BAYLSON, District Judge.
Plaintiffs Leslie Michniewicz ("Michniewicz") and Loretta Keough ("Keough," collectively with Michniewicz, "Plaintiffs") commenced separate actions
Metasource is a business processing outsourcing company. (Jones Dep. 20:7-12.
Plaintiffs worked as document preppers under the supervision of Scott Doyle ("Doyle"). (Michniewicz Dep. 62:3-8
Neither Plaintiff was disciplined during her employment with Metasource. (Pls.' Facts ¶¶ 12-14, Def.'s Resp. to Pls.' Facts ¶¶ 12-14; & Ex. E, at 3; Doyle Dep. 61:19-23, 68:2-7.
In April 2009, Michniewicz requested and was granted leave for neck surgery, and Keough requested and was granted leave for surgery to remove a cyst. (Michniewicz Dep. 86:12-21, 92:9-93:2; Keough Dep. 46:4-12.) Michniewicz also applied for and received short-term disability benefits. (Michniewicz Dep. 93:3-23.)
In late 2008, Metasource experienced reduced demand from three customers— TastyKake, Prestige Windows, and Swift Trucking. (Doyle Dep. 108:12-111:7, 112:21-24.) During the same time-frame Metasource was contemplating the acquisition of a competitor, Capture Resources, Inc. (Doyle Dep. 22:4-23:17.) Capture Resources, located across the street from Metasource's Bristol, Pennsylvania location, performed the same nature of work as Metasource. (Doyle Dep. 18:10-17.)
Both Plaintiffs acknowledged there was less work during this timeframe (Michniewicz Dep. 61:14-20; Keough Dep. 39:16-40:19), and Michniewicz acknowledged lay offs occurred (Michniewicz Dep. 95:13-22). Although there was less work, Doyle testified that Metasource continued
As a result of less demand, Metasource reduced its workforce commensurate with the diminished workload. (Doyle Dep. 48:6-49:6.) Doyle selected the preppers to terminate based on "their prep rates[, which] consist of how fast they are, how their quality was and how accurate they were." (Doyle Dep. 59:21-24.) He also considered disciplinary issues, knowledge of the job, and attendance. (Doyle Dep. 60:4-11.) Doyle testified,
(Doyle Dep. 50:4-51:2.)
Metasource decided to discharge Plaintiffs in May 2009, when both were still on FMLA leave, and their terminations took effect on June 15, 2009. (Michniewicz Def.'s Facts ¶¶ 6, 13; Keough Def.'s Facts ¶ 7; Doyle Dep. 87:8-10.) Michniewicz was not informed of her layoff until June 2009, and the effective date of her layoff was delayed until June 15, 2009, the day when she had been "physically cleared to resume working without [medical] restrictions." (Pls.' Facts ¶¶ 25-26; Def.'s Resp. to ¶ 25-26.) Preppers were the only personnel terminated during this reduction.
Later in May 2009, Metasource acquired an additional fifteen preppers from Capture Resources. (Doyle Dep. 29:21-22, 32:19-33:5.) Doyle then reduced the Capture
(Doyle Dep. 33:15-18, 34:11-35:8.) Although he admitted he did not have access to their rates for their tenure at Capture Resources, he conducted tests on behalf of Metasource. (Compare Doyle Dep. 84:1-3; with Doyle Dep. 21:14-20, 33:12-18, 34:6-9.)
Plaintiffs dispute that Metasource terminated them because of a lack of work. Plaintiffs aver that they were not given specific reasons for their layoffs, but Metasource contends that they were told there had been a "reduction in force." (Pls.' Facts ¶¶ 25-26; Def.'s Resp. to ¶¶ 25-26.) Plaintiffs, however, contend that Metasource anticipated an increase in business once the acquisition was finalized, which occurred in May 2009. (Doyle Dep. 23:1-3.) In fact, Doyle testified that the workforce he supervised nearly doubled after the acquisition. (Doyle Dep. 27:14-21, 28:18-20.) In particular, after the acquisition, Doyle was supervising sixteen preppers.
The following chart summarizes the fluctuations in preppers in 2009.
_____________________________________________________________________________________________No. of Date Preppers Record Citation _____________________________________________________________________________________________ Beginning of year — January 2009 12 Doyle Dep. 50:4-51:2 _____________________________________________________________________________________________ Plaintiffs take leave — April 2009 7-9 Doyle Dep. 50:4-51:2 _____________________________________________________________________________________________ Termination decision — May 2009 7 Doyle Dep. 50:4-51:2 _____________________________________________________________________________________________ Immediately before merger — May 2009 4 Doyle Dep. 50:4-51:2 _____________________________________________________________________________________________ Immediately after merger — May 2009 19 Doyle Dep. 29:19-22, 32:19-33:5 _____________________________________________________________________________________________ Termination effective date — June 15, 2009 16-19 Doyle Dep. 17:9-13, 46:2-7 ______________________________________________________________________________________________ Immediately after consolidation — July 2009 16 Doyle Dep. 28:21-23 ______________________________________________________________________________________________
On July 2, 2009, and October 15, 2009,
The parties subsequently conducted discovery. Metasource filed the pending Motions for Summary Judgment, which seek to dismiss both actions in their entirety, on July 15, 2010. (Michniewicz, ECF No. 28; Keough, ECF No. 11.) Plaintiffs and Metasource submitted additional letter briefing on the issues of pretext (Michniewicz, ECF No. 37; Keough, ECF No. 20) and discriminatory statements (Michniewicz, ECF No. 39; Keough, ECF No. 21), respectively, and the Court held oral argument on September 28, 2010.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331 because Plaintiffs bring claims under the FMLA, 29 U.S.C. § 2601 et seq. Venue is proper under 28 U.S.C. § 1391(b).
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion, and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548, After the moving party has met its initial burden, the non-moving party's response must, "by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56] set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual 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, 106 S.Ct. 2548.
Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Id. Further, credibility determinations, weighing of evidence, and drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id. Notably, the court should not consider the record in piecemeal fashion, giving credence to innocent explanations for individual evidence, because a jury would be entitled to
The FMLA's "stated purposes" are "to `balance the demands of the workplace with the needs of families,' and `to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.'" Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140-41 (3d Cir.2004) (quoting 29 U.S.C. § 2601(b)(1), (b)(3)). An "eligible employee" under the FMLA, therefore, is entitled to "a total of twelve workweeks of leave during any twelve month period" if he or she has a "serious health condition that makes [him or her] unable to perform the functions of [his or her] position." 29 U.S.C. § 2612(a)(1)(D). "[F]iring an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee." Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir.2009).
Metasource seeks to dismiss Plaintiffs' interference and retaliation claims under the FMLA. The Court will address each set of claims in turn.
In seeking summary judgment relief and dismissal of the FMLA interference claims, Metasource avers that Plaintiffs have "no support for [their] interference claim[s], other than the bald allegation that [they were] terminated while [they were] on FMLA leave." (Summ J. Mots. 6.) Metasource further contends that because it is undisputed that Plaintiffs were selected for the reduction in force by their supervisor in light of their poor performance, their claims must fail because they were not terminated because they took FMLA medical leave. (Summ. J. Mots. 6-7.) Metasource points the Court to Kelley v. AmerisourceBergen Corp., No. 08-2377, 2009 WL 3127752 (E.D.Pa. Sept. 29, 2009) (Jones, J.), which purportedly has "remarkably similar" facts, and granted summary judgment in favor of the defendant. (Summ. J. Mots. 6-7.)
Plaintiffs respond that the FMLA entitles them to reinstatement, and that Metasource "in fact had available job positions for [them]," as evidenced by its hiring of at least fourteen other preppers from Capture Resources, resulting in triple the number of preppers working under Doyle. (Summ. J. Resp. 8-9.) While Plaintiffs concede that an employer need not reinstate an employee who took FMLA leave when there is a "bonafide" reduction in force, in this case, Plaintiffs assert Metasource did not fire Plaintiffs for this reason. (Summ. J. Resp. 9.)
In reply, Metasource asserts that the undisputed facts demonstrate that Plaintiffs' discharges were due to the company's reduction in force, and that additional document preppers were only brought on board later in the year, after the reduction occurred, from a company acquired by Metasource. (Summ. J. Reply 4.) According to Metasource, Doyle's and Plaintiffs' deposition testimony demonstrate that work declined prior to Plaintiffs' discharges, and that Metasource terminated eight preppers, of which two were Plaintiffs. (Summ. J. Reply 4-5.)
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" the Act. 29 U.S.C. § 2615(a)(1). Upon returning from FMLA leave, an eligible employee is "entitled to
"To assert an interference claim, the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them." Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 399 (3d Cir.2007) (quotation marks omitted). Thus, "the employee need not show that he was treated differently than others, and the employer cannot justify its actions by establishing a legitimate business purpose for its decision." Id. (quotation marks and alteration omitted). The Third Circuit has cautioned that "[a]n interference action is not about discrimination," but instead, is "about whether the employer provided the employee with the entitlements guaranteed by the FMLA," e.g. leave plus reinstatement. Id. (quotation marks omitted); Callison v. City of Philadelphia, 430 F.3d 117, 119-20 (3d Cir.2005); see also Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1267 (11th Cir.2008) (noting employer's motives are irrelevant). As such, Doyle's alleged discriminatory statements to Michniewicz do not impact the Court's analysis.
The employee bears the initial burden of showing both elements of the interference claim, and then the burden shifts to the employer to show there was no position available or that it offered the employee an equivalent position which the employee declined. Spagnoli v. Brown & Brown Metro, Inc., No. 06-414, 2007 WL 2362602, at *11 (D.N.J. Aug. 15, 2007); see Atchison v. Sears, 666 F.Supp.2d 477, 490 (E.D.Pa.2009) (indicating employer can escape liability if it can establish that it terminated employee for reason unrelated to leave).
Metasource's motions for summary judgment fail against Plaintiffs' interference claims because there is a genuine dispute of material fact regarding the legitimacy of the reduction in force. Therefore, Plaintiffs are entitled to present their evidence in a trial context. See, e.g., Marzano v. Computer Sci. Corp., 91 F.3d 497, 506 (3d Cir.1996) (concluding whether a reduction in force occurred is question of fact); Stell v. PMC Techs., Inc., No. 04-5739, 2006 WL 2540776, at *2 (E.D.Pa. Aug. 29, 2006) (Baylson, J.) (denying summary judgment in light of disputes of fact in reduction-in-force case).
A workforce reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. Barnes v. Gen-Corp Inc., 896 F.2d 1457, 1465 (6th Cir.1990). An employee is not eliminated as part of a reduction in force when he or she is replaced after his or her discharge, and an employee is replaced only when another employee is hired or reassigned to perform the terminated employee's duties. Id. A terminated employee is not replaced, however, when another employee is assigned to perform the terminated employee's duties in addition to other duties, or when work is redistributed among other remaining employees already performing related work. Id.
As illustrated in the foregoing chart, between January and July 2009, the number of preppers on staff increased from
Metasource argues that Plaintiffs cannot establish the causal link essential to a prima facie case of FMLA retaliation. (Summ. J. Mots. 8-9.) Metasource also contends that in the alternative, even assuming that Plaintiffs can do so, there is no evidence that Metasource's legitimate, non-discriminatory reason for the layoffs— that Plaintiffs' positions were eliminated as part of a reduction in force—is pretextual. (Summ. J. Mots. 8-9.) According to Metasource, "the issue of how [it] conducted its assessment of Plaintiff[s'] performance, or whether [Doyle] correctly assessed [their] skills, is beside the point," because "[i]t is the employer's assessment of the employee's skills that matters." (Summ J. Mots. 11.)
Plaintiffs respond that the facts supporting the alleged reduction in force are inconsistent and the reason as a whole is implausible, Doyle made direct discriminatory statements to Michniewicz, and the temporal proximity between Plaintiffs' FMLA leave and their terminations suggests a retaliatory motive. (Michniewicz, ECF No. 37; Keough, ECF No. 20.)
In reply, Metasource argues that Plaintiffs simply disagree with its business decision, which is insufficient to defeat summary judgment, and they focus on the "irrelevant" fact of the Capture Resources acquisition "in a transparent attempt to create the appearance of material facts." (Summ. J. Reply 4-5.) Metasource also contends that Doyle's alleged discriminatory statement is merely a stray remark and, therefore, is insufficient to establish pretext and defeat summary judgment. (Michniewicz, ECF No. 39; Keough, ECF No. 21.)
Subsection 825.220(c) of the FMLA regulations explains that the Act's "prohibition against `interference' prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights," for example by "us[ing] the taking of FMLA leave as a negative factor in employment actions," or counting FMLA leave "under `no fault' attendance policies." 29 C.F.R. § 825.220(c). Although such language speaks to retaliation in the context of FMLA interference, the Third Circuit, along with other courts of appeals to have considered the question, have determined that "claims that an employee has been discharged in retaliation for having taken an FMLA leave" violate subsection
For such claims, the Third Circuit requires a plaintiff to establish a prima facie case of retaliation under the FMLA, by "show[ing] that (1) he [or she] took an FMLA leave, (2) he [or she] suffered an adverse employment decision, and (3) the adverse decision was causally related to his [or her] leave."
Once a plaintiff has shown a prima facie case of retaliation under the FMLA, "the familiar burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)," applies, such that "the burden of production then shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action," and if this is met, the burden of production shifts back to the plaintiff, who "must prove by a preponderance of the evidence that [the] defendant's proffered reason was a pretext for discrimination." Parker v. Verizon Pa., Inc., 309 Fed.App'x. 551, 555 (3d Cir.2009); see also Brown v. DB Sales, Inc., No. 04-1512, 2005 WL 3591533, at *6 (E.D.Pa. Dec. 29, 2005) (Baylson, J.).
At the final stage, to defeat summary judgment, Plaintiffs must point to some direct or circumstantial evidence from which a factfinder could reasonably either (1) disbelieve Metasource's articulated reason, or (2) believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of Metasource's action. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). To do so. Plaintiffs can either (1) discredit Metasource's reason, by coming forward with such weaknesses, implausibilities, incoherencies, inconsistencies, or contradictions in the proffered reason to allow a rational factfinder to find the reason unworthy of credence, or (2) adduce evidence that discrimination was more likely than not a motivating or determinative cause.
Although Plaintiffs need not directly contradict Metasource's proffered reason, id., the Third Circuit has required
The parties do not dispute either of the first two elements of Plaintiffs' prima facie case; therefore, "[t]he issue for decision . . . is whether the summary judgment record reflects a material dispute of fact as to whether there was a causal connection between the two." Conoshenti, 364 F.3d at 147. For the same reason the Court denied summary judgment on the interference claims, it will deny summary judgment on the retaliation claims—there are outstanding issues of material fact regarding the legitimacy of the purported reduction in force.
In the retaliation-claim context, the jury could conclude that Metasource's proffered reason
As noted earlier, Metasource also brought the Court's attention to a recent case with "remarkably similar" facts, Kelley v. AmerisourceBergen Corp., No. 08-2377, 2009 WL 3127752 (E.D.Pa. Sept. 29, 2009) (Jones, J.). The disparate result in this case should not imply any disagreement with the result in Kelley. Instead, despite the remarkable similarity, there are significant factual differences that distinguish the cases and justify this Court's conclusion. Most notably, Kelley was terminated after a well-documented reduction-in-force process and no new hires subsequently performed her tasks. Id. at *5-6, *8.
For the foregoing reasons, Metasource's motions for summary judgment (Michniewicz, ECF No. 28; Keough, ECF No. 11) will be
AND NOW, on this 19th day of November, 2010, upon careful consideration of Defendant's Motions for Summary Judgment (Michniewicz ECF No. 28; Keough ECF No. 11), the parties' supplemental letter briefing, and oral argument, it is hereby ORDERED that the Motions are DENIED for the reasons in the accompanying Memorandum on Summary Judgment.