United States District Court, Eastern District of Pennsylvania
April 11, 2001
JOYCE B. FERRERI, PLAINTIFF,
MAC MOTORS, INC., DEFENDANT.
The opinion of the court was delivered by: Joyner, District Judge.
This is an employment discrimination case brought by Plaintiff Joyce
B. Ferreri ("Plaintiff") against her former employer, Defendant Mac
Motors, Inc. ("Defendant"). In her Complaint, Plaintiff alleges that
Defendant's termination of her employment violated the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title
VII"); the Age Discrimination in Employment Act, 42 U.S.C. § 623, et
seq. ("ADEA"); and the Pennsylvania Human Relations Act, 48 P.S. §
951, et seq. ("PHRA"). In addition, Plaintiff alleges that Defendant
committed a breach of contract and violated the Pennsylvania Wage Payment
and Collection Law, 43 P.S. § 260.1, et seq. ("WPCL"). Defendant now
moves for summary judgment. For the reasons below, we will grant
Defendant's Motion on the federal law claims and decline to exercise
supplemental jurisdiction over the remaining state law claims.
The facts of this case are straight-forward. Defendant is an auto-parts
company. In 1985, Plaintiff was hired by Defendant to work as a
telemarketer, a position she held until she was terminated in 1998. The
stated reason for Plaintiffs termination was "excessive absence."
Plaintiff forthrightly admits that throughout her 13 year employment
with Mac Motors, she had difficulty arriving to work on time. (Pl.Dep. at
65, 120-22). Plaintiff blames "99%" of her late arrivals on traffic
congestion. (Id. at 120). She further states that, despite the obvious
and consistent traffic problems she encountered, she was never able to
figure out a way to get to work on time while in Defendant's employ.
(Id. at 121-22).
Mac Motors did not have an official, written attendance policy in place
for the first several years of Plaintiffs employment. As a result, on the
occasions that Plaintiff was late, she would be informally confronted by
her supervisor and reminded of the need to be to work on time.
Unfortunately, these informal efforts were unsuccessful, and Plaintiffs
tardiness began to worsen in late 1994 and 1995. As a result, Plaintiffs
current manager, Mark Boruta ("Boruta"), issued her a written notice on
December 28, 1995 regarding the excessive "amount of time that [she was]
missing from work." (Def.Ex. C). After Plaintiff s tardiness did not
improve, Boruta and William Boyk ("Boyk"), President of Mac Motors, met
with her in February 1996 to re-emphasize the importance of arriving to
work on time. (Pl. Dep at 199-200; Boyk Dep. at 43). Several months
later, after still no improvement in Plaintiffs punctuality, Boyk and
Bortita removed Plaintiff from several of her sales accounts because of
her continual lateness. (Def.Ex. E). Despite that action, Plaintiff
continued to struggle getting to work on time and after being late for a
company meeting in August 1996, she was suspended for two days. (Def.Ex.
Near the same time Plaintiffs tardiness problem worsened in 1995, she
began receiving treatment for migraine headaches. (Castillo Dep. at 25).
Plaintiffs physician treated her with several medications, including an
injectable form of the prescription drug Imitrex. (Id. at 117-18).
Plaintiff stated that she discussed her migraines, and the medicine she
took to alleviate them, with Boruta. (Pl.Dep. at
387-88). According to Plaintiff, she requested that on mornings when she
had an acute migraine attack, she be permitted to come into work late.
Plaintiff claims that Boruta responded that she should simply take an
entire day off if she had a migraine. (Id.).
In March 1998, Mac Motors instituted a formal, written attendance
policy and distributed it to all employees. The policy regarding tardiness
Definition: An employee will be considered to be tardy
if he punches the time clock more than 5 minutes after
his scheduled start time, or if he is more than 5
minutes late punching in after lunch break.
If an employee is late 3 times in a 30 day period he
or she will be issued a verbal warning. If the
employee is late I more time within the next 30 days
after the verbal warning he will be issued a written
reprimand. If he is late again within 30 days after
the written reprimand he will be suspended for 1 day
without pay. If he is late again within 30 days after
the one day suspension he will receive a 3 day
suspension. If he is late again within 30 days of the
3 day suspension he will (at the discretion of the
management) be subject to termination of his
employment with Mac Motors.
Plaintiff was more than five minutes late to work on March 6, 18, and
31, 1998, for which she received a verbal warning pursuant to the new
policy. (Def.Ex. I, J). Plaintiff was late again on April 17, 1998 and,
consequently, received a written reprimand on April 24, 1998. (Id.).
Shortly thereafter, Plaintiff was late yet again, which resulted in her
receiving a one-day suspension on May 4, 1998. (Def.Ex. J.). Within
several weeks, Plaintiff arrived late for work again, this time resulting
in a three-day suspension as of June 9, 1998. (Def.Ex. K).
Unfortunately, Plaintiffs tardiness problem still did not improve; she
was late on at least another five occasions between July 1998 and
September 1998. After the last set of incidents, Plaintiff received a
second three-day suspension on September 11, 1998. (Def.Ex. L). Plaintiff
protested the discipline in writing, but nevertheless served out her
suspension and returned to work on September 17, 1998.
Upon Plaintiffs return to work, Boruta sent her a memorandum that
formally responded to her earlier protests about the suspension. The
September 20, 1998 memorandum rejected Plaintiffs arguments and restated
the need for her to arrive to work on time. (Def.Ex. M). After receiving
Boruta's memorandum, Plaintiff called out sick from work the next two
days, September 21 and 22, 1998, and then called off work twice more over
the next two weeks. Plaintiff asserts that on each occasion she had a
migraine headache and, therefore, called off work per Boruta's previous
instructions. (Pl.Dep. at 387-88; Pl.Resp. at 4-5). Notwithstanding that
explanation, when Plaintiff returned to work on October 5, 1998, Boruta
issued her a letter terminating her employment because of excessive
absences. (Def.Ex. O).
Plaintiff dual-filed a charge of discrimination with the Pennsylvania
Human Relations Commission and the Equal Employment Opportunity
Commission on December 4, 1998, and subsequently received her right to
sue notice. She instituted the instant action on October 22, 1999.
I. Legal Standard
In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a
must determine "whether there is a genuine issue of material fact and, if
not, whether the moving party is entitled to judgement as a matter of
law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999
(internal citation omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn therefrom, in the
light most favorable to the non-moving party. See, e.g., Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). For its part, the non-moving party must,
through affidavits, admissions, depositions, or other evidence,
demonstrate that a genuine issue exists for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
making its showing, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts," id. at
586, 106 S.Ct. 1348, and must produce more than a "mere scintilla of
evidence in its favor" to withstand summary judgement. Anderson v Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If
the nonmoving party fails to create "sufficient disagreement to require
submission [of the evidence] to a jury," the moving party is entitled to
judgement as a matter of law. Liberty Lobby, 477 U.S. at 251-52, 106
II. Employment Discrimination Burden Shifting Analysis
In the absence of direct or overt evidence of a decision-maker's
discriminatory bias, courts apply the familiar burden shifting framework
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973), to discrimination claims under Title
VII, the ADEA, and the ADA. See, e.g., Newman v. GHS Osteopathic, Inc.,
60 F.3d 153, 156-58 (3d Cir. 1995) (noting that McDonnell Douglas
analysis equally applicable to claims under ADA, ADEA, and Title VII). In
McDonnell Douglas, the Supreme Court "established an allocation of the
burden of production and an order for the presentation of proof in Title
VII discriminatory treatment cases." St. Marq's Honor Ctr. v. Hicks,
509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The test
consists of three steps: First, the plaintiff must establish a prima
facie case of discrimination. Second, once the prima facie case is
established, the defendant must state a legitimate, nondiscriminatory
reason for the adverse employment action. Finally, if a legitimate,
non-discriminatory reason is offered, the plaintiff must come forward to
show that the stated reason is not the true one, but only a pretext for
discrimination. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct.
There are two ways a plaintiff can demonstrate pretext. The plaintiff
must point "to some evidence, direct or circumstantial, from which a
fact-finder would reasonably either: (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Jones v. Sch. Dist. of
Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994) and Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc)). The
first prong of the Fuentes test requires a plaintiff to show "such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for its
actions that a reasonable factfinder could rationally find them unworthy
of credence." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108-09 (3d Cir. 1997). That showing
requires more than just evidence that the employer's decision was wrong
or misguided. See id. (noting that factual dispute at issue is "whether
discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent or competent."). In other words, to succeed the
plaintiff must demonstrate that "the employer's articulated reason was not
merely wrong, but that it was `so plainly wrong that it cannot have been
the employer's real reason.'" Jones, 198 F.3d at 413 (quoting Keller, 130
F.3d at 1109).
Under the second prong of the Fuentes test, a plaintiff can withstand
summary judgment by showing that discrimination was more likely than not
the motivation behind the adverse employment action. See id. There are a
number of ways by which this burden can be met, including by showing
"that the employer previously discriminated against [the plaintiff], that
the employer has previously discriminated against other persons within
the plaintiffs protected class, or that the employer has treated more
favorably similarly situated persons not within the protected class."
Id. (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998)).
We apply the foregoing principles to Plaintiffs various claims below.
III. Title VII and ADEA claims
Plaintiff does not address her sex and age discrimination claims in her
Response. To the extent that Plaintiff has not conceded these claims,
they clearly must fail. Assuming that Plaintiff has made out a prima
facie case, Defendant has met its burden by offering a legitimate,
non-discriminatory reason for firing Plaintiff. Plaintiff, however, has
not offered any evidence that would even suggest that Defendant's
proffered reason for her termination — her admittedly consistent
pattern of tardiness over multiple years — was pretext for age or
sex discrimination. Because Plaintiff obviously cannot fulfill either
prong of the Fuentes test, we will grant Defendant's Motion with respect
to the Title VII and ADEA claims.
IV. ADA claim
Plaintiffs brief Response to Defendant's Motion is devoted entirely to
her ADA claim.*fn1 Once again, even assuming
she has made out a prima facie ADA claim, Plaintiff has completely failed
to show any pretext. Plaintiff claims that Defendant's reason for her
discrimination is "subject to doubt" for two reasons. First, she claims
that her prior warnings and suspensions were for tardiness as opposed to
absences. Second. she alleges that she did not come to work on the days
directly preceding her termination because Boruta had previously
instructed her to call in sick if she had a migraine. Accepting both
claims as true. Plaintiff still falls well short of meeting her burden at
Plaintiff does not point to any evidence that could lead a fact-finder
to disbelieve Defendant's proffered reason for her termination or believe
that discrimination was more likely than not a motivating factor in her
termination. See Jones, 198 F.3d at 413. Plaintiffs argument regarding
the tardiness-absence distinction and Boruta's alleged instructions turns
a blind eye to the long, documented, and undisputed record of Plaintiffs
lateness to work. There is nothing in the record before us indicating any
inconsistencies or weaknesses in Defendant's reasons for Plaintiffs
dismissal. Nor is there any evidence showing that Defendant previously
discriminated against Plaintiff or any similarly situated employee. Quite
the contrary, the record reflects an exceptional degree of patience on
the part of an employer in dealing with a chronically late and
irresponsible employee. At very most, Plaintiff has raised a dispute over
the wisdom of Defendant's decision to terminate her. Such a dispute,
however, does not establish pretext and cannot save Plaintiff from
summary judgment. See, e.g., Keller, 130 F.3d at 1108-09 (explaining that
factual issue is not whether decision was wise or prudent, but whether it
was motivated by discriminatory animus); Hicks v. Arthur, 878 F. Supp. 737,
739 (E.D.Pa. 1995) (stating that "an ill-formed decision or an
ill-considered decision is not automatically pretextual if the employer
gave an honest answer for termination."). Accordingly, we will grant
Defendant's Motion with respect to Plaintiffs ADA claim.
V. State claims
Because we will dismiss all of the federal claims against Defendant, we
must decide whether to exercise supplemental jurisdiction over Plaintiffs
PHRA, WPCL. and breach of contract claims. A court "may decline to
exercise supplemental jurisdiction [over state law claims] if . . . the
district court has dismissed all claims over which it has original
jurisdiction." 28 U.S.C. § 1367 (c)(3). We decline to exercise
supplemental jurisdiction over Plaintiffs remaining state law claims. If
she so chooses, Plaintiff may refile her state claims in the appropriate
An appropriate order follows.
AND NOW, this day of April, 2001, upon consideration of Defendant's
Motion for Summary Judgment (Document No. 18), and Plaintiffs Response
thereto, it is hereby ORDERED that:
(1) Defendant's Motion is GRANTED with respect to the ADA, ADEA, and
Title VII claims; and
(2) Plaintiffs remaining state law claims are DISMISSED WITHOUT