United States District Court, Eastern District of Pennsylvania
August 17, 1999
KEVIN BALTUSKONIS, PLAINTIFF,
US AIRWAYS, INC., DEFENDANT.
The opinion of the court was delivered by: Joyner, District Judge.
MEMORANDUM AND ORDER
This is a civil action brought by Plaintiff, Kevin Baltuskonis
("Baltuskonis") against Defendant, U.S. Airways, Inc., ("US
Airways") alleging U.S. Airways terminated his employment in
violation of the Family and Medical Leave Act of 1993,
29 U.S.C.A. § 2601 et seq. (1999) ("FMLA"). Presently before the
court is U.S. Airways' Motion for Summary Judgment pursuant to
Federal Rule 56 of Civil Procedure. For the following reasons,
U.S. Airways' motion shall be granted.
US Airways employed Baltuskonis as a utility worker at the
Philadelphia International Airport from November 4, 1994 to March
21, 1996. On March 15, 1996 Baltuskonis
called his supervisor, Kris Mikkelborg ("Mikkelborg") to report
off work and also indicated that he would not be into work on the
following day, March 16, 1996. He was told by Mikkelborg to bring
a doctor's note. He returned to work on March 17, 1996 with the
note. Pursuant to U.S. Airways policy, Baltuskonis attended an
attendance interview with foreman Bruce Griffin ("Griffin"). At
the interview Baltuskonis gave Griffin the doctor's note.
The note and Griffin's Record of Attendance Discussion Form
were forwarded to Administrative Assistant Judy Combs ("Combs").
It became evident to Combs that portions of the doctor's note
were altered. The reference to "Kevin and his" and the return
date "3/17/96" on the doctor's note were in different handwriting
and ink than the writing of the rest of the note. Combs contacted
the doctor's office to discover that the doctor examined and
treated Baltuskonis' daughter and not Baltuskonis. A nurse from
the doctor's office told Combs that she did not write the words
"Kevin and his" and did not fill out the return date to work as
Production Foreman Alex Deputron ("Deputron") met with
Baltuskonis to question Baltuskonis about his absence and the
note. Baltuskonis only stated that he had not altered the
doctor's note. Baltuskonis' wife actually altered the note. On
March 21, 1996, Deputron terminated Baltuskonis for
misrepresentation to obtain employee benefits in violation of
U.S. Airways' Posted Rule of Conduct No. 32. On March 11, 1998,
Baltuskonis filed suit. US Airways now moves for summary
I. Summary Judgment Standard
The standards applicable to summary judgment motions are well
established. Under Federal Rule of Civil Procedure 56(c), a court
may grant a motion for summary judgment if all of the information
before the court shows there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The moving party does not have to
disprove the opposing party's claim, but does have the burden to
show the absence of any genuine issues of material fact based on
relevant portions of the pleadings, depositions, answers to
interrogatories, and admissions in the file. Celotex, 477 U.S.
at 322-23, 106 S.Ct. at 2552-53.
Once the moving party meets this burden, the burden shifts to
the non-moving party who must set forth affirmative evidence and
specific facts showing there is a genuine issue in dispute.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 2511-12, 91 L.Ed.2d 202 (1986), Celotex, 477 U.S. at 323,
106 S.Ct. at 2552. The non-moving party must go beyond the
pleadings, its own affidavits, and depositions to show that there
is a genuine issue for trial. Celotex, 477 U.S. at 323, 106
S.Ct. at 2552. In fact, the non-moving party must furnish
sufficient evidence favoring the non-moving party that would
enable a jury to return a verdict in its favor. Anderson, 477
U.S. at 249, 106 S.Ct. at 2511-12, Celotex, 477 U.S. at 324,
106 S.Ct. at 2553. An action is void of a material issue for
trial where the evidence, taken as a whole, could not lead a jury
to find for the non-moving party. Matsushita Elec. Indus. Corp.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). We remain mindful, however, that in ruling on
a motion for summary judgment, we must review the facts in the
light most favorable to the plaintiff. Id.
Baltuskonis brought suit under Section 105(a) of the FMLA,
29 U.S.C.A. § 2615(a). FMLA § 105(a) provides that:
(1) Exercise of rights
It 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
It shall be unlawful for any employer to discharge
or in any other manner discriminate against any
individual for opposing any practice made unlawful by
29 U.S.C.A. § 2615(a). Because Baltuskonis did not dispute U.S.
Airways' assumption that he was only bringing a claim for
retaliatory discharge under FMLA § 501(a)(2) and not a claim for
interference with the exercise of rights under FMLA § 501(a)(1),
however, the court will treat his FMLA claim as merely one for
The proper analysis for FMLA § 501(a)(2) claims is
theMcDonnell Douglas burden shifting approach. See Churchill
v. Star Enterprises, 183 F.3d 184 (3d Cir. 1999); Holmes v.
Pizza Hut of America, Inc., No. 97-4967, 1998 WL 564433 at *7
(E.D.Pa. Aug.31, 1998); see also Hodgens v. General Dynamics
Corp., 144 F.3d 151, 159 (1st Cir. 1998). The plaintiff can
prove FMLA discrimination by direct evidence or indirectly
through a series of shifting burdens of proof. Oswalt v. Sara
Lee, 889 F. Supp. 253, 258-59 (N.D.Miss. 1995), aff'd, 74 F.3d 91
(5th Cir. 1996).
Under the McDonnell Douglas burden shifting analysis, the
plaintiff must first establish a prima facie case of FMLA
discrimination. Id. If a prima facie case is established, the
burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its employment decision. Sheridan v.
E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1065-67 (3d Cir.
1996). Finally, if a legitimate nondiscriminatory 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. Sheridan, 100 F.3d at
1065-67. The ultimate burden of persuading the trier of fact of
the defendant's intentional discrimination remains with the
plaintiff at all times. Id.
A. Prima Facie Case
US Airways moves for summary judgment arguing that Baltuskonis
cannot establish a prima facie case of retaliation under the
FMLA. To prove a prima facie case of retaliation, Baltuskonis
must show that: 1) he is protected under the FMLA, 2) he suffered
an adverse employment action and 3) a causal connection exists
between the adverse decision and plaintiff's exercise of his or
her FMLA rights. Oswalt v. Sara Lee, 889 F. Supp. 253, 258-59
(N.D.Miss. 1995), aff'd, 74 F.3d 91 (5th Cir. 1996). The third
element is at issue here.
US Airways asserts that Baltuskonis cannot show that his
termination was a result of taking FMLA leave because he
testified at his deposition that U.S. Airways retaliated against
him for grieving a previous disciplinary action. To demonstrate
this, U.S. Airways refers the court to portions of Baltukonis'
deposition testimony. However, this testimony does not correspond
to any testimony attached to U.S. Airway's Memorandum in support
of its motion for summary judgment. Compare (Def.'s
Mem.Supp.Mot.Summ.J. at 7-8) with (Def.'s
Mem.Supp.Mot.Summ.J.Ex. A at 54). That being the case, U.S.
Airways fails to show the absence of genuine issue of material
fact as to whether Baltuskonis has proffered sufficient evidence
to satisfy a prima facie case of retaliation under the FMLA. The
sheer proximity in time between his FMLA leave and termination
establishes the necessary causal connection even though he
provided an altered doctor's note to U.S. Airways. See Hodgens
v. General Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998)
(stating that close temporal proximity between two events may
give rise to inference of causal connection).
B. Showing of Pretext
Because U.S. Airways can demonstrate its reason to terminate
him was legitimate and nondiscriminatory,*fn1 Baltuskonis
now must establish that U.S. Airway's legitimate and
nondiscriminatory reason for discharging him was merely a pretext
for retaliatory animus in violation of FMLA § 501(a)(2).
point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1)
disbelieve the employer's articulated legitimate
reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). See
Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639,
644 (3d Cir. 1998). The first prong does not require the
plaintiff to "produce evidence that necessarily leads to the
conclusion that the employer acted for discriminatory reasons, .
. . nor produce additional evidence beyond her prima facie
case[.]" Simpson, 142 F.3d at 644 (internal citations omitted).
Nevertheless, the plaintiff must point to "weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons
[such] that a reasonable factfinder could rationally find them
unworthy of credence" Fuentes, 32 F.3d at 764-65 (internal
quotations omitted). The second prong mandates that the plaintiff
"point to evidence with sufficient probative force that a
factfinder could conclude by a preponderance of the evidence that
age was a motivating or determinative factor in the employment
decision." Simpson, 142 F.3d at 644-45 (citing Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir. 1997)).
Baltuskonis argues that U.S. Airway's reason for discharge was
merely a pretext because of the temporal proximity between his
FMLA leave on March 15, 1996 and his termination six days later
on March 21, 1996 and the perceived animosity directed at him
from U.S. Airways after he grieved a prior disciplinary action.
He also asserts that U.S. Airways offers no evidence that he
actually altered the note because his wife is the one who changed
the doctor's note without his knowledge. In addition, Baltuskonis
argues that jury members should view the note itself because they
can just as reasonably conclude that a forgery or
misrepresentation was not intended by the note's modification.
Because Combs testified at an unemployment hearing that there was
a remarkable difference in handwriting and ink, Baltuskonis also
contends that if he really intended an intentional
misrepresentation, a less obvious modification would have been
Although temporal proximity is relevant for determining whether
the causal element of the prima facie case has been established,
see Hodgens, 144 F.3d at 168, Baltuskonis fails to demonstrate
its relevancy to the showing of pretext requirement. He also
fails to offer any evidence to show that U.S. Airways may have
terminated him in retaliation for a prior grievance. It is clear,
however, that he gave U.S. Airways an altered doctor's note. It
is irrelevant whether he altered it or whether different
interpretations of the alterations to the note are possible. US
Airways received an altered doctor's note from Baltuskonis and
terminated him for fraudulently attempting to receive sick
pay. Baltuskonis has failed to prove either his termination was
motivated by his FMLA leave to care for his sick daughter or U.S.
Airways' proffered reason for his termination was pretext for an
improper motive. Accordingly, he has failed to establish that
U.S. Airways violated his rights under FMLA § 501(a)(2).
An appropriate Order follows.
AND NOW, this 17th day of August, 1999, upon consideration of
Defendant's Motion for Summary Judgment and Plaintiff's Response
thereto, it is hereby ordered that the Motion is GRANTED for the
reasons set forth in the preceding Memorandum.