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United States District Court, E.D. Pennsylvania

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 VII and PHRA

  To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) she engaged in protected activity; (2) she was subsequently or contemporaneously subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action.*fn6 Woodson v. Scott Paper Co., 109 F.3d 913, 920(3dCir. 1997); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). After the plaintiff establishes her prima facie case, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse employment action. Jalil, 873 F.2d at 708. To meet its burden, the defendant must only articulate a legitimate reason; the defendant need not prove that the stated reason was in fact the actual reason. Woodson, 109 F.3d at 920. To sustain her retaliation claim, plaintiff must then show that any alleged nondiscriminatory reason proffered by the defendant is pretextual and that the real reason was retaliatory or otherwise present evidence from which a factfinder reasonably could find that retaliation was more likely than not a determinative cause of the adverse employment action. Jalil, 873 F.2d at 708.

  Plaintiff has not established a prima facie case because she has not demonstrated a causal link between her complaint and the adverse employment action. See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) ("The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific."). As the Third Circuit has explained, a plaintiff can demonstrate a causal link in various ways. A causal link may be demonstrated by the close temporal proximity between protected activity and an adverse employment action. See Kachmar, 109 F.3d at 177 (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)) ("[T]he temporal proximity between the employee's protected activity and the adverse employment action . . . is an obvious method by which a plaintiff can proffer circumstantial evidence `sufficient to raise the inference that her protected activity was the likely reason for the adverse action.'"). However, for a court to infer causality from timing alone, the timing must be "unusually suggestive" of a retaliatory motive. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (citing case in which plaintiff was fired two days after complaint.) In cases lacking temporal proximity, "aplaintiff may still make out the causal link by producing circumstantial evidence of a pattern of antagonism following the protected activity." Alderfer v. Nibco, Inc., No. CIV.A. 98-6654, 1999 WL 956375, at *5, 1999 U.S. Dist. LEXIS 16083, at *14 (E.D. Pa. Oct. 19, 1999) (citing Kachmar, 109 F.3d at 177 (3d Cir. 1997)).

  In this case, Plaintiff was not suspended from NEMF until over three and one-half months after her last sexual harassment complaint. Although a close proximity between the protected activity and the adverse employment action is not essential to establish causality, this gap in time is at least suggestive that her complaints did not provoke her termination. See Alderfer, 1999 WL 956375, at *4 (holding gap of four months not sufficient to raise inference of causality). Furthermore, Plaintiff did not present evidence that the reshuffling of her customer accounts and the suspension of her internet usage occurred within close proximity to a specific complaint. In fact, Plaintiff's long distance telephone use was ended the day before the August 3 sexual harassment incident. In addition, on November 20, 2001, when McEvoy made the decision not to accept Plaintiff's doctor's note, he was not aware of the email Plaintiff had sent to Nancy Shevell only minutes earlier complaining of sexual harassment. After learning of her complaints, NEMF halted the termination process pending investigation of her claims. Cf. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) ("Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.") Finally, Plaintiff has not produced any circumstantial evidence of a "pattern of antagonism" sufficient to convince this Court that a causal link exists. Kachmar, 109 F.3d at 177 (citing Waddell v. Small Tube Prods., Inc., 799 F.2d 69, 73 (3d Cir. 1986)). Rather, each of the alleged incidents were unrelated events that Plaintiff testified were resolved. (R. at 65.) Furthermore, Plaintiff testified that she always had a good relationship with both McEvoy and Serfass, (Id. at 54,103), and that she thought Serfass was an excellent person and a fair supervisor (Id. at 55).

  Even if Plaintiff had established a prima facie case, she did not establish that NEMF's decision was pretextual. In order to establish pretext, the plaintiff has the burden of proving that the defendant's articulated business reason was false and that retaliation was the true reason. See Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). As the Third Circuit explained in Fuentes,

To discredit the employer's proffered reason . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken. . . . Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence 32 F.3d at 765 (internal citation omitted).
  This Court finds NEMF's articulated reason for Plaintiff's termination credible. Plaintiff's persistent absenteeism problem provided ample reason to justify her termination. Furthermore, the testimony at trial demonstrated that NEMF handled Plaintiff's previous sexual harassment complaints reasonably and generally to Plaintiff's satisfaction. In addition, Plaintiff has presented no evidence to suggest that NEMF's phone and internet policies were not consistently applied among all employees. Finally, customer accounts were allocated among service representatives in accordance with legitimate business considerations.

  Thus, this Court finds no reason to conclude that NEMF's articulated reason for Plaintiff's termination was false and that retaliation was the true motivation. Rather, it appears that Plaintiff's last ditch attempt to lodge sexual harassment complaints with Shevell after turning in an unsatisfactory medical note was a fufile effort to cast her termination as retaliation rather than as a legitimate business response to an excessively absent employee. Despite NEMF's often lenient approach to Plaintiff's absenteeism problem, this Court will not penalize a company's attempt to accommodate a long-time employee by concluding, as Plaintiff suggests, that the company's prior lenience is reason to believe that her termination for the November 19 absence was pretext for a hidden discriminatory motive. Rather, the testimony and evidence on record suggests that Plaintiff's November 19 absence was the proverbial straw that broke the camel's back. In conclusion, this Court finds no reason to believe that retaliation was more likely than not a determinative cause of Plaintiff's termination. B. Individual Liability Under PHRA

  Plaintiff also brings a claim under § 995(e) of the Pennsylvania Human Relations Act against Defendant McEvoy for aiding and abetting the discriminatory acts of NEMF. 43 PA. CONS. STAT. § 955(e) (West 2003). As this Court finds that NEMF has not perpetrated a discriminatory act against Plaintiff, Defendant McEvoy cannot be held liable under § 955(e).


  Accordingly, I enter judgment in favor of Defendants NEMF and Steven McEvoy and against Plaintiff Lisa Todd. An appropriate Order follows. ORDER

  AND NOW, this 20 th day of April, 2004, upon consideration of the parties' Proposed Findings of Fact and Conclusions of Law, and following a bench trial on the merits, and for the foregoing reasons, it is hereby ORDERED that:

  Judgment is entered in favor of Defendants New England Motor Freight and Steven McEvoy and against Plaintiff Lisa Todd.

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