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NESMITH v. INDEPENDENCE BLUE CROSS

February 6, 2004.

GWENDOLYN NESMITH
v.
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.

I. Background

  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, Page 2 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. ¶ 23.)

  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 Page 3 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. ¶ 36.)

  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 Page 4 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 Page 5 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 ...


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