Ditter, District Judge.
This is an employment discrimination case brought by Mona Fiorentini against the William Penn School District ("District"). Fiorentini alleges that she was subjected to age and disability discrimination that led to the termination of her employment and that the District interfered with her right to medical leave. Fiorentini brings claims of discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et seq.; the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq.; the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq.; and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S.§§ 955(a) and (e). Presently before me is the District's motion for summary judgment which I will grant.
In 2001, Fiorentini was hired by the District as a Literacy Coach and Certified Reading Specialist at Park Lane Elementary School to work with children in kindergarten
On September 14, 2009, Fiorentini informed Principal Ambrose that she had to arrange for a biopsy to test for breast cancer. Pl.'s Dep. at 63, ln. 19-25, 66. Fiorentini alleges that from that point on, she was treated as a "leper." Pl.'s Dep. at 67, ln. 5-8. She alleges that, inter alia, she was "segregated" in her employment, was no longer invited to participate in meetings, excluded from communications, kept off planning committees and denied an opportunity to attend a professional development conference. Am. Compl. at 5-6. Prior to that time, Fiorentini did not have any problems with Principal Ambrose or the District.
Three (3) days after Fiorentini told Principal Ambrose that she had been diagnosed with breast cancer, Ambrose verbally "demoted" her from a full-time literacy coach to a combination literacy coach/reading specialist. Pl.'s Dep. at 78, 79, ln. 10-20. In doing so, Fiorentini was assigned to working only with third through sixth grade students rather than all students in first through sixth grades. Pl.'s Dep. at 223. Fiorentini felt that this was a "demotion" because the position of reading specialist required less qualifications and because she had fewer students for instruction. Pl.'s Dep. at 78, ln. 15-22; 85, ln. 7-20. Fiorentini's job title was not changed on her personnel record, nor was her salary impacted. Pl.'s Dep. at 80-81, 94. Principal Ambrose testified that the reassignment of work was done in preparation for the "PSSA," standardized tests which were scheduled to take place for the third through sixth grades. Ambrose Dep. at 106-110. Principal Ambrose assigned another employee, Rosemary Mannis, a fellow teacher approximately ten (10) years younger, to work with the non-testing grades, kindergarten through second grade. Pl.'s Dep. at 223. Fiorentini states that when she asked Principal Ambrose why her job duties had changed, she was told that it was due to Fiorentini's health. Pl.'s Dep. at 96. During that time, Principal Ambrose testified that she had the authority to change the duties of an individual's position, but not the job title. Ambrose Dep. at 12, ln. 16-25; 13, ln. 1-12; 42, ln. 14.
Fiorentini's treatment for her breast cancer required surgery and subsequent home healthcare. On February 22, 2010, the District approved Fiorentini's request for a Family and Medical Leave of Absence, effective March 22, 2010, through April 21, 2010, and an unpaid Family and Medical Leave of Absence effective April 21, 2010, through May 17, 2010. On April 26, 2010, the District approved Fiorentini's request for an unpaid medical leave of absence effective May 18, 2010, through June 18, 2010. The District permitted the teacher's union to seek sick bank days from other teachers to donate to Fiorentini to use when she went on unpaid leave. Effective May 1, 2010, through April 30, 2011, the District approved Fiorentini's request to go on medical sabbatical.
In June 2010, all reading specialists and literacy coach employment positions were scheduled for elimination. Pehlman Dep. at 48-49; Van Roy Dep. at 35-36. Denise Van Roy and Betty Pehlman worked to place employees who were effected by funding cuts in the District. Pl.'s Dep. at 132. A position for an Instructional Specialist K-6 was created for existing employees.
On November 9, 2010, while on "medical sabbatical" leave, Fiorentini received a letter stating that her employment was being suspended when she returned from leave on April 30, 2011. Def.'s Ex. 9; Pl.'s Dep. at 148. The letter stated that Fiorentini did not qualify for an "instructional coach position" due to the fact that "there are no positions in the district that require only a reading certification" and because she did not have "the classroom teaching experience required." Def.'s Ex. 9. On November 22, 2010, Fiorentini submitted a note that she had worked for the Archdiocese of Philadelphia for a year. Def.'s Ex. 27. Ms. Pehlman informed Fiorentini that her work experience in the Archdiocese did not count because it was not done under a Pennsylvania Elementary Teaching Certificate. Pl.'s Dep. at 153. Fiorentini argues that the requirement of "classroom experience" fell within the District's discretion and notes that the job posting for Instructional Specialist failed to include the specific requirement that classroom experience be conducted under a Pennsylvania
On February 23, 2011, in response to a grievance filed by Fiorentini, the District decided not to take action to furlough her and concluded that it would "assess the situation again when [Fiorentini] is released to return from her medical leave." Def.'s Ex. 22.
Fiorentini returned to work in May 2011, through June 2011, assisting an instructional specialist at a different school. Pl.'s Dep. at 166-168. At the end of the 2010-2011 year, the District sought another reorganization of its programs, eliminated the position of Instructional Specialist and created a School Site Facilitator position for the 2011-2012 year. Def.'s Ex. 20, Ex. 30. The School Site Facilitator position required a Pennsylvania Elementary Teaching Certificate and a "[m]inimum of three years of successful Classroom Teaching Experience in Pennsylvania public schools preferably at William Penn." Def.'s Ex. 30. There were 24 applicants for the job, 16 interviews were granted and 8 individuals were hired as School Site Facilitators.
On August 9, 2011, Fiorentini received an email confirming that she was being furloughed as her certification as a reading specialist did not meet any of the positions in the district at that time. She was fifty-seven years old.
The standard for summary judgment is well established. I must consider the evidence in a light most favorable to the non-moving party. If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party.
However, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions to defeat a summary judgment motion. The opinion of an expert does not create a fact — it can only become a fact if the finder of fact gives it credence. In deciding whether to accept an opinion, the finder of fact may consider the expert's background, for example, his education, experience, etc., and reasons given in support of the opinion. Here, Fiorentini must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). She "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1992); see also Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).
Fiorentini brings claims of discrimination under the Age Discrimination in Employment Act ("ADEA"); the Family and Medical Leave Act ("FMLA"); the Americans with Disabilities Act of 1990 ("ADA"); and the Pennsylvania Human Relations Act ("PHRA"). I will address each claim individually.
Fiorentini brings age discrimination claims under the ADEA and PHRA
Fiorentini has established the first element of her prima facie case because she was over the age of forty when the alleged discrimination occurred. I need not make a determination as to whether Fiorentini was qualified at this stage in order to satisfy the second element of the prima facie case because, as discussed below, I conclude that Fiorentini's claim fails at the third step. In order to establish the third element of her prima facie case, Fiorentini argues that both her reassignment in early 2010 and her 2011 furlough are adverse employment actions. The District argues that only the 2011 furlough can be construed as an adverse employment action. I will review each separately.
In December 2009 or January 2010, Fiorentini was reassigned to work with third through sixth graders rather than kindergarten through sixth grade as a literary coach/reading specialist. A teacher approximately ten (10) years younger was assigned to work with the kindergarten through second grade children. Principal Ambrose testified that the reassignment of work was done in preparation for impending standardized tests for the third through sixth graders. Fiorentini contends that this reassignment was a demotion and thus, an adverse employment action based on her age.
"An `adverse employment action' is one that is `serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.'" Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001); see Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2nd Cir. 2000) (concluding that delay in teacher's reassignment, transfer to purportedly inferior facilities, and change in responsibilities from teaching special education students
In support of her argument that her reassignment was a "demotion," Fiorentini relies on the expert testimony of Edward F. Dragan, EdD, who opined that the "change to plaintiff's job title and reduction of the instructional duties and responsibilities... imply and can be interpreted as a demotion." Expert Witness Aff. at 3. This opinion is no opinion at best. Dr. Dragan does not say he interpreted the revision of her duties as a demotion or just who in this vast world of ours might do so. Indeed, Fiorentini's expert's opinion cannot create a material issue of fact simply by stating that the factual circumstances "can be interpreted as a demotion." Dr. Dragan also fails to mention discrimination, age or disability in his affidavit. Despite providing broad statements that the District's actions "showed signs of possible attempts to purposefully exclude her from employment,"
It is within my purview to reach the legal conclusion as to whether the circumstances surrounding Fiorentini's 2009/2010 assignment of duties was an actual "demotion" and adverse employment action. Highway Materials, Inc. v. Whitemarsh Tp., Montgomery County, Pa., 2004 WL 2220974, at *19 (E.D.Pa. Oct. 4, 2004). I conclude that Dr. Dragan's opinion has little value and does not raise a material issue as to whether Fiorentini's reassignment of duties was an adverse employment action. The District denies the reassignment of duties was a demotion and it is clear Fiorentini did not suffer the usual consequences of a demotion such as reduction in pay or seniority. Consequently, I find that Fiorentini's reassignment of duties was not a demotion and therefore, cannot be used to establish the adverse employment action prong of McDonnell Douglas.
I now turn to an analysis of Fiorentini's furlough as it relates to her prima facie case for age discrimination. The District concedes that Fiorentini suffered an adverse employment action when she was furloughed in 2011. However, Fiorentini cannot establish the fourth element of a prima facie case because she is unable to point to younger, similarly situated individuals who received more favorable treatment or that the circumstances of her furlough otherwise gives rise to an inference of unlawful discrimination. McDonnell
Here, although Fiorentini was the only Literacy Coach/Reading Specialist who was furloughed, she was also the only Literacy Coach/Reading Specialist who possessed only a reading certificate and had no teaching experience under with Pennsylvania teaching certification. All of the instructors hired for the Instructional Specialist Position and the Site Facilitator positions had Pennsylvania elementary teaching certifications.
Even if Fiorentini could establish a prima facie case, any reasonable fact finder would have to conclude that she has failed to carry her burden at the next step of the McDonnell Douglas analysis. Once a plaintiff has established her prima facie case, the burden shifts to the District to offer a legitimate, non-discriminatory reason for its actions. Atkinson v. LaFayette College, 460 F.3d 447, 454 (3d Cir.2006). This burden is "relatively light," fulfilled by the employer "introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). As set forth above, the District's decision to furlough Fiorentini was based on her lack of the proper Pennsylvania teaching certification and Pennsylvania public classroom teaching experience. This is clearly a legitimate, non-discriminatory reason for her furlough so the burden shifts back to Fiorentini to show it is a pretext for discriminatory action.
To avoid summary judgment Fiorentini must offer evidence rebutting the District's proffered legitimate reasons. The evidence "must allow a fact finder reasonably to infer that each of the employer's proffered non-discriminatory reasons... was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Fuentes, 32 F.3d at 764 (internal citations, emphasis and footnotes omitted). In other words, Fiorentini must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the defendants' proffered legitimate reasons for her termination that a reasonable fact finder could rationally find them `unworthy of credence' and, hence, infer that the defendants did
Fiorentini has not done this by any evidence before me. As previously noted, Fiorentini was advised by her union representative that her lack of a teacher certification could effect her position in the event of an anticipated reorganization. Moreover, the District has presented evidence that Fiorentini did not have the proper qualifications for any positions established after restructuring of the District. In addition, the candidates selected for those positions all had Pennsylvania elementary teaching certification.
Finally, Fiorentini has failed to offer evidence that this restructuring had an adverse impact on older teachers. The ultimate test in employment discrimination cases is whether discriminatory animus was a motivating factor in causing the adverse employment action. Desert Palace v. Costa, 539 U.S. 90, 95, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Fiorentini has not offered any evidence from which it could be found that age discrimination was the motiving factor in her furlough. See Ezold v. Wolf Block, 983 F.2d 509, 527 (3d Cir. 1992) (without some evidence to cast doubt on the employer's stated reason, the court will not interfere in an otherwise valid management decision). Fiorentini does not offer any direct evidence of discrimination to satisfy the McDonnell Douglas test, i.e., no derogatory comments made to her concerning her age. Nor is there any circumstantial evidence that supports her claims as teachers older than Fiorentini with Pennsylvania teaching certificates were not selected for furlough. There is no evidence that a younger teacher with the same certification and experience was saved from furlough.
When viewing the evidence in its entirety, I conclude that a reasonable fact finder could not rationally find the District's reasons for her furlough unworthy of credence, and thus, conclude that the District did not act for the asserted non-discriminatory reasons. As the Third Circuit has stated:
Billet v. CIGNA Corp., 940 F.2d 812, 827 (3d Cir.1991) (citation omitted) overruled in part on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Fiorentini has failed to present any evidence that her furlough was motivated by her age; therefore, I will grant the District's motion for summary judgment for her age discrimination claims.
The FMLA entitles "employees to take reasonable leave for medical
The FMLA contains two relatively distinct types of provisions prohibiting employers from: (1) interfering with an employee's exercise of this right; and (2) discriminating or retaliating against an employee who exercises this right. 29 U.S.C. § 2615(a); Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005). Fiorentini alleges violation of both the interference and retaliation provisions of the FMLA.
The first aspect of Fiorentini's claim centers on the "interference" provision of the FMLA. To make a claim of interference under the FMLA, a plaintiff must establish:
Ross, 755 F.3d at 191-92 (citations omitted). There is no dispute that Fiorentini satisfied the first four prongs of an interference claim, namely that she was an eligible employee entitled to FMLA leave who gave proper notice of her intent to invoke that leave. The only question then is if the District denied Fiorentini benefits under the FMLA.
Fiorentini argues that Principal Ambrose reassigned her to different tasks once it was clear she would be taking FMLA leave thereby "demoting" her and interfering with the exercise of her right to take FMLA leave.
Here, the District did not engage in any activities which interfered with or withheld Fiorentini's FMLA benefits. In fact, the District provided Fiorentini with the all of the entitlements of the FMLA.
Fiorentini also argues that the District retaliated against her by "demoting" her in the Fall of 2009, after she advised Principal Ambrose that she had cancer.
There is no dispute that Fiorentini properly invoked her rights under the FMLA thereby establishing the first element of her prima facie case. In order to demonstrate the second prong, Fiorentini must establish that she suffered an adverse employment decision. Fiorentini argues that she suffered an adverse employment decision when she was "demoted" by Principal Ambrose once she indicated that she had cancer "thereby triggering an expectation that [Fiorentini] would be taking some type of leave." See Pl.'s Br. at 22.
Fiorentini's alleged "demotion" took place in the Fall of 2009 after Fiorentini advised Principal Ambrose that she had cancer, but before Fiorentini formally invoked and took FMLA leave. Even if I were to find that Fiorentini's notice to Principal Ambrose that she had cancer was sufficient to invoke her FMLA rights, she is unable to establish that the action taken by Principal Ambrose was adverse, for the reasons discussed above. Because Fiorentini has failed to establish that she suffered an adverse employment action due to the invocation of her FMLA rights, I will grant the District's motion for summary judgment for this portion of her FMLA claim.
Fiorentini argues that the District discriminated against her due to her cancer
The District concedes that Fiorentini was "disabled" within the meaning of the ADA. Next, it must be determined whether Fiorentini was "otherwise qualified" for employment in the District. Shiring, 90 F.3d at 832. This burden fall on the employee. Shiring, 90 F.3d at 832.
Gaul, 134 F.3d at 580 (internal quotations and citations omitted).
For the reasons previously discussed, Fiorentini was not qualified for further employment in the District at the time of her furlough because she lacked a Pennsylvania elementary teaching certificate.
Moreover, Fiorentini cannot establish the third element of her prima facie case because she has not presented any evidence that her medical condition was a "determinative factor" in her furlough.
Having found that no reasonable finder of fact could conclude that Fiorentini's termination was based on any discriminatory animus, I must grant the defendant's motion for summary judgment on all counts. An appropriate order follows.