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April 20, 2004.

LISA TODD, Plaintiff

The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge


On March 20, 2003, Plaintiff Lisa Todd commenced this action against her former employer New England Motor Freight, Inc. ("NEMF") for retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA") and NEMF employee Steven McEvoy for retaliation in violation of the PHRA.*fn1 On January 28, 2004, this matter was tried without a jury.*fn2 I now enter the following Findings of Fact and Conclusions of Law as required by Federal Rule of Civil Procedure 52(a). For the reasons that follow, I find for Defendants and against Plaintiff. I. FINDINGS OF FACT

On November 28, 2001, Plaintiff Lisa Todd was terminated from her position as a corporate customer representative for NEMF. (R. at 131.) This action concerns whether Plaintiff was terminated in retaliation for her claims of sexual harassment, as Plaintiff argues, or on the basis of her excessive absenteeism and failure to provide an adequate doctor's note for her absence on November 19, 2001, as Defendants claim.

  In August 1996, Plaintiff commenced employment as a local customer service representative in the Lehighton, Pennsylvania terminal of NEMF, a trucking company. She reported directly to Steven McEvoy. (Id. at 43.) In February 2000, Plaintiff was promoted to the position of corporate customer representative. (Id. at 53.) Plaintiff continued to report directly to McEvoy until Christine Serfass became her supervisor. (Id. at 54.) On March 15, 2001, Plaintiff began an extended leave period under the Family Medical Leave Act ("FMLA") for surgery due to a thyroid condition. Although the FMLA only entitles employees to twelve weeks of leave during a twelve month period, NEMF allowed Plaintiff to take over thirteen weeks of FMLA leave. (Id. at 56.) Under NEMF's policy, of which Plaintiff was aware, employees who return to work after FMLA leave are considered to have exhausted all of their accrued vacation, sick, and personal days for the calendar year. Accordingly, when Plaintiff returned to work on June 18, 2001, she understood that she was not entitled to any additional time off for the remainder of the year. (Id. at 60.)

  Nonetheless, Plaintiff accrued additional absences following her return. First, within two weeks after returning, Plaintiff took three days off without NEMF's approval on June 28, June 29 and July 2. (Def.'s Trial Ex. 10.) Plaintiff also missed work on July 27 and again on August 13. (Id.) On August 14, Serfass and McEvoy met with Plaintiff and issued her a written warning regarding her absenteeism. (R. at 26, 75, 120; Pl's Trial Ex. 9.) At the meeting, Plaintiff was informed that future unexcused absences would result in discipline and eventually termination. (R. at 76-77.) In fact, Plaintiff signed a written warning that stated that "future unexcused absences . . . will result in further discipline up to and including suspension or termination of employment." (Id. at 77; Pl's Trial Ex. 9.) By signing the warning letter, Plaintiff acknowledged that she "agree[d] with the statements" contained therein. (Pl's Trial Ex. 9.)

  Despite her written warning, Plaintiff's attendance problems persisted. She had additional unexcused absences in 2001 on September 10, 11, 12, 13 and on October 11 and 18. (R. at 78,121.) NEMF did not take disciplinary action against Plaintiff for these absences; in fact, Plaintiff was permitted to take a day off on November 9, 2001 so that she could prepare for her wedding the next day. In addition to absenteeism, Plaintiff also had a punctuality problem. She regularly arrived at work fifteen to twenty minutes after her scheduled start time. (Id. at 80.) In response, McEvoy met with Plaintiff and informed her that she could not arrive more than ten minutes past her start time. (Id.)

  During this time, Plaintiff also experienced two incidents that she believed constituted sexual harassment on June 18 and August 3, 2001.*fn3 Despite Plaintiff's familiarity with NEMF's sexual harassment policies and the company handbook's clear direction that sexual harassment complaints should be directed to human resources personnel Nancy Shevell, Lou Natale, or John Callberg, Plaintiff never complained to any of these individuals until after her suspension.*fn4 (Id. at 61.) Rather, the day after the June 18 incident, before contacting anyone at NEMF, Plaintiff called her attorney to inquire about "what [she] needed to do." (Id. at 64.) Plaintiff testified that she later reported the June 18 incident to her supervisor, Christine Serfass, the terminal manager, David Hillman, and the regional manager, Steven McEvoy. (Id. at 24-25.) Plaintiff also reported the August 3 incident to Hillman and McEvoy. (Id. at 25.) Although McEvoy denied having been informed of the June 18 incident, (Id. at 129, 132), he testified that he had been informed of the August 3 incident and had addressed the issue with the other individual involved (Id. at 129). Plaintiff confirmed that the August 3 issue was resolved after she spoke with McEvoy. (Id. at 65.)

  As a result of making these complaints, Plaintiff claims that she suffered retaliation after her return from FMLA leave. Specifically, Plaintiff testified that her internet privileges, long-distance telephone privileges, and some of her corporate customer accounts were taken away. While it is true that some of Plaintiff's corporate accounts were not returned to her following her thirteen-week leave period, (Id. at 28), McEvoy convincingly explained that those accounts were not returned because NEMF did not want to disrupt the strong relationships those customers had established with the current covering employees. (Id. at 115.) Furthermore, Plaintiff's attendance problem was provoking problems with customers, some of whom had complained that Plaintiff was difficult to reach due to her absenteeism. (Id. at 118, 121.) Nonetheless, as of June 25, 2001, the amount of work, although not necessarily the number of accounts, was divided equally among the customer services representatives. (Id. at 112, 116; Def.'s Trial Ex. 3.) Furthermore, Plaintiff's internet privileges were suspended only after NEMF became aware that Plaintiff used the internet system for personal use on a daily basis in contravention of NEMF policy. (R. at 68, 124.) In addition, when NEMF became aware that Plaintiff was charging long-distance phone calls to the company, she was asked to purchase a phone card, which she did. (Id. at 69-71, 124-25.) Plaintiff presented no evidence that NEMF policies with respect to internet and telephone use were not uniformly and consistently applied.

  Plaintiff's absence on November 19, 2001 finally led to her termination. The day before, on November 18, Plaintiff called her immediate supervisor, Christine Serfass, to inform her that she could not come to work the following day because she needed to drive her mother to the doctor for a medical procedure. (Id. at 10.) Serfass responded that the absence would be excused if Plaintiff produced a medical note from her mother's physician. (Id.) The following day, Plaintiff and her young daughter drove approximately two hours to her mother's house and found out, after they had arrived, that the procedure had been cancelled. (Id. at 11.) Plaintiff's attempts to arrange a babysitter were unavailing and Plaintiff could not go into work. (Id. at 82.) When Plaintiff called Serfass to inform her of the situation, she was transferred to McEvoy, who told her that she needed to bring a doctor's note stating that her mother's procedure had been rescheduled. (Id. at 12, 83.)

  When Plaintiff returned to work the next day, she gave Serfass a note from her mother's doctor that stated: "Blockage of the urethra. Cystoscopy performed. Renal x Lasix to be performed after the holidays." (Id. at 15.) Under the section entitled "Explanation of extent to which employee is needed to care for the ill spouse, child or parent," the doctor wrote "Mother unable to work for 3 days and asked daughter for assistance." (Id. at 15-16.) Serfass informed Plaintiff that she would show the note to McEvoy for his approval. Before hearing from McEvoy, Plaintiff wrote an email to Nancy Shevell concerning the June 18 and August 3 sexual harassment incidents. (Id. at 88.) This email was the first time she had registered a complaint with Shevell regarding these incidents. (Id. at 89.)

  When Serfass returned a short time later, she informed Plaintiff that the note was unacceptable because it did not specifically state that her mother's procedure had been scheduled for November 19, 2001 and subsequently cancelled. (Id. at 20-21.) Plaintiff was thereafter suspended from work pending production of an adequate doctor's note. (Id. at 21,127.) According to Plaintiff, her mother called the doctor but he was unwilling to issue a new note as he believed that the note stated all that was required and because her mother did not want any additional personal information released. (Id. at 32, 94, 98.) Plaintiff never contacted the doctor's office herself to request an appropriate note. (Id. at 98.)

  Thereafter, pursuant to NEMF's company policy, Shevell forwarded Plaintiff's sexual harassment complaints to Louis Natale, Director of Human Resources, for investigation.*fn5 (Id. at 129-30.) Natale advised McEvoy to refrain from taking any action against Plaintiff pending the outcome of his investigation. (Id. at 130.) On November 28, Natale informed McEvoy that his investigation revealed that there were no "sexual harassment issues" and that McEvoy was "free to carry through with whatever it was [he] had started on the 20th." (Id. at 131.) At that point, McEvoy called Plaintiff and asked her once again if she had procured an adequate doctor's note. (Id. at 131.) Upon Plaintiff's statement that she had not, McEvoy terminated her. (Id. at 131.)


  A. Retaliation Under Title ...

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