United States District Court, E.D. Pennsylvania
February 6, 2004.
INDEPENDENCE BLUE CROSS
The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
MEMORANDUM & ORDER
Presently before the Court is the Motion of Defendant Independence
Blue Cross for Judgment on the Pleadings (Doc. No. 19). For the following
reasons, Defendant's Motion will be denied.
Plaintiff is an African-American female who began working for Defendant
in 1990. (Am. Compl. ¶¶ 6, 11.) Her first position was as a telemarket
assistant. (Id. ¶ 12.) Wandrella Mouton, a Caucasian, was
Plaintiff's first supervisor. (Id. ¶ 13.) After
approximately one and a half years as a telemarket assistant, Plaintiff
became a sales support assistant, and was given an increase in salary.
(Id. ¶ 14.) Marlene Gallone, who reported to Mouton, became
Plaintiff's supervisor. (Id. ¶ 15.) Plaintiff remained a
sales support assistant until approximately 1993-1994. (Id.
¶ 16.) While in this position, she complained to Defendant's human
resources department that she was being subjected to race discrimination.
(Id. ¶ 17.) Specifically, Plaintiff complained that Mouton
had failed to promote Plaintiff to at least two different positions on
account of her race, and had directed several racially offensive comments
towards her. (Id. ¶ 18.)
Around the time of her complaint to human resources, Plaintiff suffered
a miscarriage and left work temporarily on a medical leave of absence.
(Id. ¶¶ 19, 21.) While on medical leave,
Defendant's human resources department told Plaintiff not to come back
to work because Defendant planned to fire Plaintiff for complaining
about Mouton. (Id. ¶ 19.) In response, Plaintiff filed a
complaint with the Equal Employment Opportunity Commission (the "EEOC")
charging Defendant with race discrimination. (Id. ¶ 20.)
Plaintiff was on medical leave for approximately four to six weeks.
(Id. ¶ 21.) After a conference with the EEOC, Plaintiff was
permitted to return to work in a new position as a customer service
representative. (Id. ¶ 21.) Plaintiff remained in this
position for a year beginning in approximately 1994. (Id. ¶
In 1995, Plaintiff applied to be an enrollment specialist with
Defendant, and was subsequently hired for this position. (Id.
¶ 25.) As an enrollment specialist, Plaintiff's supervisor was
Christine Bolden. (Id. ¶ 27.) Bolden learned of Plaintiff's
prior complaint of discrimination from Plaintiff's co-worker, Caroline
Kelly, an acquaintance of Mouton. (Id. ¶ 29.) Bolden
mentioned Plaintiff's EEOC complaint five or six times. (Id.
¶ 28.) Kelly brought up Plaintiff's EEOC complaint regularly.
(Id. ¶ 30.) For example, Kelly said to others in Plaintiff's
presence that Plaintiff "has a pretty good lawyer," that no one thought
Plaintiff was going to come back the first time, and that Plaintiff was
the "girl who took charge out there." (Id.) Kelly made these and
other similar comments at least five to six times per week the entire
time Plaintiff was an enrollment specialist. (Id. ¶ 31.)
Chuck Ferro became Plaintiff's supervisor in approximately 1996 and
remained so until Plaintiff was terminated. (Id. ¶ 32.)
Ferro learned of Plaintiff's EEOC complaint from Kelly and brought it up
at least twice per week. (Id. ¶ 33.) For example, after
reviewing Plaintiff's work or responding to her questions, Ferro would
say "let me take a good look at this or she may call the EEOC."
(Id. ¶ 34.) Also, in front of other employees Ferro would
say aloud when referring to
Plaintiff, "if I don't do this she'll call EEOC." (Id. ¶
35.) When Plaintiff asked for a day off, Ferro responded, "let me check,
if I don't grant it you'll call the EEOC on me." (Id. ¶
Other employees were also antagonistic to Plaintiff about her EEOC
complaint. Pat Henson, who worked in Defendant's human resources
department, told Plaintiff that the department was watching Plaintiff
because of the EEOC complaint and that nobody liked Plaintiff.
(Id. ¶ 38.) Henson also said that the department would be
watching everything Plaintiff did, including her time leaving, time
calling, not calling, and on-time arrival, and that they would be
listening to her phone call usage. (Id.) Peggy Shane, who also
worked in Defendant's human resources department, mentioned Plaintiff's
EEOC complaint. (Id. ¶ 39.) When Plaintiff went to see Shane
regarding a personnel matter, Shane said "this is all your fault; we
already know about your previous charge; nobody likes you." (Id.
¶ 40.) Another time, when Shane presented a disciplinary document for
Plaintiff to sign, Shane said "just go ahead and sign it, we already know
about you, we already know about your previous charge, just go ahead and
sign the papers so you don't make things worse." (Id. ¶ 41.)
Also, in 1995, when it was time for Plaintiff to get her five years of
service award, a human resources manager said to Plaintiff, "I'm going to
give you this, but you don't really deserve it because you took them [to]
court." (Id. 143.)
Plaintiff's employment with Defendant terminated at the end of the
summer in 1997. (Id. ¶ 44.) On July 17, 1997, Plaintiff
slipped on the stairs at work as she was descending to the ground floor.
(Id. ¶ 45.) Plaintiff was diagnosed with a sprained ankle
and bruised knee. (Id. ¶ 46.) When her injuries failed to
heal properly, Plaintiff was taken out of work indefinitely by her doctor
beginning on August 7, 1997. (Id. ¶ 47.) Plaintiff mailed a
doctor's note to Ferro
and called him several times in August to update him on her status.
(Id. ¶ 48.)
On August 29, 1997, at 5:50 p.m., the Friday before Labor Day,
Plaintiff's mother received a Western Union telegram for Plaintiff at the
mother's house. (Id. ¶ 49.) Plaintiff immediately went and
retrieved the telegram, which was from Defendant and stated that if
Plaintiff did not return to work that very day, Plaintiff would be
terminated. (Id. ¶¶ 50-51.) Plaintiff called Defendant right
away but no human resources personnel were available to speak with her.
Plaintiff left several voice mail messages. (Id. ¶ 52.) On
Tuesday, September 3, 1997, the next business day, Plaintiff called
Defendant's human resources department. (Id. ¶ 53.)
Plaintiff spoke to Bill Blount who was aware of the situation. Blount
said that there had been a big misunderstanding and that there never had
been any problem with any of the doctors' notes she had sent.
(Id. ¶ 54.) Blount also said as soon as he got her doctor's
note, he would reinstate her pay. (Id. ¶ 55.) Plaintiff
immediately went to her doctor's office and faxed and mailed the doctor's
note to Defendant. (Id. ¶ 56.) Over the next month,
Plaintiff called and left messages for Blount, Ferro, Shane and Henson.
No one called her back. (Id. ¶ 57.) Plaintiff never received
any formal notice of her termination. (Id. ¶ 58.) Finally,
Plaintiff applied for unemployment benefits, which Defendant
unsuccessfully contested. (Id. ¶ 59.)
Based on the foregoing allegations, Plaintiff claims that Defendant
retaliated against Plaintiff for opposing race discrimination. Plaintiff
seeks relief under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq. ("Title VH") and the Pennsylvania Human Relations
Act, 43 PA. CONS. STAT. § 951, et seq. ("PHRA").
II. Standard of Review
In reviewing a motion pursuant to Fed.R.Civ.P. 12(c), we apply the
same standard used
to review a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
Constitution Bank v. DiMarco, 815 F. Supp. 154, 157 (E.D.
Pa. 1993). We may not grant a judgment on the pleadings under Rule 12(c)
"unless the movant clearly establishes that no material issue of fact
remains to be resolved and that he is entitled to judgment as a matter
of law." Corestates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187,
193 (3d Cir. 1999) (quoting Kruzits v. Okuma Mach. Tool, Inc.,
40 F.3d 52, 54 (3d Cir. 1994)). We must "view the facts presented in the
pleadings and the inferences to be drawn therefrom in the light most
favorable to the nonmoving party." Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988) (quoting Soc'y
Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)).
Of course, to survive a motion for judgment on the pleadings, "the
plaintiff must set forth facts, and not mere conclusions, that state a
claim as a matter of law." Allstate Transp. Co., Inc. v. SEPTA,
C.A. No. 97-1482, 1998 WL 67550, *1 (E.D. Pa. Feb. 13, 1998).
To establish a prima facie case of retaliatory discharge under Title
VII,*fn1 a plaintiff must show: (1) that she engaged in protected
activity; (2) that the employer took adverse action against her; and (3)
that a casual link exists between the protected activity and the
employer's adverse action. Kachmar v. SungardData Sys., Inc.,
109 F.3d 173, 177 (3d Cir. 1997) (citing Charlton v. Paramus Bd. of
Educ., 25 F.3d 194, 201 (3d Cir. 1994)). Defendant argues that
Plaintiff has not pled sufficient facts to establish the third element of
her prima facie case, namely, a casual link between her protected
activity and termination. Plaintiff's protected activity was the filing
EEOC complaint in approximately 1992 or 1993.*fn2 However, Plaintiff
was not fired until August 29, 1997. Four to five years separate
Plaintiff's protected activity from Defendant's adverse action.
Defendant claims that because of this lengthy interval, Plaintiff cannot
establish the required casual link as a matter of law. We disagree.
The caselaw is clear that in a Title VII retaliation case, a plaintiff
can show a casual link between her protected activity and the employer's
adverse action in a number of ways. One way is to show temporal proximity
between the two events, from which an inference can be drawn that the
employer's adverse action was in response to the Plaintiff's protected
activity. However, "[i]t is important to emphasize that it is causation,
not temporal proximity itself, that is an element of plaintiff's prima
facie case, and temporal proximity merely provides an evidentiary basis
from which an inference can be drawn." Kachmar, 109 F.3d at 178.
Indeed, the Court of Appeals for the Third Circuit has set forth "no
limits" on the kinds of evidence that a court may consider when searching
the record for the required casual link. Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000); see also
Kachmar, 109 F.3dat 177; Krouse v. Am. Sterilizer Co.,
126 F.3d 494, 503-04 (3d Cir. 1997) ("When temporal proximity between
protected activity and allegedly retaliatory conduct is missing, courts
may look to the intervening period for other evidence of retaliatory
animus."); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)
("A causal connection maybe established either `indirectly by showing
that the protected activity was followed closely by discriminatory
treatment, or through other evidence such as
disparate treatment of fellow employees who engaged in similar conduct,
or directly through evidence of retaliatory animus directed against a
plaintiff by the defendant.'") (emphasis omitted) (quoting DeCintio
v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)).
Thus, for example, "a plaintiff can establish a link between his or her
protected behavior and subsequent discharge if the employer engaged in a
pattern of antagonism [directed at the plaintiff] in the intervening
period." Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir.
1997). Evidence that the employer gave inconsistent reasons for the
Plaintiff's discharge can also be circumstantial evidence of causation.
Abramson v. William Patter son Coll. of N.J., 260 F.3d 265, 289
(3d Cir. 2001). The element of causation is highly context specific, and
requires looking at the record as a whole to determine whether the
plaintiff has raised an "inference that her protected activity was
likely the reason for the adverse action." Kachmar, 109 F.3d at
177-78 (quoting Zanders v. Nat'l R.R. Passenger Corp.,
898 F.2d 1127, 1135 (6th Cir. 1990)).
Since the lack of temporal proximity is not fatal to Plaintiff's
causation theory, we must assess whether Plaintiff has alleged sufficient
facts to link her protected activity and discharge. We are satisfied that
Plaintiff has met this burden. Plaintiff alleges that beginning in 1995,
Defendant subjected her to a pattern of antagonism that included explicit
references to the EEOC complaint. Plaintiff's supervisors and other
co-workers brought up the EEOC complaint with Plaintiff on a regular
basis. Hensen and Shane, who worked in the human resources department,
told Plaintiff that nobody liked her because she filed the complaint.
Hensen said that the department was watching everything that Plaintiff
did.*fn3 In addition, there is evidence that
Defendant invented a reason to fire Plaintiff. When Plaintiff was out on
medical leave, Defendant sent her a telegram stating that Plaintiff
would be fired if she did not return to work that very day. However,
Defendant sent the telegram late in the afternoon and to Plaintiff's
mother's house, suggesting that Defendant did not intend for Plaintiff
to timely receive the ultimatum to return to work. Plaintiff was then
falsely told that she would not be fired if she sent human resources her
doctor's note. Viewing the record as a whole and in the light most
favorable to Plaintiff, we conclude that Plaintiff alleged sufficient
facts to raise an inference that her protected activity was likely the
reason for her discharge.
Defendant claims that even an intervening "pattern of antagonism" is
not sufficient to show causation in this case because the pattern of
antagonism allegedly did not begin until 1995, several years after
Plaintiff's protected activity. In making this argument, Defendant relies
heavily on Steiner v. Sprint, 957 F. Supp. 65 (S.D.N.Y. 1997), a
case from the Southern District of New York. In Steiner, the
court granted the defendants' motion for summary judgment on the grounds
that the plaintiff had failed to make out a prima facie showing of a
causal connection between her EEOC charge and eventual dismissal. The
undisputed facts showed that the plaintiff filed her EEOC complaint in
April, 1991, but did not experience any retaliation until September,
1993. The court said this passage of time was "far too long to permit a
reasonable fact-finder to infer a causal connection between the two
situations from the mere fact that they involved the same company, given
the utter absence of any other proof of linkage." Steiner,
957 F. Supp. at 66 (citing Johnson, 931 F.2d at 207). Defendant
reads Steiner to hold that a plaintiff cannot
show causation when a lengthy interval separates the Plaintiff's
protected activity from the beginning of the pattern of antagonism.
However, the Steiner court merely held that the plaintiff had
not shown causation, given the lengthy interval and "the utter
absence of any other proof of linkage." In this case Plaintiff's
supervisors and other co-workers repeatedly told Plaintiff, among other
things, that they did not like her and were watching her because
Plaintiff filed the EEOC complaint. Thus, at this stage, the
evidence linking Plaintiff's protected activity, the pattern of
antagonism, and her discharge is sufficient.*fn4 Accordingly, we must
deny Defendant's motion.
AND NOW, this ___ day of February, 2004, upon consideration of the
Motion of Defendant Independence Blue Cross for Judgment on the Pleadings
(Doc. No. 19), and all documents filed in support thereof and opposition
thereto, it is ORDERED that Defendant's Motion is DENIED.
IT IS SO ORDERED.