Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation African-American federal employee's conclusory allegations that his employer stigmatized him and caused “great harm” in his personal life and to his professional reputation as result of placing him on paid administrative leave pending investigation into reports of misconduct failed to state that employee suffered adverse action, as would support his Title VII race and gender discrimination claims and his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 121 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 [22] Civil Rights Adverse actions in general Purely subjective injuries, such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions for purposes of Title VII discrimination claim. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote [23] Civil Rights Particular cases Civil Rights Discrimination against men; reverse discrimination Civil Rights Public Employment Public Employment Exercise of Rights; Retaliation United States Exercise of rights; retaliation Federal employer's failure to dismiss notice of proposed removal from federal service at particular time desired by employee, and instead dismissing notice seven months later, following employer's issuance of decision rejecting proposal to terminate his employment, did not amount to adverse action for purposes of employee's Title VII race and gender discrimination claims or his retaliation claim arising from his filing of Equal Employment Opportunity Commission (EEOC) charge. Civil Rights Act of 1964 §§ 703, 704, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a). Cases that cite this headnote [24] Civil Rights Causal connection; temporal proximity Title VII retaliation claim requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [25] Civil Rights Pleading While a plaintiff is not required to plead every fact necessary to establish a prima facie case of Title VII retaliation to survive motion to dismiss or a motion for judgment on the pleadings, the complaint must nonetheless meet the plausibility standard. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a); Fed. R. Civ. P. 12(b)(6), (c). Cases that cite this headnote [26] Civil Rights Causal connection; temporal proximity Public Employment Causal connection; temporal proximity United States Exercise of rights; retaliation Federal employer notified employee of its intent to terminate his employment in connection with investigation into employee's conduct before employee filed Equal Employment Opportunity Commission (EEOC) charge, and thus employee's protected activity could not form basis of his Title VII retaliation claim, arising from employer's ultimate decision to impose five- day suspension and reassign employee. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [27] Civil Rights Retaliation claims Public Employment Causal connection; temporal proximity United States Exercise of rights; retaliation Temporal proximity between federal employee's filing of Equal Employment Opportunity Commission (EEOC) complaints and his placement on five-day Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 122 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 suspension and reassignment almost one year after employee's filing of initial complaint did not support inference of causation in employee's Title VII retaliation action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [28] Civil Rights Retaliation claims Circumstantial evidence of a pattern of antagonism following protected conduct can give rise to the inference of causation in Title VII retaliation action. Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000e-3(a). Cases that cite this headnote [29] Civil Rights Pleading Allegations in complaint of African-American employee of Department of Housing and Urban Development (HUD) regarding HUD's deputy director of the Office of Department Equal Employment Opportunity (ODEEO), on basis of cat's paw theory, sufficiently stated Title VII race, sex, and race plus sex discrimination claims, insofar as those claims were based on employee's five- day suspension and reassignment. Civil Rights Act of 1964 § 703, 42 U.S.C.A. § 2000e-2(a)(1). Cases that cite this headnote Attorneys and Law Firms Molly E. Buie, Robert C. Seldon, Seldon Bofinger & Associates, P.C., Washington, DC, for Plaintiff. Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendant. MEMORANDUM OPINION and ORDER COLLEEN KOLLAR-KOTELLY, United States District Judge *1 Plaintiff Jerry Jones is an employee of the United States Department of Housing and Urban Development (“HUD”) and was formerly the Director of Alternative Dispute Resolution in the Office of Departmental Equal Employment Opportunity at HUD. He is an African- American man. In this case under Title VII of the Civil Rights Act of 1964, as amended, he claims that the agency discriminated against him on the basis of his race, his gender, and on the basis of the combination of his race and gender; he also claims that he agency retaliated against him as a result of his engaging in protected equal employment opportunity (“EEO”) activities. Presently before this Court is Defendant's [10] Motion for Judgment on the Pleadings. 1 Defendant argues that several of the purported bases for Plaintiff's claims are not adverse actions that can serve as the basis for a discrimination or retaliation claim; that Plaintiff did not properly exhaust his administrative remedies in full with respect to all claims; and that, with respect to the remaining claims, the Complaint fails to state a claim upon which relief may be granted. Upon consideration of the pleadings, 2 the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Defendant's motion, for the reasons stated below. The Court grants the motion with respect to the retaliation claim and dismisses that claim. The Court also grants the motion with respect to the discrimination claims insofar as they are based on adverse actions other than Plaintiff's five-day suspension and reassignment. The Court otherwise denies the motion. I. BACKGROUND A. Statutory and Regulatory Background As Plaintiff brings claims under both the antidiscrimination and the antiretaliation provisions of Title VII, the Court reviews the law applicable to claims under each provision. [1] [2] Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 123 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “This statutory text establishes two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee's race, color, religion, sex, or national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). An adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009); see also Aliotta v. Bair, 614 F.3d 556, 566 (D.C.Cir.2010). *2 [3] [4] [5] “Title VII's antiretaliation provision forbids employer actions that 'discriminate against' an employee (or job applicant) because he has 'opposed' a practice that Title VII forbids or has 'made a charge, testified, assisted, or participated in' a Title VII 'investigation, proceeding, or hearing.' ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. § 2000e-3(a)). “To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action 'because' the employee opposed the practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012); accord Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.Cir.2013). “Materially adverse action would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). “To be materially adverse, the employer's action must be more than 'those petty slights or minor annoyances that often take place at work and that all employees experience.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). [6] [7] Before filing a claim for discrimination or retaliation under Title VII, an individual must “must seek administrative adjudication of the claim.” Scott v. Johanns, 409 F.3d 466, 468 (D.C.Cir.2005); see also Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C.Cir.2012) (exhaustion required for retaliation claim under Title VII). The D.C. Circuit Court of Appeals has summarized the process as follows: Under regulations promulgated by the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII, the employee must do so by filing a complaint with her agency. 29 C.F.R. § 1614.106(a). The employing agency then conducts an investigation and, if the employee so requests, refers the matter to an EEOC administrative judge for a hearing. Id. §§ 1614.106(e)(2), 1614.108-09. After the employing agency investigates, or the administrative judge issues a decision, the employing agency must take “final action.” Id. § 1614.110. If the employee never requests a hearing, the agency's final action must “consist of findings ... on the merits of each issue ... and, when discrimination is found, appropriate remedies and relief.” Id. § 1614.110(b). If the employee requests a hearing, the employing agency's “final order shall notify the complainant whether or not the agency will fully implement the administrative judge's decision.” Id. § 1614.110(a). An employee who is aggrieved by the agency's final disposition of her complaint may then either appeal to the EEOC or file suit in federal court pursuant to 42 U.S.C. § 2000e-16(c). Id. § 1614.110. Payne v. Salazar, 619 F.3d 56, 58 (D.C.Cir.2010). “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are 'like or reasonably related to the allegations of the charge and growing out of such allegations.' ” Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994)). B. Factual Background The Court provides an overview of the factual background of this case, reserving additional presentation of the facts for the issues discussed below. For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.Cir.2014). Plaintiff Jones began his service as the director of the Alternative Dispute Resolution (“ADR”) program of HUD in February 2005. Compl. ¶ 19. On June 10 or 11, 2010, a HUD employee informed Michelle Cottom, then the deputy director of the Office of Departmental Equal Employment Opportunity (“ODEEO”) at HUD, Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 124 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 that Jones had raped her in July 2009. Id. ¶ 42. (Plaintiff disputes that allegation. Id.) That alleged incident occurred before that employee joined HUD as an employee. See id. ¶ 39. *3 On June 16, 2010, Cottom placed Jones on paid administrative leave prior to being given notice of the charges against him. Id. ¶ 50. He was immediately escorted out of the HUD facility. Id. He was initially placed on paid administrative leave for a period of two weeks, and at that time, Cottom and/or other senior management officials asked HUD's Office of Inspector General to investigate him. Id. ¶ 51. Jones' paid administrative leave was renewed periodically through January 24, 2012. Id. ¶ 52. Jones was interviewed by Office of Inspector General investigators on August 26, 2010. Id. ¶ 54. Jones responded orally to the wide ranging questions posed to him. Id. Cottom proposed to terminate Jones' employment with HUD in a written notice dated January 6, 2011. The notice charged Jones with several instances of misconduct; those instances did not include the original allegation of rape. Id. ¶¶ 55-56. The charges included claims that Jones had acted inappropriately to four other women (including harassment) and that he lacked candor in denying those allegations to the Office of Inspector General. Id. ¶¶ 63, 68. On January 31, 2011, Jones filed his written reply to the notice of proposed removal. Id. ¶ 58. In his written reply, in addition to denying the allegations that were the basis of the charges in the notice of proposed removal, Plaintiff argued that he was a victim of disparate treatment in light of the charges against him and the inadequate investigation conducted. Id. ¶ 66. Plaintiff subsequently supplemented his written reply on February 4 and February 15, 2011. Id. n.1. On March 29, 2011, Jones replied to HUD's charges orally for the first time. Id. ¶ 67. The meeting was attended by Dan Lurie, the deciding official and a special assistant to the deputy secretary of HUD, and by George Corsoro, the official representative of HUD's responsible employee and labor relations division. Id. No later than June 2011, Lurie concluded that the charges against Jones would not be sustained and that he would not be removed from federal service. Id. ¶ 69. However, Jones was not yet returned to active duty. Id. ¶ 71. On October 3, 2011, HUD informed Jones that it had appointed a new deciding official, Patricia Hoban-Moore, who was at that time the Director of HUD Field Policy and Management. Id. ¶ 72. On October 11, 2011, Jones appeared before Hoban-Moore for a second oral reply. Id. ¶ 73. No later than November 2011, Hoban-Moore determined that Jones was to be restored to active duty and reinstated in a suitable position. Id. ¶ 74. Plaintiff then alleges that, instead of issuing Hoban-Moore's decision, HUD encouraged Plaintiff to retire or resign to avoid being terminated. Id. ¶ 76. Plaintiff was then given false and misleading information regarding retirement by a HUD representative in the Human Resources Department. Id. ¶¶ 77-79. HUD then issued Hoban-Moore's decision, which was dated January 24, 2012, which rejected the proposal to remove Jones and instead suspended him for five days. Id. ¶ 82. Hoban-Moore dismissed five of the seven charges against Jones and sustained two of the charges. Id. ¶¶ 83-84. Plaintiff maintains that the two sustained charges were improperly sustained. Id. ¶ 84. Hoban-Moore's decision advised Jones that he was being reassigned from his former position as director of the ODEEO ADR program into a separate HUD division. Id. ¶ 86. On February 13, 2012, the date Jones was to return to active duty, HUD did not inform Jones where he was to report for work, and he remained in the lobby of a HUD building for over two hours because he could not access the building. Id. ¶ 88. Jones was then assigned to a non-supervisory position with fewer and less important responsibilities and fewer opportunities for advancement; the position was also outside of his career field. Id. ¶ 89. C. Procedural Background *4 Jones initiated the informal EEO complaint process no later than March 8, 2012. Id. ¶ 90. On or before May 18, 2012, Jones filed his formal EEO complaint. Id. More than 180 days had elapsed after the filing of the formal complaint without the issuance of a final agency decision by HUD. Id. Subsequently, Plaintiff filed this action on March 3, 2015. Plaintiff identifies the following actions as the bases for his discrimination claims and his retaliation claim: • “on January 24, 2012, defendant suspended plaintiff for five days without pay, removed plaintiff from his position as Director of ADR in HUD ODEEO, and reassigned plaintiff to a nonsupervisory position with significantly reduced duties, professional exposure Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 125 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 to senior officials of HUD, and opportunity for professional advancement”; • “in June of 2011, failed to dismiss the notice proposing to terminate plaintiff's employment and restore plaintiff to active duty in the position of Director of ADR in ODEEO”; • “beginning on June 16, 2010, placed plaintiff on administrative leave and under investigation, which caused plaintiff to lose performance bonuses and to be denied annual leave for FY 2010 and FY 2011 that he would have accrued and received but for defendant's unlawful actions”; and • “stigmatized plaintiff and caused great harm in his personal life and to his professional reputation and ended any chance for career advancement.” Id. ¶ 94 (discrimination on the basis of race plus sex); see id. ¶ 101 (same actions as bases for sex discrimination claim); id. ¶ 117 (same actions as bases for retaliation claim). 3 After granting Defendant an extension to respond to the complaint, the Court then granted the parties' joint request to set a brief briefing schedule prior to any discovery. Pursuant to that schedule, Defendant then filed its [10] Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment. In response, Plaintiff filed a Motion for Continuance to Take Discovery, ECF No. 16-17, in which Plaintiff sought to take discovery before responding to Defendant's motion. The Court concluded that, given that the parties had jointly requested a briefing schedule that did not include a period for discovery, the Court would resolve the motion for judgment on the pleadings, once it was fully briefed, before allowing discovery. However, the Court also determined that it would allow discovery prior to resolving a motion for summary judgment- assuming that claims remain in this action. Therefore, the Court denied without prejudice Defendant's [10] Motion for Summary Judgment, and the Court extended the deadlines for the remainder of the briefing on Defendant's Motion for Judgment on the Pleadings. That motion is now fully briefed and ripe for resolution. II. LEGAL STANDARD [8] [9] [10] Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” The standard for reviewing a motion for judgment on the pleadings is “virtually identical” to that applied to a motion to dismiss for failure to state a claim under Rule 12(b)(6). Baumann v. District of Columbia, 744 F.Supp.2d 216, 221 (D.D.C.2010). Because a Rule 12(c) motion “would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation,” the district court must approach such motions “with the greatest of care” and deny them “if there are allegations in the complaint which, if proved, would provide a basis for recovery.” Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). “The court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record.” Baumann, 744 F.Supp.2d at 222. *5 Under rule 12(c)-as under rule 12(b)(6)-a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. III. DISCUSSION Defendant argues that (1) the purported bases for Plaintiff's claims do not qualify as adverse actions under the applicable standards for discrimination and retaliation claims; (2) Plaintiff did not timely exhaust his administrative remedies with respect to all of his claims; and (3) the Complaint fails to state a plausible claim Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 126 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 with respect to the claims that were based on qualifying adverse actions and were properly exhausted. The Court addresses, in turn, these arguments. A. Adverse Actions Defendant argues that several of the actions on which Plaintiff bases his discrimination and retaliation claims do not qualify as adverse actions that can serve as the bases of those claims. Specifically, the agency argues that none of the actions other than Plaintiff's five-day suspension and reassignment are adverse actions that can serve as the basis for cognizable discrimination and retaliation claims. In response, Plaintiff argues (1) that the standard for adverse actions is different under the discrimination and the retaliation provisions of Title VII; (2) that the actions should be considered as a whole rather than discretely; and (3) that each of the disputed actions is a qualifying adverse action under both the discrimination and retaliation provisions of Title VII. The Court first addresses the prefatory legal questions: the appropriate standard to apply under the discrimination and retaliation provisions and whether the actions should be addressed discretely or collectively. [11] [12] Turning to the standards to apply, the Court agrees with Plaintiff that the standards are not identical for adverse actions with respect to retaliation and discrimination claims. See Burlington N., 548 U.S. at 67, 126 S.Ct. 2405 (“For these reasons, we conclude that Title VII's substantive provision and its antiretaliation provision are not coterminous. The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”). The Court, therefore, applies the standards appropriate for each type of claim, which were introduced in the legal overview above. The discrimination claims must rest on an adverse employment action, which is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas, 559 F.3d at 552. “For employment actions that do not obviously result in a significant change in employment status-such as giving a poor performance evaluation, reassigning office space and equipment, or, for that matter, fielding a company softball team-an employee must go the further step of demonstrating how the decision nonetheless caused such an objectively tangible harm.” Id. at 553. By contrast, the retaliation claim must rest on “a materially adverse action.” Bridgeforth, 721 F.3d at 663. “Materially adverse action would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). Furthermore, “[t]o be materially adverse, the employer's action must be more than 'those petty slights or minor annoyances that often take place at work and that all employees experience.' ” Id. (quoting Burlington N., 548 U.S. at 68, 126 S.Ct. 2405). *6 [13] [14] With respect to Plaintiff's claim that the putative adverse actions should be considered as “a whole” rather than individually, Pl.'s Opp'n at 25, the Court notes that Plaintiff cites to no legal authority for that proposition. In addition, that claim is at odds with the well-established framework for analyzing adverse actions with respect to discrimination claims. See Douglas, 559 F.3d at 551-54 (analysis of discrimination claims with respect to individual alleged adverse actions). With respect to retaliation claims, it is appropriate to analyze adverse actions under the same framework-action by action. See Burlington N., 548 U.S. at 68, 126 S.Ct. 2405 (referring to a single “challenged action” as the unit of analysis for retaliation claims); Singletary v. D.C., 351 F.3d 519, 526 (D.C.Cir.2003) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)) (distinguishing between the “discrete acts” that are the basis for a discrimination or retaliation claim and the series of separate acts that, together, are actionable under a hostile work environment claim). In sum, because the only claims before the court are discrimination and retaliation claims-not a hostile work environment claim -the Court must analyze each alleged adverse action, individually, to determine whether it constitutes an action that may be the basis for a discrimination claim or a retaliation claim in the circumstances of this case. The Court now turns to those individual actions that Plaintiff maintains are adverse actions. Defendant argues that the following actions do not constitute adverse actions with respect to Plaintiff's discrimination or retaliation claims: Plaintiff's placement on administrative leave; Plaintiff's placement under investigation; Plaintiff's purported loss of annual leave; Plaintiff's purported loss of performance bonuses; the purported stigmatizing of Plaintiff, harm to his personal life, and loss of career advancement chances; and the failure to dismiss the notice of proposed removal pursuant to Plaintiff's preferred schedule. See Compl. ¶¶ 94, 101, 117; see also id. ¶ 108 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 127 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 (basis for race discrimination claim limited to suspension/ reassignment and failure to dismiss notice). In other words, Defendant challenges all of the adverse actions that are the bases for Plaintiff's claims other than the five-day suspension and his reassignment. The Court analyzes each of these actions in light of the respective standards for discrimination and retaliation claims. 1. Placement on administrative leave [15] Plaintiff was placed on paid administrative leave on June 16, 2010, and at the same time, HUD officials requested an investigation by HUD's Office of Inspector General. Compl. ¶¶ 50-51. The initial period of administrative leave was two weeks, and that period of leave was renewed periodically-sometimes at week intervals-through January 24, 2012. Id. ¶¶ 51-52. The Court agrees with Defendant that the placement on paid administrative leave does not itself constitute an adverse action under either the discrimination standard or the retaliation standard. With respect to Plaintiff's discrimination claims, the Court concludes that a 19 month period of paid administrative leave while an investigation is ongoing -an initial two-week period followed by periodic extensions-does not, by itself, constitute an adverse action. See Bland v. Johnson, 66 F.Supp.3d 69, 73 (D.D.C.2014) (“being placed on paid administrative leave is not an adverse employment action sufficient to allege a Title VII discrimination claim”); Brown v. Georgetown Univ. Hosp. Medstar Health, 828 F.Supp.2d 1, 9 (D.D.C.2011); Dickerson v. SecTek, Inc., 238 F.Supp.2d 66, 79 (D.D.C.2002) (concluding that suspension did not constitute adverse action where employee was fully compensated and where suspension itself did not cause subsequent adverse actions). Notably, while Plaintiff emphasizes that, in several cases relied on by Defendant, the period of administrative leave was markedly shorter than the period in this case, Plaintiff points to no cases where the length of a period of paid administrative leave was sufficient for the period to constitute an adverse action. Ultimately, because Plaintiff was paid throughout the period of administrative leave, he cannot show the “objectively tangible harm” as a result of the administrative leave itself-separate from the other purported adverse actions, which the Court considers below-that is necessary to prevail on a claim for discrimination. Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999); see also Boykin v. England, No. CIV.A. 02-950 (JDB), 2003 WL 21788953, at *4 n. 5 (D.D.C. July 16, 2003). *7 With respect to the retaliation claim, the timing of the alleged protected activity and the alleged adverse action is critical. Plaintiff alleges that he was subject to retaliation when he was, “beginning on June 16, 2010, placed plaintiff on administrative leave and under investigation, which caused plaintiff to lose performance bonuses and to be denied annual leave for FY 2010 and FY 2011 that he would have accrued and received but for defendant's unlawful actions.” Compl. ¶ 117. The beginning of the period of administrative leave and investigation-as well as the purported resultant effects with respect to bonuses and annual leave-occurred before any of the alleged protected activity, which occurred on January 31, 2011, March 29, 2011, and October 11, 2011. Id. ¶¶ 114-16. The initiation of the period of administrative leave cannot be retaliation for the protected activity because it occurred prior to that activity. Moreover, Plaintiff never alleges that the period of administrative leave or of the investigation was extended or elongated as retaliation for his protected activity. Accordingly, the Court concludes that the period of paid administrative leave is not an adverse action with respect to Plaintiff's discrimination or retaliation claims. 2. Placement under investigation The Court now turns to the related claim that HUD placing Plaintiff under investigation for the period from June 16, 2010, to January 24, 2012, was itself an adverse action. The Court once again agrees with Defendant that the workplace investigation does not constitute an adverse action under the discrimination or retaliation provisions of Title VII. [16] [17] With respect to the discrimination claims, “the 'mere initiation' of an investigation may not constitute a materially adverse action.” King v. Holder, 77 F.Supp.3d 146, 151 (D.D.C.2015) (citing Ware v. Billington, 344 F.Supp.2d 63, 76 (D.D.C.2004)). Plaintiff does not allege that the placement under an investigation caused him to lose opportunities for promotions or otherwise reduce his regular salary. Moreover, “[p]urely subjective perceptions of stigma or loss of reputation are insufficient to make an employer's action 'materially adverse.' ” Brown v. Mills, 674 F.Supp.2d 182, 191 (D.D.C.2009) (citation and internal quotation marks omitted). Without identifying any tangible harm that resulted from the investigation, Plaintiff's placement under investigation itself does not Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 128 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 constitute an adverse action. 4 See Ginger v. District of Columbia, 477 F.Supp.2d 41, 53 (D.D.C.2007); Lipscomb v. Winter, 577 F.Supp.2d 258, 277 (D.D.C.2008), aff'd in part, remanded in part on other grounds, No. 08- 5452, 2009 WL 1153442 (D.C.Cir. Apr. 3, 2009). The Court separately considers below Plaintiff's claims that the period of administrative leave was associated with a loss of annual leave and performance bonuses. With respect to Plaintiff's retaliation claim, the Court concludes that the investigation was not an adverse action for the same reasons that the administrative leave was not an adverse action: the investigation began prior to the alleged protected activity, and Plaintiff never claims that it was prolonged as retaliation for that protected activity. 5 3. Purported loss of annual leave [18] [19] In the Complaint, Plaintiff claims that, as a result of Defendant's actions, he was “denied annual leave for FY 2010 and FY 2011 that he would have accrued and received.” Compl. ¶ 94; see also id. ¶ 52 (same). In Plaintiff's Opposition, he admits that he did, in fact, accrue annual leave during his period of administrative leave. Pl.'s Opp'n at 12 n.6; see also 5 C.F.R. § 630.202(a) (“A full-time employee earns leave during each full biweekly pay period while in a pay status or in a combination of a pay status and a nonpay status.”); Compl. ¶ 50 (Plaintiff placed in paid administrative leave). However, in his opposition, Plaintiff presents a new claim that he was unable to use all of his accumulated leave because he could only “roll over” a maximum of 240 hours of leave to the subsequent calendar year. Pl's Opp'n at 12 n.6. First, Plaintiff may not amend his Complaint through his Opposition to the Motion for Judgment on the Pleadings, and the Court need not consider any claims presented for the first time in his opposition. See Kingman Park Civic Ass'n v. Gray, 27 F.Supp.3d 142, 168 (D.D.C.2014). In any event, Plaintiff's purported inability to use all of his accrued leave does not constitute an adverse action. Plaintiff was paid his salary during the entire period of administrative leave, accrued leave during that period, was able to use it during the year accrued, and was able to “roll over” up to 240 hours for use in a subsequent year. In other words, his leave benefits were no different during the period of paid administrative leave from a period of active status. In addition, it was immaterial whether he actually used his accrued leave (i.e., vacation) during the period of administrative leave because it would not make any difference to the pay or other benefits that he received. In sum, Plaintiff has not alleged any change to his leave- related benefits that qualifies as an adverse action under the discrimination or retaliation provisions of Title VII. 4. Purported loss of performance bonuses *8 [20] Plaintiff alleges that, as a result of the period of administrative leave, he “did not receive performance appraisals or bonuses for FY 2010 and FY 2011 which, in keeping with his immediately preceding performance appraisals as Director of ODEEO ADR, would have been at the level of Outstanding and carried with them performance bonuses.” Compl. ¶ 52; see also id. ¶¶ 94, 101, 117. Defendant argues that the failure to have the opportunity to receive bonuses does not constitute an adverse action because the alleged harm was speculative. As an initial matter, the Court notes that Plaintiff does not allege that the failure to pay bonuses was itself an adverse action that can serve as the basis for his discrimination claims or his retaliation claim. In order words, Plaintiff does not claim that he was denied a specific bonus as an act of discrimination or retaliation. Rather, Plaintiff claims that it was his placement on a period of administrative leave that resulted in him being unable to qualify for bonuses during the specified fiscal years. Id. ¶ 52. In that light, the Court concludes that the possibility of Plaintiff's being unable to receive bonuses was too speculative at the time Plaintiff was placed on administrative leave for it to constitute an adverse action. See Porter v. Jackson, 668 F.Supp.2d 222, 232 (D.D.C.2009) aff'd, 410 Fed.Appx. 348 (D.C.Cir.2010); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002) (incorporating district court opinion in relevant part) (an agency action is not “an actionable adverse action ... unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage”). Moreover, the Court notes that Plaintiff never alleges that he was placed on paid administrative leave or under investigation in order to deprive him of the opportunity to receive bonuses. Cf. Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C.Cir.2006) (complaint stated claim for discrimination where plaintiff alleged that officials referred plaintiff for investigation “in order to prevent [the plaintiff] from receiving promotions”). Finally, the Court notes that Plaintiff points to no cases where the elimination of an opportunity to receive a bonus is an adverse action, let alone a case like this where the elimination of an Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 129 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 opportunity to receive a bonus is the downstream effect of an earlier decision. With respect to the retaliation claim, the timing discussed above is also fatal to Plaintiff's claim that the elimination of an opportunity to receive a bonus was an adverse action. As discussed above, Plaintiff only relies on his placement on administrative leave as the basis for that claim, yet that occurred prior to any of the alleged protected activities. Once again, Plaintiff never claims that the period of leave was prolonged in order to eliminate the opportunity for bonuses as retaliation in response to his earlier protected activities. See Compl. ¶¶ 52, 117. In sum, as alleged, the loss of bonuses is not an adverse action under the discrimination or retaliation provisions of Title VII. 5. Purported stigmatizing of Plaintiff, harm to his personal life, and loss of career advancement chances [21] [22] Plaintiff alleges that Defendant “stigmatized plaintiff and caused great harm in his personal life and to his professional reputation and ended any chance for career advancement.” Compl. ¶¶ 117. Defendant argues that these alleged actions satisfy neither the standard for an adverse action under the discrimination provision of Title VII nor the standard under the retaliation provision. The Court concludes that these conclusory allegations are insufficient under the standard applicable to either provision. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (“A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' ”). With respect to the discrimination claims, Plaintiff has not sufficiently alleged tangible harm through his allegations. See Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C.Cir.2008). “ '[P]urely subjective injuries,' such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions.” Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (citation omitted). Plaintiff has not alleged non-conclusory facts, through the allegations being considered here, to support a plausible conclusion that he has “experience[d] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1130- 31 (D.C.Cir.2002). With respect to Plaintiff's retaliation claim, the Court also concludes that Plaintiff has not alleged here non-conclusory facts that plausibly support a claim that these actions “would 'dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.' ” Bridgeforth, 721 F.3d at 663 (citation omitted). 6. Failure to dismiss the notice of proposed removal in 2011 *9 Finally, Plaintiff alleges that Defendant, “in June of 2011, failed to dismiss the notice proposing to terminate plaintiff's employment and restore plaintiff to active duty in the position of Director of ADR in ODEEO.” Compl. ¶ 94; see also id. ¶¶ 101, 117. Defendant argues that the failure to dismiss the notice prior to January 2012 does not constitute an adverse action. 6 The Court agrees with Defendant. [23] Plaintiff alleges that, no later than June 2011, the HUD decisionmaker at that time concluded that the charges against Plaintiff would not be sustained and that he would not be removed from federal service. Id. ¶ 69. However, Plaintiff was not returned to active duty as of that time. Id. ¶ 71. Only later did HUD issue a decision dated January 24, 2012, which rejected the proposal to terminate Plaintiff's employment at HUD and instead suspended him for five days and reassigned him. Id. ¶ 82. In short, Plaintiff's claim is that the failure to dismiss the notice in June 2011-rather than to wait until January 2012 to issue the decision to suspend and to reassign him and not to terminate him-is yet another adverse action. The Court disagrees. With respect to the retaliation claim, just as a notice of a proposed penalty is not an adverse action, all the more so the failure to dismiss a notice at a particular time is not an adverse action. Indeed, “[a] long line of cases from this Circuit and others have held that threats, revoked disciplinary plans, and other such ultimately unconsummated actions are not materially adverse for purposes of retaliation claims.” McNair v. D.C., 903 F.Supp.2d 71, 75-76 (D.D.C.2012) (citing cases); see also Baloch v. Kempthorne, 550 F.3d at 1199 (proposed suspension not material adverse action). So, too, with respect to the discrimination claim. Plaintiff has identified no tangible negative effects caused by the failure to dismiss the notice between June 2011 and January 2012. Therefore, the failure to dismiss a notice of proposed removal at the particular time desired by Plaintiff is not the sort of “significant change in employment status, such as hiring, firing, failing to promote, reassignment Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 130 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 with significantly different responsibilities, or a decision causing significant change in benefits,” that qualifies as an adverse employment action. Douglas, 559 F.3d at 552. * * * In sum, the Court agrees with Defendant that none of the purported bases for Plaintiff's claims other than the five-day suspension and reassignment constitute adverse actions under the respective standards for discrimination and retaliation claims. The Court next briefly addresses Defendant's argument regarding the exhaustion of administrative remedies. B. Administrative Exhaustion Defendant's arguments with respect to exhaustion cover the same actions as the arguments regarding qualifying adverse actions. That is, Defendant argues that Plaintiff has not timely exhausted his administrative remedies with respect to any purported adverse actions other than the five-day suspension and reassignment. Defendant does not dispute that the claims with respect to the suspension and reassignment were properly exhausted. Because the Court concluded above that the only qualifying adverse action is the January 24, 2012, suspension and reassignment, the Court need not consider further the parties' arguments regarding the exhaustion of administrative remedies. The Court, therefore, proceeds to consider Defendant's final argument-that the Complaint fails to state a claim under which relief may be granted with respect to the five-day suspension and reassignment. C. Failure to State a Claim *10 The Court now addresses Defendant's argument that, even with respect to the five-day suspension and subsequent reassignment, the Complaint fails to state a claim upon which relief may be granted. The Court turns first to the retaliation claim and then to the discrimination claims. 1. Retaliation [24] [25] As described above, “[t]o prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action 'because' the employee opposed the practice.” McGrath, 666 F.3d at 1380. More specifically, a Title VII retaliation claims “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ----, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). At this early stage of the litigation, the Court must consider the well-pleaded factual allegations in the complaint, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. While a plaintiff “is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss,” or a motion for judgment on the pleadings, the complaint must nonetheless meet the plausibility standard. Jones v. Air Line Pilots Ass'n, Int'l, 642 F.3d 1100, 1104 (D.C.Cir.2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Upon assessing the parties' arguments, the Court concludes that the complaint has not stated a plausible retaliation claim because of the timing of the events that culminated in the only qualifying adverse action in this case. [26] Because the sequence of events is critical to evaluating Plaintiff's retaliation claim, a review of those events is helpful: • On June 16, 2010, Plaintiff was placed on paid administrative leave by Michelle Cottom, deputy director of ODEEO, and Cottom referred the case to HUD's Office of Inspector General for investigation. Compl. ¶¶ 42, 50-51. • Through a written notice dated January 6, 2011, Cottom proposed to terminate Plaintiff's employment at HUD. Id. ¶ 55-56. • On January 31, 2011, Plaintiff engaged in protected EEO activity through his written reply to the termination proposal. Id. ¶ 114. • On March 29, 2011, Plaintiff again engaged in protected EEO activity in his first oral reply to termination proposal. Id. ¶ 115. • On October 11, 2011, Plaintiff engaged in protected EEO activity in his second oral reply to the termination proposal. Id. ¶ 116. • HUD issued the decision of Hoban-Moore, dated January 24, 2012, which rejected the proposal Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 131 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 to terminate Plaintiff's employment and, instead, suspended him for five days and then reassigned him to another position. Id. ¶ 86. In short, HUD initiated an investigation into Plaintiff's conduct, then proposed to terminate his employment, then Plaintiff engaged in protected activity, and ultimately HUD decided to impose a five-day suspension and reassignment. This sequence of events does not allow a plausible inference that retaliation for Plaintiff's protected activity was the but-for cause of the ultimate adverse action. Before Plaintiff engaged in the protected activity, the agency had already notified Plaintiff of its intent terminate his employment. See id. ¶¶ 55-56, 86. Indeed, it was that notice that led to the protected activity through which Plaintiff claimed that the proposed termination and the associated investigation were discriminatory. See id. ¶¶ 66, 73, 114-16. *11 [27] With respect to the timeline, Plaintiff only states that the temporal proximity between his protected activity and the materially adverse action is evidence of retaliation. However, it appears that Plaintiff is only claiming temporal proximity between the decision to keep him on administrative leave and his protected activity. See Pl.'s Opp'n at 23. But the Court determined above that Plaintiff's placement on administrative leave itself does not constitute an adverse action. Nowhere does Plaintiff claim temporal proximity between his protected activity and the only qualifying adverse action-the January 24, 2012, decision to suspend Plaintiff for five days and to reassign him. Indeed, such a claim would fail because of the length of time that elapsed between the activity and the adverse action. Plaintiff's protected activity occurred on January 31, 2011; March 29, 2011; and October 11, 2011, but the sole qualifying adverse action did not occur until January 24 of the following year. No inference of causation is possible where it was more than three months between his final protected activity and the adverse action-and almost a year between Plaintiff's initial protected activity and the adverse action. See Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007) (“Temporal proximity can indeed support an inference of causation, but only where the two events are “very close” in time”) (citations omitted); Hamilton v. Geithner, 666 F.3d at 1357-58 (“Although the Supreme Court has cited circuit decisions suggesting that in some instances a three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation, neither the Supreme Court nor this court has established a bright- line three-month rule. Instead, we have evaluated the specific facts of each case to determine whether inferring causation is appropriate.”). Notably, in the single case on which Plaintiff relies for his argument regarding temporal proximity, the protected action was only two days before the adverse action. See Coleman v. D.C., 794 F.3d 49, 62 (D.C.Cir.2015). This case is far different given the length of time between the protected activity and the adverse action-and given that the process that ultimately led to the termination began before the protected activity occurred. Therefore, the Court concludes that there is no temporal proximity in this case. Indeed, not only does the sequence of events fail to show temporal proximity between the alleged protected activity and the alleged adverse action, that sequence of events makes any inference of causation implausible. As stated above, the notice of proposed removal and the associated period of investigation began prior to any protected activity by Plaintiff. After that period of administrative leave and investigation, the agency ultimately decided to impose a five-day suspension and to reassign Plaintiff to another position within the agency. Given this sequence of events, it is simply implausible to conclude that retaliation for Plaintiff's protected activity was the but-for cause of the ultimate adverse action. [28] Nor do Plaintiff's other arguments regarding causation undermine this conclusion. Insofar as “circumstantial evidence of a 'pattern of antagonism' following the protected conduct can also give rise to the inference” of causation, Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997), Plaintiff has not adequately alleged such a sequence of events. Once again, it is critical that the period of administrative leave and the investigation, which ultimately led to Plaintiff's suspension and reassignment, began before the alleged protected activity. Plaintiff also argues that an inference of causation is supported by his allegation that a representative of HUD's human resources department provided him false information regarding retirement in an attempt to coerce him to retire. See Pl.'s Opp'n (citing Compl. ¶¶ 75-81). While Plaintiff relies on Aka v. Washington Hosp. Center, 156 F.3d 1284 (D.C.Cir.1988), for this proposition, Aka is readily distinguishable. In Aka, the D.C. Circuit Court of Appeals held that, if the evidence allows an inference that an employer's explanation for the adverse action itself was a lie “that Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 132 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 should provide even stronger evidence of discrimination.” Id. at 1293. In this case, however, the information that Plaintiff alleges is false does not pertain to an explanation of the adverse action. Moreover, Plaintiff maintains that this false information was provided by a human resources specialist, not by the Hoban- Moore, the decisionmaker. Accordingly, the allegations regarding the retirement information provided by human resources do not support an inference of causation. Finally, the other cases on which Plaintiffs rely similarly do not speak to the issue at hand, let alone suggest an inference of causation in these circumstances. 7 See Morris v. Washington Metro. Area Transit Auth., 702 F.2d 1037, 1046 (D.C.Cir.1983) (resolving evidentiary question under no-longer applicable standard); Lathram v. Snow, 336 F.3d 1085, 1093 (D.C.Cir.2003) (holding that “an unexplained inconsistency can justify an inference of discriminatory motive”). *12 For all of these reasons, the Court concludes that Plaintiff has not plausibly alleged that retaliation for his protected activity was the but-for cause of his suspension and reassignment, and Plaintiff's retaliation claim must be dismissed even at this preliminary stage of these proceedings. 8 2. Discrimination Claims [29] The Court finally turns to Plaintiff's three discrimination claims-on the basis of race, on the basis of sex, and on the basis of race plus sex. Defendant argues that Plaintiff has not plausibly alleged a discrimination claim on any of these bases. Plaintiff responds that the allegations in the Complaint support plausible discrimination claims, citing to allegations about Michelle Cottom (on the basis of a “cat's paw” theory) and to other circumstantial allegations of discrimination. See Pl.'s Opp'n at 22-24 (citing Compl. ¶¶ 43-47, 57, 68, 75-81). The Court agrees with Plaintiff that the allegations are enough to clear the “relatively low hurdle” for surviving a motion for judgment on the pleadings with respect to a discrimination claim. Terveer v. Billington, 34 F.Supp.3d 100, 116 (D.D.C.2014) (citing cases). Accordingly, the Court denies the motion for judgment on the pleadings with respect to the discrimination claims insofar as they are based on Plaintiff's five-day suspension and reassignment. IV. CONCLUSION and ORDER For the foregoing reasons, it is hereby ORDERED that Defendant's [10] Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART. That motion is GRANTED with respect to the retaliation claim (count IV). With respect to the discrimination claims (counts I, II and III), the motion is GRANTED insofar as those claims are based on purported adverse actions other than the five-day suspension and reassignment and is DENIED insofar as it is based on the five-day suspension and reassignment. As Defendant has already filed an Answer to the Complaint, the Court will set a date for an Initial Scheduling Conference by a separate Order. All Citations --- F.Supp.3d ----, 2016 WL 777917 Footnotes 1 The motion is styled as a “Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment.” As described further below, the Court denied without prejudice Defendant's motion for summary judgment in light of Plaintiff's request for discovery. The Court resolves only the motion for judgment on the pleadings today. 2 The Court's consideration has focused on the following documents: • Pl.'s Complaint (“Compl.”), ECF No. 1; • Defs.' Motion for Judgment on the Pleadings and, Alternatively, for Summary Judgment (“Defs.' Mot.”), ECF No. 10; • Pl.'s Mem. of Points and Auth. in Support of Pl.'s Opposition to Def.'s Motion for Judgment on the Pleadings (“Pl.'s Opp'n”), ECF No. 19; and • Defs.' Reply in Support of Def.'s Motion for Judgment on the Pleadings (“Defs.' Reply”), ECF No. 20. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 133 of 195 Jones v. Castro, --- F.Supp.3d ---- (2016) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 3 The Court notes that, somewhat inexplicably, Plaintiff only lists the first two sets of actions as the adverse employment actions that are the basis for his race discrimination claim. See id. ¶ 108. But that distinction is of no consequence given the Court's conclusions below. 4 The decision of the D.C. Circuit Court of Appeals in Velikonja v. Gonzales, 466 F.3d 122 (D.C.Cir.2006), is not to the contrary. In Velikonja, the Court of Appeals did not determine whether an investigation itself could constitute an adverse action. Id. at 124. The Court of Appeals simply determined that the complaint stated a claim for discrimination because it alleged that the plaintiff was referred for the investigation in order to prevent that person from receiving promotions. Id. There are no such allegations in the case before this Court. 5 The Court separately considers below the argument that the failure to dismiss the notice of proposed removal was an adverse action. 6 The Court notes that Plaintiff never responds to Defendant's arguments regarding this purported adverse action. See Def.'s Reply at 17 n.7; see Pl.'s Opp'n at 25-27. While the Court could simply consider these arguments conceded, the Court considers Defendant's arguments on their merits. 7 Plaintiff never explains his claim that HUD's actions were inconsistent with its general procedures for handling such issues. Nor are allegations supporting this claim contained anywhere in the complaint. Plaintiff's statement in his Opposition that it was “irregular” to assign the disciplinary proceedings to three different officials in sequence-which it may or may not be-is not enough. Nor are the allegations in the Complaint that HUD did not immediately terminate the investigation after two different officials, in sequence, determined that they would not terminate Plaintiff's employment. Compl. ¶ 66, 74. 8 The Court notes that it does not appear that Plaintiff is presenting a “cat's paw” argument with respect to his retaliation claim. See Pl's Opp'n at 21-24 (referring to Cottom's alleged discriminatory motives in the context of discrimination analysis). Nor does Plaintiff explain how discriminatory animus by Cottom could be transformed into a retaliatory adverse action by the ultimate agency decisionmaker-which would be necessary to prevail on the retaliation claim on that basis. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 134 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 1157626 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Patricia KARAFFA v. MONTGOMERY TOWNSHIP, et al. Civil Action No. 12-1184. | March 21, 2013. Attorneys and Law Firms Brian K. Wiley, The Law Offices of Brian K. Wiley, P.C., North Wales, PA, for Patricia Karaffa. Christopher Paul Boyle, Joseph J. Santarone, Jr., Marshall Dennehey Warner Coleman & Goggin, King of Prussia, PA, for Montgomery Township, et al. MEMORANDUM JUAN R. SÁNCHEZ, District Judge. *1 Plaintiff Patricia Karaffa brings this action against her former employer, Montgomery Township (the Township), and two former supervisors, Jo Marie Pearson and Ann Shade, alleging violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Karaffa alleges Defendants unlawfully interfered with her rights under the FMLA (Count I), discriminated against her for taking FMLA leave (Count II), and constructively discharged her in violation of the FMLA (Count III). Karaffa has filed a motion for partial summary judgment on Defendants' liability for Counts I and II. Defendants have filed a motion for summary judgment on all Counts. For the following reasons, Defendants' motion for summary judgment will be granted. FACTS 1 I n 2001, the Township hired Karaffa as a police dispatcher. I n June 2010, Karaffa learned she was pregnant. That same month she informed the Township she was pregnant and would be requesting maternity leave. In November 2010, Karaffa submitted a letter to the Township informing it she had a planned delivery date of February 4, 2011, and requesting leave for her delivery and for recovery/maternity leave under the FMLA. Defendant Anne Shade, the Township's Director of Human Resources, informed Karaffa her FMLA leave request was approved. Township police dispatchers work in three shifts, seven days a week: 7 a.m. to 3 p.m. (hereinafter, “morning shift”); 3 p.m. to 11 p.m. (hereinafter, “evening shift”); and 11 p.m. to 7 a.m. (hereinafter, “overnight shift”). From at least June 2010 to December 2010, Karaffa was assigned a “rotating shift,” which she described as a combination of all three shifts. In December 2010, Karaffa was diagnosed with gestational diabetes, a condition in which a woman develops high blood glucose levels during pregnancy. Karaffa requested a new schedule pursuant to the FMLA so she could properly treat her gestational diabetes. In support of her request, Karaffa's physician, Dr. Angela C. Boylan, M.D., completed and sent to the Township an FMLA request form certifying that treatment for Karaffa's gestational diabetes required that she work only the morning shift, rather than rotating shifts, so Karaffa could better maintain her glucose levels through a prescribed diet plan. Dr. Boylan also informed the Township that Karaffa's gestational diabetes was a temporary condition, which would resolve after her delivery. The Township granted Karaffa's request and assigned her only morning shifts until she began her previously scheduled FMLA leave for her delivery and recovery/maternity leave. Karaffa commenced this FMLA leave on February 1, 2011, and, as Dr. Boylan indicated, her gestational diabetes completely resolved after her delivery. On April 11, 2011, Karaffa received a letter from the Township informing her that upon her return from maternity leave she would be scheduled to work only overnight shifts. Karaffa informed the Police Chief and Deputy Chief she did not want this schedule, and that such an assignment was inconsistent with the Karaffa's seniority and the seniority system of shift assignments. The Township agreed the assignment of permanent overnight shifts was an oversight, as the scheduler mistakenly believed Karaffa desired this shift because she had worked permanent overnight shifts in the past. Before Karaffa returned to work, her schedule was changed to Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 135 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 evening shifts with two weekends of overnight shifts per month. Karaffa returned to work shortly after April 11. *2 On May 17, 2011, Karaffa was injured in a car accident and could not immediately return to work. At that time, Karaffa had exhausted her FMLA leave. In a May 19 email to the Township, Karaffa requested leave to recover from her car accident injuries and asked that such leave be considered an accommodation under the Americans with Disabilities Act (ADA). She did not request FMLA leave for this time period, and she admitted she did not know if she had any available FMLA leave when she made her request for an A DA accommodation. Nevertheless, in a June 13, 2011, letter, Shade informed Karaffa she would not be receiving FMLA leave for her recovery time because her FMLA benefits were exhausted through February 4, 2012; rather, Karaffa's leave beginning May 17, 2011, would be covered under her short-term disability policy. On August 4, 2011, Karaffa again returned to work. Upon her return, Karaffa was not tasked with dispatcher duties, but was asked by her supervisor, Defendant Jo Marie Pearson, to perform other tasks which Karaffa thought were “menial and degrad[ing],” like shredding paper and organizing documents. Pl.'s Mem. in Supp. of Mot. for Partial Summ. J. 20, ECF No. 30. 2 Karaffa performed these tasks in an area separate from where the dispatchers were located. The Township asserts Karaffa was taken off of the dispatcher schedule to comply with the work restrictions imposed by her physician; however, Karaffa argues these restrictions did not prevent her from performing dispatcher duties. Karaffa's physician imposed the following restrictions: part-time sedentary work only; no prolonged standing; no squatting; no heavy lifting; no sitting in a rolling chair; a maximum four hour shift; and a preferred shift of 7 a.m. to 11 a.m. In an August 11, 2011, letter, Shade informed Karaffa that she would be required to undergo an examination by an independent physician to determine the existence of any potentially disabling conditions and to evaluate the appropriateness of the limitations imposed by her treating physician. The letter further stated Karaffa would not need to report to work until the independent physician made his evaluation, but she would still be paid for a total of eight hours of work per day, half of which would be paid through short-term disability. Karaffa did not view this letter as terminating her employment. Approximately one month later, in early September 2011, Karaffa submitted a complaint to the Township alleging she had been harassed and retaliated against for taking FMLA leave. An attorney for the Township attempted to solicit additional information from Karaffa about her complaint, but Karaffa did not respond. Karaffa did send an email to the Township on September 14, 2011, requesting additional time to respond to a Township inquiry for additional information; however, it is unclear if this inquiry is the same as the inquiry from the Township's attorney. Shade granted Karaffa additional time to respond in a September 16, 2011, letter. Karaffa alleges she was constructively discharged on September 7, 2011, due to the ostracism and harassment she had experienced. *3 On March 7, 2012, Karaffa filed the instant lawsuit, asserting the following FMLA claims against the Township, Pearson, and Shade: (1) unlawful interference with FMLA rights (Count I); (2) discrimination for requesting and taking FMLA leave (Count II); and (3) constructive discharge under the FMLA (Count III). Karaffa filed a motion for partial summary judgment, asking this Court to find she has established Defendants' liability for Counts I and II only. Defendants filed a motion for summary judgment on all Counts. DISCUSSION A motion for summary judgment shall be granted “if the movant shows 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). “Material” facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court “must view the facts in the light most favorable to the non-moving party, and must make all reasonable inferences in that party's favor .” Hugh, 418 F.3d at 267. “On cross-motions for summary judgment, the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the nonmovant.” Selective Way Ins. Co. v. Travelers Prop. Cas. Co. of Am., 724 F.Supp.2d 520, 525 (E.D.Pa.2010) (citing Pichler, 542 F.3d at 386). To defeat a summary judgment motion, the non-moving party “must rely on affidavits, depositions, answers to Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 136 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 interrogatories, or admissions on file” to show there is a genuine issue of material fact. Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 199 (3d Cir.2001) (quotation omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for trial.’ “ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The FMLA guarantees an eligible employee 12 workweeks of leave during any 12-month period due to the birth of a child, a family member's serious health condition, the employee's own serious health condition, and other exigencies involving a family member's service in the armed forces. 29 U.S.C. § 2612(a)(1). Upon an employee's return from FMLA leave, the employer must restore the employee to the position she held when her leave commenced or an equivalent position with equivalent benefits and conditions of employment. Id . § 2614(a). The FMLA also makes it unlawful “for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,” FMLA rights. Id. § 2615(a) (1). Additionally, employers may not discriminate or retaliate against an employee based on the exercise of FMLA rights. Id. § 2615(a)(2); 29 C.F.R. § 825.220(c) (prohibiting employers from discriminating or retaliating against an employee for exercising or attempting to exercise FMLA rights); Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir.2005) (distinguishing between “interference” and “discrimination” claims under the FMLA). Finally, employers may not retaliate against an employee for complaining about or participating in a proceeding concerning an employer's alleged violation of the FMLA. 29 U.S.C. § 2615(b). *4 To assert an FMLA interference claim, Karaffa need only show she was entitled to benefits under the FMLA and that she was denied such benefits. Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir.2006). Karaffa alleges Defendants denied her the right to return to the same or an equivalent position upon her return from maternity leave in April 2011 and again after her car accident in August 2011. As an initial matter, Karaffa cannot maintain an interference claim based on her leave of absence to recover from the injuries caused by the car accident because that leave was not protected under the FMLA, as Karaffa had exhausted her FMLA leave prior to the accident. As the Township made clear in its June 13, 2011, letter to Karaffa, the leave following her car accident was covered by her short-term disability policy, not the FMLA. See, e.g., Devine v. Prudential Ins. Co. of Am., No. 03-3971, 2007 WL 1875530, at *28 (D.N.J. June 28, 2007) (“Once an employee has been provided with 12 workweeks of leave, the employer's obligations under the FMLA expire.” (citing Cehrs v. Ne. Ohio Alzheimer's $OJKH LPH & l Research Ctr., 155 F.3d 775, 784-85 (6th Cir.1998))); Dogmanits v. Capital Blue Cross, 413 F.Supp.2d 452, 462-63 (E.D.Pa.2005) (“[E]mployees who exhaust the twelve weeks of leave provided under the FMLA stand to lose their entitlement to job restoration even if their employers provide additional, non-FMLA, leave.”); Frederick v. Brandywine Hosp., Inc., No. 03- 3362, 2003 WL 21961372, at *1 (E.D.Pa. July 7, 2003) (dismissing an FMLA interference claim because plaintiff's leave extended beyond the FMLA's 12-week maximum); Panto v. Palmer Dialysis Ctr., No. 01-6013, 2003 WL 1818990, at *6 (E.D.Pa. Apr.7, 2003) (granting summary judgment for employer because employee had exhausted FMLA leave and employer's more generous leave policy did not extend protections of the FMLA). 3 As to her position following her maternity leave, Karaffa argues she was not reinstated to the same or an equivalent position upon her return to work because she had been working permanent morning shifts prior to her maternity leave, but was assigned permanent overnight shifts upon her return. Karaffa's argument has two fundamental flaws. First, she never actually worked the permanent overnight shifts as initially scheduled. Before she returned to work, Karaffa's schedule was changed to the evening shift with two weekends of midnight shifts per month. Karaffa has not cited any case law suggesting an FMLA interference claim can be premised on only the employer's intent to reinstate the employee to a different position or shift, nor has this Court found support for such a proposition. Rather, the plain language of the statute shows the Township's duty to reinstate Karaffa to a position equivalent to the one she held prior to her FMLA leave arises only “on return from such leave.” 29 U.S.C. § 2614(a)(1); accord 29 C.F.R. § 825.214 (“On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced ....“ (emphasis added)). *5 Second, Karaffa was only entitled to return to a “rotating shift,” not the steady morning shift schedule the Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 137 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Township provided her to accommodate her gestational diabetes. Although an employee generally is entitled to return to the same shift or equivalent work schedule she had prior to taking FMLA leave, 29 C.F.R. § 825.215(e) (2), by Karaffa's own account, her schedule of steady morning shifts from December 2011 until the start of her maternity leave was intermittent FMLA leave, and thus not the shift she held “when leave commenced,” id. § 825.214; see also Pl.'s Mem. in Supp. of Mot. for Partial Summ. J. 13-14 (arguing her request for a scheduling accommodation for her gestational diabetes was a request for “intermittent leave” covered by the FMLA). Even if this temporary schedule of only morning shifts was not covered by the FMLA, Karaffa was not entitled to this schedule upon return from her maternity leave. 4 “An employee [returning from FMLA leave] has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.” 29 C.F.R. § 825.216(a). Assuming Karaffa's maternity leave from February to April 2011 was the only FMLA leave she took relating to her pregnancy, she was only entitled to return to the same shift she would have worked if she had not gone on maternity leave. As the record clearly shows, the steady morning shift schedule was only a temporary accommodation during the period in which Karaffa suffered from gestational diabetes, which condition completely resolved upon her delivery. Accordingly, had Karaffa not gone on maternity leave, her schedule would have reverted back to a “rotating shift” because she no longer needed a steady morning shift. Karaffa, therefore, was only entitled to be returned to a “rotating shift,” and not the temporary accommodation shift. To establish her interference claim, therefore, Karaffa must show her schedule upon her return from maternity leave was not equivalent to the “rotating shifts” she worked prior to December 2010. See 29 C.F.R. § 825.215(e)(2) ( “The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.”). After her maternity leave, Karaffa was assigned the evening shift with two weekends of overnight shifts per month, shifts she had also performed prior to her FMLA leave. Significantly, Karaffa does not argue this schedule was not equivalent to her rotating shifts schedule, but only argues it was less desirable than her temporary morning shift schedule. Some courts have found a change from a permanent day shift to a permanent overnight shift raises a question of fact whether the schedules were equivalent for purposes of the FMLA. Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 766 (5th Ci r.2001); Miller v. Miller Cnty., No. 06-4094, 2009 WL 358271, at *2-3 (W.D.Ark. Feb.11, 2009). Here, however, Karaffa's post-FMLA leave schedule included only shifts she regularly worked prior to her leave. There is no evidence in the record suggesting this schedule was not equivalent to the rotating shifts schedule she worked before her diagnosis of gestational diabetes, and, in fact, Karaffa does not even argue those two schedules were unequal. Consequently, a reasonable trier of fact could not find the Township failed to reinstate Karaffa to an equivalent position and work schedule, and Defendants are therefore entitled to summary judgment on Karaffa's interference claim. *6 Next, Karaffa alleges Defendants discriminated against her for taking FMLA leave by “demoting” her to a less desirable schedule than she previously had upon her return from maternity leave in April 2011, and by stripping her of dispatcher duties after her return from leave to recover from her car accident in August 2011. Courts analyze such FMLA discrimination claims (also referred to as “retaliation claims”) under the burden- shifting framework set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). E.g ., Atchison v. Sears, 666 F.Supp.2d 477, 490 (E.D.Pa.2009). Under this analysis, Karaffa must establish a prima facie case of FMLA discrimination by demonstrating: (1) she exercised her rights under the FMLA; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the exercise of her FMLA rights. Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Ci r.2009). Because Karaffa has failed to established a prima facie discrimination claim, it is not necessary to discuss the subsequent stages of the burden-shifting analysis. As for her alleged demotion upon her return from maternity leave, Karaffa has established she was exercising her FMLA rights by taking maternity leave, but she has not shown she suffered an adverse employment action, i.e., that she was demoted. As addressed in detail above, after her maternity leave, Karaffa was returned to a position and work schedule equivalent to the one she enjoyed prior to her leave. Her argument she was entitled to the special schedule she was given to accommodate Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 138 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 her gestational diabetes is rejected for the reasons already discussed. As for the circumstances involving her return to work after her car accident, Karaffa alleges Defendants stripped her of all dispatcher duties, forced her to perform humiliating tasks, and caused her to suffer other adverse employment actions in response to her taking leave to recover from the injuries she suffered in the accident. This leave, however, was not protected by the FMLA because Karaffa had already exhausted her 12 weeks of FMLA leave. As Karaffa's request for, and taking of, leave after her accident does not constitute an exercise of her FMLA rights, any alleged discrimination for seeking or taking such leave does not violate the FMLA. See Schnoor v. Publ'ns Int'l, Ltd., No. 03C4972, 2005 W L 1651045, at *7 (N.D.Ill. July 7, 2005) (holding plaintiff who had exhausted her FMLA leave before requesting additional FMLA leave could not make out a prima facie case of discrimination based on her termination after her request because such activity was not protected under the FMLA); Panto, 2003 WL 1818990, at *7 (declining to consider leave taken after the employee had exhausted her FMLA leave as protected activity for the purpose of an FMLA discrimination claim); see also Walker v. Elmore Cnty. Bd. of Educ. ., 379 F.3d 1249, 1253 (11th Ci r.2004) (rejecting an FMLA discrimination claim by a plaintiff who was not eligible for FMLA leave at the time she requested leave, holding “the statute does not protect an attempt to exercise a right that is not provided by [the] FMLA”). *7 Karaffa attempts to overcome this defect by arguing she had a good faith belief she was exercising her FMLA rights by requesting and taking leave after her accident. The record, however, undermines her argument. In her written correspondence to the Township after her accident, Karaffa expressly asked for leave under the ADA. Moreover, Karaffa was certainly aware at that time that the FMLA guarantees leave to deal with personal health issues in some circumstances because she had expressly referenced the FMLA in requesting her previous maternity leave and other leaves of absence. Also, during her deposition, Karaffa admitted she did not know whether she had any FMLA leave remaining when she requested time off after her accident. In fact, there is no evidence of record suggesting Karaffa believed she was requesting or taking FMLA leave. A reasonable trier of fact, therefore, could not find Karaffa had a good faith belief she was exercising her FMLA rights. Furthermore, this Court is skeptical that Karaffa's mistaken but good faith belief she had available FMLA leave could save this kind of discrimination claim i n any event. See Walker, 379 F.3d at 1253 (holding the FMLA does not “protect someone who mistakenly asks for FMLA leave although they are ineligible”). Karaffa also appears to argue the adverse employment actions she experienced upon her return from work after her non-FMLA leave i n August 2011 were i n response to her taking FMLA leave from February to mid-April 2011 for the birth of her child. No reasonable trier of fact, however, could find a causal relationship between Karaffa's FMLA leave and the alleged adverse acts based on this record. Karaffa's only argument is that the temporal proximity suggests a causal relationship; however, over three and a half months had passed between the end of her FMLA maternity leave and the alleged adverse actions. Although temporal proximity between the protected activity and the adverse act alone can be sufficient to establish a causal link, “the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred.” Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir.2004) (quotation omitted); accord Walker v. Independence Blue Cross, No. 03-6396, 2005 WL 1266590, *7 (E.D.Pa. May 27, 2005) (applying “unusually suggestive” timing standard to an FMLA discrimination/ retaliation claim); Dogmanits, 413 F.Supp.2d at 464 (same). Absent any other evidence suggesting a causal relationship between Karaffa's maternity leave and the circumstances surrounding her return after her accident, the three and a half months between the two events cannot support a finding of a causal relationship. Compare Williams, 380 F.3d at 760 (affirming summary judgment on a retaliation claim against employee whose only evidence of causation was temporal proximity of just over two months), and Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Ci r.2003) (holding a temporal proximity of roughly three weeks was not enough on its own to raise a material issue of fact as to the causal connection i n an employment retaliation claim), with Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Ci r.1989) (holding the causation element of a prima facie retaliation claim was established by showing a temporal proximity of two days). Accordingly, Karaffa has not established a prima facie claim of discrimination/retaliation under 29 U.S.C. § 2615(a)(2) and 29 C.F.R. § 825.220(c), and Defendants are entitled to summary judgment on this claim. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 139 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 *8 At oral argument, Karaffa for the first time asserted a claim under 29 U.S.C. § 2615(b) of the FMLA, alleging the Township took the adverse actions following her short- term disability leave in retaliation for complaining about the Township's FMLA violations. Retaliation claims under § 2615(b) are analyzed under the same burden shifting framework as FMLA discrimination claims and retaliation claims under other employment discrimination statutes. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.2004); Lehmann v. Aramark Healthcare Support Servs., LLC, 630 F.Supp.2d 388, 391 (D.Del.2009). This claim clearly fails because Karaffa has not presented any facts suggesting a causal relationship between her complaint and the alleged retaliatory conduct. The record shows Karaffa did not lodge a complaint with the Township regarding its purported FMLA violations until sometime in early September, over one month after the alleged retaliatory conduct and roughly one month after she worked her last day for the Township. Consequently, Karaffa obviously cannot establish Defendants retaliated against her for lodging her complaint when she made her complaint after the alleged retaliatory acts. This claim also fails. Finally, Karaffa alleges the humiliating, non-dispatcher tasks she was forced to perform in a room segregated from the rest of the work force upon her return to work in August 2011 constituted a constructive discharge. This claim fails for the same reasons as her other discrimination and retaliation claims. A claim of constructive discharge under the FMLA is no more than a discrimination/ retaliation claim wherein the adverse employment action is that the employee was constructively discharged. See Sherrod v. Phila. Gas Works, 209 F.Supp.2d 443, 451 (E.D.Pa.2002). Even if Karaffa could show she was constructively discharged due to the working conditions upon her return, as this Court has already found, no reasonable trier of fact could find such conditions had any causal connection to her protected FMLA activities. Moreover, Karaffa has not come close to showing she was constructively discharged. To establish a constructive discharge, Karaffa must show Defendants “knowingly permitted conditions of [FMLA] discrimination in employment so intolerable that a reasonable person subject to them would resign.” Tanganelli v. Talbots, Inc ., 169 F. App'x 124, 127 (3d Ci r.2006) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984)). “Intolerability ... is assessed by the objective standard of whether a reasonable person in the employee's position would have felt compelled to resign-that is, whether [she] would have had no choice but to resign.” Id. (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Ci r.1998)). Simply put, no reasonable trier of fact could find the alleged adverse employment acts suffered by Karaffa rise to the level of so intolerable as to compel her resignation. She only performed the allegedly non- dispatcher tasks for one week, after which she was given paid leave until an independent physician cleared her for work. She never returned. Defendants are therefore entitled to summary judgment on Karaffa's constructive discharge claim as well. *9 An appropriate Order follows. ORDER AND NOW, this 21st day of March, 2013, for the reasons set forth in the accompanying Memorandum, it is ORDERED Defendants Montgomery Township, Jo Marie Pearson, and Ann Shade's Motion for Summary Judgment (Document 32) is GRANTED. Judgment is entered in favor of Defendants and against Plaintiff Patricia Karaffa on all Counts of the Complaint. It is further ORDERED: • Karaffa's Motion for Partial Summary Judgment on Counts I and II (Liability Only) (Document 30) is DENIED; and • Defendants' Motion in Limine to Preclude Trial Testimony and/or Exhibits (Document 40) is DENIED as moot. The Clerk of Court is DIRECTED to mark this case CLOSED. All Citations Not Reported in F.Supp.2d, 2013 WL 1157626, 46 NDLR P 254 Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 140 of 195 Karaffa v. Montgomery Tp., Not Reported in F.Supp.2d (2013) 46 NDLR P 254 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Footnotes 1 “On a motion for summary judgment, a district court must view the facts in the light most favorable to the non-moving party, and must make all reasonable inferences in that party's favor.” Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Ci r.2005). “On cross-motions for summary judgment, the court construes facts and draws inferences ‘in favor of the party against whom the motion under consideration is made.’ “ Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir.2008) (quotation omitted). 2 The Township disputes that the tasks assigned to Karaffa were not included within the duties of a dispatcher. It also disputes that Pearson was Karaffa's supervisor, asserting Pearson was the most senior dispatcher and had some supervisory duties, but was not Karaffa's or any other dispatcher's supervisor. 3 Karaffa argues Shade admitted under oath that Karaffa was covered under the FMLA for all relevant time periods from “2010 through 2011.” Pl.'s Resp. in Opp'n to Defs.' Mot. for Summ. J. 13, 15, 17, 19, 21, 26. This is a flagrant mischaracterization of the record. During Shade's deposition, Karaffa's attorney referenced the 2010 through 2011 time period to establish the period within which he was focusing his questioning. He never asked if both of Karaffa's leaves of absence i n 2011 were covered by the FMLA, and Shade certainly never stated as much. The record is devoid of any evidence whatsoever indicating Karaffa's leave from May 17 to August 4, 2011, was FMLA leave and not short-term disability leave as initially explained to Karaffa by the Township. 4 FMLA leave may be taken intermittently or on a reduced leave schedule. 29 U.S.C. § 2612(b). “Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.” 29 C.F.R. § 825.202(a). A narrow reading of these definitions suggests Karaffa's special schedule while she suffered from gestational diabetes was not covered by the FMLA because she continued to work a full eight-hour shift per day. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 141 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 5324962 United States District Court, E.D. Louisiana. Michael R. McGILL v. BOARD OF SUPERVISORS OF THE UNIVERSITY OF LOUISIANA SYSTEM, et al. Civil Action No. 13-4829-SS. | Signed Oct. 16, 2014. | Filed Oct. 17, 2014. Attorneys and Law Firms Dale Edward Williams, Law Office of Dale Edward Williams, Covington, LA, Hugh B. Exnicios, Folsom, LA, for Michael R. McGill. William Peter Connick, Gregory C. Fahrenholt, Connick & Connick, LLC, Metairie, LA, for Board of Supervisors of the University of Louisiana System, et al. ORDER AND REASONS SALLY SHUSHAN, United State Magistrate Judge. *1 The parties consented to proceed before the undersigned. Rec. doc. 10. The motion of the defendant, Dr. Marvin Yates (“Dr.Yates”), for summary judgment on the remaining claims of the plaintiff, Michael McGill (“McGill”), is pending. For the reasons presented below, the motion is granted. BACKGROUND At all pertinent times, Dr. John Crain was president of Southeastern Louisiana University (“Southeastern”). Dr. Crain is a Caucasian. At all pertinent times, Dr. Yates was vice-president of student affairs at Southeastern. He reported directly to Dr. Crain. Dr. Yates' responsibilities included supervision of the Southeastern police department. Dr. Yates is an African- American. Prior to the relevant period and until July 17, 2012, Michael Prescott was Director of the Southeastern police department. Prescott is a Caucasian. Prior to 2008, McGill was employed with the Jefferson Parish Sheriff's Office for 28 years. In 2008, he was hired by Southeastern as Police Captain to work in its police department. McGill is a Caucasian. At all pertinent times, Angela Jones was employed by the Southeastern police department. Jones is an African- American. McGill alleges that Jones conspired with Dr. Yates to harass and retaliate against him. On June 1, 2012, McGill requested FMLA medical leave to undergo a total knee replacement. McGill's request for FMLA leave was granted. He remained out on medical leave through July 26, 2012. Up until July 25, 2012, Carmen Bray was employed as a sergeant in the Southeastern police department. On July 17, 2012, the Southeastern Board discharged Prescott. Following Prescott's discharge, it was necessary to appoint an Interim Director for the police department pending a search for a permanent Director. On July 25, 2012, Bray was appointed to serve as Interim Director. On July 26, 2012, McGill returned from medical leave and was reinstated to his position as Police Captain. PROCEDURAL HISTORY A. Original Complaint. On June 18, 2013, McGill filed a complaint against: (1) the Board of Supervisors of the University of Louisiana System (“Board”); (2) Dr. Yates; and (3) Jones. McGill sought relief under: (1) the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; (2) the Louisiana Disability Act (“LDA”), La. R.S. 23:322; (3) the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601; (4) the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; and (5) the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:332. Rec. doc. 1. 1 McGill named the Board and Dr. Yates as defendants on the ADA claim, the FMLA claim, and the ADEA claim. He named the Board, Dr. Yates and Jones as defendants Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 142 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 on the LEDL claim. McGill did not name a party as a defendant on the LDA claim. Rec. doc. 1 at 8-9. On September 20, 2013, defendants moved to dismiss all claims against the Board and Jones and all but the FMLA claims asserted against Dr. Yates in his individual capacity. Rec. doc. 6. McGill sought and was granted leave to amend his complaint. Rec. docs. 11 and 13. Defendants' motion to dismiss was denied without prejudice. Rec. doc. 15. B. First Amended Complaint. *2 On October 28, 2013, McGill filed his first amended complaint against the Board, Dr. Yates and Jones under the: (1) LDA; (2) FMLA; (3) Louisiana Age Discrimination in Employment Act (“LAD”), La. R.S. 23:312; and (4) LEDL. Rec. doc. 14. McGill named the Board as a defendant on the LDA claim. He named Dr. Yates, in his individual capacity, as a defendant on the FMLA claim. He named the Board and Dr. Yates as defendants on the LAD claim. He named the Board, Dr. Yates and Jones as defendants on the LEDL claim. Rec. doc. 14 at 8-9. On October 31, 2013, defendants sought to dismiss: (1) all claims against the Board under the Eleventh Amendment doctrine of sovereign immunity; (2) all claims against Dr. Yates except for the FM LA claim; and (3) the single claim against Jones under LEDL. Rec. doc. 16. Defendants urged that all claims against Dr. Yates and Jones in their official capacities must be dismissed under the doctrine of sovereign immunity. Rec. doc. 16 (Memorandum at 7-8). They acknowledged an exception to the Eleventh immunity regarding a public officer acting in his or her official capacity which applied when a plaintiff sought an injunction against such an officer. Defendants argued that while McGill named Dr. Yates and Jones in their official capacities, injunctive relief was not requested. They urged that the LEDL claims against Dr. Yates and Jones in their individual capacities be dismissed because the LEDL does not subject individuals to liability. Id. (Memorandum at 9-11). McGill agreed to refi le his state law claims in state court. He sought leave to amend to assert injunctive relief against Dr. Yates and Jones. Rec. doc. 17. All of McGill's claims were dismissed except the FMLA claims against Dr. Yates in his individual capacity. He was granted leave to seek injunctive relief against Dr. Yates or Jones on the FMLA claims. Rec. doc. 18. C. Second Amended Complaint. On December 3, 2013, McGill filed a second amended complaint against the Board, Dr. Yates and Jones. Notwithstanding the Court's November 20, 2013 order (Rec.doc.18), McGill again sought relief under the: (1) LDA; (2) FM LA; (3) LAD; and (4) LEDL. Rec. doc. 14. The second amended complaint (Rec.doc.19) is identical to the first amended complaint (Rec.doc. 14) with only one exception. The second amended complaint contains an additional request for relief in Paragraph 30(c): Issue a mandatory injunction, pursuant to 29 U.S.C. § 2617(1)(B), enjoining Marvin Yates and Angela Jones from prospective conduct having as its aim interference with or denial of federally protected rights set out in the Family and Medical Leave Act of 1993.... Rec. doc. 19 at 9. For the reasons presented in defendants' October 31, 2013 motion to dismiss (Rec.doc.16), all of McGill's claims in the second amended complaint are dismissed except for the FMLA claims against Dr. Yates in his individual capacity and the claim against Dr. Yates and Jones in their official capacities for injunctive relief relating to the FMLA claim. 2 D. Motion for Summary Judgment. *3 On August 26, 2014, Dr. Yates moved for summary judgment on the surviving FMLA claims. Rec. doc. 25. These are the FMLA retaliation and interference with FMLA rights claims against Dr. Yates in his individual capacity and the claim against Dr. Yates and Jones in their official capacities for injunctive relief relating to the FMLA claims. ARGUMENTS OF THE PARTIES Dr. Yates argues that McGill cannot establish a prima facie case of FM LA retaliation. He contends that McGill must show that: (1) he was protected under FMLA, (2) he suffered an adverse employment decision, and (3) the adverse decision was made because he took Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 143 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 FMLA leave. Dr. Yates argues that McGill cannot satisfy the third requirement. Assuming he does, Dr. Yates acknowledges that the burden shifts to him to articulate a legitimate, non-discriminatory reason for the decision. Dr. Yates contends that there is such a reason. The burden shifts back to McGill to prove by a preponderance of the evidence that his exercise of FM LA rights was a motivating factor in the adverse decision. Dr. Yates urges that McGill has no such evidence. McGill argues that a mixed-motive burden-shifting framework must be applied to his retaliation claim. He contends that he satisfies the requirements for a prima facie case. He urges that Dr. Yates' proffered reason for the decision is wholly subjective and therefore not subject to resolution on a motion for summary judgment. He argues that genuine issues of fact exist as to whether the stated reason is pretextual. Dr. Yates agrees that McGill satisfies the first four requirements for a prima facie case of interference with his FMLA rights: (1) he was an eligible employee, (2) Dr. Yates was an employer subject to FMLA's requirements, (3) McGill was entitled to leave, and (4) he gave proper notice of his intention to take FM LA leave. Dr. Yates argues that McGill cannot establish the fifth element- that McGill was denied the benefits to which he was entitled under the FMLA. McGill responds that when he returned to work following FM LA leave, he was treated as though he had been demoted. Rec. doc. 38 at 16. Dr. Yates argues that there is no past FMLA violation or any continuing FMLA violation, so there is no basis for the claim for injunctive relief. McGill responds that: (1) he was effectively demoted on his return from FM LA leave; (2) he requested reinstatement of his prior duties; and (3) he is entitled to injunctive relief. Rec. doc. 38 at 18. SUMMARY JUDGMENT STANDARD In Ion v. Chevron USA, Inc., 731 F.3d 379 (5th Cir.2013), the Fifth Circuit stated: Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A genuine dispute as to a material fact exists when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, a court determines that the evidence is such that a reasonable jury could return a verdict for the party opposing the motion. A court considering a motion for summary judgment must consider all facts and evidence in the light most favorable to the nonmoving party. Moreover, a court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence. In addition, a court must disregard all evidence favorable to the moving party that the jury is not required to believe. *4 731 F.3d at 389 (citations and quotation marks omitted). ANALYSIS A. FMLA Retaliation Claim. In Richardson v. Monitronics International, Inc., 434 F.3d 327, 333 (5th Cir.2005), the Fifth Circuit held that the mixed-motive framework applies to FMLA claims in which retaliatory animosity was a motivating factor in an adverse employment action. In University of Texas Southwestern Medical Center v. Nassar, --- U.S. ----, 133 S.Ct. 2517 (2013), the Supreme Court limited the applicability of the mixed-motive framework in cases involving Title VII and ADEA. In Ion, the Fifth Circuit did not decide whether Nassar applied to FMLA-retaliation claims, but it applied the mixed-motive framework. Thus, the mixed-motive analysis described in Ion will be applied to McGill's FMLA retaliation claim. 1. First Step. Under the first step of the mixed-motive burden-shifting framework, Ion must establish a prima facie case of Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 144 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 FMLA retaliation. To do so, Ion must show that (1) he was protected under the FMLA, (2) he suffered an adverse employment action, and (3) the adverse action was taken because he sought protection under the FMLA. Ion, 731 F.3d at 390. It is undisputed that McGill was protected under the FMLA. McGill suffered an adverse employment action because he was passed over for the position of Interim Director. Rec. doc. 38. He satisfies the first and second requirements for a prima facie case. The third requirement is that the adverse action was taken because McGill sought protection under the FMLA. In Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 408 (5th Cir.1999), the Fifth Circuit stated that: [W]here there is a close timing between an employee's protected activity and an adverse employment action, the employer must offer a legitimate, nondiscriminatory reason that explains both the adverse action and the timing. Id. at 408 (emphasis in original). The close timing between the date that McGill returned from his FMLA leave and the date that Dr. Yates recommended Bray as Interim Director satisfies the third requirement for a prima facie case. 2. Second Step. The second step of the framework requires that Chevron articulate a legitimate, nondiscriminatory reason for Ion's termination. Ion, 731 F.3d at 390-91. Dr. Yates states: Due to ongoing turmoil in the department, including disputes between divided factions of officers, Dr. Yates, as the supervisor of the department, recommended to Dr. John Crain, SLU's President, that Sgt. Carmen Bray be appointed as the Interim Director of the department pending a search for a new permanent Director. Dr. Yates and Dr. Crain both believed that Sgt. Bray was the best suited employee within the department to lead the department on an interim basis due to his neutral and calm personality. Rec. doc. 25 at 3-4. McGill responds that it is insufficient because it is wholly subjective and requires an assessment of Dr. Yates' credibility. He cites Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). Rec. doc. 38 at 12. Dr. Yates replies that at the second step of the framework, the burden to produce evidence that Bray was preferred for a legitimate, nondiscriminatory reason “is one of production, not persuasion; it can involve no credibility assessment.” Reeves, 120 S.Ct. at 2106 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742 (1993) and emphasis added). Reeves demonstrates that at the second step of the analysis, defendant satisfies its burden with the production of a legitimate, nondiscriminatory reason. Dr. Yates' reason explains both the alleged adverse action and its timing. He satisfied his burden at the second step. 3. Third Step. *5 In Richardson, the Fifth Circuit described the third step as: [T]he employee must offer sufficient evidence to create a genuine issue of fact either that (a) the employer's proffered reason is a pretext for discrimination, or-and herein lies the modifying distinction-(b) that the employer's reason, although true, is but one of the reasons for its conduct, another of which was discrimination. 434 F.3d at 333 (citing Machi nchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir.2005)). McGill urges that Dr. Yates' proffered reason is pretextual. He states that: (1) Bray was equally involved in the turmoil and disruptions in the police department; (2) McGill was better qualified than Bray in terms of years of experience, work on investigations, and as an instructor; (3) Bray was younger, he was only a high school graduate, he had only six years of certified police experience, and he had no supervisory experience; (4) Dr. Yates hastily recommended Bray the day before Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 145 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 McGill returned from FMLA leave; and (5) this temporal proximity demonstrates that the recommendation could have been made after McGill returned to work. Rec. doc. 38 at 14-15. McGill's argument rests primarily on the timing of Dr. Yates' recommendation relative to McGill's return from FMLA leave. This evidence does not create a genuine issue of fact that Dr. Yates' proffered reason is a pretext for discrimination. Rather, McGill also can prevail at the third step if he demonstrates that the exercise of his FM LA rights was a motivating factor in his termination. In the third step, Ion bears the burden of offering sufficient evidence to create a genuine issue of fact that Chevron's nondiscriminatory reasons, although true, are only some of the reasons for its conduct, another of which was discrimination. In other words, Ion must offer evidence to show that the exercise of his FMLA rights was a motivating factor in his termination. Ion, 731 F.3d at 391 (emphasis added). For example, the claimant in Ion argued that a statement in his termination letter that he had not returned to work since his suspension indicated that his FMLA-related absence was a reason for his departure. The Fifth Circuit stated: Drawing all reasonable inferences in favor of the nonmoving party, a reasonable jury could conclude that the inclusion of this statement in the same paragraph listing the reasons for Ion's termination could indicate that his absence was also a reason for his termination. Id. at 391-92. There is no evidence that Dr. Yates recommended Bray for the Interim Director position on July 25, 2014 and passed over McGill because he did not return from FM LA leave until July 26, 2014. The timing of the decision to name Bray as Interim Director on July 25, 2012 was prompted by Prescott's discharge on July 17, 2012. It is undisputed that it was necessary to appoint an Interim Director after Prescott's discharge. There is no evidence that Prescott's discharge was in any way related to McGill's FMLA leave. McGill has not presented any evidence that the exercise of his FMLA rights was a motivating factor in the decision to recommend Bray as Interim Director. *6 McGill's FMLA retaliation claim rests on the fact that he was passed over for the Interim Director position on the day before he returned from FMLA leave. This satisfies the third requirement for a prima facie case and compels Dr. Yates to offer a legitimate nondiscriminatory reason that explains both the adverse action and the timing. However, it is not sufficient to raise a genuine issue fact that the reason was pretextual or a motivating factor. B. FMLA Interference Claim. There are five requirements for a prima facie case of interference with the right to exercise one's FMLA rights. These requirements are: (1) McGill was an eligible employee; (2) Dr. Yates was an employer subject to FMLA's requirements; (3) McGill was entitled to leave; (4) he gave proper notice of his intention to take FM LA leave; and (5) Dr. Yates denied him benefits to which he was entitled under the FMLA. See Lanier v. Univ. of Texas Southwestern Medical Ctr., 527 Fed.Appx. 312 (5th Cir2013) (citing Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir.2012)). Dr. Yates does not dispute the presence of the first four factors. Rec. doc. 25 (Memorandum at 7). Dr. Yates contends that McGill cannot satisfy the fifth requirement. He argues that on July 26, 2012, McGill returned to his position as Police Captain with the same job title, pay and all employment benefits. Id. (Memorandum at 7-8). McGill responds that Dr. Yates interfered with his FM LA rights because: (1) the position of Police Captain carries with it the power to serve as Assistant Director; (2) job duties are assigned to the Assistant Director; (3) he was denied the title of Assistant Director upon his return from FMLA leave; and (4) by doing so, Dr. Yates failed to reinstate him to his full position. McGill adds that this effective demotion will affect his future wages and employment prospects. In support of the alleged demotion, McGill offers Exhibits 4, 5, 6, 9 and 10. Exhibit 4 is the job description for a Police Captain. Exhibits 5 and 6 are Southeastern police department policies relating to organization, administration and operational direction. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 146 of 195 McGill v. Board of Supervisors of the University of..., Not Reported in... 2014 Wage & Hour Cas.2d (BNA) 170,191 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Exhibit 9 is an email from McGill to himself, dated October 31, 2013, referring to a meeting the day before with Bray, where Bray reported that McGill's designation as Assistant Director of the police department was removed. McGill states that “this was done when they got my EEOC complaint.” Rec. doc. 38(Exhibit 9). Exhibit 10 is another email from McGill to himself. It is dated November 4, 2013. It reports that Bray told him that Dr. Yates told Bray that he was not satisfied with McGill in the position of Hiring Board Chairperson. Id. (Exhibit 10). Dr. Yates contends that Exhibits 9 and 10 should be excluded from consideration as they are inadmissible as hearsay. Assuming Exhibits 9 and 10 are admissible, they present evidence that more than 14 months after McGill returned from FMLA leave, his positions as Assistant Director and Hiring Board Chairperson of the police department were terminated. Even with all reasonable inferences in McGill's favor, a reasonable jury could not conclude that the changes in McGill's responsibilities 14 months after he returned from FMLA leave constitute a failure to reinstate him to his full position upon his return from FMLA leave. *7 Dr. Yates' motion for summary judgment on the FMLA interference claim is granted. C. Request for Injunctive Relief. In the second amended complaint, McGill named Dr. Yates and Jones in their official capacities and sought to enjoin them from prospective conduct having as its aim interference with or denial of his FM LA rights. Rec. doc. 19 at 9. McGill contends that after his effective demotion when he was removed from the positions of Assistant Director and Hiring Board Chairperson, he continued to work and requested reinstatement and damages. He urges that he is entitled to injunctive relief. This argument is without merit because the changes in his responsibilities 14 months after he returned from FMLA leave do not constitute violations of his FMLA rights. McGill's FMLA rights were not violated in 2012 and there are no ongoing violations of his FMLA rights. There is no basis for injunctive rel ief. 3 IT IS ORDERED that Dr. Yates' motion for summary judgment (Rec.doc.25) is GRANTED. IT IS FURTHER ORDERED that McGill's claim against Jones is DISMISSED. All Citations Not Reported in F.Supp.3d, 2014 WL 5324962, 2014 Wage & Hour Cas.2d (BNA) 170,191 Footnotes 1 On September 30, 2013, Prescott filed a complaint for damages and alleged race discrimination, hostile work environment and retaliation. The Board was the only defendant. CA 13-5984-KWR (Rec .doc. 1). On October 4, 2014, a jury found for the Board on the Title VII hostile work environment claim and the retaliatory failure to rehire claim. A judgment was entered in favor of the Board. Id. (Rec.doc.81). 2 The action on the part of counsel for plaintiff in just copying the first amended complaint is frustrating and disturbing in view of the undersigned's ruling less than three weeks prior. 3 Although Jones has not moved for dismissal of the claim for injunctive relief, the finding that McGill is not entitled to such relief necessarily mandates dismissal of that claim as to Jones. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 147 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2010 WL 2077140 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Natalie MIMS, Plaintiff, v. CITY OF PHILADELPHIA, et al., Defendants. Civil Action No. 09-4288. | May 19, 2010. West KeySummary 1 Constitutional Law Discipline Prisons Discipline Public Employment Particular cases in general Employee's allegations that the city-employer imposed a five-day suspension after she appealed her previous suspension for the same incident was sufficient to plead that the city deprived her of due process of law. The employee, a former correctional officer in the city's prison system, alleged that only four days after she was granted a hearing on her appeal of her fifteen- day suspension, the city imposed a five- day suspension for the same charges that formed the basis of her fifteen-day suspension. The fact that the second suspension was imposed in response to her appeal of the first one may reasonably have deterred the employee from appealing the second one as well. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. 5 Cases that cite this headnote Order YOHN, District Judge. *1 And now, this 19 day of May, 2010, upon careful consideration of defendants' motion th to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (docket no. 8), plaintiff's response, and defendants' reply thereto, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows: (A) Plaintiff's amended complaint is DISMISSED WITH PREJUDICE to the extent that it seeks to assert: (1) equal protection or substantive due process claims against any defendant, (2) procedural due process claims against the individual defendants, (3) procedural due process claims against the City other than those related to the five- day suspension, (4) retaliation claims against defendants Alderman, Ferguson, and Galloway, and (5) a state law claim for wrongful discharge. Defendants Alderman, Ferguson, and Galloway are DISMISSED as parties to this action. (B) The balance of the motion is DENIED. (C) Plaintiff's remaining claims are: (1) her procedural due process claim against the City arising out of her five-day suspension; (2) her retaliation claims against the City arising out of her five-day suspension and retaliatory denial of medical leave; and (3) her retaliation claim against Giannetta arising out of the written warning plaintiff received on August 1, 2008. Memorandum Plaintiff, Natalie Mims, a former correctional officer in the Philadelphia prison system, brings this action pursuant to 42 U.S.C. § 1983 against the City of Philadelphia (“the City”) and four other City correctional officers: Capt. Giannetta, Sgt. Ferguson, Sgt. Alderman, and Sgt. Galloway. 1 Plaintiff alleges that the individual defendants, through a pattern of discrimination, harassment, and retaliation against her, forced plaintiff to resign from her position as correctional officer. Plaintiff also alleges that the City permitted, encouraged, or Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 148 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 ratified the individual defendants' behavior. As a result, plaintiff argues that the defendants deprived her of her rights to equal protection and due process under the Fourteenth Amendment to the U.S. Constitution and that they unlawfully retaliated against her for exercising those rights. Plaintiff seeks monetary damages, injunctive relief, and mandamus requiring the City to revoke a disciplinary suspension. Before me is defendants' motion to dismiss plaintiff's amended complaint for failure to state a claim upon which relief may be granted. I conclude that plaintiff has failed to state a claim for violation of her rights to equal protection and substantive due process, has failed to state procedural due process claims against the individual defendants, and has failed to state retaliation claims against defendants Alderman, Ferguson, and Galloway. As a result, I will grant defendants' motion in part and dismiss those claims. I will, however, deny as premature defendants' motion to dismiss plaintiff's request for mandamus against the City. I. Factual and Procedural History 2 *2 Plaintiff was employed by the City as a full- time correctional officer from September 1997 through March 1, 2009. During her employment, plaintiff allegedly experienced overcrowded and unsafe working conditions. Plaintiff also alleges that she experienced “ongoing discrimination, harassment, and retaliation by Defendants.” (Am.Compl.¶ 22.) While assigned to the City's Riverside Correctional Facility, plaintiff filed an informal complaint about her working conditions in the prison system. She thereafter received an allegedly retaliatory fifteen-day suspension, which she served from June 3 to 18, 2007. Plaintiff's amended complaint does not disclose the stated grounds for this suspension. On July 10, 2007, plaintiff learned from her supervisor, who is not a defendant in this action, that the supervisor was being “pressured by Defendants to ‘burn [Plaintiff] for anything she could.’ “ (Id. ¶ 25 (alteration in original).) On July 16, 2007, defendant Giannetta informed plaintiff that defendant Alderman and another correctional officer had reported observing plaintiff “ ‘laughing and talking to [herself].’ “ (Id. ¶ 26.) Giannetta told plaintiff that she would be relieved of her duties and escorted to the City doctor's office for psychological evaluation. As a result, plaintiff was out of work for seven days without pay. On July 24, 2007, plaintiff filed an appeal with the Civil Service Commission (“CSC”) protesting the fifteen-day suspension that she had served in June. 3 On August 3, 2007, plaintiff was “attacked and humiliated” by another correctional officer who is not a party to this action. (Id. ¶ 29.) Plaintiff reported the attack and was transferred from the Riverside Correctional Facility to the Detention Center. Sometime in August, the CSC informed plaintiff that her appeal of the fifteen-day suspension was untimely. Plaintiff “re-submitted” her appeal on August 29, 2007. (Id. ¶ 30.) On October 5, 2007, plaintiff learned that Major Lawton, who is not a party to this suit, and Giannetta were being assigned to the Detention Center. Fearing further “discrimination, harassment, and retaliation” from those officers, plaintiff experienced a “severe anxiety attack” and was escorted to the city doctor's office for psychological evaluation. (Id. ¶ 31.) As a result of the anxiety attack, plaintiff was transferred on October 24, 2007, to the “Alternative and Special Detention.” (Id. ¶ 32.) On November 19, 2007, plaintiff learned that the CSC had granted her a hearing on her appeal of the fifteen- day suspension. On November 23, 2007, however, plaintiff learned that she would be receiving an additional five- day suspension for the same charges that had led to the fifteen-day suspension, which she had already served. That day, plaintiff requested medical leave for stress, depression, and severe anxiety that she experienced as a result of defendants' conduct. An employee of the City's personnel department informed plaintiff that she did not qualify for leave under the Family and Medical Leave Act (“the FMLA”) because she had served the fifteen-day suspension. She was instead placed on a medical leave of absence without pay or health benefits. 4 *3 On December 7, 2007, plaintiff's psychiatrist, Dr. Kalkstein, concluded that plaintiff was “unable to perform her job duties because of the stress, depression, and severe anxiety that she was suffering” as a result of defendants' conduct. (Am.Compl.¶ 37.) As a result, Dr. Kalkstein “removed [plaintiff] from work.” (Id.) Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 149 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 On March 11, 2008, plaintiff represented herself at the appeal hearing for the fifteen-day suspension. The CSC ruled in her favor and overturned the suspension, finding the suspension unjustified. Plaintiff returned to work on June 1, 2008. On August 1, 2008, Giannetta issued a written warning to plaintiff which “fabricated an employee counseling” and “threatened progressive disciplinary sanctions.” (Id. ¶ 41.) At some point that month, Alderman threatened plaintiff with “bodily harm,” and plaintiff reported the threat to defendant Ferguson, her immediate supervisor. (Id. ¶ 42.) On January 15, 2009, plaintiff agreed to testify at the disciplinary hearing of Sgt. Joy, who is not a party to this action. The following month, the City of Philadelphia Administration and, two days later, defendant Galloway, informed plaintiff that she would be required to serve the five-day suspension, beginning on March 2, 2009. On March 1, 2009, Dr. Kalkstein again “removed” her from work and placed her on a medical leave of absence after deeming her unable to work because of “stress, depression, and severe anxiety” arising from defendants' conduct. Plaintiff was “forced to resign” from her position on June 16, 2009, “due to unsafe working conditions, as well as the ongoing discrimination, harassment, and retaliation that she was subjected to by defendants.” (Id. ¶ 46.) On August 25, 2009, plaintiff filed a complaint against the City in the Philadelphia Court of Common Pleas, seeking damages and mandamus relief. Although the complaint did not identify the legal source of plaintiff's entitlement to relief, the City construed it as stating causes of action arising under the FMLA and the First and Fourteenth Amendments of the U.S. Constitution, and removed the action to this court. The City filed its first motion to dismiss the complaint on September 28, 2009. On October 16, 2009, however, plaintiff filed an amended complaint in response to the motion to dismiss, adding the individual defendants as parties and clarifying that she was seeking relief under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment rights to equal protection and due process. The amended complaint sets forth three counts: one for mandamus against the City, one seeking to hold the City liable under § 1983, and one seeking to hold the individual defendants liable under § 1983. The amended complaint does not assert any entitlement to relief under the FMLA or a state law claim for wrongful discharge. The factual allegations in the amended complaint are substantially identical to those in the original complaint. *4 Because plaintiff had amended her complaint, I dismissed the City's first motion to dismiss as moot. The City and individual defendants then filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff submitted a response, followed by defendants' reply. II. Standard of Review A motion to dismiss under Rule 12(b)(6) tests the “sufficiency of the allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). The complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This statement must “% 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' “ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do .... “ Id. (citations and alterations omitted). Furthermore, “[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ....“ Id. (citations and footnote omitted). Nevertheless, “a complaint ‘need not plead law or match facts to every element of a legal theory.’ “ Lewis v. Ford Motor Co., 610 F.Supp.2d 476, 490 (W.D.Pa.2009) (quoting Weston v. Pennsylvania, 251 F.3d 420, 429 (3d Cir.2001)). When evaluating a motion to dismiss, the court conducts a “two-part analysis.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). “First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11. “Second, a District Court must then determine whether the facts alleged in the complaint are sufficient Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 150 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 to show that the plaintiff has a ‘plausible claim for relief.’ “ Id. at 211 (quoting Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U .S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’ “ Id. (internal alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)). III. Discussion Plaintiff alleges that defendants' conduct violated her Fourteenth Amendment rights to equal protection and due process. She also alleges that defendants retaliated against her for engaging in statutorily or constitutionally protected activities, such as appealing her fifteen-day suspension and requesting FMLA leave. Defendants argue that plaintiff's specific factual allegations fall short of showing a plausible claim for relief under § 1983. Specifically, defendants argue that: (1) plaintiff has failed to show that she was deprived of any recognized federal right, and (2) plaintiff has failed to allege behavior of the type that would subject defendants to § 1983 liability. Defendants further argue that plaintiff is not entitled to mandamus relief because she has an adequate remedy at law and that, to the extent that the amended complaint asserts a wrongful discharge claim under Pennsylvania law, plaintiff is not entitled to pursue such a claim. *5 “To establish a valid claim under § 1983, a claimant must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Robb v. City of Phila., 733 F.2d 286, 290-91 (3d Cir.1984); see also Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008). Defendants do not dispute plaintiff's allegation that they acted under color of state law. As a result, the sufficiency of plaintiff's amended complaint hinges on whether she has adequately shown that defendants deprived her of some right or privilege arising under the Constitution or other federal law. Plaintiff's amended complaint may be fairly read as alleging that defendants: (1) violated plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment; (2) violated plaintiff's rights under the Due Process Clause of the Fourteenth Amendment; 5 and (3) retaliated against her for exercising her rights under the First Amendment, Fourteenth Amendment, or the FMLA. Defendants also construe plaintiff's amended complaint as seeking relief under Pennsylvania law for wrongful termination. A. Constitutional Claims 1. Equal Protection Plaintiff alleges that defendants deprived her of equal protection of the laws by discriminating against her. However, plaintiff's allegations of discrimination are too conclusory to place the defendant on fair notice of the nature of her equal protection claim and the “ ‘grounds upon which it rests.’ “ Twombly, 550 U.S. at 555 (quoting Conley, 355 U.S. at 47). Plaintiff does not describe other similarly situated individuals who received more favorable treatment. Such allegations are essential to an adequate showing of entitlement to relief. See Iqbal, 129 S.Ct. at 1951 (holding that plaintiff's assertion that he was subjected to harsh confinement “solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest” amounted to “no more than a ‘formulaic recitation of the elements' of a constitutional discrimination claim’ “ (quoting Twombly, 550 U.S. at 555)); Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir.1990) (holding that, in order to prevail on an equal protection claim under § 1983, plaintiff must demonstrate that she “ ‘receiv[ed] different treatment from that received by other individuals similarly situated’ “ (quoting Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d 676, 677 n. 1 (3d Cir.1980)) (alteration in original)). Moreover, plaintiff makes no allegation that she is a member of a protected class or that the alleged wrongdoing was motivated by that unstated characteristic, as is necessary in order to state an equal protection claim in the context of government employment. See Engquist v. Or. Dep't of Agric., 553 U.S. 591, 128 S.Ct. 2146, 2154-56, 170 L.Ed.2d 975 (2008) (holding that, because “employment decisions are quite often subjective and individualized,” a state employee was not entitled to relief under § 1983 simply because she was subjected to arbitrary or irrational treatment but must instead show that she suffered discrimination on the basis of her membership in some identifiable group). *6 As a result, plaintiff's allegations of discrimination have failed to “raise a right to relief above the speculative Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 151 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 level.” Twombly, 550 U.S. at 555. I will therefore dismiss plaintiff's equal protection claim. 2. Procedural Due Process In addition to its guarantee of equal protection, the Fourteenth Amendment prohibits state deprivations of life, liberty, or property without due process of law. “Application of this prohibition requires a familiar two- stage analysis: we first must ask whether the asserted individual interests are encompassed within the fourteenth amendment's protection of ‘life, liberty, or property’; if protected interests are implicated, we then must decide what procedures constitute ‘due process of law.’ “ Robb, 733 F.2d at 292 (citing Bd. of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). a. Protected Interest Plaintiff alleges that defendants deprived her of her “liberty interest ... in avoiding unjust and retaliatory disciplinary action” when they forced her to serve a suspension that the CSC had previously overturned as unjustified. (Pl.'s Resp. 12.) Plaintiff also alleges that defendants harassed her by placing defendant Giannetta in a position to inflict “discrimination, harassment, and retaliation” on her; and, in the case of defendant Alderman, by threatening her with bodily harm. (Id. at 11.) Plaintiff further alleges that this harassment led to her inability to continue working as a correctional officer. (Id. at 5.) As discussed in further detail below, plaintiff's interest in avoiding unjust disciplinary action and harassment is best characterized as a property, rather than a liberty, interest. Nevertheless, plaintiff's amended complaint contains sufficient allegations to place defendants on notice that such an interest existed. Plaintiff has not provided any supporting authority for her argument that she had a liberty interest in avoiding unjust disciplinary action. Courts have recognized that an adverse public employment decision may implicate liberty interests when the employer publicizes the reasons underlying the decision, thus impairing the employee's “interest in his ‘good name, reputation, honor or integrity,’ “ see Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)); see also Robb, 733 F.2d at 294. Plaintiff has not, however, alleged that defendants made any public statements about her that would undermine her reputation or good name, nor have I been able to identify any other recognized liberty interest that could have been undermined by defendants' conduct. 6 Plaintiff did, however, have a property interest in continued employment and avoiding disciplinary suspensions. As defendants have conceded, plaintiff's position was subject to Philadelphia civil service regulations that prohibit dismissal and suspension of Philadelphia civil servants except for “just cause.” (Defs.' Mot. 24.) See Phila. Civil Serv. Reg. §§ 17.01, 17.04. The law is well settled that employees who cannot be terminated except for cause have a property interest in continued employment that may form the basis of a procedural due process claim. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 542-43, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Robb, F.2d at 292 (holding that a Philadelphia civil servant had a property interest in continued employment for purposes of his procedural due process claim). Moreover, a civil servant's procedural due process interest in continued employment is implicated not only by official decisions to dismiss the employee but also by conduct constituting constructive discharge. See Rusnak v. Williams, 44 F. App'x 555, 558 (3d Cir.2002) (citing Leheny v. City of Pittsburgh, 183 F.3d 220, 227- 28 (3d Cir.1998)). Plaintiff also had a property interest in avoiding unjust disciplinary suspensions. Dee v. Borough of Dunmore, 549 F.3d 225, 230 n. 6 (3d Cir.2008). 7 *7 Plaintiff cannot, however, base her entitlement to relief under § 1983 on her allegation that she was unfairly denied FMLA leave. The FMLA creates an entitlement, and consequently a property interest, in a certain amount of unpaid medical leave per year. See 29 U.S.C. § 2612(c) (creating entitlement to twelve workweeks of family and medical leave per year); Roth, 408 U.S. 576- 77 (noting that statutory entitlements can rise to level of property interest). Nevertheless, this interest cannot form the basis of a § 1983 claim because the FMLA includes comprehensive enforcement provisions that evince Congress' intent to foreclose enforcement through § 1983. See Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (“When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”); Kilvitis v. County of Luzerne, 52 F.Supp.2d 403, 417-19 (M.D.Pa.1999) (holding that Sea Clammers precludes a § 1983 action to Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 152 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 enforce FMLA rights). As a result, denial of FMLA leave cannot constitute a deprivation of a property interest for the purposes of plaintiff's due process claim. b. Individual Defendants Although plaintiff had protected interests in continued employment and avoiding unjust suspension, she has failed to make sufficient factual allegations to give rise to a plausible inference that any individual defendant's conduct amounted to an unconstitutional deprivation of those interests. She has not identified any individual defendant as being responsible for the decision to impose the five-day suspension. Moreover, she has not alleged any conduct attributable to any individual defendant that could state a plausible claim for constructive discharge, nor has she alleged facts suggesting that the individual defendants encouraged or ratified each other's conduct such that each one should be held responsible for the whole sum of their collective activities. As a result, plaintiff's procedural due process claims against the individual defendants will be dismissed. Plaintiff alleges that Ferguson was her immediate supervisor and that plaintiff notified Ferguson that Alderman had threatened plaintiff with bodily harm. She does not allege that Ferguson was involved in any improper conduct. Even assuming that plaintiff has adequately described conduct by other employees that forced her to resign, that conduct would not automatically support a § 1983 claim against her supervisor. See Iqbal, 129 S.Ct. at 1948 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). Plaintiff alleges that Alderman threatened her with bodily harm on one occasion and that, prior to the limitations cutoff, 8 Alderman reported seeing plaintiff laughing and talking to herself. Plaintiff does not allege that Ferguson took inadequate action in response to Alderman's threat, such that Alderman presented an ongoing risk to plaintiff's safety. Moreover, malicious acts by state employees, unauthorized by the state, do not give rise to a procedural due process claim unless the state fails to provide any post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533-34, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). As a result, plaintiff has not alleged conduct by Alderman that would give rise to a claim for deprivation of her interest in continued employment. *8 Plaintiff alleges that Giannetta subjected plaintiff to unspecified discrimination, retaliation, and harassment; 9 that Giannetta was transferred to the Detention Center where plaintiff worked, causing plaintiff to experience an anxiety attack; and that Giannetta issued a written warning to plaintiff, threatening progressive discipline. The first of these allegations is too conclusory to give rise to a plausible claim for relief. See, e.g., Carpenter v. Ashby, No. 08-4021, 2009 U.S.App. LEXIS 20265, at *7-8, 2009 WL 2893198 (3d Cir. Sept. 10, 2009) (mere allegation of discriminatory animus was insufficient to state a claim); Mann v. Brenner, No. 09-2461 2010 U.S.App. LEXIS 6540, at *7-8, 2010 WL 1220963 (3d Cir. Mar. 30, 2010) (mere allegation of retaliation was insufficient to state a claim). Plaintiff's remaining allegations are likewise insufficient. Plaintiff has not alleged that Giannetta was in any way responsible for the decision to transfer her to plaintiff's workplace. The written warning, alone, could not reasonably give rise to a claim for constructive discharge under § 1983. Plaintiff alleges that Galloway informed plaintiff that plaintiff would be required to serve an allegedly unjust five-day suspension. Plaintiff does not state that Galloway was responsible for the decision to require her to serve the suspension, nor can I reasonably infer such responsibility as Galloway conveyed this message to plaintiff two days after the City had already conveyed the same information to her. Moreover, merely informing plaintiff of a disciplinary action cannot reasonably give rise to a claim for constructive discharge under § 1983. As a result, I will dismiss plaintiff's procedural due process claims against the individual defendants. c. City of Philadelphia Although plaintiff has not alleged sufficient facts to state a claim against the City for constructive discharge under § 1983, she has alleged sufficient facts to state a claim for wrongful suspension. As a result, I will deny defendants' motion to dismiss plaintiff's procedural due process claims against the City. In order to state a claim against a municipality under § 1983, a plaintiff may not rely on a respondeat superior Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 153 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 theory of liability but must instead “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). 10 “[I]t is incumbent upon a plaintiff to show that a [municipal] policymaker is responsible either for the policy, or, through acquiescence, for the custom.” Andrews, 895 F.2d at 1480. “To satisfy the pleading standard, [plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir.2009). A complaint that merely alleges that state officers engaged in an ongoing course of conduct is insufficient; it must further plead “knowledge of such [conduct] by a municipal decisionmaker” or make allegations that indirectly support such an inference. Id . at 658-59. *9 Plaintiff has pled insufficient facts from which it could be inferred that the City might be liable under § 1983 for the conduct of the individual defendants, as plaintiff has made only conclusory allegations that the City encouraged or was aware of the individual defendants' allegedly wrongful conduct. Plaintiff's assertion in Count II of her amended complaint that the City “permitted, encouraged, tolerated, ratified, and was deliberately indifferent to a pattern, practice, and custom of discrimination, harassment, and retaliation” is exactly the type of “[t]hreadbare recital[ ] of the elements of a cause of action, supported by mere conclusory statements,” of which the Supreme Court disapproved in Iqbal. 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). Plaintiff's suspensions, the transfer of Giannetta and Lawton to the Detention Center, the denial of FMLA leave, and the email notifying plaintiff that she would be required to serve the five-day suspension are the kinds of actions that plausibly may have been initiated or approved by a “decisionmaker possess [ing] final authority to establish a municipal policy with respect to the action .” Pembaur v. City of Cincinnatti, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Although she does not explicitly state that such a decisionmaker is responsible for those acts, Rule 8 does not require explicit, formulaic pleading of each element of a cause of action where the presence of some elements is reasonably suggested by specifically pleaded facts. See Iqbal, 129 S.Ct. at 1950 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”). Of plaintiff's specific allegations regarding the City, only the five-day suspension could reasonably have amounted to a deprivation of some protected interest. As noted above, the denial of FMLA leave cannot form the basis for plaintiff's procedural due process claim. The fifteen-day suspension was imposed prior to the statute of limitations cutoff and was, in any case, administratively overturned. Finally, the only manner in which the City's transfer of Giannetta and Lawton to the Detention Center could have deprived plaintiff of any protected interest is if, in doing so, the City acted with the degree of responsibility that could render it liable under Monell for plaintiff's constructive discharge. To show such responsibility, plaintiff would, at the very least, have to show that the City acted with deliberate indifference to the likelihood that Giannetta and Lawton would engage in unlawful behavior. Cf. Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir.1996) (holding that municipality could be held responsible for officer's pattern of use of excessive force only if it acquiesced or was deliberately indifferent to the officer's conduct). She has not made any specific allegations from which it could be inferred that the City was aware, or even on notice, of Giannetta's and Lawton's conduct toward plaintiff at the time that it made its decision to transfer them to the Detention Center. *10 Defendants argue that plaintiff's amended complaint fails to allege that her five-day suspension was characterized by inadequate process. As defendants correctly note, “in procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). “Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Id. at 126. Defendants argue that because nothing in plaintiff's amended complaint suggests that she could not have successfully appealed her five-day suspension in the same manner as she appealed her fifteen-day suspension, she has not stated a plausible procedural due process claim arising out of her suspension. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 154 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Defendants' argument overlooks the effect of plaintiff's allegations of retaliation. According to plaintiff, the City imposed a five-day suspension for the same charges that formed the basis of her fifteen-day suspension, only four days after the CSC granted plaintiff a hearing on her appeal of the fifteen-day suspension. Drawing all plausible inferences in plaintiff's favor, the fact that the second suspension was imposed in response to her appeal of the first one may reasonably have deterred plaintiff from appealing the second one as well. Cf. Hartley, 2006 U.S. Dist. LEXIS 95838, at *60 (plaintiff had viable due process claim, despite nominal availability of grievance procedures, when she reasonably feared that a grievance would lead to retaliation). I therefore conclude that plaintiff has sufficiently pleaded her claim that the City deprived her of due process of law by imposing the five-day suspension and will deny defendants' motion to dismiss that aspect of plaintiff's amended complaint. To the extent that plaintiff seeks to hold the City liable for other deprivations of procedural due process, I will dismiss that aspect of the amended complaint. 3. Substantive Due Process Defendants argue that plaintiff's amended complaint does not present a viable substantive due process claim. I agree. “[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’ “ Zinermon, 494 U.S. at 125 (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). “To prevail on a substantive due process claim challenging a state actor's conduct, ‘a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.’ “ Hill, 455 F.3d at 234 n. 12 (quoting Nicholas v. Pa. State Univ., 227 F.3d 133, 139- 140 (3d Cir.2000)). “[N]ot all property interests worthy of procedural due process protection are protected by the concept of substantive due process.” Reich v. Beharry, 883 F.2d 239, 244 (3d Cir.1989). “Rather, to state a substantive due process claim, ‘a plaintiff must have been deprived of a particular quality of property interest.’ “ Nicholas, 227 F.3d at 140 (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598 (3d Cir.1995)). Whether a property interest is entitled to substantive due process protection is “not determined by reference to state law, but rather depends on whether that interest is ‘fundamental’ under the United States Constitution.” Id. (quoting Regents of Univ. Of Michigan v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)). If the property interest is fundamental, then “substantive due process protects the plaintiff from arbitrary or irrational deprivation, regardless of the adequacy of the procedures used.” Id. at 142. If not, however, “the governmental action is entirely outside the ambit of substantive process and will be upheld so long as the state satisfies the requirements of procedural due process.” Id. *11 In Nicholas v. Pennsylvania State University, the Third Circuit held that a tenured state university professor's interest in continued employment by the university could not support a substantive due process claim. 227 F.3d at 136. The court explained that public employment is a “wholly state-created contract right” that “bears little resemblance to other rights and property interests that have been deemed fundamental under the Constitution.” Id. at 143. It is neither “a property interest that is deeply rooted in the Nation's history and traditions” nor an interest “implicit in the concept of ordered liberty like personal choice in matters of marriage and family.” Id. (quoting Homar v. Gilbert, 63 F.Supp.2d 559, 576 (M.D.Pa.1999)). Because plaintiff has no more fundamental an interest in continued employment than the plaintiff in Nicholas, her allegations of unjust discipline and constructive discharge cannot form the basis of a substantive due process claim. The amended complaint also states that plaintiff was forced to resign in part due to “unsafe working conditions” as well as “ongoing discrimination, harassment, and retaliation” by the defendants and that defendant Alderman once threatened her with “bodily harm.” (Am.Compl.¶¶ 42, 46.) Plaintiff cannot, however, base her substantive due process claim on allegedly unsafe working conditions. See Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (“Neither the text nor the history of the Due Process Clause supports petitioner's claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause.”). Although workplace dangers may constitute deprivations of substantive due process where they result from “conscience-shocking Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 155 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 conduct,” including deliberate indifference to safety, plaintiff has not alleged any conduct that shocks the conscience. See Kaucher v. County of Bucks, 455 F.3d 418, 426 (3d Cir.2006) (holding that deliberate indifference to workplace safety may be sufficient to shock the conscience); id. at 430 (discussing Eddy v. V.I. Water & Power Auth., 256 F.3d 204 (3d Cir.2001), in which the plaintiff was ordered to repair high-voltage power line without proper training or protective gear, exposing plaintiff to “almost certain injury”); id. at 431 (discussing Hawkins v. Holloway, 316 F.3d 777 (8th Cir.2003), in which defendant sheriff pointed loaded weapons at subordinate employees, thereby “oppressing those employed in his department”). Plaintiff's mere allegation that defendant Alderman threatened her with “bodily harm” is insufficient to give rise to a plausible inference that this threat rose to the level of oppressive and egregious conduct such as that seen in Hawkins. Moreover, plaintiff has not even conclusorily alleged that any defendant was deliberately indifferent to unsafe working conditions at the prison. *12 As a result, to the extent that plaintiff's claims rest on some violation of her substantive due process rights, I will dismiss those claims. 4. Retaliation Plaintiff also alleges that defendants violated her constitutional rights by retaliating against her. “In general, constitutional retaliation claims are analyzed under a three-part test. Plaintiff must prove (1) that he engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation.” Eichenlaub v. Twp. of Ind., 385 F.3d 274, 282 (3d Cir.2004). “Those acting under color of state law may not deny a benefit to a person on a basis that infringes his constitutionally protected interest in freedom of speech, regardless of whether the person has a ‘right’ to that benefit.” Robb, 733 F.3d at 295. a. Protected Activity Plaintiff alleges that she engaged in the following protected activities: (1) requesting medical leave on November 23, 2007, for stress, depression, and severe anxiety; (2) appealing her fifteen-day suspension on July 24, 2007, re-submitting the appeal on August 29, 2007, and appearing at a hearing on that appeal on March 11, 2008; 11 (3) notifying defendant Ferguson in August 2008 that she had just been threatened by defendant Alderman; and (4) agreeing on January 15, 2009, to testify at Sgt. Joy's disciplinary hearing. She alleges that defendants retaliated against her by imposing and enforcing an additional five- day suspension, by denying medical leave, and by writing a warning threatening disciplinary sanctions. Plaintiff's appeal of her fifteen-day suspension and agreement to testify at Sgt. Joy's disciplinary hearing were protected under the Due Process Clause. Plaintiff and Sgt. Joy, as discussed supra, possessed property interests in avoiding unjust discipline and could not be deprived of those interests without due process of law. By appealing her suspension, plaintiff was attempting to exercise those due process rights. “[O]fficial retaliation for the exercise of any constitutional right creates an actionable claim under Section 1983.” Anderson v. Davila, 125 F.3d 148, 162 (3d Cir.1997). Although it is unclear whether plaintiff's assistance of Sgt. Joy in exercising his due process rights is similarly protected, I decline to decide that issue at this stage as defendants failed to raise it in their motion or reply brief. Although plaintiff's request of FMLA leave was protected by the FMLA, § 1983 is not the appropriate vehicle for her retaliation claim because the FMLA provides its own remedies, including a private right of action for retaliation. See 29 U.S.C. §§ 2615, 2617(a); Kilvitis, 52 F.Supp.2d at 419. Nor is that request protected by the First Amendment for the purposes of a public employee's retaliation claim, as it cannot be “ ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ “ Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.1993) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)) (holding that a public employee engages in activity protected by the First Amendment only if the speech addresses a matter of public concern). Plaintiff's report that Alderman had threatened her is also not a protected activity. Like a request for FMLA leave, a workplace altercation between two employees cannot be “ ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ “ Id. 12 b. Retaliatory Response *13 Plaintiff alleges that she was subjected to retaliation when she received the five-day suspension on November Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 156 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 23, 2007; when she was told on February 27, 2009, and March 1, 2009, that she would be required to serve the five- day suspension; when she was informed on November 26, 2007, that she was not eligible for FMLA leave because she had served the fifteen-day suspension; 13 and when she received a warning from Giannetta on August 1, 2008, that threatened progressive disciplinary sanctions. The suspension and denial of FMLA leave may be fairly traced to the City, whereas the written warning is attributable to Giannetta. Defendants have not argued that plaintiff failed to establish a sufficient nexus between plaintiff's protected activities and the allegedly retaliatory conduct. Instead, citing Chainey v. Street, 523 F.3d 200, 219 (3d Cir.2008), defendants argue that none of these allegedly retaliatory acts shock the conscience. That case addressed a substantive due process claim, not a retaliation claim. In the context of a retaliation claim, a plaintiff may prevail based on “ ‘even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights.’ “ Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n. 8, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (quoting Rutan v. Republican Party of Ill., 868 F.2d 943, 954 n. 4 (7th Cir.1989)). 14 As a result, plaintiff has set forth sufficient facts to state a § 1983 retaliation claim against Giannetta and the City. As plaintiff has not specifically alleged that the other individual defendants were involved in the allegedly retaliatory acts, I will dismiss any retaliation claims plaintiff may be asserting against them. B. Wrongful Discharge Claims Defendants construe plaintiff's amended complaint as asserting a state common-law claim for wrongful and constructive discharge. As discussed in further detail above, I construe plaintiff's allegations of constructive discharge as pertaining to her procedural due process claim, not to any claim under state law. Moreover, in her amended complaint and her response to defendants' motion to dismiss, plaintiff characterized her claims as arising exclusively under § 1983. As a result, I do not read plaintiff's amended complaint as stating a claim arising under state employment law. 15 C. Mandamus Request Count I of plaintiff's amended complaint requests mandamus against the City compelling it to revoke her suspension. 16 Defendants characterize this count as a separate claim arising under state law and request that this claim be dismissed. I conclude that mandamus is a form of relief, not a separate claim, and that any conclusion as to the availability of mandamus in this action would be premature at this stage. Under Pennsylvania law, “[m]andamus is an extraordinary writ which will issue ‘to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy.’ “ Shaler Area Sch. Dist. v. Salakas, 494 Pa. 630, 432 A.2d 165, 168 (Pa.1981) (quoting Phila. Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425, 430 n. 11 (Pa.1978)). The legal right and the corresponding duty are supplied not by any law specifically relating to mandamus relief but rather by some other source of law. See id. at 168 (noting that plaintiff's asserted legal right to a disciplinary hearing, for the purposes of his mandamus request, arose from state laws governing employment of public school teachers). As a result, mandamus in Pennsylvania is best characterized as a form of relief, not a “claim” in its own right. See Black's Law Dictionary 281 (9th ed.2009) (claim, 1.: “The aggregate of operative facts giving rise to a right enforceable by a court”). Federal law governing mandamus is similar. See In re Complaint of Bankers Trust Co., 775 F.2d 545, 547 (3d Cir.1985) (describing mandamus as a form of relief awarded when the plaintiff shows that there is “no other adequate means to attain the relief desired” and that his or her “right to issuance of the writ is clear and indisputable”). *14 Plaintiff's remaining claims at this juncture include due process and retaliation claims against the City arising out of her five-day disciplinary suspension. Success on those claims would necessarily imply that the five-day suspension was unlawful. I decline to decide, at this early stage of litigation, whether mandamus would be the only “adequate” avenue of relief if plaintiff prevails on either her due process or retaliation claim or whether monetary relief would be sufficient. As a result, I will deny defendants' motion to dismiss plaintiff's mandamus request. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 157 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 IV. Conclusion Plaintiff has failed to make sufficient allegations to state an equal protection or substantive due process claim. Moreover, plaintiff has failed to make sufficient factual allegations to state a procedural due process claim against the individual defendants or a retaliation claim against defendants Galloway, Alderman, and Ferguson. As a result, I will dismiss plaintiff's amended complaint to the extent that it attempts to assert such claims. Plaintiff's remaining claims are: (1) her procedural due process claim against the City arising out of her five-day suspension; (2) her retaliation claims against the City arising out of her five-day suspension and retaliatory denial of medical leave; and (3) her retaliation claim against Giannetta arising out of the written warning plaintiff received on August 1, 2008. Mandamus remains a possible remedy. Plaintiff has already amended her complaint once in response to the City's first motion to dismiss, which raised the same issues that form the basis of the present motion to dismiss. The amended complaint is in large part identical to the original complaint. As there is no reason to believe that allowing a second amended complaint would result in any material differences in the allegations, I will dismiss the above-mentioned claims with prejudice. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (“Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.”). Plaintiff has not suggested in her pleadings or briefs that a third “bite at the apple” would be anything other than futile. All Citations Not Reported in F.Supp.2d, 2010 WL 2077140 Footnotes 1 Plaintiff's amended complaint names the individual defendants by what appear to be their last names only. Plaintiff avers that the individual defendants' last names are unknown but apparently intended to state that these defendants' first names are unknown. 2 For the purposes of this memorandum, I accept as true all factual allegations contained in plaintiff's amended complaint. 3 Until around July 24, 2007, plaintiff believed that her Union had already filed an appeal on her behalf. 4 Leave pursuant to the FMLA need not be paid, but the employer must continue to provide health and other benefits. See 29 U.S.C. §§ 2612(c), 2614(c). 5 Defendants argue that, under Iqbal, Fowler, and Kaucher v. County of Bucks, 455 F.3d 418, 423-24 (3d Cir.2006), plaintiff's amended complaint was required to identify the protected interest at stake and to specify the kind of process to which she was entitled. None of those cases, however, requires plaintiff to articulate specific legal theories in her complaint. Indeed, in Fowler the Third Circuit held that, in determining the sufficiency of a plaintiff's complaint, the district court may “disregard any legal conclusions” contained therein. 578 F.3d at 210-11; see also Hull v. Fleetwood Enters., No. 06-1669, 2007 U.S. Dist. LEXIS 20984, at *4 (W.D.Pa. Mar. 23, 2007) (“[T]he court will not dismiss a claim merely because plaintiff's factual allegations do not support the particular legal theory he advances. Rather, the court is under a duty to examine independently the complaint to determine if the factual allegations set forth could provide relief under any viable legal theory.” (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 n. 49 (3d ed.2007))); 2 James Wm. Moore et al., Moore's Federal Practice § 8.04[3] (3d ed.2009). 6 Plaintiff's allegations of retaliation may be read as alleging deprivation of her rights under the First Amendment. Cf. Robb, 733 F.2d at 295 (holding that a state employer “may not deny a benefit to a person on a basis that infringes his constitutionally protected interest in freedom of speech, regardless of whether the person has a ‘right’ to that benefit”). First Amendment retaliation claims, however, are analyzed under a different framework from procedural due process claims. See, e.g., White v. Napoleon, 897 F.2d 103, 111 (3d Cir.1990) (distinguishing First Amendment retaliation claim from procedural due process claim); Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir.2006) (applying different standards to constructively discharged state employee's claims of First Amendment retaliation and denial of procedural and substantive due process). As a result, I will discuss plaintiff's retaliation claim separately from her due process claim. 7 Plaintiff may also have had a property interest in avoiding unjust suspensions and dismissals based on her union's collective bargaining agreement, which, as defendants note, requires suspensions and dismissals to be for just cause only. (Defs.' Mot. 24.) See Dee, 549 F.3d at 230-31. 8 Defendants argue that any claims premised on events that occurred before August 26, 2007, two years before plaintiff filed her initial complaint, must be dismissed as time-barred. The limitations period for § 1983 actions is provided by Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 158 of 195 Mims v. City of Philadelphia, Not Reported in F.Supp.2d (2010) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 the “general or residual statute for personal injury actions” of the state in which the claim arose, which is two years in Pennsylvania. See Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); 42 Pa. Cons.Stat. Ann. § 5524 (West 2009). Plaintiff has not responded to this argument. As a result, plaintiff's claims must be based on events occurring after August 26, 2007. Previous events may provide context for those claims. 9 Such claims are the types of “labels and conclusions” that Twombly found inadequate to survive a motion to dismiss. See Twombly, 550 U.S. at 555, 465 n. 10 (holding that allegation that defendants “entered into a contract, combination or conspiracy to prevent competitive entry into their ... markets and have agreed not to compete with one another” was overly conclusory to state a claim of conspiracy in restraint of trade). 10 “Policy is made when a ‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the action’ issues an official proclamation, policy, or edict.” Andrews, 895 F.2d at 1480 (alteration in original) (quoting Pembaur v. City of Cincinnatti, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). “A course of conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state officials [are] so permanent and well settled’ as to virtually constitute law.” Id. (alteration in original) (quoting Monell, 436 U.S. at 690). 11 Because plaintiff's retaliation claims did not accrue until the alleged retaliatory actions occurred, see Schneck v. Saucon Valley Sch. Dist., 340 F.Supp.2d 558, 569-70 (E.D.Pa.2004), plaintiff may base her retaliation claims on protected activities prior to the limitations cutoff-August 26, 2007-on the basis of which defendants retaliated against her after the cutoff. 12 If defendant Alderman's threat of bodily harm to plaintiff had amounted to an actual or threatened substantive due process violation, then plaintiff's report of the threat to a supervisor could be characterized as an attempt to vindicate her substantive due process rights. As noted above, however, plaintiff has not alleged sufficient facts to show that the threat in fact implicated any substantive due process right. 13 Although § 1983 is not the appropriate vehicle for alleging retaliation in response to a request for FMLA leave, the FMLA does not specifically prohibit retaliatory denials of FMLA leave based on conduct not protected by the FMLA. 14 Defendants also argue that the individual defendants, including Giannetta, are entitled to qualified immunity, which shields government officials from liability for conduct that “does not violate clearly established statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant may raise the issue of qualified immunity on a motion to dismiss where the defense is “based on facts appearing on the face of the complaint.” See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). Defendants' qualified immunity argument, however, merely restates their argument that plaintiff failed to state a claim for deprivation of procedural due process or equal protection. (See Defs.' Mot. 22.) Defendants do not seriously argue that the right to be free from retaliation in response to protected activity is not “clearly established.” 15 Plaintiff's original complaint did appear to contain state law claims for wrongful or constructive discharge. 16 Count I does not specify the form that mandamus should take but rather refers generally to plaintiff's ad damnum clause, which requests various forms of legal and equitable relief in addition to revocation of her suspension. In her response to defendants' motion to dismiss, however, plaintiff clarifies that she is seeking mandamus specifically in order to revoke her suspension. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 159 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Exter v. Wilkes-Barre Hosp. Co., LLC, M.D.Pa., September 3, 2014 2006 WL 4050695 United States District Court, E.D. Pennsylvania. Gregg REINHART Plaintiff, v. MINERAL TECHNOLOGIES INC., Defendant. No. Civ.A. 05-4203. | filed Aug. 8, 2005. | Nov. 27, 2006. | terminated Nov. 27, 2006. | last filing Nov. 27, 2006. Attorneys and Law Firms Thomas J. Bender, Littler Mendelson PC, Philadelphia, PA, Attorney to be Noticed, for Minerals Technologies, Inc., (Defendant). MEMORANDUM & ORDER YOHN, J. *1 Plaintiff Gregg Reinhart brings this lawsuit under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat. Ann. § 951 et seq. (“PHRA”), and the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). As clarified at oral argument, Reinhart alleges defendant Mineral Technologies Inc. (“MTI”) regarded him as disabled, terminated him because it regarded him as disabled, failed to accommodate his disability, interfered with his right to take statutorily protected leave and retaliated against him for taking such leave. Presently before the court is MTI's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, I will grant the motion for summary judgment. I. FACTUAL BACKGROUND 1 Reinhart began full time employment with MTI in January 2000 as a lab technician in their MINTEQ International Division. (Pl. Exh. A (“Reinhart Dep.”) at 17.) In the spring or summer of 2003, Reinhart was promoted to the position of research assistant. (Id. at 20.) He was terminated in January 2004. (Id. at 122-23.) Reinhart alleges he suffers from depression and that he has been treated for depression, anxiety, and fear of flying, by Dr. Mary Cohen, a psychiatrist, since October 2001. (Reinhart Dep. 22-23, 32.) Reinhart admits that he did not inform anyone at MTI of his depression before January 5, 2004, or request an accommodation because of that diagnosis. (Pl. Counter-Statement of Facts, ¶ 10; Def. Statement of Facts ¶ 10.) Reinhart did inform Fritz Henry, his direct supervisor, by late 2003, that he was having trouble sleeping, was anxious and irritable, suffered from anxiety over travel and flying, and had taken an anger management course in mid-2002. (Reinhart Dep. 41-42.) He also discussed his fear of flying and travel with Dominick Colavito, the group leader for MINTEQ's Research and Development and Henry's direct supervisor. (Id. at 42.) Though Reinhart's job did not require much travel, his anxiety was accommodated on at least one occasion by renting a van for Reinhart so he could drive, as opposed to fly, to a work site. (Id. at 43-44; Pl. Exh. B (“Colavito Dep.”) at 26-27; Pl. Exh. D (“Henry Dep.”) at 30-32.) Also, in October 2003, Reinhart informed Henry and Colavito that he was “seeing someone for the problem,” but he did not “specifically say what” the problem was. (Reinhart Dep. 41.) During the course of his employment with MTI, Reinhart admits to numerous incidents of inappropriate conduct with supervisors and coworkers. In November 2001, Reinhart got into a heated argument with his supervisor at the time, Jason Cheng. (Id. at 51-55.) Reinhart claims that he was particularly irritable because his fiancée was sick and he was stressed by the high volume of work. (Id.) Based upon this incident, Cheng had a private meeting with Reinhart where he delivered a verbal warning for arguing with a supervisor. 2 (Reinhart Dep. 53-55.) This incident was noted in Reinhart's 2001 review. (Def.Exh. F.) *2 In February 2002, Reinhart called his supervisor at the time, Angela Rodriguez-Shroer, “Chiquita Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 160 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 banana.” (Reinhart Dep. 68-69.) He was subsequently transferred from Rodriguez-Shroer's supervision, and began working with Fritz Henry, his supervisor at the time of his termination. (Id. at 78-79.) Also in February 2002, Reinhart got into an argument with Ron Schmidt, a co-worker at MTI. (Id. at 61-63.) Reinhart admits that he spoke in an “elevated tone” to Schmidt, but he claims that Schmidt was screaming at him. (Id. at 63.) After this argument, Reinhart requested and received the rest of the day off “to buy [Schmidt] some time to cool off” and to give Reinhart some time to get himself “back together.” (Id. at 65.) Sometime in 2003, Reinhart got into a second altercation with Schmidt over moving some materials in the lab. (Id. at 71.) Reinhart admits to speaking in a “very elevated tone” and using profanity during the “verbally heated” argument, and that he may have told Schmidt to “go to hell.” (Id. at 76-77.) This argument was witnessed by Colavito, among others, in the lab. (Colavito Dep. 21-22.) Colavito testified that Reinhart's tone was “unbelievable,” he was “using all sorts of foul language and screaming,” and that Reinhart appeared “beyond distraught.” (Id .) Reinhart received a second verbal warning, this time from Colavito, because of his altercation with Schmidt. (Reinhart Dep. 76-78.) Specifically, Colavito told Reinhart to “watch his language,” learn to calm down, and generally improve his “attitude around the lab.” (Id. at 77-78.) Late in 2003, Reinhart had a verbal altercation with Henry, when Reinhart was struck by a door in the lab while bringing in some materials. (Id. at 84.) After witnessing the door hit Reinhart, Henry offered him his assistance. (Id. at 84-85.) Reinhart admits that he was in an ill temper and probably made some kind of “smart remark” to Henry. (Id. at 85-86.) Around this time Reinhart testified that he was very irritable at the office from the depression, that his attitude around the lab was “pretty poor,” and that he would snap at his coworkers. (Id. at 46.) Soon after the door incident, Reinhart had lunch with Colavito and Henry to discuss his conduct in the lab. (Id. at 39-44, 84.) At this lunch, Colavito gave Reinhart counseling brochures from the MTI's insurance company and suggested that he see someone about these issues. (Id. at 39-40.) Reinhart informed them that he was “seeing someone” for the “problem” but he did not tell them what his problem was. (Id. at 40-41.) He also told them that he had attended anger management classes. (Id. at 45-46.) After the lunch meeting, Reinhart had no further discussion with anyone at MTI regarding his treatment or condition until requesting FMLA leave on December 18, 2003, other than occasional passing references to Henry about not sleeping well. (Id. at 48.) *3 On December 18, 2003, Reinhart showed Henry a note from Dr. Cohen that said “[p]lease excuse Gregg from work until 1/5/04. He is undergoing care for a medical condition.” (Def. Exh. G (12/18/03 Note from Dr. Mary Cohen); Reinhart Dep. 24.) When Reinhart showed Henry the note, Reinhart informed Henry that Dr. Cohen had prescribed medication for him and recommended that he take two weeks off to allow the new medication to take effect. (Reinhart Dep. 24.) He did not disclose the nature of his medical condition or what medication had been prescribed. (Id. at 24-27.) Reinhart states that he had an appointment with Dr. Cohen at 4:00 p.m. on January 5, 2004, and that Dr. Cohen told him to return to work that day only if he felt well enough to go back. (Id. at 29.) However, Reinhart did not inform anyone at MTI of this. (Id. at 30.) On January 5, 2004, Reinhart returned to MTI, arriving at his normal start time to pick up his new insurance and prescription cards. (Id. at 29-30, 91.) Reinhart began searching for the insurance cards and cleaning up around his desk. (Id. at 95.) Approximately five to ten minutes later, Henry arrived and asked Reinhart how he was. (Id. at 97.) Reinhart responded “like mmhmm” and shrugged. (Id.) Henry then said that he wanted to review Reinhart's yearly evaluation, which usually would have occurred in late December, but had not taken place because Reinhart was on leave. (Id.) Henry handed Reinhart the evaluation, asked him to review it, and if he was “okay with it, sign it.” (Id. at 98-99.) Reinhart signed the evaluation, but took issue with some of the comments, telling Henry that the evaluation was “crap.” (Id. at 99-101.) This led to a heated confrontation between Henry and Reinhart over the evaluation, where Henry told Reinhart to “grow up.” (Id. at 107-08.) Reinhart admits that he lost his temper, told Henry “to go to hell,” and then walked out saying that his doctor told him that he didn't have to be there and that he was going home. 3 (Id. at 110-11.) Reinhart admits that his behavior was “a little uncalled Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 161 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 for, even for myself,” but blames his reaction on his depression. (Id. at 142.) Henry notified Colavito of Reinhart's conduct at approximately 10:00 a.m. that day. (Colavito Dep. 31-32.) About the incident, Henry stated he was concerned about the safety of individuals working at the site and that “maybe we should take due precautions so he didn't go postal on us, for example.” (Henry Dep. 50.) Colavito spoke to other MTI employees who overheard the argument and based on this information and the previous incidents of Reinhart's misconduct, decided at that time to terminate Reinhart for his continued inappropriate behavior. (Pl. Counter-Statement of Facts ¶ 56; Def. Statement of Facts ¶ 56; Colavito Dep. 32-36, 38.) Later that morning, Colavito contacted Bernadette Palumbo, the Human Resources Manager, and told her of his decision to terminate Reinhart. (Colavito Dep. 34-36; Pl. Exh. C (“Palumbo Dep.”) at 24-25.) Palumbo said she would investigate the situation and called Reinhart shortly after her meeting with Colavito. (Palumbo Dep. 25-26.) She left a voice mail saying that Reinhart was to consider himself “on paid suspension until further notice.” (Reinhart Dep. 119.) *4 Meanwhile, Reinhart went to see Dr. Cohen at 2:30 p.m. on January 5, 2004. (Id. at 139.) He was afraid that he would be fired because of his medical condition and because of his argument with Henry and told Dr. Cohen of his fear of being fired. (Id. at 140-41.) Dr. Cohen adjusted Reinhart's medication and extended his medical leave until January 19, 2004. (Id. at 141.) After his appointment, Dr. Cohen sent additional medical documentation to MTI's human resources department that said “[p]lease excuse Gregg for work from 1/5/04-1/19/04.” (Def. Exh. 1 (1/5/04 Note from Dr. Cohen).) This paperwork was received by MTI either late in the afternoon of January 5 or January 6. (Reinhart Dep. 115; Palumbo Dep. 27.) After Reinhart's appointment with Dr. Cohen, he listened to the voice mail from Palumbo at approximately 3:30 p.m. on January 5, and returned her call. (Reinhart Dep. 118.) He apologized to Palumbo for his behavior that morning, informed her that he had a “medical problem with the severe depression,” for which he was under treatment, and told her that his doctor had extended his medical leave until January 19, 2004. (Id. at 119-20, 141.) The following day, on January 6, 2004, after an investigation of the incident, Palumbo approved Colavito's decision to terminate Reinhart. (Palumbo Dep. 35.) On January 14, 2004 Palumbo called Reinhart and informed him that his employment with MTI had been terminated based on the inappropriate conduct arising from the January 5, 2004 incident. (Reinhart Dep. 123; Palumbo Dep. 37.) However, Reinhart was paid through January 16, 2004. (Pl.Compl.¶ 41.) II. STANDARD OF REVIEW A court may only grant a motion for summary judgement, “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56©. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Ideal Dairy Farms v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir.1996) (citation omitted). When a court evaluates a motion for summary judgment, “[t]he evidence of the non-movant is to be believed.” Anderson, 477 U.S. at 255. In addition, “[a]ll justifiable inferences are to be drawn in [the non-movant's] favor.” Id. “Summary judgment may not be granted ... if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.” Ideal Dairy, 90 F.3d at 744 (citation omitted). However, “an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990) (citation omitted). The non-movant must show more than “[t]he mere existence of a scintilla of evidence” for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.” ’ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted). III. DISCUSSION A. Disability Discrimination Claims (Counts I and III) Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 162 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 *5 Plaintiff asserts that MTI discriminated against him because of a disability in violation of the ADA in Count I and the PHRA in Count III. 4 (Compl.¶ 74.) At oral argument, plaintiff made clear the claims he intended to pursue. Reinhart claims he was terminated because he was “regarded as” disabled and that defendant failed to provide him with a reasonable accommodation. He also explained that he wishes to have a mixed-motive analysis applied to his case. “The ADA provides that ‘no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” ’ Gaul v. Lucent Techs., 134 F.3d 576, 579 (3d Cir.1998) (citing 42 U.S.C. § 12112(a)). The ADA “defines a ‘qualified individual with a disability’ as ‘an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires.” ’ Id. (citing 42 U.S.C. § 12111(8)). In order to establish a prima facie case of disparate treatment under the ADA, a plaintiff must show “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Id. at 580; see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir.1998) (en banc) (citing Gaul, 134 F.3d at 580). If a plaintiff meets this initial burden, the court must then determine whether the plaintiff has put forth direct or circumstantial evidence of discrimination. Burris v. Richards, 2006 U.S. Dist. LEXIS 82234, at *8 (D.Del. Nov. 9, 2006). If the plaintiff has put forth direct evidence of discrimination, the court uses a “mixed motive” theory, meaning that a “plaintiff need only show that the unlawful motive was a ‘substantial motivating factor’ in the adverse employment action.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir.2003) (citation omitted). Upon doing so, the burden of persuasion shifts and the employer must prove it would have reached the same decision even if it had not considered the disability. Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000) (citing Price Waterhouse, 490 U.S. at 244-45, 260). If, however, the plaintiff has put forth circumstantial evidence of discrimination, the court uses a pretext theory, which incorporates the burden- shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. If plaintiff puts forward both kinds of evidence, both frameworks may apply. See Harp v. SEPTA, 2006 U.S. Dist. LEXIS 35344, at *23 (E.D.Pa. May 31, 2006) (citing Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir.2004); Shellenberger, 318 F.3d at 187 n. 4). As discussed herein, plaintiff's claims must fail because he has failed to meet his burden of demonstrating the prima facie case under the ADA and as such, he has failed to produce evidence warranting a “mixed-motive” theory. 1. Disabled Under the ADA *6 Reinhart's claim must fail because he has not provided evidence that he suffered an adverse employment decision as a result of discrimination, as required by the third element of the prima facie case. 5 Fatal to Reinhart's ADA claim is the fact he cannot show that MTI was aware of any disability from which plaintiff allegedly suffered or regarded him as having a disability. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir.2002) (“[T]o establish discrimination because of a disability, an employer must know of the disability,” (citation omitted)); see also Jones v. UPS, 214 F.3d 402, 406 (3d Cir.2000) (“It is, of course, an axiom of any ADA claim that the plaintiff be disabled and that the employer be aware of the disability.”); Sever v. Henderson, 381 F.Supp.2d 405, 417 (M.D.Pa.2005) (stating that plaintiff must offer evidence that defendant was aware of disability since employer cannot take adverse employment action “because of” disability if employer is unaware of disability). “[T]he mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action.” Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.1996) (citations omitted). MTI cannot have fired Reinhart “because of” his severe depression 6 unless it was sufficiently aware of his condition prior to making the termination decision. If MTI did not know of Reinhart's depression, or did not perceive him as being depressed, it must have fired him “because of” some other reason. A “plaintiff may rely upon either actual or constructive knowledge of the alleged disability.” Sever, 381 F.Supp.2d at 417. Colavito testified, and plaintiff has admitted, that he made the termination decision earlier in the day, before Reinhart informed MTI that he acted inappropriately Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 163 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 because he was being treated for depression. (Def. Statement of Facts ¶ 56, 57, 67; Pl. Counter-Statement of Facts ¶¶ 56, 57, 67.) Though Reinhart previously told Colavito and Henry that he was having trouble sleeping, suffered from anxiety over travel and flying, took an anger management course in mid-2002, and was “seeing someone,” he never explicitly told them he suffered from depression, let alone “severe depression,” nor told them what medical condition from which he suffered. (Reinhart Dep. at 41-42.) Plaintiff admits that at the time he requested FMLA leave on December 18, 2003, he “hadn't told them exactly what the medical condition was, but they knew I was seeing, well, someone at Muhlenberg Behavioral Health.” (Id. at 26-27.) Therefore, there was no indication to MTI that he had a condition that rose to the level of a disability. MTI first learned on the afternoon of January 5, 2004, through Reinhart's telephone conversation with Palumbo, that plaintiff suffered from “severe depression.” (Reinhart Dep. 119-20, 141.) Thus, MTI did not actually know about Reinhart's depression prior to making the termination decision. *7 Plaintiff claims that MTI had constructive knowledge of his depression because it knew he requested leave to undergo medical care and because he exhibited signs of a severe mental condition. (Pl.Br.18-19.) With regard to plaintiff's leave of absence from December 18, 2003 until January 5, 2004, Reinhart claims he told his supervisor that he needed time off to allow a “medication to basically, you know, get in my system and get myself back together a little bit.” (Reinhart Dep. 24.) However, these statements are too vague to support any suspicion of a disabling depression. Plaintiff also claims that he exhibited signs of a severe mental condition. Plaintiff admits to numerous incidents of inappropriate behavior at work. (See Pl. Counter-Statement of Facts, ¶¶ 16, 18-19, 22, 26-27, 31, 53-54; Def. Statement of Facts, ¶¶ 16, 18-19, 22, 26-27, 31, 53-54.) Colavito described plaintiff as being “beyond distraught” during a particular alteration between Reinhart and another employee, and that plaintiff's tone was “unbelievable.” (Colavito Dep. 21.) Also Henry believed that Reinhart needed counseling. (Henry Dep. 26.) However, the evidence does not show that MTI knew Reinhart was clinically depressed. There was no indication that Reinhart's misconduct was the result of a severe mental condition rather than just improper behavior. Though Reinhart made statements regarding his anxiety, irritability, and fear of travel and flying, this could not have put MTI on notice that he was clinically depressed. (Reinhart Dep. 41-43.) Even if MTI knew that Reinhart was “seeing someone” and “had seen an anger management counselor,” there is no indication he had a condition that rose to the level of a disability. (Id. at 40-46.) Thus, the evidence is insufficient for a reasonable jury to find that MTI constructively knew Reinhart was disabled. Moreover, Reinhart has not produced evidence sufficient to show that defendant took the adverse employment action because he was “regarded as” disabled by MTI. “Regarded as” disabled means that defendant regarded the plaintiff as having an impairment that substantially limits one or more of the major life activities of an individual. 42 U.S.C. § 12102(2). Therefore, the court must decide whether MTI regarded Reinhart as having a condition that “substantially limits one or more major life” activities, and whether plaintiff has produced sufficient evidence that that perception was the cause of the adverse action. Plaintiff's “actual limitations and impairments are irrelevant” in analyzing whether he was regarded as disabled. Vierra v. Wayne Mem. Hosp., 168 F. App'x. 492, 495-496 (3d Cir.2006); see also Kelly, 94 F.3d at 108-09 (stating that the analysis of a regarded as claim focuses not on the plaintiff and his actual abilities, “but rather the on the reactions and perceptions of the persons interacting or working with him.”) “Substantially limited” means that defendant must have believed Reinhart had a condition rendering him: *8 (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). Major life activities under the ADA are basic activities that the average person can perform with little or no difficulty, including “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 164 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff has failed to present evidence from which a reasonable jury could find that MTI regarded him as having a depression that substantially limited a major life activity. First, as discussed above, there is no evidence that MTI perceived Reinhart to be impaired, i.e. depressed. At most, MTI knew Reinhart was having anxiety and anger management issues and was seeing someone for his problems-as Reinhart himself informed Henry and Colavito. (Reinhart Dep. 41-42.) The evidence shows that MTI knew that Reinhart needed time off to deal with a “medical condition” and for a medication to take effect. (Reinhart Dep. 23-24.) Dr. Cohen's note requesting Reinhart's medical leave only stated that plaintiff had a “medical condition.” (Def.Exh. G.) However, there was no indication that this medical condition and medication were tied to his alleged anxiety and anger issues. Nor was there any basis for anyone at MTI to conclude he suffered from depression. Prior to his January 5, 2004 discussion with Palumbo, he failed to inform anyone at MTI that he was depressed. (Reinhart Dep. 141.) Thus, though plaintiff provides evidence that some at MTI had evidence that he was anxious and had anger issues, there is no evidence that anyone at MTI perceived or regarded Reinhart as depressed. Plaintiff also does not show that MTI perceived his impairment as substantially limiting a major life activity. Nowhere does plaintiff allege, nor does the submitted documentary evidence suggest, that anybody at MTI believed that plaintiff's alleged depression substantially limited one or more major life activities. Plaintiff fails to identify any “major life activity” that MTI thought Reinhart was unable to perform or was significantly restricted in the manner in which he performed the activity, due to its belief that he was depressed. There is no evidence that MTI believed that Reinhart suffered from a severe depression or that the depression was of a permanent or long-term nature. The fact that MTI gave Reinhart the accommodation of taking medical leave, “does not, by itself, establish that an employer ‘regarded’ an employee as disabled.” Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 776 n. 20 (citation omitted). Additionally, no action was taken on Reinhart's revelations to MTI that he was anxious, had anger issues, and was “seeing someone.” It was only after Reinhart's outburst and confrontation with his supervisor on January 5, 2004 that MTI terminated his employment. Thus, Reinhart fails to present any evidence showing that MTI viewed him as being depressed in a manner that substantially limited a major life activity, consequently no reasonable jury could find that defendant took an adverse action against him because of its perception of his disability. *9 Furthermore, although the ADA prevents an employer from discharging an employee based on his disability, it does not prevent an employer from discharging an employee for misconduct, even if that misconduct is related to his disability. See, e.g., Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir.2001) (concluding ADA does not prevent an employer from discharging an employee suffering from alcoholism when that employee drives under the influence of alcohol); Pernice v. City of Chicago, 237 F.3d 783, 785 (7th Cir.2001) (finding ADA does not prevent employer from dismissing drug-addicted employee who is arrested for possession of drugs); Jones v. American Postal Workers Union, 192 F.3d 417, 429 (4th Cir.1999) (noting ADA is not violated when Postal Service discharged employee for on-the-job threats, even if those threats were the result of a schizophrenia); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir.1998) (holding that an ADA claim can not be maintained on the ground that post traumatic stress disorder caused outbursts at work directed at fellow employees, explaining that “the ADA does not insulate emotional or violent outbursts blamed on an impairment”). Plaintiff admits that he lost his temper in a heated argument with his supervisor on the morning of January 5, 2004, said his evaluation was “crap,” told Henry “to go to hell,” and walked out of the office. (Reinhart Dep. 99-101, 109-10.) He testified to at least five other incidents of misconduct over the course of his employment at MTI. (Reinhart Dep. 51-52 (argument with Cheng), 68-69 (inappropriate comments to Rodriguez-Shroer), 61-65 (argument with Schmidt), 71-77 (second argument with Schmidt), 84-86 (smart remark to Henry).) Reinhart also admits that Colavito made the termination decision based on Reinhart's “continued inappropriate behavior.” (Pl. Counter-Statement of Facts ¶ 56; Def. Statement of Facts ¶ 56.) Thus, though Reinhart explained to Palumbo that he suffered from depression and apologized for his behavior the morning of January 5, 2004, suggesting that his conduct was due to his depression, this does not save his claim. The ADA was not violated when MTI terminated Reinhart for misconduct, even if the Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 165 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 misconduct on the morning of January 5, 2004 was related to his depression. 7 2. Proving an ADA Discrimination Claim Reinhart's claim must also fail because he has failed to produce evidence sufficient to warrant the “mixed- motive” framework. Courts analyze ADA claims under either a pretext analysis or mixed-motive analysis. See Shellenberger, 318 F.3d at 187. At oral argument, plaintiff made clear that he is pursing only a mixed-motive analysis in this case. Reinhart contends that the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) modified the traditional analysis-contained in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)-that courts apply to ADA claims, so that he may demonstrate discrimination on a mixed-motive theory by showing the discrimination was “a motivating factor” in his termination. (Pl.Br.8-14.) MTI responds by arguing that a mixed motive analysis is not appropriate in an ADA case. (Def. Reply 1.) Defendant further argues that even if Desert Palace does apply, Reinhart fails to produce any evidence of discrimination, direct or circumstantial, justifying the application of a mixed-motive analysis. (Def. Reply 2-3.) *10 Because Reinhart has not tendered evidence, circumstantial or direct, from which a fact finder could reasonably infer that the perception of him as disabled was even a “motivating” factor in MTI's decision, the court need not address the applicability of Desert Palace to the ADA. 8 In other words, either way, Reinhart has not adduced evidence that the disability played any role in MTI's decision to terminate him. “Direct” evidence is evidence sufficient to allow the jury to find that the decision makers placed a substantial negative reliance on the plaintiff's protected trait in reaching their decision. Glanzman, 391 F.3d at 512 (citing Fakete, 308 F.3d at 338). Another way it has been stated is that it is evidence that “directly reflect[s] a discriminatory or retaliatory animus on the part of a person involved in the decision- making process.” Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir.1994) (citations omitted). “In contrast, circumstantial evidence is offered to prove an ultimate fact, but an inferential step by the factfinder is required to reach that fact.” Woodson v. Scott Paper Co., 109 F.3d 913, 930 (3d Cir.1997). Because, as discussed above, Reinhart has not tendered sufficient evidence to prove that defendants knew about his disability or regarded him as disabled, it follows that he has not produced evidence, circumstantial or direct, from which a factfinder could infer that defendant terminated him based on his protected trait. In summary, defendant's motion for summary judgment on Reinhart's ADA and PHRA claims will be granted. Plaintiff has failed to put forth sufficient evidence to show that he suffered an adverse employment action because of his disability as he has failed to create a question of fact as to whether MTI knew of Reinhart's depression or perceived him to be disabled. Because such evidence is lacking, it is unnecessary for the court to undergo an analysis of how the mixed-motive framework applies to the instant action. B. FMLA Claim (Count II) Plaintiff alleges that MTI violated his rights under the FMLA. Courts have recognized that the FMLA creates two types of claims, an interference claim and a retaliation claim. See Bearley v. Friendly Ice Cream Corp., 322 F.Supp.2d 563, 570-71 (M.D.Pa.2004); Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 485, 487-88 (D.N.J.2002). Plaintiff has made clear that he is pursuing both types of claims. 1. Retaliation Claim A retaliation theory claim “arises under 29 U.S.C. § 2615(a)(2), which makes it unlawful for an employer to discriminate against an employee who has taken FMLA leave.” Bearley, 322 F.Supp.2d at 571 (citation omitted). Plaintiff complains that MTI terminated him “for taking time off from work which should have been afforded protection under the FMLA, thereby violating the “no fault leave” policies inherent in the FMLA.” (Compl.¶ 82.) To advance an FMLA retaliation claim, it is the plaintiff's burden to show: (1) he took an FMLA leave, (2) he suffered an adverse employment decision, and (3) the adverse decision was causally related to that leave. Dogmanits v. Capital Blue Cross, 413 F.Supp.2d 452, 463 (E.D.Pa.2005) (citing Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.2004)). FMLA retaliation claims have been analyzed under the burden-shifting framework of McDonnell Douglas whereby “once a plaintiff establishe[s] a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the employer offers a legitimate, Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 166 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 nondiscriminatory reason, the burden is shifted back to plaintiff to establish that the employer's reasons are pretextual.” Bearley, 322 F.Supp.2d at 571 (citation omitted). *11 Defendant does not deny that plaintiff can establish the first two prongs of the prima facie case. 9 However, MTI claims that plaintiff cannot prove the existence of a causal connection between the adverse action and the exercise of his FMLA rights. Plaintiff argues that causation is established because his termination occurred soon after his FMLA leave and at about the same time as his request for a continued leave of absence. (Pl.Br.22.) MTI asserts that though the timing of Reinhart's termination is a relevant factor in assessing causation, it is insufficient to establish the causation prong. (Def.Br.22.) The Third Circuit has stated that “the mere fact that adverse employment action occurs after [a protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.1997). However, the court has gone on to clarify that if the timing of the alleged retaliatory action is “ ‘unusually suggestive’ of retaliatory motive” a causal link will be inferred. 10 Krouse, 126 F.3d at 503 (citing Robinson, 120 F.3d at 1302). The Third Circuit has inferred a causal link where only two days passed between the plaintiff's protected activity and the adverse employment action, but refused to do so where slightly over two months had elapsed. Compare Jalil, 873 F.2d at 708 (stating that plaintiff “demonstrated the causal link ... by the circumstance that the discharge followed rapidly, only two days later, upon [the employer's] receipt of notice of [his] EEOC claim”) (citation omitted) with Williams, 380 F.3d at 760 (finding that two months was not so close as to be “unduly suggestive”). Here, the closeness of plaintiff's return from FMLA leave to his subsequent termination supports an inference that there was a causal connection between the termination and his exercise of his FMLA rights. Colavito decided to terminate Reinhart on January 5, 2004, the day Reinhart returned from his first FMLA leave and before Reinhart requested the second FMLA leave. (Colavito Dep. 32-36, 38; Reinhart 118-20.) However, Palumbo did not confirm Colavito's termination of Reinhart until January 6, 2004, at which point she had received the second FMLA leave request. (Palumbo Dep. 25-27, 35.) Therefore, over a period of approximately twenty-four hours, Reinhart's initial FMLA leave ended, the termination decision was made, and he requested additional leave. These events are extremely close in time and the court concludes that the sequence meets the bare minimum of sufficiency to establish causation. Given that on summary judgment all justifiable inferences are to be drawn in the non- movant's favor and the philosophy of the McDonnell- Douglas system of proof, the court finds that Reinhart has established a prima facie case for retaliation. Nevertheless, plaintiff's retaliation claim fails because MTI has articulated a legitimate nondiscriminatory reason for terminating Reinhart, and plaintiff has not presented any evidence that shows MTI's reason is pretextual. Once a plaintiff has established a prima facie claim, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. See Bearley, 322 F.Supp.2d at 571. MTI has come forward with evidence of a reason, other than retaliation, for Reinhart's discharge- his repeated inappropriate behavior that culminated in the insubordinate acts of arguing with his supervisor and telling him to “go to hell” on January 5, 2004. (Henry Dep. 59 .) Henry, his supervisor, testified that while receiving his review Reinhart “started yelling, started kicking things, started asking why I didn't clean up the lab better than I did, was as insulting as he could be.” (Henry Dep. at 40, 48.) Colavito states that he decided to terminate Reinhart later that same day because “his behavior was completely unacceptable,” and that he made this decision before he received Reinhart's second request for FMLA leave. (Colavito Dep. 35-36, 38.) *12 Because MTI has come forward with evidence of a nondiscriminatory reason for Reinhart's discharge, plaintiff now has the burden of presenting evidence from which a reasonable jury could conclude that the articulated reason is a pretext for the retaliation. See Bearley, 322 F.Supp.2d at 571. However, Reinhart has failed to put forth any evidence showing MTI's reasons for terminating him were pretextual. He has not pointed to any implausibilities or inconsistencies in Henry's or Colavito's testimony about what occurred in the office on January 5, 2004, or offered any evidence that retaliation was the real reason. Rather than disagreeing, Reinhart admits that he angrily told Henry to “go to hell,” walked out of the office, and that “Colavito decided at that Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 167 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 time that he was going to terminate Reinhart for his continued inappropriate behavior.” (Reinhart Dep. 110; Def. Statement of Facts ¶ 56; Pl. Counter-Statement of Facts ¶ 56.) Plaintiff also admits that though MTI has a progressive discipline policy, where verbal and written warnings are given prior to termination, some interactions can lead to immediate termination. (Def. Statement of Facts ¶ 20; Pl. Counter-Statement of Facts ¶ 20; Palumbo Dep. 31-32.) Thus, Reinhart has failed to present any evidence undermining MTI's proffered legitimate, non- discriminatory explanation for his termination. To summarize, though plaintiff has set forth a prima facie case for retaliation under the FMLA, an obvious and unimpeached non-retaliatory motive for Reinhart's termination exists. Thus, summary judgment will be granted in favor of defendant on Reinhart's retaliation claim because he has not presented sufficient evidence to rebut MTI's decision to terminate him for his repeated acts of misconduct. See Krouse, 126 F.3d at 504 (internal quotation omitted) (stating that the plaintiff must produce sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action). A jury could not reasonably conclude, based upon the record, that MTI's proffered reason for Reinhart's termination was mere pretext and that he was actually terminated because he took FMLA leave. 2. Interference Claim An ‘entitlement’ or ‘interference’ theory claim is based on 29 U.S.C. § 2615(a)(1), which makes it unlawful for an employer to “interfere with, restrain or deny” an employee's rights under the FMLA. § 2615(a)(1). The issue in an interference claim “is simply whether the employer provided its employee the entitlements set forth in the FMLA.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir.1998). Plaintiff alleges that MTI's actions “resulted in the Plaintiff being denied his right to take statutory protected leave” (Compl.¶ 81), and made clear at oral argument that he is pursing an interference claim in addition to his retaliation claim. To prove an interference claim, it is the plaintiff's burden to show (1) he was an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) he was entitled to leave under the FMLA, (4) he gave notice to the defendant of his intention to take FMLA leave, and (5) the defendant denied him benefits to which he was entitled under the FMLA. Weisman v. Buckingham Twp., 2005 U.S. Dist. LEXIS 11696, at *11 (E.D. Pa. June 14, 2005) (citations omitted). *13 Defendant asserts that plaintiff can not establish the last prong of the prima facie case. MTI claims that plaintiff's FMLA rights were not interfered with because defendant made the decision to terminate his employment after he finished his first FMLA leave and before he submitted an additional request for FMLA leave. (Def.Br.19-20.) Defendant also claims that even if there is a factual issue as to when Reinhart was terminated, because he was terminated for reasons other than the exercise of his FMLA rights, MTI did not interfere with his FMLA leave. (Def.Br.20-21.) Because defendant has challenged the existence of plaintiff's prima facie case at the summary judgement stage, plaintiff “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v.. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (citing Fed.R.Civ.P. 56(e)). Reinhart does not put forth any evidence that MTI interfered with the FMLA leave he took from December 18, 2003 until January 5, 2004. (Def. Exh. G; Reinhart Dep. 22-30.) Plaintiff does assert that he requested additional FMLA leave on January 5, 2004. (Def. Exh. I; Reinhart Dep. 112; 141.) However, “[n]o FMLA violation occurs where an employer has already decided to terminate the employee before the employee requests FMLA leave.” Kennebrew v. N.Y. City Hous. Auth., 2002 U.S. Dist. LEXIS 3038, at *76 (S.D.N.Y. Feb. 26, 2002) (citations omitted); see also Tuberville v. Pers. Fin. Corp., 1996 U.S. Dist. LEXIS 16775, *10 (N.D. Miss. June 5, 1996) (“In a case such as this, with a well-documented history of unsatisfactory performance, and where the wheels of termination were put in motion before the request for leave,” the FMLA provision requiring the employer to restore employee to his prior job does not apply). There is no evidence that MTI had any indication that Reinhart would request additional leave when it made the initial termination decision. Reinhart returned to the office the morning of January 5, 2004. (Reinhart Dep. 91-92.) Even if Reinhart was only there to pick up his insurance cards, he did not inform anyone that his presence in the lab was anything other than what it appeared to be, a return to work after the end of his FMLA leave. The initial decision to terminate Reinhart Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 168 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 was made early in the day on January 5, 11 after the incident with his supervisor, but before Reinhart spoke with Palumbo and Palumbo received Dr. Cohen's note requesting additional FMLA leave from January 5 until January 19. (See Def. Statement of Facts ¶¶ 56, 63; Pl. Counter-Statement of Facts ¶¶ 56, 63; see also Reinhart Dep. 115, 119-20; Colavito Dep. 38; Def. Exh. I.) Thus, Reinhart was not entitled to additional FMLA leave because the “wheels of termination” had already been put into motion when he requested the leave. It is irrelevant that he was not told of that decision until after he requested leave, or that he was not informed of the termination until January 14, because even though his termination had not been implemented, it is undisputed that the decision to terminate was made before he requested leave. Thus, summary judgment will be granted for the defendant on Reinhart's FMLA interference claim because plaintiff has provided no evidence which would reasonably support his claim of interference with his FMLA rights. IV. CONCLUSION *14 For the reasons explained above, I will grant MTI's motion for summary judgment. An appropriate order follows. ORDER AND NOW, this ______ day of November, 2006, upon consideration of defendant Mineral Technologies Inc.'s motion for summary judgment (Doc. No. 5) and accompanying statement of facts, plaintiff's response and counter-statement of facts, and defendant's reply, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED and judgment is ENTERED in favor of defendant Mineral Technologies Inc. and against plaintiff Gregg Reinhart. All Citations Not Reported in F.Supp.2d, 2006 WL 4050695, 33 NDLR P 222 Footnotes 1 Plaintiff admits most of the facts contained in defendant's Statement of Facts. (Pl. Counter-Statement of Facts, ¶¶ 1-24, 26-34, 36-71.) Thus, the following account contains the admitted facts and Reinhart's factual allegations because when deciding a motion for summary judgment courts must view all facts and inferences in the light most favorable to the non- moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2 Plaintiff admits that MTI has a policy regarding discipline which sets up the steps of verbal warning, written warning, and termination, but also states that some interactions can lead to immediate termination. (Pl. Counter-Statement of Facts ¶ 20; Pl. Exh. C (“Palumbo Dep.”) at 31-32.) 3 Henry testified that Reinhart walked out of the lab kicking doors, hitting things, and said “Fuck-you Grandpa” to him. (Henry Dep. 48, 59.) However, Reinhart claims that he did none of these things. (Reinhart Dep. 108-10.) 4 I will address Reinhart's PHRA claim together with his ADA claim because courts “generally interpret the PHRA in accord with its federal counterparts.” Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996) (citation omitted). 5 Defendant concedes, for the purposes of summary judgment, that Reinhart has met the first two prongs of the prima facie case-that he has a disability and was “qualified” for the position he held. (Def. Br. 10 n. 7.) 6 Plaintiff clarified at oral argument that his claimed disability is “severe depression.” There are, of course, many gradations of depression as to severity and duration. Plaintiff acknowledged that he had no medical support for this diagnosis in the record and that he had no medical support indicating that the job site incidents of inappropriate behavior were caused by his depression. 7 In his complaint and at oral argument plaintiff claims that MTI refused to grant him a reasonable accommodation. (Compl.¶ 73.) However, his response to defendant's motion for summary judgment proceeded solely on the basis of his termination and makes no reference to accommodation. In any event, “the failure to reasonably accommodate a disabled and qualified employee constitutes an adverse employment action for purposes” of establishing the third prong of an ADA discrimination claim, not a separate claim in and of itself. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 n. 4 (3d Cir.2006). To trigger an employer's duty to make a good faith effort to accommodate a disabled employee, the employer must know about the employee's disability and the employee or someone on his behalf must request accommodation. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311, 313, 319 (3d Cir.1999) (stating that “an employer commits unlawful Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 169 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 discrimination under the ADA if the employer ‘does not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee ...” ’ (quoting 42 U.S.C. § 12112(b)(5)(A) (emphasis added)). Plaintiff argues that his request for accommodation was implicit in his request for leave on January 5, 2004, following his outburst that morning. However, defendant's lack of knowledge of his disability is also fatal to his reasonable accommodation claim as Reinhart has not presented any evidence that defendant's adverse action in not accommodating him was due to his disability or its perception of his disability. 8 Initially, based on Justice O'Connor's concurring opinion in Price Waterhouse, which the Third Circuit has determined “represents the holding of the fragmented Court in Price Waterhouse,” courts required a plaintiff to produce direct evidence to proceed under the “mixed-motive” theory. See Fakete v. Aetna, Inc., 308 F.3d 335, 338 & n. 2 (3d Cir.2002) (citations omitted). However, two years later Congress adopted the Civil Rights Act of 1991, a portion of which “responded to Price Waterhouse by setting forth standards applicable in mixed motive cases in two new statutory provisions. Desert Palace, 539 U.S. at 94 (quotation omitted). The key new provision, which amended Title VII was 42 U.S.C. § 2000e-2(m), states “[e]xcept as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” § 2000e-2(m) (emphasis added). In Desert Palace, the Supreme Court held that in a Title VII discrimination claim, “direct evidence of discrimination is not required in mixed motive cases.” Desert Palace, 539 U.S. at 101 (emphasis added). The Third Circuit has not yet ruled on whether Desert Palace affects ADA claims, and I find it unnecessary to do so as Reinhart cannot adduce evidence under either standard. See Brokenbaugh v. Exel Logistics N. Am., Inc., 174 Fed. Appx. 39, 44 (3d Cir.2006) (assuming without deciding that Desert Palace applies to § 1981 actions because the plaintiff “has not tendered evidence, direct or circumstantial, from which a factfinder could reasonably infer that race, gender, and/or age was even a ‘motivating’ factor in [the employer's] decision); see also Genthe v. Quebecor World Lincoln, 383 F.3d 713, 716-717 (8th Cir.2004) (stating that the court would not reach the question of whether the plaintiff needed to introduce direct evidence to support his ADA claim after Desert Palace because it found that the plaintiff had no produced evidence, direct or circumstantial, that he was regarded as having a limited impairment or was passed over for a promotion because of such an impairment). 9 MTI does not deny that plaintiff was engaged in a statutorily-protected activity when he took leave from December 18, 2003 to January 5, 2003 and requested further leave on January 5, 2004. (See Def. Br. 21-22; see also Reinhart Dep. 23.) MTI also “does not deny that Reinhart suffered an adverse employment action when he was terminated.” (Def.Br.22.) 10 The Third Circuit has noted that it is “seemingly split” on the question of whether the timing of the allegedly retaliatory action can, by itself, support a finding of causation. Robinson, 120 F.3d at 1302; Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997). However, the court has cautioned that “this ‘split’ is not an inconsistency in our analysis but is essentially fact-based.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d. Cir.2000). Thus, the evidentiary value of temporal proximity to the causation factor will depend upon “the stage of the McDonnell Douglas proof analysis, and the procedural circumstance.” Id. at 279 n. 5. When a plaintiff is relying upon temporal proximity to satisfy her prima facie case for the purpose of summary judgment under McDonnell Douglas, close temporal proximity can, by itself support a finding of causation. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989); see also Smith v. Allen Health Sys., 302 F.3d 827, 833 (8th Cir.2002) (citation omitted) (stating that the McDonnell Douglas system of proof “requires only a minimal showing before requiring the employer to explain its actions”); James v. New York Racing Ass'n, 233 F.3d 149, 153 (2d Cir.2000) (finding that a plaintiff's burden on presenting a prima facie case under McDonnell Douglas is “minimal”). 11 Even if there is a question of fact as to when Reinhart was actually terminated, Reinhart's interference claim would still fail. Though an eligible employee is entitled to reinstatement when he returns from FMLA leave, this right is qualified by the statutory directive that a restored employee is not entitled to return to a position to which the employee would not “have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(1), (a)(3)(B). “If an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, there is no right to reinstatement.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir.2004), citing 29 C.F.R. § 825.216(a)(1); see also Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 979 (8th Cir.2005) (“As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee's exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee's FMLA leave rights.”). Thus, even if Reinhart was on FMLA leave from January 5 through January 19 and his termination occurred sometime during that period, MTI has not interfered with his FMLA leave rights because it has shown a lawful reason for terminating his employment, as discussed above. Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 170 of 195 Reinhart v. Mineral Technologies Inc., Not Reported in F.Supp.2d (2006) 33 NDLR P 222 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SH Document 19 Filed 07/22/16 Page 171 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2006 WL 2457694 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Carletta THOMPSON, Plaintiff, v. CITY OF NEW YORK, Defendant. No. 03 Civ. 4182(JSR)(JCF). | Aug. 10, 2006. Attorneys and Law Firms Carletta Thompson, Jamaica, NY, pro se. Eric Jay Eichenholtz, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendant. REPORT AND RECOMMENDATION JAMES C. FRANCIS IV, United States Magistrate Judge. *1 TO THE HONORABLE JED S. RAKOFF, U.S.D.J. The plaintiff, Carletta Thompson, brings this employment discrimination action pro se, pursuant to the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12112 et seq. She alleges that the defendant, the City of New York (the “City”), discriminated against her by failing to accommodate her disability and by creating a hostile work environment, and retaliated against her for asserting her rights. The City has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I recommend that the motion be granted in part and denied in part. Background On November 13, 1995, the plaintiff was hired by the New York City Department of Probation (the “DOP”) as a probation officer at the K.S.I.R. Unit 1 in Brooklyn. (Statement of Carletta Thompson dated June 9, 2003 (the “6/9/03 Statement”), attached to Complaint, at 1). On January 6, 1997, the plaintiff was transferred to the Nova Ancora Program in Manhattan. (6/9/03 Statement at 1). Starting in about October 1997 she experienced numbness, tingling, and pain in her wrists (Deposition of Carletta Thompson (“Thompson Dep.”), attached as Exh. F to Declaration of Eric Eichenholtz dated Feb. 14, 2006 (“Eichenholtz Decl.”), at 39), but she ignored the pain until February 1998. (Thompson Dep. at 39). On March 11, 1998, the plaintiff was diagnosed with carpal tunnel syndrome (“CTS”) by Dr. Ling O. Ching. (6/9/03 Statement at 1 & Exh. 2i-A). The CTS diagnosis was confirmed by Dr. William L. King on March 26, 1998. (6/9/03 Statement at 1 & Exh. 2i-D). Dr. King felt that the plaintiff's symptoms were related to her job activities and recommended “an ergonomic evaluation of her work station.” (6/9/03 Statement at 1 & Exh. 2i- D). Ms. Thompson met with the DOP Health & Safety Coordinator, who recommended that she be provided with an ergonomic chair and a wrist rest. (Eichenholtz Decl., Exh. J). The plaintiff purchased a wrist rest with her own funds, while the DOP purchased a headset and two ergonomic chairs to accommodate her disability. (Thompson Dep. at 46). On April 9, 1998, Ms. Thompson submitted a claim for workers' compensation benefits. (6/9/03 Statement at 2). Beginning on October 21, 1997, while working at Nova Ancora, Ms. Thompson received harassing telephone calls. She reported the harassment in a memo to DOP Deputy Commissioner Louis Gelormino on November 27, 1997. (6/9/03 Statement at 2 & Exh. 2iv- F). On June 21, 1998, Ms. Thompson requested a transfer to a work assignment that would not aggravate her CTS. (6/9/03 Statement at 2). She was then transferred, effective September 28, 1998, from Nova Ancora to Manhattan Family Intake and Services (“MFIS”). (6/9/03 Statement at 2). At MFIS, she was assigned to the Investigation Unit. That position required what the plaintiff characterizes as an “excessive” amount of writing and sitting, which aggravated her CTS. (6/9/03 Statement at 2). In response to her request for a transfer to different unit, the plaintiff was provided with a dictaphone. (6/9/03 Statement at 2 & Exh. 3i). After using the dictaphone on one case, Ms. Thompson concluded that she would still have to do an excessive amount of writing (Eichenholtz Decl., Exh. Q), and she informed her supervisor that the use of the dictaphone was not an adequate solution. (Thompson Dep. at 144). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 172 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 Unrelated to the CTS, the plaintiff experienced co- workers playing loud music, and after complaining to her supervisors about the noise she overheard other probation officers referring to her in derogatory terms such as “gay,” “JAP,” and “tramp.” (6/9/03 Statement at 2). Beginning January 1, 1999, the plaintiff was assigned 14 cases per month, the same caseload carried by non- disabled probation officers. (6/9/03 Statement at 2). Ms. Thompson filed a complaint with the New York State Division of Human Rights (the “SDHR”) on February 16, 1999. (6/9/03 Statement at 2). The SDHR subsequently determined that there was no probable cause to believe that the DOP had discriminated against the plaintiff. (Eichenholtz Decl., Exh. E). After she filed the SDHR complaint, some of Ms. Thompson's cases were reassigned to other probation officers, and she was not assigned new cases in March 1999. (Eichenholtz Decl., Exh. T). While at MFIS, Ms. Thompson submitted four transfer requests, all of which were denied. (6/9/03 Statement at 2). The plaintiff was absent from work from October 8 through October 22, 1999, due to severe headaches. (6/9/03 Statement at 3). She was denied use of her sick leave benefits for this period, and her pay was docked to reflect the missed time. (6/9/03 Statement at 3). On November 9, 1999, Ms. Thompson filed a grievance through her union, but the grievance was subsequently denied. (6/9/03 Statement at 3-4). Also on November 9, the plaintiff met with DOP Assistant Commissioner Pamela Hardy in order to assess her work limitations and physical capabilities and the possibility of using voice recognition software as a method of accommodating for her disability. (Eichenholtz Decl., Exh. X). On January 28, 2000, the plaintiff was transferred to Linden House Aftercare Program (“Linden House”) in Brooklyn. (6/9/03 Statement at 3; Thompson Dep. at 197). While working there, she overheard and observed discussions in which co-workers and supervisors referred to her as “gay.” (6/9/03 Statement at 4). In May 2001, the plaintiff requested an ergonomic keyboard which she later received (6/9/03 Statement at 4, 5), but she made no other requests for reasonable accommodation while working there. (Thompson Dep. at 201). Ms. Thompson's assignment at Linden House ended when the facility closed in January 2002. (Thompson Dep. at 223-24). On or about January 3, 2002, after Linden House had been closed, an ergonomic chair and headset were stolen from her office. (6/9/03 Statement at 5 & Exh. 5ii). The headset was later replaced, and the plaintiff still had one remaining ergonomic chair. (Thompson Dep. at 232). On January 4, 2002, the plaintiff was transferred to the Manhattan Alternative to Detention Program where her duties included assisting in the cafeteria, assisting with intake of new residents, running a remedial math program, and assisting in the computer room. (Thompson Dep. at 234; Eichenholtz Decl., Exh. Z). Ms. Thompson received an ergonomic keyboard on or about February 6, 2002. (Eichenholtz Decl., Exh. AA). *3 On December 9, 2002, Ms. Thompson was transferred to Kings Family Services in Brooklyn. (Thompson Dep. at 230). There, her job responsibilities included helping probationers find placement in various facilities and operating a fax machine. (Thompson Dep. at 233-34). On April 11, 2002, the plaintiff submitted a second claim for workers' compensation benefits, but she was denied payment for her chiropractor's bills. (6/9/03 Statement at 5). Ms. Thompson successfully appealed the adverse workers' compensation decision. (Thompson Dep. at 17). In March 2003, the mouse for Ms. Thompson's ergonomic keyboard was stolen. (6/9/03 Statement at 5). In November 2003, the plaintiff requested and received a medical leave of absence on the basis that her CTS rendered her unable to work. (Thompson Dep. at 234-35). She filed for retirement disability benefits on December 19, 2003. (Thompson Dep. at 238). The defendant has moved for summary judgment on the ground that Ms. Thompson cannot establish a prima facie case of discrimination under the ADA. The City argues that Ms. Thompson cannot prove that it failed to reasonably accommodate her disability; that any harassment she may have suffered was unrelated to her disability; and that she was denied sick leave benefits not because of retaliation, but because she failed to follow DOP policy. The City further argues that Ms. Thompson's claim that the DOP retaliated against her by interfering with her workers' compensation claim fails because the denial of benefits was reversed on appeal. Discussion A. Summary Judgment Standard Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 173 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir.2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir.1999). The moving party bears the initial burden of identifying “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing party then must come forward with “specific facts showing that there is a genuine issue for trial,” Fed.R.Civ.P. 56(e). Where the non-movant fails to make “a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,” summary judgment must be granted. Celotex, 477 U.S. at 322. In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). But the court must inquire whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,” Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. “The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forth some affirmative indication that his version of relevant events is not fanciful.” Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997) (internal punctuation and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995) (nonmovant “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible”). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ “ Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)). B. Reasonable Accommodation *4 The plaintiff first argues that the defendant discriminated against her by failing to reasonably accommodate her disability. The ADA prohibits employment discrimination “against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a). Discrimination is defined to include the failure to make a reasonable accommodation for the known physical disabilities of a qualified individual. 42 U.S.C. § 12112(b)(5)(A). In order to make out a prima facie case of discrimination based on an employer's failure to accommodate, a plaintiff must show “(1) that [she] is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of [her] disability, (3) that with reasonable accommodation, [she] could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations.” Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir.1997); accord Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir.2001). T h e City does not dispute that it is a covered employer under the ADA. (Memorandum of Law in Support of Defendant's Motion for Summary Judgment (“Def.Memo.”), at 5 n. 1). The City also assumes that Ms. Thompson was disabled within the meaning of the statute. 2 However, it argues that the DOP offered reasonable accommodation for the plaintiff's disability. To determine the appropriate reasonable accommodation made necessary by an employee's disability, federal regulations implementing the ADA provide for an “interactive process” involving both the employer and the employee. 29 C.F.R. § 1630.2(o)(3); see Jackan v. New York State Department of Labor, 205 F.3d 562, 566 (2d Cir.2000). Liability for failure to provide a reasonable accommodation ensues only when the employer is responsible for a breakdown in that process. Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1137 (7th Cir.1996); see also Economou v. Caldera, No. 99 Civ. 12117, 2000 WL 1844773, at *24 (S.D.N.Y. Dec. 18, 2000). In this case, the plaintiff and the defendant engaged in an interactive process to determine appropriate Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 174 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 accommodations for Ms. Thompson. The DOP Health & Safety Coordinator, Dawn M. Pinnock, met with the plaintiff two days after she was diagnosed with CTS, and recommended that Ms. Thompson receive an ergonomic chair and wrist rests. (Eichenholtz Decl., Exh. J). At other times, the plaintiff was provided with a dictaphone (Eichenholtz Decl., Exh. N) and an ergonomic keyboard (6/9/03 Statement at 4-5). The DOP also acceded to Ms. Thompson' s requests for reasonable accommodations by transferring her several times. The plaintiff admitted at her deposition that she instigated the transfer from Nova Ancora because of a personality conflict with her supervisor. (Thompson Dep. at 94-97). At Nova Ancora, Ms. Thompson requested a transfer from a position which required “no extensive writing,” and where she was “able to control” her CTS, because she felt that her supervisor was “talking down” to her. (Opposition to Defendant's Motion for Summary Judgment (“Pl.Opp.”) dated Feb. 27, 2006, Exh. 5). Ms. Thompson felt that Linden House was a “suitable position” for her disability, but she requested a transfer because of problems with management and co-workers. (Pl.Opp., Exh. 9). Nevertheless, these transfer requests were granted. When the DOP denied Ms. Thompson's requests for transfer, it was because no position was immediately available (Eichenholtz Decl., Exh. M), or because the requested position was not suitable for someone with CTS. (Eichenholtz Decl., Exh. V). *5 The plaintiff provides no concrete evidence that the DOP is responsible for a breakdown in the interactive process; she has only indicated dissatisfaction with the results. However, under the ADA, “an employee has no right to any particular accommodation, but merely to a reasonable accommodation.” Equal Employment Opportunity Commission v. Yellow Freight System, Inc., No. 98 Civ. 2270, 2002 WL 31011859, at *21 (S.D.N.Y. Sept. 9, 2002). Here, the plaintiff has produced no evidence that the steps taken by the DOP were inadequate, by, for example, showing that her performance suffered. Although she was dissatisfied with her job assignments and some of the equipment that was provided for her, Ms. Thompson has not come forward with facts to rebut the defendant's argument and has not shown that she can make out a prima facie case on this issue. Because the DOP reasonably accommodated Ms. Thompson and engaged in the interactive process required by the ADA, this claim must be dismissed. C. Harrassment The plaintiff next maintains that she suffered harassment that amounted to a hostile work environment. She alleges that she was subjected to harassing telephone calls of an unspecified nature that started before her diagnosis with CTS (6/9/03 Statement at 1 & Exh. 2iv); other harassing “non-verbal hang-up calls” (6/9/03 Statement at 4 & Exh. 4vi); objectionable comments made by coworkers (6/9/03 Statement at 2, 4 & Exh. 4v); and the theft of her ergonomic chair, headset, and computer mouse (6/9/03 Statement at 5). Hostile work environment claims are cognizable under the ADA and are analyzed under the same standards as those used in Title VII claims. Scott v. Memorial Sloan-Kettering Cancer Center, 190 F.Supp.2d 590, 599 (S.D.N.Y.2002); Jonas v. Solow Management Co., No. 99 Civ. 8583, 2005 U.S. Dist. LEXIS 798, at *10 (S.D.N.Y. Jan. 3, 2005). A plaintiff who brings a hostile work environment claim must prove that (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed because of her membership in a protected class; and (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. Scott, 190 F.Supp.2d at 598-99. “The standard for a hostile work environment claim is a demanding one. The plaintiff must prove that the conduct was offensive, pervasive, and continuous enough to amount to a constructive discharge.” Id. at 599. To establish such a claim, the plaintiff must prove that, based on the “totality of the circumstances,” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir.1998), the workplace was permeated with “discriminatory intimidation, ridicule, and insult.” Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.2000) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Although there is no “threshold magic number of harassing incidents that gives rise, without more, to liability,” Howley, 217 F.3d at 154 (quoting Richardson v. New York Department of Correctional Services, 180 F.3d 426, 439 (2d Cir.1999)) (internal punctuation omitted), the plaintiff must demonstrate either that “a single incident was extraordinarily severe” or that “a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) (citations and internal quotation marks omitted). “Among the factors to be considered in determining whether conduct is sufficiently Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 175 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 hostile under the totality of the circumstances are: frequency; severity; whether the conduct is physically threatening or humiliating; and whether it interferes with an employee's performance.” Scott, 190 F.Supp.2d at 599 (citing Harris, 510 U.S. at 23). A few harsh words do not rise to the level of an actionable offense. See McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563-64 (5th Cir.1998). *6 Ms. Thompson has failed to make out a prima facie case of harassment because she has not tied her allegations of harassment to her membership in a protected class. She testified at her deposition that she had no reason to believe that the phone calls had anything to do with her disability. (Thompson Dep. at 215). Instead, as she herself characterized them, the harassing phone calls stemmed from the plaintiff “performing her job responsibilities, not socializing on the job and dress code [sic].” (Pl. Opp. at 25). In some instances, other alleged harassment began well before Ms. Thompson's diagnosis with CTS in March 1998. (6/9/03 Statement at 2 & Exh. 2iv). It seems to have been the result of personality conflicts with her co- workers, as the plaintiff explained in her deposition: Q.... Did you get along with your supervisor? A. My supervisor was great but I didn't get along with my coworkers. And this is the reason why. I'm a hard worker. I arrived to work every morning at 7:00 even though I didn't have to be there until 8:00. I would immediately start to work. So my main thing was minding my own business and doing my job. I didn't associate with anybody. And I had a niece that was working for the Probation Department at that moment. And she said to me, if you don't start talking to these people, they are going to start harassing you. She said you have to get in a clique. * * * Q. Okay. Let's go back to Adult Service for a second. Why do you believe you were being harassed. I think you mentioned before the problems with your coworkers- A. Harassing, yes. Q. You weren't in a clique you said, right? A. Yes. It-right. Q. It didn't have anything to do with your disability at that time? A. No. At that time, remember at that time I didn't have a, I hadn't gone to any doctors or anything. (Thompson Dep. at 79, 82-83). The plaintiff has not shown that the objectionable comments and name-calling to which she was subjected at Nova Ancora and Linden House were related to her disability. 3 Ms. Thompson overheard co-workers using such terms as “gay,” “JAP,” and “tramp” at Nova Ancora. However, as the plaintiff herself noted, the harassment started after she complained to her supervisors about co-workers playing loud music. (6/9/03 Statement at 2). These incidents, although legitimately disturbing to the plaintiff, are simply not related to her disability. Therefore, Ms. Thompson has failed to make out a prima facie case of harassment on this ground. The only allegations the plaintiff has made that might reasonably appear to be related to her disability concern the theft of a chair and other equipment that the City had provided to accommodate her condition. In order to make out a prima facie case of harassment, Ms. Thompson must show that the thefts occurred because of her membership in a protected class. Her ergonomic chair and headset were stolen from Linden House after it had been closed and she was awaiting her next assignment; the mouse to her ergonomic keyboard was stolen when she was at Kings Family Services. Ms. Thompson must show that these incidents were something more than random incidents of petty theft such as might occur at any workplace. *7 Ms. Thompson made other allegations of co-workers stealing from her (6/9/03 Statement at 5 & Exh. 5ii), but has provided no evidence to support her claim of more widespread harassment. These few incidents are not pervasive enough to meet the standard for a hostile work environment claim. Two incidents of theft over a period of several years do not amount to a pervasive atmosphere of hostility, even if Ms. Thompson could provide evidence to indicate that they related to her disability. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive- Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 176 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 is beyond [the statute's] purview.” Harris, 510 U.S. at 21. Nor can she claim that the thefts unduly interfered with her performance given that she retained the use of one ergonomic chair and that the DOP replaced other stolen equipment. Accordingly, the plaintiff's allegations of harassment do not meet the demanding standard for a hostile work environment claim and should be dismissed. D. Retaliation The plaintiff next maintains that the City retaliated against her in violation of the ADA because of her repeated attempts to gain reasonable accommodation for her disability and because of her complaint to the New York State Division of Human Rights. Ms. Thompson claims she was retaliated against in that: she was denied sick leave (Thompson Dep. at 174), and that, as a result, she was docked two weeks pay (6/9/03 Statement at 1); she was assigned to a unit which required an “excessive and repetitive” amount of writing (6/9/03 Statement at 2 & Exh. 3i); and she was denied reimbursement for her medical bills (6/9/03 Statement at 5). The ADA prohibits discrimination “against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Retaliation claims under the ADA are analyzed using the same framework applied in Title VII cases. LovejoyWilson, 263 F.3d at 223. In order to establish a prima facie case of retaliation under the ADA, a plaintiff must show “that (1) the employee was engaged in an activity protected by the ADA, (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action.” Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.2000) (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999)). Under the ADA, an adverse employment action must be a “materially adverse change in the terms and conditions of employment.” Weeks v. New York State, 273 F.3d 76, 85 (2d Cir.2001) (quoting Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir.2000)). Such a change “must be more disruptive than a mere inconvenience or an alteration of job responsibilities,” and “might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Weeks, 273 F.3d at 85 (quoting Galabya, 202 F.3d at 640). *8 The plaintiff alleges that her request for sick leave was denied as an act of retaliation. However, it is clear that the denial was a result of Ms. Thompson's failure to follow DOP policy with respect to sick leave requests. he did not receive prior approval for her sick leave and provided documentation for it only when she returned to work after having been absent for eleven days. (Eichenholtz Decl ., Exh. FF). 4 Although, as Ms. Thompson states, the DOP had ample documentation of her diagnosis and her doctor's belief that she may need medical leave, she did not provide the DOP with the information that its policy required. (Eichenholtz Decl., Exh. FF). When Ms. Thompson raised the denial of sick leave as a grievance through her union, the grievance was denied at each stage. (Eichenholtz Decl., Exh. GG). Because there is no causal connection between a protected activity and the adverse employment action, but instead a failure on the part of the plaintiff to follow her employer's policy, this claim fails. Ms. Thompson also alleges that the DOP transferred her to MFIS in September 1998 despite knowing that it was not a suitable position for her in light of her disability. As discussed above, the transfer was instigated by the plaintiff because of a personality conflict with her supervisor. The DOP reasonably accommodated her at MFIS by lightening her case load. (Eichenholtz Decl., Exh. T). There is no evidence that the plaintiff's salary or responsibilities were reduced. Therefore, Ms. Thompson's transfer to MFIS cannot be considered an adverse employment action, and this claim must be dismissed. Finally, the plaintiff alleges that she was treated in a retaliatory fashion when she was denied payment for her chiropractor's bills after she filed her second workers' compensation claim in April 2002. The claim was originally denied because the City of New York Workers' Compensation Division did not have a record of the claimed injury. (6/9/03 Statement at 5 & Exh. 6ii). Ms. Thompson seems to suggest that the denial was caused by a conspiracy between the DOP, her union, and the Workers' Compensation Division. (Pl. Opp. at 18 & Exh. 8). The City disputes this and, in any event, notes that Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 177 of 195 Thompson v. City of New York, Not Reported in F.Supp.2d (2006) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 the decision was reversed on appeal. (Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment at 8; Thompson Dep. at 17). The City does not deny that the plaintiff may have suffered an adverse employment action because of the denial of her workers' compensation benefits. (Def. Memo. at 19). However, it states that because the subsequent reversal of the denial has “made plaintiff whole,” Ms. Thompson's claim that she was retaliated against by virtue of DOP interference with the workers' compensation process fails as a matter of law. (Def. Memo. at 19). However, Ms. Thompson's ultimate victory in her workers' compensation claim does not absolve the City of responsibility for its alleged retaliatory behavior. Recently, in deciding a Title VII retaliation case, the Supreme Court concluded that a 37-day suspension without pay was materially adverse even though the plaintiff was ultimately reinstated with back pay. Burlington Northern & Santa Fe Railway Co. v. White, --- U.S. ----, 2006 WL 1698953, at *13 (2006). The Court reasoned that an indefinite suspension could very well act as a deterrent to the filing of a discrimination complaint even if the suspended employee eventually received back pay. Id. Here, if the City did not have a legitimate basis for resisting Ms. Thompson's workers' compensation claim, but instead was opposing it for retaliatory reasons, the ultimate reversal of the denial does not cure the violation. The fear of loss of her benefits could well have induced Ms. Thompson not to file her workers' compensation claim. Therefore the motion should be denied as to the claim of retaliation. 5 Conclusion *9 For the reasons set forth above, I recommend that the defendant's motion for summary judgment be denied with respect to the retaliation claim and granted in all other respects. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Jed S. Rakoff, Room 1340, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objection will preclude appellate review. All Citations Not Reported in F.Supp.2d, 2006 WL 2457694 Footnotes 1 The record does not indicate the full name of the K.S.I.R. Unit. 2 The defendant argues that, by the plaintiff's own admission, she was totally disabled following her departure from the DOP in 2003, and that she was therefore not a qualified individual with a disability, as she could not perform her job functions even with reasonable accommodation. (Def. Memo. at 5 n. 1). In light of the recommendation here, this issue need not be reached. 3 The plaintiff has provided an affidavit in which a co-worker relates that when he arrived at Linden House, he was told by other probation officers that Ms. Thompson was “gay,” and that she “sat around all day long and did no work.” (Affidavit of Darnell Smith dated Dec. 27, 2005, attached as Exh. 9 to Pl. Opp., at 1). However this affidavit does not include any facts that establish that these insults were related to her disability. 4 DOP policy required that if, due to an emergency, an employee must take a leave without prior approval, she must speak personally to her supervisor regarding the situation. Ms. Thompson instead left weekly voicemail messages during the period of her absence. (Eichenholtz Decl., Exhs. EE & FF). 5 The City relied exclusively on its absence-of-injury argument, foregoing what appear in retrospect to be potentially stronger challenges to Ms. Thompson's retaliation claim, such as the argument that she cannot show any nexus between the adverse action and her having engaged in protected activity. Because it would be a waste of resources to proceed to trial on a claim that with more complete analysis may not survive summary judgment, the City should be permitted to move again with respect to the retaliation claim, raising all viable arguments. The plaintiff, of course, would then have the opportunity to counter any contentions advanced by the defendant. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 178 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 6592746 United States District Court, E.D. Missouri, Eastern Division. UNITED STATES of America, Plaintiff, Steve Wilson, Intervenor Plaintiff, v. ROBERTSON FIRE PROTECTION DISTRICT, et al., Defendants. No. 4:12CV1232 CDP. | Dec. 16, 2013. Attorneys and Law Firms Hilary J. Funk, Jeffrey G. Morrison, U.S. Department of Justice, Washington, DC, Nicholas P. Llewellyn, Office of U.S. Attorney, St. Louis, MO, for Plaintiff. W. Bevis Schock, Schock Law, St. Louis, MO, for Intervenor Plaintiff. Charles H. Billings, Bruntrager and Billings, Natalie J. Higgins, Steven J. Hughes, Pitzer Snodgrass, P.C., St. Louis, MO, for Defendants. MEMORANDUM AND ORDER CATHERINE D. PERRY, District Judge. *1 The United States has brought suit against Robertson Fire Protection District (the District), alleging that it retaliated against employee Steve Wilson because he refused to engage in discrimination against two African American firefighters and provided testimony favorable to the firefighters in their discrimination suit against the District. Shortly after the United States filed its complaint, Wilson moved to intervene as plaintiff, add his own claims, and add District fire chief David Tilley as a defendant. I granted his motion. The action is now before me on two motions for partial summary judgment. Defendants seek a judgment that any allegedly retaliatory acts that took place outside the 300- day Title VII filing period or outside the four-year statute of limitations under 42 U.S.C. § 1981 cannot be part of this suit. Possibly in the alternative, defendants initially sought summary judgment that Wilson failed to exhaust his administrative remedies as required by the Missouri Administrative Procedures Act, Mo.Rev.Stat. § 536.010 et seq., and that some or all of the plaintiffs' claims are therefore barred. 1 Plaintiff United States seeks summary judgment that the District's extension of a “last chance agreement” governing Wilson's employment was a materially adverse action; that no rational trier of fact could fail to find a causal connection between the extension of the LCA and Wilson's protected activity; and that therefore, the United States has established, as a matter of law, a prima facie case that the District retaliated against Wilson. For the reasons described below, I will grant in part defendants' motion and deny plaintiff's motion. I. Summary Judgment Standard The summary judgment standards are well established, and they do not change when both parties have moved for summary judgment. See Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983). In determining whether to grant either party's motion, the court views the facts-and any inferences from those facts-in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co ., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of establishing that (1) it is entitled to judgment as a matter of law and (2) there are no genuine issues of material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, however, the non-moving party may not rest on the allegations in its pleadings but must, by affidavit and other evidence, set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). Where a factual record taken as a whole could not lead a rational trier of fact to find for the nonmovant, there is no genuine issue for trial. Matsushita, 475 U.S. at 587. II. Background 2 September 2006 Disciplinary Actions Steve Wilson, who is white, began working for the District as a firefighter in 1980. Eventually, he was promoted Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 179 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 to battalion chief, a position two ranks below the fire chief. In September 2006, the District took a series of disciplinary actions against Wilson. On September 6, it demoted Wilson to private, the lowest rank of any firefighter within the District. The letter informing Wilson of his demotion, signed by Chief Tilley, states that he would have “no opportunity for advancement in rank for a period of five years.” (Doc. 43-4.) The District then suspended Wilson twice, on September 11 and September 19. Finally, on September 21, 2006, the District terminated Wilson. *2 The parties dispute the reasons behind the District's decisions to demote, suspend, and ultimately fire Wilson. Defendants argue that the decisions were motivated by Wilson's violation of District rules and Missouri state law. Plaintiffs contend they were motivated by Wilson's refusal to engage in discriminatory conduct toward two African American firefighters, Ephraim Woods, Jr. and Lamont Downer. Last Chance Agreement At that time, District employees ranked as battalion chief or below, including Wilson, were represented by the International Association of Firefighters Local 2665: Professional Fire Fighters of Eastern Missouri. Wilson grieved his demotion, suspensions, and termination through the union. In October 2006, Wilson and the District entered into a last chance agreement (LCA). The LCA required Wilson to accept his demotion and suspensions and to “maintain job performance and conduct” in accordance with the District's rules, regulations, policies, and procedures. (Doc. 42-2 .) The LCA indicated that it would be reviewed after one year, in October 2007. The LCA was accepted by the District's Board of Directors, which conditioned its acceptance on Wilson's referral to the Employee Assistance Program for counseling and that he have “no opportunity to serve in any capacity above backup Engineer” or to “bid for Engineer by seniority” 3 until after the one-year review in October 2007. The Board declared that those restrictions “may or may not be removed” at the time of the one-year review. (Id.) The three Board members, as well as Wilson and Chief Tilley, signed the LCA; Wilson thus explicitly accepted the Board's conditions. Wilson returned to the District under the terms of the LCA, working as a backup engineer at the rank of private. In October 2007, at the one-year review, the District extended the LCA until June 2008. The letter informing Wilson of the extension states that the “primary reason” was “because of not having a reasonable amount of time to evaluate your performance due to your extensive absences in 2007.” 4 On February 21, 2008, while the LCA was still in effect, Wilson's shift supervisor conducted an evaluation of Wilson's performance, rating it as “exceeding the supervisor's expectations on nearly all performance factors.” (Doc. 45-9.) EEOC Charge of Discrimination A week after the performance evaluation, on February 28, 2008, Wilson filed a charge of discrimination with the EEOC and the Missouri Commission on Human Rights, alleging that the District and Chief Tilley had tried to involve him “in a pattern of discrimination against Black employees of the District.” Wilson alleged that his demotion, suspension, termination, denial of promotion, and probation with the LCA, which had “been extended for no legitimate reason” were motivated by his association with, and refusal to engage in discriminatory conduct toward, the District's African American employees. In the section marked “Cause of Discrimination Based On,” Wilson checked boxes for “race” and “retaliation.” In the space marked “Date Discrimination Took Place,” Wilson wrote, “Various acts in late 2007” and checked a box marked “Continuing Action.” (See EEOC/MCHR Charge, Doc. 42-3, p. 2.) Woods and Downer Lawsuit *3 Meanwhile, the United States had filed suit against the District, alleging that it had discriminated against Woods and Downer, two African American firefighters, on the basis of their race. As part of that lawsuit, on March 10, 2008, the United States deposed Wilson. During his deposition, Wilson testified that since approximately 1990, he had been acting as the District's computer administrator. He stated that shortly after Woods and Downer had been terminated, Chief Tilley directed him Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 180 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 to “go through the two niggers ['] computers to find any dirt you can, like porn, or anything you can find, because I'm sure there's something there.” (Wilson Dep. 13:1-7, Doc. 42-1.) Wilson testified that he refused because “it just didn't sound right.” (Id. 17:9.) Defendants dispute that this conversation occurred. The District's Board of Governors met on March 25, 2008, and discussed Wilson's deposition. The Board concluded that Wilson had lied. The following day, March 26, 2008, District assistant chief Maynard Howell began preparing a document that listed issues with Wilson's job performance from March 3, 2008 to April 6, 2008. Firefighter Training Conference During the first week of April 2008, Wilson and other District employees attended a firefighter training conference in Indianapolis. On April 2, before the conference took place, assistant chief Howell emailed Wilson, stating that if Wilson chose to stay in a downtown hotel, rather than the airport hotel the District had booked, he would not be reimbursed for the expense. Wilson went ahead and stayed with his spouse at the downtown hotel. Wilson had done this on prior occasions at similar conferences. (Wilson Aff., Doc. 55-6.) On April 21, Howell sent Wilson another email, stating: I told you on two separate occasions not to get a room ... It is apparent that you chose to ignore my directive to utilize the room that we had reserved for you. This type of action could jeopardize you attending future classes. Also you can consider this a verbal warning for not following my directive to utilize the room that we had reserved. In the event that the Fire District is billed for the two nights that you failed to stay where instructed, further discipline may be warranted. I emailed you on April 2, 2008 with this information, and I also gave you a hard copy of the email ... (Doc. 45-15.) At some point before issuing this warning, Howell told the District's Board about this issue. Deposition Transcripts Later that month, on April 29, 2008, the Board approved a settlement in the Woods and Downer lawsuit. The United States Department of Justice issued a press release about the settlement on May 23, 2008. Sometime later, Chief Tilley directed assistant chief Howell to place the deposition transcripts from the lawsuit in the battalion chief's office, where they were available for review by other District employees. On June 5, 2008, Wilson emailed his battalion chief to ask that the depositions be moved. Once the Board knew the depositions were available for general viewing, it decided to have them moved. Boot Incident *4 Shortly before that, on June 3, 2008, Wilson had complained to the battalion chief that he had found gravel and dirt in one of his bunker boots. Wilson stated that he had no time to clean out the boot before going on a call, so he waited until afterward, then swept the particles down a firehouse drain. The battalion chief emailed assistant chief Howell and Chief Tilley to inform them of Wilson's complaint, and Tilley directed Howell to conduct an investigation. In a memo to Tilley, Howell stated that he spoke with Wilson and the battalion chief about the incident, as well as to each shift of firefighters about tampering with one another's personal belongings. In that same memo, Howell reported that he accused Wilson of lying during his deposition. 5 He concluded his memo by stating that Wilson was “making a false allegation [about the dirt and rocks in his boot] based on the lack of evidence that could be documented.” (Doc. 45-8, p. 4.) On June 10, 2008, the District conducted another review of Wilson's performance, rating it as “generally meeting supervisor's expectations on most performance criteria,” one level below the previous review. (Doc. 45-19, p. 6.) Extension of LCA On June 30, 2008, Wilson's battalion chief hand-delivered to Wilson two letters from Chief Tilley, per Tilley's instructions. One letter alerted Wilson that although the Woods and Downer deposition transcripts were Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 181 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 public and would be made available for review upon request, the District did “not intend to promote review” and had moved them to Tilley's office in response to Wilson's request. In that letter, Tilley thanked Wilson for bringing the matter to his attention. The other letter, also signed by Tilley, indefinitely extended the LCA governing Wilson's employment. It did not give any rationale for the extension. Amended EEOC Charge On August 22, 2008, Wilson filed an amended charge of discrimination with the EEOC and the MCHR. He included a narrative describing the allegedly retaliatory actions the District and Chief Tilley took against him in 2006 and 2007. These actions included those I described above, plus several additional incidents. 6 Wilson also recounted allegedly retaliatory incidents that occurred since his February 28 filing. He alleged that after he gave his deposition, Chief Tilley “gathered all personnel on all shifts and showed all the firefighters” Wilson's February 2008 EEOC charge. He also alleged that he signed up to take a test for an open position of assistant chief/training officer, but no one contacted him about taking the test. The testing did occur, and another firefighter got the job. Finally, he alleged that the firefighters' schedules had been “shifted around” so that he would almost never be allowed to drive the fire truck, which he alleged “represents an opportunity for career advancement.” The parties agree that Wilson was officially removed from the LCA on March 13, 2009. Complaints *5 The United States filed suit against the District on July 11, 2012, bringing one claim of retaliation under Title VII, 42 U.S.C. § 2000e, et seq. In the complaint, the United States alleged that because Wilson had refused to engage in discrimination against Woods and Downer and had provided deposition testimony in their favor, the District had “subject[ed] him to a probationary status, and repeatedly continu[ed] that probationary status, that prevented him from being promoted or using his seniority rights to obtain an Engineer position.” It alleged that even after removing Wilson from the LCA, the District “maintains Wilson on a defacto probationary status that prevents or limits his ability to fairly seek promotions or advancement.” (Compl., ¶¶ 37, 39, 41.) On September 9, 2012, Wilson intervened as plaintiff and filed an additional complaint, adding Tilley as a defendant. Similarly to the United States, he brought a Title VII retaliation claim against the District. Wilson also brought a claim against both the District and Tilley for violating 42 U.S.C. § 1981 by engaging in the series of allegedly discriminatory acts that he had described in his amended EEOC charge. Wilson sought compensatory damages from the District and both compensatory and punitive damages from Tilley. III. Defendants' Motion for Partial Summary Judgment I will address defendants' motion for partial summary judgment first. Defendants initially sought summary judgment on three issues: the filing period under Title VII, the statute of limitations under 42 U.S.C. § 1981, and the exhaustion of administrative remedies requirement under the Missouri Administrative Procedures Act, Mo.Rev.Stat. § 536.010 et seq. As defendants have apparently conceded that MAPA does not apply to the claims in this case, 7 I will deny as moot that portion of their motion. See also MAPA, Mo.Rev.Stat. § 536.100 (judicial review provided for persons who exhaust administrative remedies “unless some other provision for judicial review is provided by statute”; MAPA does not “prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section”); Krohn v. Forsting, 11 F.Supp.2d 1082, 1085 (E.D.Mo.1998) (“As an initial matter, the Court rejects as meritless defendants' unsupported argument that the requirements of Missouri administrative procedure law should be grafted onto plaintiff's federal [FMLA] claim.”). A. Title VII Filing Period Although not through the procedures contemplated by MAPA, exhaustion of administrative remedies is a prerequisite for filing actions in federal court alleging claims under Title VII. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994); see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974) (Title VII “specifies with precision the jurisdictional prerequisites Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 182 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 that an individual must satisfy before he is entitled to institute a lawsuit.”). If an individual also files with an appropriate state or local agency, he has 300 days from the date of an alleged unlawful employment practice to file a discrimination charge with the EEOC. See Hutson v. Wells Dairy, Inc., 578 F.3d 823, 825 (8th Cir.2009). He must file an EEOC discrimination charge before proceeding to federal court. Williams, 21 F.3d at 222. *6 In this case, Wilson filed his first EEOC charge on February 28, 2008. Because he filed with both the EEOC and the applicable state agency, the Missouri Commission on Human Rights, his charge was timely only as to discrete retaliatory acts that occurred on May 4, 2007 or later. 8 The parties do not dispute this; they only dispute what I should do about it. According to plaintiffs' separate briefs in opposition, as well as an email attached as an exhibit, neither plaintiff is basing any Title VII claim on allegedly retaliatory acts that occurred before this date. (See Docs. 54, p. 3, 54-5, p. 1, 60, p. 4). Defendants argue that I should therefore grant this portion of their motion; plaintiffs believe denying it as moot is the better course of action. I agree with defendants that granting this portion of their motion, as uncontested, is more appropriate. However, in their reply brief, defendants suggest that, by granting the motion, I would bar plaintiffs from “adducing evidence” at trial of events that occurred before the statutory period. This is not so. See Morgan, 536 U.S. at 113 (300-day filing period does not bar plaintiffs from using prior discriminatory acts as background evidence in support of a timely claim). Admissibility of evidence is more appropriately addressed at trial or in a motion in limine. In any event, the parties have not briefed, and I decline to decide, any issue of admissibility at this time. B. Section 1981 Statute of Limitations Section 1981, like Title VII, prohibits employers from retaliating against employees for opposing racial discrimination. See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 454-55 (2008); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1146 (8th Cir.2012). The Eighth Circuit has held that the retaliation analysis underlying Title VII and Section 1981 claims is the same and that, therefore, courts “may look to Title VII precedent to inform our analysis of the elements under § 1981.” Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1030 (8th Cir.2013). Claims brought under Section 1981 are governed by a four-year statute of limitations. See 28 U.S.C. § 1658; Jackson v. Homechoice, Inc., 368 F.3d 997, 999 (8th Cir.2004). Retaliation claims may be based on either a discrete act of discrimination, such as demotion or termination, or a “continuing violation,” such as the provision of a hostile work environment. See, e.g., Clegg v. Ark. Dep't of Corr., 496 F.3d 922, 929 (8th Cir.2007). To succeed under either theory, a plaintiff must show that he suffered a materially adverse action. For the purpose of a retaliation claim, an employment action is materially adverse if “a reasonable employee in the plaintiff's position might have been dissuaded from making a discrimination claim because of the employer's retaliatory actions.” Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir.2007) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). A materially adverse action need not necessarily “affect the terms or conditions of employment,” see Clegg, 496 F.3d at 928, but it must produce “an injury or harm.” Burlington N., 548 U.S. at 67. *7 If an individual bases a retaliation claim on a discrete act-such as a demotion-that act must have occurred within the four-year period before he brought suit. However, if an individual alleges that he was subject to a hostile work environment, his claim will not be time- barred “so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” Morgan, 536 U.S. at 122. Here, defendants argue that Wilson was-at most- subjected to a series of discrete acts, and therefore may only base his Section 1981 retaliation claim on actions that occurred after August 7, 2008, four years before Wilson moved to file his intervenor complaint in this suit. Wilson, however, contends that his retaliation claim is based on the “cumulative effect of individual acts” that are all part of the same unlawful employment practice. He argues that his employment was governed by the Last Chance Agreement until March 13, 2009, and that having to work under an LCA with no end date “was surely adverse to Wilson and would deter any employee resisting discrimination.” Because the continuation of the LCA fell within the four-year statute of limitations governing Section 1981 claims, Wilson believes that under a “continuing violation” theory, he should be able to seek relief for all the allegedly retaliatory acts he suffered. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 183 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 I disagree. Even assuming all the retaliatory acts are part of the same unlawful employment practice, none of them occurred within the four-year statute of limitations. The continuation of the LCA is the only timely act Wilson mentions, and that is not an act at all. The decision to extend an employee's probationary status could constitute a materially adverse action, by itself or in conjunction with other acts. See, e.g., Bicknell v. City of St. Petersburg, No. 8:03CV1045, 2006 WL 560167, at *9 (M.D.Fla. Mar. 7, 2006) (extension of employee's probation was arguably adverse because it delayed her promotion). But the mere fact that an employee's probation continued into the four- year period preceding his lawsuit-without any action whatsoever by the employer-is an effect of an allegedly retaliatory act (or series of acts) and not an act in itself. It cannot support a continuing violation theory. In Delaware State College v. Ricks, the Supreme Court held that the applicable limitations period began to run when the plaintiff was denied tenure, not when his employment was terminated a year later. 449 U.S. 250, 258 (1980). Termination of employment at the plaintiff's university was a “delayed, but inevitable, consequence of the denial of tenure.” Id. at 257-58. Therefore, the alleged discrimination occurred “at the time the tenure decision was made and communicated” to the plaintiff. This was the case “even though one of the effects of the denial of tenure-the eventual loss of a teaching position-did not occur until later.” Id. at 258 (emphasis in original). Likewise, in this case, the District's decisions to extend the LCA in October 2007 and June 2008 are the relevant acts, not the fact that the LCA remained in place until March 2009. It is true that the definition of “materially adverse” is broader in retaliation cases than in discrimination cases. See Clegg, 496 F.3d at 928. But this more expansive definition does not encompass “act.” Maintaining the status quo, without more, is not an act sufficient to support a claim of continuing retaliation. See Ricks, 449 U.S. at 257. (“Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.”); DeNovellis v. Shalala, 124 F.3d 298, 309 (1st Cir.1997) (although plaintiff had been reassigned to sham detail and the reassignment had not been remedied by the time the applicable limitations period began, court's focus “is the date the employer made the allegedly discriminatory decision to detail him, even though the decision's effects still persisted after that effective date”). *8 Accordingly, I will grant this portion of defendants' motion for partial summary judgment. IV. Plaintiffs' Motion for Partial Summary Judgment Plaintiff United States seeks summary judgment that the District's extension of the LCA governing Wilson's employment was a materially adverse action; that no rational trier of fact could fail to find a causal connection between the extension of the LCA and Wilson's protected activity; and that therefore, the United States has established, as a matter of law, a prima facie case of retaliation against Wilson. Absent direct evidence of retaliation, an employee may prove retaliation by using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U .S. 792, 802 (1973). See Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 502 (8th Cir.2005). Under this burden-shifting framework, “an employee has the initial burden of establishing a prima facie case of retaliation.” Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir.2010). To establish a prima facie case, an employee must show: (1) he engaged in protected conduct; (2) he suffered materially adverse employment action; and (3) the materially adverse action was causally linked to the protected conduct. Id. at 1077-78. Though the McDonnell Douglas burden-shifting framework describes additional steps, the United States' motion for partial summary judgment only concerns its initial burden to establish a prima facie case. A. Extension of LCA Not Materially Adverse As A Matter of Law As described above, an action is “materially adverse” if “a reasonable employee in the plaintiff's position might have been dissuaded from making a discrimination claim” because of it. Higgins, 481 F.3d at 589. In this case, the United States argues that the June 2008 extension of the LCA governing Wilson's employment was, as a matter of law, materially adverse. The extension limited Wilson's ability to obtain a promotion by including a condition that he have “no opportunity to serve in any capacity above backup Engineer.” (Doc. 42-2.) The United States argues, therefore, that it constituted an “adverse employment action” under even the more stringent standard governing Title VII discrimination (as opposed to retaliation) claims. See Clegg, 496 F.3d at 928-29. According to the United States, because the extension of the LCA affected the Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 184 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 terms of Wilson's employment, it must be considered a materially adverse action. Defendants respond that the extension “changed nothing with respect to Wilson's employment status, pay, terms or conditions; it merely continued the status quo which had existed between the parties since Wilson voluntarily entered the LCA in 2006.” (emphasis in original). Further, defendants point out that, according to the terms of the demotion notice Wilson received in September 2006, he already could not seek promotions for a period of five years. *9 In Lewis v. City of Chicago Police Department, a female police officer volunteered to work a security detail for a meeting of the International Monetary Fund. 590 F.3d 427, 436 (7th Cir.2009). She considered the detail to be useful training and an opportunity to earn overtime pay. The defendant police department denied her request. When defendant moved for summary judgment, the district court found a question of fact about whether its action was “materially adverse.” After a jury trial, the police officer appealed to the Seventh Circuit, arguing that the failure to assign her to the IMF detail was “materially adverse as a matter of law, and so the court should not have posed the question to the jury.” Id. at 436. The Seventh Circuit rejected this argument, holding that the material adversity of any given action is sometimes a question of law and sometimes a question of fact: It is true that some cases present obvious examples of materially adverse actions being taken against employees. For example, courts should not generally task juries with determining whether terminations, demotions or salary cuts are materially adverse actions. But there are times where the question is not so obvious, and this case presents one of those instances. Id. (holding that there were questions of fact about how much overtime pay and training the IMF detail would really have provided); see also Burlington N., 548 U.S. at 71 (holding that reassignment of job duties was not “automatically actionable” but upholding jury's finding that it was materially adverse in that case). In this case, there are facts and inferences in dispute that, like in Lewis, prevent summary judgment on the issue of whether the extension of the LCA was “materially adverse.” For example, Wilson was working under the October 2007 LCA extension when he filed his first EEOC charge, which might tend to show that a reasonable employee would not have been discouraged from filing a discrimination claim while working under the LCA. However, unlike its predecessor, the June 2008 LCA extension was indefinite and did not provide Wilson with any rationale or deadline for review. This might tend to make it more likely that it would discourage a reasonable employee from making a discrimination claim. Further, there is a question of fact about whether the LCA and its extensions superseded the 2006 demotion notice, which might have limited Wilson's opportunities for advancement in the same way the LCA did. In short, I find that when I take both the facts and their concomitant inferences in the light most favorable to the defendants, genuine issues of material fact remain and the United States is not entitled to summary judgment on this issue. B. Causal Connection Not Established As A Matter of Law Even assuming there were no issues of fact preventing a finding that the June 2008 LCA extension was materially adverse, I could not find that the United States had shown, as a matter of law, a causal connection between that act and Wilson's protected activities. Again, there are issues of fact-and inferences that may be drawn from those facts-that preclude summary judgment. For example, the parties agree that some three months passed between Wilson's latest protected activity (testifying on behalf of Woods and Downer) and the extension of the LCA. Further, that the LCA would be reviewed in June 2008 was already established. Both of these facts weigh in favor of no causal connection. See, e.g., Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 980, 986 (8th Cir.2011) (no inference of retaliation based on temporal proximity alone when interval is measured in months). *10 However, “all was not well” during that three-month period between Wilson's deposition and the extension. Heaton v. The Weitz Co., Inc., 534 F.3d 882, 888 (8th Cir.2008). One of Wilson's superiors began keeping a log of problems with Wilson's employment the day after the District's Board of Governors was informed about the deposition and concluded that Wilson had lied. Seemingly minor incidents, such as Wilson finding gravel in his Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 185 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 boot, were reported to the Board during that time, and Wilson received a performance evaluation that- although not negative-was lower than those he had received previously. A reasonable jury could find that “there was a pattern of adverse actions against [Wilson] beginning shortly after [his protected activity] ... and lasting until” the June 2008 extension. Id. On the other hand, a reasonable jury might weigh this evidence lightly and might ultimately find that the United States has failed to show even an inference of causation. See Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.2012) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”). In short, the United States is not entitled to summary judgment on the causal connection between Wilson's protected activity and the June 2008 LCA extension. C. Prima Facie Case of Retaliation Not Established As A Matter of Law Because the United States has not shown that it is entitled to summary judgment, as a matter of law, on the material adversity of the June 2008 LCA extension or on the causal relationship between Wilson's protected conduct and that extension, it has not shown that it has established a prima facie case of retaliation. Therefore, I will deny the third request of its summary judgment motion. V. Conclusion For the reasons stated above, I will grant summary judgment to defendants on the issues of the Title VII filing period and the 42 U .S.C. § 1981 statute of limitations. I will deny as moot defendants' request for summary judgment on the issue of exhaustion of administrative remedies under the Missouri Administrative Procedures Act. I will deny in its entirety plaintiffs' motion for partial summary judgment. Accordingly, IT IS HEREBY ORDERED that defendants' motion for partial summary judgment [# 41] is granted in part and denied in part. Parts I and II are granted. Part III is denied as moot. IT IS FURTHER ORDERED that plaintiffs' motion for partial summary judgment [# 44] is denied. All Citations Not Reported in F.Supp.2d, 2013 WL 6592746, 121 Fair Empl.Prac.Cas. (BNA) 677 Footnotes 1 It appears that the defendants withdrew their request for summary judgment on this issue in their reply briefs. See Defs.' Reply to Wilson, Doc. 67, p. 7 n. 1; Defs.' Reply to United States, Doc. 68, pp. 3-4. As stated below, I will deny as moot this portion of their motion. 2 The following facts are undisputed unless otherwise indicated. 3 “Engineer” is the term used for the firefighter who drives the fire truck. 4 Wilson apparently took two months of sick leave in 2007. (See First LCA Extension, Defs.' Ex. FF; EEOC Amended Charge Narrative, Defs.' Ex. II, p. 131, ¶ 12.) 5 Howell wrote, “I told him that he lied on his deposition about me when I came over and told him to get whatever information he had on Woods & Downer because we had to provide that to the Justice Department. I told him in his deposition that he said I told him to get whatever dirt he could find on Woods & Downer. He said the court reporter copied it down wrong because that is not what he said. We then ended our discussion.” (Doc. 45-8, p. 3.) 6 Wilson recounts, among other things, the following: during the October 2006 meeting in Tilley's office in which Wilson signed the LCA, Tilley allegedly stated that if Wilson did not help the younger firefighters as Tilley requested, or did something Tilley did not like, or if Wilson's wife ran for the District's Board of Directors as she was contemplating, “this is you.” Tilley then pushed a heavy book off his desk. (See Doc. 58-35, pp. 130-31.) Later, after Wilson returned from sick leave in 2007, his “Battalion Chief' letters on the back of his jacket had been torn off and looked unprofessional. In August 2007, Wilson requested to take part in a “fire marshal mentoring program” wherein the retiring fire marshal would mentor his successor. Tilley denied Wilson's request, citing the terms of the LCA. 7 In one of their reply briefs, defendants wrote, “Defendants understand that exhaustion of the provisions of the Missouri Administrative Procedures Act may not be required in order for a plaintiff to file suit under 42 U.S.C. [§ ] 1981 or Title VII.” Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 186 of 195 U.S. v. Robertson Fire Protection Dist., Not Reported in F.Supp.2d (2013) 121 Fair Empl.Prac.Cas. (BNA) 677 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 In the other, defendants wrote in a subheading: “Defendants' Arguments Made Pursuant to the Missouri Administrative Procedures Act Do Not Apply to the United States.” 8 Neither the United States nor Wilson is bringing a hostile work environment claim under Title VII. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 187 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2005 WL 1406026 United States District Court, E.D. Pennsylvania. Max WEISMAN v. BUCKINGHAM TOWNSHIP, Buckingham Township Board of Supervisors, Raymond Stepnoski, Henry Rowan, and Janet French No. Civ.A.04-CV-4719. | June 14, 2005. Attorneys and Law Firms Stacy G. Smith, Levin Legal Group, P.C., Huntingdon Valley, PA, for Max Weisman. David M. Maselli, Wright & O'Donnell, Conshohocken, PA, for Buckingham Township, Buckingham Township Board of Supervisors, Raymond Stepnoski, Henry Rowan, and Janet French. MEMORANDUM AND ORDER JOYNER, J. *1 By way of the motion now pending before this Court, Defendants move for the dismissal of Counts I, VI, VII, VIII and IX of Plaintiff's Amended Complaint. For the reasons discussed below, the motion shall be granted in part. Factual Background Plaintiff, Max Weisman, first became employed by Defendant Buckingham Township in September, 1998 as the Finance Director. In November, 1999, Plaintiff was appointed by the Buckingham Township Board of Supervisors to the position of Interim Township Manager and then in February, 2000 was offered the position of Township Manager. 1 (Amended Complaint, ¶ s18-21). Between February and June, 2000, when he presented them with proposed written employment and severance agreements covering his salary, vacation time and other benefits, Plaintiff negotiated the terms of his employment as Township Manager with the Supervisors. Although Defendants never actually signed the proposed written agreements, Plaintiff alleges that they did implement the terms proposed therein and continued to assure him that the written contracts would be signed in due course. (Am. Compl., ¶ s 22-29). Mr. Weisman has been suffering from depression since he was a teenager and, in or about November, 1997, was diagnosed as suffering from bi-polar disorder, panic disorder and major depression. (Am.Compl., ¶ 14). To the best of Plaintiff's knowledge, however, no one at the Township knew that he suffered from these conditions, as he was able to perform the essential functions of his jobs with the Township except during acute and temporary episodes. (Am.Compl., ¶ s16, 33). In March, 2001, Plaintiff required an extended leave to donate a kidney to a relative. At that time and pursuant to what Plaintiff alleges was “an unwritten but regularly implemented policy, practice and/or custom of the Township,” he was advanced two weeks of sick leave so that he would not have a lapse in salary while he was out. (Am.Compl., ¶ s31-32). On December 2, 2002, Plaintiff left work around lunchtime because of symptoms related to his depressive illness and, after seeing his doctor on December 4, began intensive treatment in a partial hospitalization program on December 6, 2002. 2 On December 12, 2002, Defendant Raymond Stepnoski, the then-Chairman of the Board of Supervisors, sent Plaintiff a letter giving formal notice that the township was treating his absence from work as being covered under the Family Medical Leave Act, effective December 2, 2002 and that he was a “key employee” within the meaning of the FMLA. (Am.Compl., ¶ 37). On December 20, 2002, Plaintiff was paid for all of his accrued sick, personal and vacation time and was thus not advanced two weeks of sick leave as he had been in March, 2001. When Plaintiff asked Ms. Cozza why he had not been advanced sick leave, she informed him that although she had done the paperwork to advance him the leave, Mr. Stepnoski had directed her not to do so. (Am.Compl., ¶ s38-39). *2 Although Plaintiff had initially advised Township Human Resources Director Dana Cozza that he was suffering from pneumonia and it was pneumonia which was referenced in Mr. Stepnoski's December 12 th letter, on December 30, 2002, Mr. Weisman disclosed the Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 188 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 true nature of his illness to Ms. Cozza through a letter accompanying his completed medical forms and requesting that the information be kept confidential. (Am.Compl., ¶ s36, 40). In that same letter, Plaintiff also informed Defendants that he was disabled and requested accommodations due to his disability and that he be paid according to the disability provisions in his employment contract. While acknowledging that they had been made aware of Mr. Weisman's disability, the defendants did not offer to engage in any interactive process and did not pay Plaintiff any disability benefits. (Am.Comp., ¶ s40-43). Thereafter, in January, 2003, several local newspapers published articles indicating that Plaintiff was on an extended leave of absence and that Mr. Stepnoski was “running the Township.” Plaintiff also began hearing from other people who had either done business with the township or were otherwise associated with the township that they had heard rumors concerning his specific illness. (Am.Compl., ¶ s44-46). At the February 12, 2003 meeting of the Township Board of Supervisors, Mr. Stepnoski resigned from his position as Chairman of the Board and was then appointed by the remaining Supervisors to the paid position of “Interim Township Manager.” (Am.Compl., ¶ s55-56). On February 14, 2003, Plaintiff dual filed complaints with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission against the defendants for their refusal/failure to provide him with rights and benefits to which he was entitled and alleging violations of the Pennsylvania Human Relations Act, the Americans with Disabilities Act and the Family Medical Leave Act. (Am.Compl., ¶ 48). On February 28, 2003, Defendant Henry Rowan, Vice-Chairman of the Township Board of Supervisors sent Plaintiff a letter terminating him from his position effective March 1, 2003 because his FMLA leave had expired on February 24, 2003. (Am.Compl., ¶ s50-51). On July 15, 2004, Plaintiff received Notice of his Right to Sue from the EEOC. He received Notice of his Right to Sue from the PHRC on September 24, 2004. (Exhibit “A” to Amended Complaint). Mr. Weisman then filed this lawsuit on October 7, 2004, against all of the defendants for violations of the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq., the Pennsylvania Human Relations Act, 43 P.S. § 951, et. seq., the Sunshine Act, 65 Pa.C.S. § 701, et. seq., the Second Class Township Code, 53 P.S. § 65101, et. seq., and for invasion of privacy and breach of contract and/or promissory estoppel and against Defendant Stepnoski only for tortious interference with contractual relationship. As noted, Defendants now move to dismiss the plaintiff's claims under the FMLA (Count I) and the Sunshine Act (Count IX) and for invasion of privacy, breach of contract/promissory estoppel and his claim against Mr. Stepnoski for tortious interference. Standards Applicable to Motions to Dismiss *3 It has long been the rule that in considering motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the district courts must “accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000)(internal quotations omitted). See Also: Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir.1998). A motion to dismiss may only be granted where the allegations fail to state any claim upon which relief may be granted. See, Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir.1997). The inquiry is not whether plaintiffs will ultimately prevail in a trial on the merits, but whether they should be afforded an opportunity to offer evidence in support of their claims. In re Rockefeller Center Properties, Inc., 311 F.3d 198, 215 (3d Cir.2002). Dismissal is warranted only “if it is certain that no relief can be granted under any set of facts which could be proved.” Klein v. General Nutrition Companies, Inc., 186 F.3d 338, 342 (3d Cir.1999)(internal quotations omitted). It should be noted that courts are not required to credit bald assertions or legal conclusions improperly alleged in the complaint and legal conclusions draped in the guise of factual allegations may not benefit from the presumption of truthfulness. In re Rockefeller, 311 F.3d at 216. A court may, however, look beyond the complaint to extrinsic documents when the plaintiff's claims are based on those documents. GSC Partners, CDO Fund v. Washington, 368 F.3d 228, 236 (3d Cir.2004); In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426. See Also, Angstadt v. Midd-West School District, 377 F.3d 338, 342 (3d Cir.2004). Discussion A. Dismissal of Plaintiff's FMLA Claims. In enacting the FMLA, Congress explicitly recognized that “there is inadequate job security for employees who Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 189 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 have serious health conditions that prevent them from working for temporary periods.” 29 U.S.C. § 2601(a) (4). Thus, the FMLA was enacted to provide leave for workers whose personal or medical circumstances necessitate leave in excess of what their employers are willing or able to provide. Victorelli v. Shadyside Hospital, 128 F.3d 184, 186 (3d Cir.1997), citing 29 C.F.R. § 825.101. One of the chief goals of the Act was “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, ... and to entitle employees to take reasonable leave for medical reasons, ... and to accomplish [those] purposes in a manner that accommodates the legitimate interests of employers ...” 29 U.S.C. § 2601(b)(1)-(3). See Also, Churchill v. Star Enterprises, 183 F.3d 184, 192 (3d Cir.1999). To accomplish these goals, “... an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period ...” 29 U.S.C. § 2612(a)(1). Upon return from leave, the employee is entitled “to be restored by the employer to the position of employment held by the employee when the leave commenced,” or “to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). *4 In addition to these provisions, the FMLA also prohibits employers from interfering with, restraining or denying an employee's exercise or attempted exercise of his leave rights, from discharging or in any other manner discriminating against an employee for opposing any practice made unlawful by the Act or for filing any charges or instituting any proceedings related to the Act. 29 U.S.C. § 2615. Under the FMLA's companion regulations, the employer must communicate with employees regarding their rights under the FMLA, providing individualized notice to employees regarding their FMLA rights and obligations. Fogelman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581, 587 (3d Cir. Dec.23, 2004); 29 C.F.R. § 825.208(a). Courts have thus recognized that the FMLA creates two distinct causes of action. Coppa v. American Society for Testing and Materials, Civ. A. No. 04-234, 2005 U.S. Dist. LEXIS 8737 at *4 (E.D.Pa. May 11, 2005); Callison v. City of Philadelphia, Civ. A. No. 03-3008, 2004 U.S. Dist. LEXIS 6770 at *9-*10 (E.D.Pa. March 31, 2004). First, a plaintiff may pursue recovery under an “entitlement” or “interference” theory. This claim arises under 29 U.S.C. § 2615(a)(1), which makes it unlawful for an employer “to interfere with, restrain, or deny” an employee's rights under the FMLA. Bearley v. Friendly Ice Cream Corp., 322 F.Supp.2d 563, 570 (M.D.Pa.2004); Callison, 2004 U.S. Dist. LEXIS at *10. Under an interference claim, it is the plaintiff's burden to show (1) she is an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave notice to the defendant of her intention to take FMLA leave, and (5) the defendant denied her the benefits to which she was entitled under the FMLA. Bearley, 322 F.Supp.2d at 571; Parker v. Hahnemann University Hospital, 234 F.Supp.2d 478, 483 (D.N.J.2002). Interference claims are not about discrimination; the issue is simply whether the employer provided its employee the entitlements set forth in the FMLA such as a twelve week leave or reinstatement after taking a medical leave. Callison, 2004 U.S. Dist. LEXIS at *11, quoting Parker, 234 F.Supp.2d at 485 and Hodgens v. General Dynamics Corporation, 144 F.3d 151, 159 (1 st Cir.1998). An interference claim also arises if an employee can demonstrate that his employer did not advise him of his rights under the FMLA and that this failure to advise rendered him unable to exercise his leave rights in a meaningful way thereby causing injury. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 143 (3d Cir.2004). The second type of recovery under the FMLA is the “retaliation” theory. Retaliation claims are analyzed under the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Coppa, supra. To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that (1) she took an FMLA leave, (2) she suffered an adverse employment decision, and (3) the adverse decision was causally related to her leave. Lepore v. LanVision Systems, Inc., 113 Fed. Appx. 449, 453 (3d Cir. Oct.19, 2004); Helfrich v. Lehigh Valley Hospital, Civ. A. No. 03-5793, 2005 U.S. Dist. LEXIS 4420 at *65 (E.D.Pa. March 22, 2005). After the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If a legitimate, nondiscriminatory reason is provided, the burden shifts back to plaintiff to establish that the employer's reasons are pretextual. Coppa, 2005 U.S. Dist. LEXIS at *5, citing Baltuskonis v. U.S. Airways, Inc., 60 F.Supp.2d 445, 448 (E.D.Pa.1999). Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 190 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 *5 In this case, it appears that the plaintiff is endeavoring to state an “interference” claim in that he contends that he is an “eligible employee,” the defendant township is an “employer” and that he had a “serious health condition” within the meaning of the FMLA. (Am.Compl., ¶ s66-67). Although Plaintiff avers that he did not request FMLA leave, by letter dated December 12, 2002, Defendants notified him that it was designating his absence from work commencing December 2, 2002 as covered under the FMLA. Plaintiff further avers that Defendants interfered with and/or violated his rights under the FMLA by failing to provide him with adequate notice of his rights under the FMLA or notice that fully complied with 29 C.F.R. § 825.301(b)(1) because they failed to provide (1) notice and/or information as to the right under the policies, practices and customs of the Township to allow employees to substitute paid leave for the FMLA leave and the right to have the FMLA leave commence only after paid leaves were exhausted; and (2) notice of or information of his right to take leave intermittently or on a reduced leave schedule. (Am.Compl., ¶ 73). Plaintiff alleges that his FMLA rights were further violated by virtue of Defendants' notification (1) that he needed a fitness for duty certificate, (as the Township did not have a uniformly applied policy) and (2) that he was a “key” employee. (Am. Compl., ¶ s 74-75). Under 29 C.F.R. § 825.208(a), “[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.” 29 C.F.R. § 825.301 provides the following in relevant part with respect to employer notification: (a)(1) If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer's policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer's policies regarding the FMLA ... (2) If such an employer does not have written policies, manuals or handbooks describing employee benefits and leave provisions, the employer shall provide written guidance to an employee concerning all the employee's rights and obligations under the FMLA. This notice shall be provided to employees each time notice is given pursuant to paragraph (b) and in accordance with the provisions of that paragraph ... (b)(1) The employer shall also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The written notice must be provided to the employee in a language in which the employee is literate ... Such specific notice must include, as appropriate: *6 (i) that the leave will be counted against the employee's annual FMLA leave entitlement; (ii) any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so; (iii) the employee's right to substitute paid leave and whether the employer will require the substitution of paid leave and the conditions related to any substitution; (iv) any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse); (v) any requirement for the employee to present a fitness- for-duty certificate to be restored to employment; (vi) the employee's status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial; (vii) the employee's right to restoration to the same or an equivalent job upon return from leave; and (viii) the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 191 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 (2) The specific notice may include other information-e.g., whether the employer will require periodic reports of the employee's status and intent to return to work, but is not required to do so ... (c) Except as provided in this subparagraph, the written notice required by paragraph (b) (and by subparagraph (a) (2) where applicable) must be provided to the employee no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave (if FMLA leave is taken during the six-month period). The notice shall be given within a reasonable time after notice of the need for leave is given by the employee-within one or two business days if feasible. If leave has already begun, the notice shall be mailed to the employee's address of record ..... In reviewing the December 12, 2002 notification letter, we find no merit to the plaintiff's contention that his FMLA rights were violated by Defendants' “key employee” designation. Rather, it appears that the Township was merely complying with the requirements of the two foregoing regulations. However, under Section 2614(a)(4), “[a]s a condition of restoration under paragraph (1) for an employee who has taken leave ... the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work ...” As Plaintiff alleges that the defendant township did not have such a uniform policy, we find he has sufficiently pled a cause of action under the FMLA to withstand the instant motion to dismiss. Furthermore, under 29 C.F.R. § 825.700(a), “[a]n employer must observe any employment benefits program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” Additionally, while the regulations do not specify it, the Third Circuit's decision in Conoshenti, supra., quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89-90, 122 S.Ct. 1155, 1161, 152 L.Ed.2d 167 (2002) strongly suggests that an employer's FMLA notice should also include information regarding an employee's options to take medical leave on an intermittent basis. (“Consider, for instance, the right under § 2612(b)(1) to take intermittent leave when medically necessary. An employee who undergoes cancer treatments every other week over the course of 12 weeks might want to work during the off weeks, earning a paycheck and saving six weeks for later. If she is not informed that her absence qualifies as FMLA leave-and if she does not know of her right under the statute to take intermittent leave-she might take all 12 of her FMLA-guaranteed weeks consecutively and have no leave remaining for some future emergency. In circumstances like these, ... the employer's failure to give the notice could be said to “deny,” “restrain,” or “interfere with” the employee's exercise of her right to take intermittent leave ... ) Accordingly, we shall also deny the motion to dismiss that part of the plaintiff's FMLA claim which alleges that Defendants interfered with his FMLA rights because they failed to provide information as to the Township's policies, practices and customs to allow employees to substitute paid leave for FMLA leave and the right to have the FMLA leave commence only after paid leaves were exhausted, and of his right to take intermittent leave. Defendants are of course free to re- assert their arguments in support of dismissal should Plaintiff fail to demonstrate prejudice as a result of these alleged failures. B. Dismissal of Plaintiff's Invasion of Privacy Claim. *7 Defendants next move to dismiss Count VI of the amended complaint, which alleges that Plaintiff's constitutionally protected privacy rights were violated by the defendants' purported disclosures of his illness to the public. The constitutional right to privacy, as recognized by the U.S. Supreme Court, extends to two types of interests. C.N. ex. rel. I.N. v. Ridgewood Board of Education, 319 F.Supp.2d 483, 493 (D.N.J.2004). One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). Although the full measure of the constitutional protection of the right to privacy has not yet been fully delineated, it has been found to encompass “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education .” United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.1980), quoting Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). An employee's medical records, which may contain intimate facts of a personal nature, are also well within the ambit of materials entitled to privacy protection. Sterling v. Wayman, 232 F.3d 190, 195 (3d Cir.2000); Westinghouse, supra. See Also, Gruenke v. Seip, 225 F.3d Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 192 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 290, 302-303 (3d Cir.2000) and Doe v. SEPTA, 72 F.3d 1133, 1137 (3d Cir.1995). Defendants here move to dismiss on the grounds that the plaintiff ostensibly did not specifically allege that his medical records were either available to Defendants or were released to the public by Defendants. Rather, Plaintiff avers only that the defendants “made public and/ or caused to be published in the newspaper” that he was “ill.” Plaintiff, however, also alleges that the defendants “stated to individuals” that he “was ill and/or suffering from a mental illness. (Am.Compl., ¶ 114) Furthermore, in that portion of the Amended Complaint captioned “Facts Underlying Causes of Action,” Mr. Weisman also alleges that (1) he disclosed the true nature of his illness to the township's human resources director in a letter and via his completed medical forms, (2) that the township defendants acknowledged having been made aware of his specific disability in a letter from Mr. Stepnoski dated January 13, 2003 and (3) that other people who were associated with or did business with the township told him that they had heard rumors and/or were made aware of his specific illness. (Am. Compl., ¶ s 40, 41, 43-45). Given that under Fed.R.Civ.P. 8(a), a plaintiff need only provide “... a short and plain statement of the claim showing that the pleader is entitled to relief,” we find that these averments, taken altogether, are adequate to plead a claim for invasion of privacy. 3 We likewise find unavailing the defendants' argument that they are entitled to dismissal on the basis of qualified immunity. Qualified immunity protects governmental officials performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is clearly established if its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right. Sterling, 232 F.3d at 193, citing Kornegay v. Cottingham, 120 F.3d 392, 396 (3d Cir.1997). If a violation exists, the immunity question focuses on whether the law is established to the extent that “the unlawfulness of the action would have been apparent to a reasonable official.” Id., quoting Assaf v. Fields, 178 F.3d 170, 174 (3d Cir.1999). Thus, while a plaintiff need not show that the very action in question has previously been held unlawful, he needs to show that in light of preexisting law, the unlawfulness was apparent. Shea v. Smith, 966 F.2d 127, 130 (3d Cir.1992). *8 In this case, as is apparent from Whalen v. Roe, supra., the law was clearly established at least as of 1977 that public disclosure and/or dissemination of an individual's medical records, in the absence of a compelling competing interest on the part of the state, constituted an unlawful violation of one's constitutionally protected right to privacy. Accepting the plaintiff's averments as true that “one or more of the individual defendants made public and/or caused to be published in the newspaper that [he] was ill ... and/or suffering from a mental illness ...,” we find that qualified immunity would not be available to the individual defendants here, given the clearly established law on this issue. The motion to dismiss Count VI of the Amended Complaint is therefore denied. C. Dismissal of Plaintiff's Breach of Contract and Tortious Interference with Contract Claims. Defendants next move for the dismissal of Plaintiff's breach of contract and tortious interference with contract claims for the reason that the employment contract upon which he bases these claims was never signed. Evidence of mutual assent to employ and be employed which contains all the elements of a contract may be construed as a binding contract of employment though not reduced to writing. George W. Kistler, Inc. v. O'Brien, 464 Pa. 475, 347 A.2d 311, 315 (1975). Thus, in Pennsylvania it is possible for the parties to bind themselves orally even when contemplating a later written contract, provided that the parties have manifested mutual intent to do so and there is agreement on all aspects of the employment relationship. Overseas Strategic Consulting, Ltd. v. Larkins, Civ. A. No. 01-4115, 2001 U.S. Dist. LEXIS 16390 at *12 (E.D.Pa. Oct.10, 2001). Generally, to support a claim for breach of contract under Pennsylvania law, a plaintiff must allege: 1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003); Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 580 (Pa.Super.2003); Koken v. Steinberg, 825 A.2d 723, 729 (Pa.Cmwlth.2003). Under Pennsylvania law, a cause of action for tortious interference with contractual relations has the following elements: (1) the existence of a contractual, or prospective Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 193 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct. CGB Occupational Therapy v. RHA Health Services, Inc., 357 F.3d 375, 384 (3d Cir.2004); Milicic v. Basketball Marketing Co., Inc., 857 A.2d 689, 697 (Pa.Super.2004). In application of the foregoing principles to the case at hand, we find that the plaintiff has alleged sufficient facts to plead viable claims for breach of an employment contract and for tortious interference with the terms of that contract on the part of Mr. Stepnoski. *9 To be sure, while it is true that the amended complaint avers that the township never formally executed the proposed written agreements which Plaintiff submitted, there are also allegations that the defendants nevertheless repeatedly verbally assured Plaintiff that the agreement was acceptable and would be signed and implemented the terms of the proposed agreement by paying him the salary he had requested, giving him the use of a township vehicle, paying his dues, subscriptions and continuing education class expenses, giving him the vacation time he had requested and putting into place a life insurance policy and pension plan for him. Plaintiff further alleges that the defendants breached this agreement and damaged him by, inter alia, failing to compensate him for his disability, failing to pay him a lump sum of one-half of his salary upon termination, not allowing him to use his compensatory time off for the hours worked above and beyond regular business hours and failing to pay for health care coverage for him and his family for six months following his termination. (Am.Compl., ¶ s119-121, 125-128). Additionally, the amended complaint avers that Defendant Stepnoski, while still the Chairman of the Board of Supervisors acted intentionally and in his own self-interest to have Plaintiff dismissed from his position as Township Manager in order that he could assume the position for himself. As we find that all of these averments, read in the light most favorable to the plaintiff as the non-moving party, are sufficient to plead causes of action for breach of contract and tortious interference with contractual relations, we deny the motion to dismiss Counts VII and VIII. D. Dismissal of Plaintiff's Claim under the Sunshine Act. Finally, Defendants also seek dismissal of Count IX of Plaintiff's Amended Complaint, which asserts a claim for relief under the Pennsylvania Sunshine Act, 65 Pa.C.S. § 701, et. seq. on the grounds that Plaintiff failed to bring his legal challenge within thirty (30) days. Specifically, the plaintiff challenges the defendants' decision to designate him a “key employee” and to ultimately terminate him under the Sunshine Act as those decisions were not undertaken at an open public meeting nor were they put to a public vote. In general, the Sunshine Act requires: “Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered). 65 Pa.C.S. § 704. In lieu of discussing whether the challenged actions fall within any of the exceptions delineated in sections 707, 708 or 712, Defendants instead look to section 713 in support of their motion for dismissal of Plaintiff's Sunshine Act claim. That section provides: A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 194 of 195 Weisman v. Buckingham Tp., Not Reported in F.Supp.2d (2005) 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 or all official actions taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this chapter, all official action taken at the meeting shall be fully effective. *10 Thus, failure to initiate a legal challenge within the statutory limitations period of Section 713 bars jurisdiction by the trial court. Belitskus v. Hamlin Township, 764 A.2d 669, 670 (Pa.Cmwlth.2000), appeal denied, 565 Pa. 676, 775 A.2d 809 (2001), citing, Lawrence County v. Brenner, 135 Pa.Cmwlth. 619, 582 A.2d 79 (1989), appeal denied, 527 Pa. 652, 593 A.2d 423 (1991). In this case, it is clear from the amended complaint that Mr. Weisman knew that the Township had designated him a “key employee” upon receipt of Mr. Stepnoski's letter of December 12, 2002. He further learned that he had been terminated on or about February 28, 2003. Given that Plaintiff did not institute any legal challenge to the apparent failure of the Township to make these decisions at an open, public meeting until he filed his complaint in this action on October 7, 2004, we find that his Sunshine Act claim is barred as untimely under Section 713. Count IX of the Amended Complaint shall therefore be dismissed with prejudice. For all of the reasons set forth above, the defendants' motion to dismiss is granted in part and denied in part pursuant to the attached order. ORDER AND NOW, this 14th day of June, 2005, upon consideration of Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART and Count IX and that portion of Count I which alleges violation of Plaintiff's FMLA rights by virtue of Defendants' designation of Plaintiff as a “key employee” are DISMISSED. In all other respects, the Motion is DENIED. All Citations Not Reported in F.Supp.2d, 2005 WL 1406026, 10 Wage & Hour Cas.2d (BNA) 1163, 30 NDLR P 204 Footnotes 1 Plaintiff further avers that between November, 1999 and July, 2000, he was employed as both the Township's Manager and its Finance Director. (Amended Complaint, ¶ 20). 2 Plaintiff's Amended Complaint actually avers that his treatment commenced on December 6, 2004. However, given that all of the other time frames referenced in the amended complaint are to the year 2002, we assume that the reference to 2004 in paragraph 35 is a typographical error. 3 Of course in order to avoid summary judgment, it remains incumbent upon the plaintiff to amass evidence as to precisely what information was disseminated by the defendants, how it was disseminated and to whom. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-00743-SHR Document 19 Filed 07/22/16 Page 195 of 195 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA _______________________________ KEVIN WEVODAU, : CIVIL ACTION : Plaintiff, : CASE NO.: 16-743 v. : : (Judge Rambo) COMMONWEALTH OF : PENNSYLVANIA, OFFICE OF : ATTORNEY GENERAL, and : KATHLEEN KANE, individually : and in her official capacity, : : Defendants. : _______________________________: ORDER AND NOW this ____ day of _________________ 2016, upon of Defendants’ Motion to Dismiss Count II of the Amended Complaint, and Plaintiff’s Response thereto, it is hereby ORDERED and DECREED that Defendants’ Motion is DENIED. It is further Ordered that Defendants’ Motion to Strike Plaintiff’s Claim for Punitive Damages is DENIED as MOOT. BY THE COURT _______________________________ The Honorable Sylvia H. Rambo, J. Case 1:16-cv-00743-SHR Document 19-1 Filed 07/22/16 Page 1 of 1
