United States District Court, M.D. Pennsylvania
June 28, 2005.
LINDA REID-FALCONE Plaintiff
LUZERNE COUNTY COMMUNITY COLLEGE Defendant.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
Plaintiff Linda Reid-Falcone brings this action against
Defendant Luzerne County Community College ("LCCC") under the
Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601,
et seq., Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq., the Pennsylvania Human Relations Act
("PHRA"), 43 PA. CONS. STAT. § 955(a), and the parties' 1997
Consent Decree. Ms. Reid-Falcone's action is predicated upon
LCCC's alleged failure to restore her to a position equivalent to
the one she held before taking maternity leave in 2001 and 2002.
She asserts that although her job title, compensation and
benefits remained the same, the responsibilities and duties
assigned to her position were significantly reduced when she
returned from an approved eight-month leave of absence. LCCC has
moved for summary judgment. Because Plaintiff cannot show that
she invoked the protection of the FMLA, LCCC is entitled to
summary judgment on Plaintiff's claim that the reduction in
authority was intended to retaliate against her for taking leave
that could have, but was not, taken under the FMLA. Because
Plaintiff did not pursue statutorily-mandated administrative
remedies, Defendant is also entitled to summary judgment on the claims
asserted under Title VII and the PHRA. Because Plaintiff has
tendered sufficient evidence in support of her claim of
interference with FMLA rights and breach of the 1997 Consent
Decree, summary judgment on those claims will be denied.
Ms. Reid-Falcone was hired by LCCC in 1992 as an Associate Dean
of Continuing Education. Since that time Ms. Reid-Falcone has
held several other positions at LCCC. She was made the Executive
Director of Development in 1993 and named Associate Dean of
Business and Industry Development in 1998, the position which she
In 1996, Ms. Reid-Falcone, along with five other employees of
LCCC, filed a sexual harassment suit against LCCC, its president
at the time, and others. The lawsuit was resolved by a Consent
Decree entered by this Court on September 23, 1997. Among other
things, LCCC agreed not to adversely affect the terms of
Plaintiff's employment without just cause.
Prior to June of 2000, Plaintiff's immediate supervisor was Ann
Williams, the LCCC Vice President of Economic and Community
Development. After Ms. Williams resigned, Plaintiff reported
directly to the interim LCCC President, Andreas Paloumpis, for
about six months.*fn1 In January of 2001, Dr. Paloumpis
assigned the functions of the Economic and Community Development
Division to the LCCC Division of Academic Affairs, headed by John
Wills. In February of 2001, Ms. Reid-Falcone learned that she was
pregnant. She conferred with a college Human Resources Associate,
Barbara Struckus, on the matter of maternity leave. She inquired
into whether maternity leave fell under the FMLA, and was told
that it did not and that "the college policy is different."
(Reid-Falcone Dep. at 22-23.) On February 23, 2001, she submitted
a request to Paloumpis for approximately eight (8) months of
By memorandum dated March 28, 2001, Dr. Paloumpis approved the
request for a "maternity/child rearing leave of absence." (Ex. 4
to Reid-Falcone Dep.) Dr. Paloumpis' memorandum stated: "It is
important that you understand all issues related to your
maternity leave, so I suggest that you meet with Rich Amico,
Associate Dean of Human Resources." (Id.) It is unclear whether Plaintiff did so. It is clear, however,
that "plaintiff did not make any written application to LCCC
specifically requesting FMLA leave." (Def's Statement of Material
Facts, ("SMF") at ¶ 15.)*fn3 It is also clear that LCCC did
not classify Plaintiff's leave as either FMLA or non-FMLA leave.
Nor was Plaintiff told that her FMLA right to reinstatement to
her pre-leave position would expire at the end of 12 weeks of
By memorandum dated March 15, 2001, Dr. Paloumpis expressed to
Plaintiff his concerns about her making commitments on LCCC's
behalf. (Ex. 7 to Def's S.J. App.) The memorandum informed
Plaintiff that she was "not to make any further overtures to
providing LCCC academic programs . . . [and] will not meet with
and make any financial commitments, including grants, to any
group that would then be presented to our Board of Trustees after
the fact." (Id.) Ms. Reid-Falcone considered this memorandum to
be "hostile and threatening." (Reid-Falcone Dep. at 32.) She
complained about this memorandum and a hostile work environment
to Richard Amico, Associate Dean of Human Resources. She claimed
that "others" had told her that Paloumpis had referred to her as
a "bitch" and demonstrated a sexually hostile and retaliatory
attitude toward her. (Id. at 44.) In addition, Ms. Reid-Falcone
informed Tom Leary, Vice President of Student Development, that
she was concerned that she would become the target of retaliation
by Paloumpis for filing a complaint against him. As a result of the complaint, LCCC directed Attorney Robert
Panowicz to conduct an investigation into the matter. (SMF at ¶
23.) He concluded in his report dated February 13, 2002 that
Paloumpis's actions did not evidence a pattern of sexual
discrimination or the creation of a hostile work environment.
(Panowicz Investigation Report at 13-14.)
Ms. Reid-Falcone began her maternity/child rearing leave in
July of 2001. On February 28, 2002, Ms. Reid-Falcone requested an
extension of her leave that would allow her to return to work
part-time for two (2) days per week beginning in April and
lasting through July 4, 2002. Her request was approved and she
began working part-time. After April, Ms. Reid-Falcone worked
three days a week through July 4, 2002. (Reid-Falcone Aff. at ¶
When Ms. Reid-Falcone returned to work she was told to contact
her supervisor to learn her revised job responsibilities. (SMF ¶
30.) Her new supervisor, Nancy Kosteleba, provided Plaintiff with
a written job description dated August 9, 2001, several weeks
after her leave began. (Reid-Falcone Dep. Ex. 5.) This job
description differed substantially from the job description that
existed when Plaintiff went on leave. (Reid-Falcone Dep. at
52-57.) Ms. Reid-Falcone's position, title and compensation,
however, remained the same. (SMF ¶¶ 35-36.)
The most significant change to Ms. Reid-Falcone's position was
that she no longer had the authority to legally bind LCCC. (Id.
at 52-53.) In addition, Ms. Reid-Falcone was not allowed to
participate on any college committee, her role as a supervisor
was eliminated and she was no longer able to approve course
offerings, purchases, letters of agreements, or payroll authorizations. (Reid-Falcone Dep. at 54-64.)
This action was brought on October 10, 2002. The Complaint
contains four numbered counts, asserting violations of the FMLA
(Count I), the 1997 Consent Decree (Count II), Title VII (Count
III), and the PHRA (Count IV). Each count alleges multiple
breaches of statutory and contractual obligations. As to the
claims for relief under Title VII and the PHRA, The Complaint
does not allege satisfaction of the statutory prerequisites for
Defendant has moved for summary judgment on all claims. The
motion has been fully briefed and is ripe for disposition.
Summary judgment should be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). A fact is "material" if proof of its existence or
non-existence might affect the outcome of the suit under the
applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). An issue is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the
nonmoving party. Cont'l Ins. Co. v. Bodie, 682 F.2d 436, 438
(3d Cir. 1982). The moving party has the burden of showing the absence of a genuine issue of
material fact, and the nonmoving party must present affirmative
evidence from which a jury might return a verdict in the
nonmoving party's favor. Anderson, 477 U.S. at 256-57. Merely
conclusory allegations taken from the pleadings are insufficient
to withstand a motion for summary judgment. Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Summary
judgment is to be entered "after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
A. The FMLA Claims (Count I)
"The Family and Medical Leave Act, which was designed to
`balance the demands of the workplace with the needs of
families,' empowers employees to take reasonable leave from work
for medical reasons without fear of reprisal." Settle v. S.W.
Rodgers Co., Inc., 998 F. Supp. 657, 663 (E.D. Va. 1998). The
FMLA establishes work-setting entitlements protected by
enforcement provisions that make actionable not only the wrongful
denial of the entitlements, but also conduct that is intended to
discriminate against or punish workers who exercise
FMLA-guaranteed rights. As explained in Hodgens v. General
Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998):
The FMLA contains two distinct types of provisions.
First, it creates a series of substantive rights.
Eligible employees "shall be entitled" to up to twelve weeks of unpaid leave per year for
any one of the following purposes: when the employee
has "a serious health condition that makes [him or
her] unable to perform the functions of [his or her]
position," 29 U.S.C. § 2612(a)(1)(D); to care for a
close family member with such a condition,
29 U.S.C. § 2612(a)(1)(C); or because of the birth, adoption,
or placement in foster care of a child,
29 U.S.C. § 2612(a)(1)(A) & (B). Following a qualified absence,
the employee is entitled to return to the same
position or an alternate position with equivalent
pay, benefits, and working conditions, and without
loss of accrued seniority. 29 U.S.C. § 2614(a)(1);
29 C.F.R. § 825.100(c) (1997). . . .
These rights are essentially prescriptive, "set[ting]
substantive floors" for conduct by employers, and
creating "entitlements" for employees. As to these
rights, therefore, the employee need not show that
the employer treated other employees less favorably,
and an employer may not defend its interference with
the FMLA's substantive rights on the ground that it
treats all employees equally poorly without
discriminating. Id. at 712. In such cases, the
employer's subjective intent is not relevant. The
issue is simply whether the employer provided its
employee the entitlements set forth in the FMLA for
example, a twelve-week leave or reinstatement after
taking a medical leave. Because the issue is the
right to an entitlement, the employee is due the
benefit if the statutory requirements are satisfied,
regardless of the intent of the employer.
In addition to creating the above entitlements, the
FMLA provides protection in the event an employee is
discriminated against for exercising those rights.
29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220
(1997). In particular, "[a]n employer is prohibited
from discriminating against employees . . . who have
used FMLA leave." 29 C.F.R. § 825.220(c). Nor may
employers "use the taking of FMLA leave as a negative
factor in employment actions, such as hiring,
promotions or disciplinary actions."
29 C.F.R. § 825.220(c). For any such violation, the employer is
subject to a claim for compensatory damages and,
unless the court finds the violation occurred in good
faith, additional liquidated damages.
29 U.S.C. § 2617(a)(1)(A). These provisions are essentially proscriptive.
The Department of Labor has promulgated regulations to
implement the entitlements and substantive safeguards created by
the legislation. "The regulations make it the employer's
responsibility to tell the employee that an absence will be
considered FMLA leave." Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 87 (2002) (citing 29 C.F.R. § 825.208(a) (2001)).
"Under the regulations, the employer must communicate with
employees regarding their rights under the FMLA, providing
individualized notice to employees regarding their FMLA rights
and obligations." Fogleman v. Greater Hazleton Health Alliance,
122 Fed. Appx. 581, 587 (3d Cir. 2004). The employer also has the
responsibility of informing the employee of her right to
reinstatement to the same or equivalent position upon return from
leave. Conoshenti v. Public Service Elec. & Gas Co.,
364 F.3d 135
, 142 (3d Cir. 2004) (citing 29 C.F.R. § 825.301(b)(1)(vii)).
A violation of the regulations may constitute interference with
the exercise of FMLA rights. Id. (citing
29 C.F.R. § 825.220(b)). Moreover, employers may not manipulate a leave
system to avoid responsibilities under the FMLA. Id.
Furthermore, "`[e]mployees cannot waive, nor may employers induce
employees to waive their rights under FMLA." Id. (quoting
29 C.F.R. § 825.220(d)).
Courts have recognized two types of claims emanating from the
FMLA statutory and regulatory framework. See Bearley v.
Friendly Ice Cream Corp., 322 F. Supp. 2d 563, 570-71 (M.D. Pa.
2004). Parker v. Hanhemann Univ. Hospital, 234 F. Supp. 2d.
478, 485, 487-88 (D.N.J. 2002). "First, a plaintiff may pursue recovery under an
"entitlement or `interference' theory." Weisman v. Buckingham
Tp., No. Civ.A. 04-CV-4719, 2005 WL 1406026, at *4 (E.D. Pa.
June 14, 2005). Such a theory is based on 29 U.S.C. § 2615(a)(1),
which proscribes interference with or denial of an employee's
FMLA rights. Id. "The second type of recovery under the FMLA is
the retaliation theory. Id. "This claim arises under
29 U.S.C. § 2615(a)(2), which makes it unlawful for an employer to
discriminate against an employee who has taken FMLA leave."
Bearley, 322 F. Supp. 2d at 571.
Ms. Reid-Falcone has advanced both types of claims: she claims
interference with FMLA rights because she was not told of the
difference between the college leave policy and FMLA leave
(specifically, that the FMLA right of restoration to the same or
equivalent position expired after twelve weeks of leave), and she
claims that the changes in her authority and responsibilities
were made to retaliate against her for taking leave. Each theory
rests upon the change in her job responsibilities when she
returned from her leave.
1. Plaintiff's FMLA Interference Claim
LCCC contends that Plaintiff cannot pursue an interference
claim because "(1) she did not take FMLA leave, but took leave
under the College's leave policy; (2) she did not return from
FMLA leave within the twelve (12) week time period set forth by
the FMLA and was thus not entitled to return to the same
position; (3) if this Court determines she took FMLA leave, she
knew of her modified job duties prior to leaving on FMLA leave;
[and] (4) she returned to a substantially equivalent position." (Brief in Supp. of S.J. Mot.
As to its first enumerated position, LCCC relies upon
Plaintiff's admission that her leave was taken pursuant to the
College's policy and not the FMLA. Ms. Reid-Falcone responds by
pointing out that she qualified for FMLA leave and would have
structured her leave in such a manner as to preserve her
reinstatement rights. (Reid-Falcone Aff. at ¶¶ 12-14.) She
further asserts that LCCC interfered with her right to
reinstatement under the FMLA by failing to adequately notify her
that taking the leave approved pursuant to LCCC's leave policy
would deprive her of the protection of the FMLA. She contends
that LCCC never fully explained to her the differences between
its leave policy and the FMLA. More precisely, Ms. Reid-Falcone
claims that she was never informed that she had a right to take
her leave under the FMLA, regardless of the college's leave
policy, thereby ensuring her right of reinstatement.
In a decision handed down after the completion of briefing on
LCCC's summary judgment motion, our Court of Appeals validated
Ms. Reid-Falcone's theory of recovery. See Conoshenti v.
Public Service Elec. & Gas Co., 364 F.3d 135 (3d Cir. 2004). In
Conoshenti, the plaintiff sustained a non-work related injury
and went on a leave of absence commencing December 6, 1999. It
was undisputed that the serious injury qualified the plaintiff
for FMLA leave. He was not told by his employer, however, that he
was entitled to 12 weeks of protected leave and he was not told
that the leave he was using would be considered FMLA leave. Three
weeks after commencing his leave of absence, the plaintiff, on
the advice of his union, informed his employer in writing that he was requesting leave under the
FMLA. The plaintiff did not return to work until April 17, 2000,
approximately 17 weeks after his leave had commenced and more
than 14 weeks after requesting FMLA leave. Upon his return to
work the plaintiff was discharged. As in this case, the employer
argued that the plaintiff was not entitled to reinstatement to
his former position because his leave had exceeded the maximum
12-week period provided by the FMLA. In reversing the grant of
summary judgment in favor of the employer, our Court of Appeals
Conoshenti argues that PSE&G's failure to advise him
of his right to 12 weeks of FMLA leave, after he
properly gave notice of his serious health condition,
constituted an interference with his FMLA right to
that protected leave. Had he received the advice
PSE&G was obliged to provide, Conoshenti insists, he
would have been able to make an informed decision
about structuring his leave and would have structured
it, and his plan of recovery, in such a way as to
preserve the job protection afforded by the
Act. . . .
[T]he parties stipulated in the District Court that,
for purposes of summary judgment, PSE&G did not
advise Conoshenti of his rights under the FMLA. As we
have also noted, the regulation under the FMLA
imposed a duty on PSE&G to do so. It follows, we
believe, that Conoshenti will show an interference
with his right to leave under the FMLA, within the
meaning of 29 U.S.C. § 2615(a)(1), if he is able to
establish that this failure to advise rendered him
unable to exercise that right in a meaningful way,
thereby causing injury.
364 F.3d at 143. Accord, Fry v. First Fidelity
Bancorporation, No. Civ. A. 95-6019, 1996 WL 36910, at *5 (E.D.
Pa. Jan. 30, 1996) ("if an employer fails to adequately notify
its employees of the impact of its own family leave policies on
the rights provided by the FMLA, particularly where there is an apparent conflict between the employer's policy
and the employees' FMLA rights, such conduct can constitute
interference with an employee's FMLA rights if it causes an
employee to unwittingly forfeit the protection of the FMLA").
Conoshenti is controlling here. Ms. Reid-Falcone insists that
she was not informed of her FMLA rights, and particularly her
right of reinstatement. There is no evidence that she was
specifically informed that she would forfeit her right of
reinstatement if her leave exceeded the FMLA 12-week maximum.
Indeed, there is an absence of any evidence on the record that
Ms. Reid-Falcone received any of the advice required by the
Department of Labor regulations or that she was told that her
absence was being treated as FMLA or non-FMLA leave.*fn4
Pointing to the fact that Ms. Reid-Falcone's leave totaled
approximately 32 weeks, some 20 weeks in excess of the FMLA
required maximum, LCCC argues that the absence of notice could
not have prejudiced Ms. Reid-Falcone. Stated otherwise, LCCC
contends that no reasonable fact finder could conclude that Ms.
Reid-Falcone would have returned to work 12 weeks after
commencing her leave in order to protect her reinstatement
rights. Ms. Reid-Falcone, however, has made such a sworn
assertion, and that is sufficient to defeat LCCC's summary
judgment motion. See Conoshenti, 364 F.3d at 145-46. LCCC argues that summary judgment in its favor is warranted in
any event because Ms. Reid-Falcone "knew of her modified job
duties prior to leaving on FMLA leave and she returned to a
substantially equivalent position." (Brief in Support of S.J.
Mot. at 5.) As to the contention that Plaintiff knew that her job
duties were to be modified before she went on maternity leave,
LCCC asserts that Dr. Paloumpis had developed a reorganization
plan to centralize authority in the office of the college
president. Plaintiff, however, calls this assertion into doubt by
noting the absence of any documentation of a "reorganization
plan" as well as the absence of any evidence that any other
college administrator's duties were affected by the purported
"reorganization plan." It also bears observation that the new job
description for the position held by Ms. Reid-Falcone is dated
August 9, 2001, several weeks after she commenced her leave of
absence. Furthermore, LCCC specifically acknowledges that
"[t]here were differences between Plaintiff's job description
prior to her maternity leave and the job description handed to
her [upon her return from leave]." (SMF at ¶ 32.) Thus, there is
at least a genuine dispute of the facts material to the question
of whether Plaintiff knew her job duties were changing when she
went on leave. Heron v. American Heritage Federal Credit Union,
No. Civ.A. 02-CV-7209, 2005 WL 1041193, at *4-5 (E.D. Pa. May 2,
2005) (denying summary judgment where there were genuine disputes
of fact as to whether a restructuring of plaintiff's department
had been planned prior to his leave and whether there had, in
fact, been a "restructuring").
As to the contention that she was returned to a substantially
equivalent position, Ms. Reid-Falcone asserts that her authority was diminished
significantly and her status within the college community was
reduced. She purportedly lost her authority to bind the college,
her role as a supervisor was eliminated, she could no longer
approved course offerings, and she was removed from all college
committees on which she had served prior to her leave.
In pertinent part, the FMLA provides:
[A]ny eligible employee who takes leave . . . shall
be entitled, on return from such leave (A) to be
restored by the employer to the position of
employment held by the employee when the leave
commenced; or (B) to be restored to an equivalent
position with equivalent employment benefits, pay and
other terms and conditions of employment.
29 U.S.C. § 2614(a)(1). Implementing regulations expand on this
statutory requirement by explaining that "[a]n equivalent
position is one that is virtually identical to the employee's
former position in terms of pay, benefits and working conditions,
including privileges, perquisites and status. It must involve the
same or substantially similar duties and responsibilities, which
must entail substantially equivalent skill, effort,
responsibility, and authority." 29 C.F.R. § 825.215(a). Thus,
under the statute and implementing regulations, the fact that
Plaintiff had the same title and pay when she returned to work is
Determining equivalency of job positions "is generally a
question of fact for the jury." Parker, 234 F. Supp. 2d at 489.
In this case, there is no dispute that Plaintiff's post-leave job
responsibilities and authorities differed from her pre-leave
position. The question is whether her duties before and after her leave were substantially similar.
See Mitchell v. Dutchmen Mfg., Inc., 389 F.3d 746, 749 (7th
Cir. 2004). Resolution of this question entails an understanding
not only of the job descriptions, but also of the actual work
performed and authority possessed by Plaintiff before and after
her leave. The record in this case does not permit such an
assessment. For example, there is no evidence comparing
Plaintiff's day-to-day activities before and after her leave.
Thus, summary judgment in favor of LCCC on this issue is not
warranted. See Taylor v. Cameron Coca-Cola Bottling Co., No.
96-1122, 1997 WL 719106, at *20-21 (W.D. Pa. March 27, 1997)
(denying summary judgment where it was undisputed that work
responsibilities had changed and there was a genuine issue of
material fact as to whether the change indicated that Plaintiff
was not provided an equivalent position upon her return from
2. Plaintiff's FMLA Retaliation Claim
There is some consensus among the courts, particularly
Pennsylvania Federal District Courts, that the
McDonnell-Douglas burden-shifting approach provides the
appropriate analytical framework for an FMLA retaliation claim.
See e.g., Voorhees v. Time Warner Cable National Div., No.
Civ.A. 98-1460, 1999 WL 673062, at *3 (E.D. Pa. Aug. 30, 1999);
Holmes v. Pizza Hut of America, Inc., No. Civ. A. 97-4967, 1998
WL 564433, at * 7 (E.D. Pa. Aug. 31, 1998) ("most courts have
held that . . . the anti-retaliation analysis is McDonnell's
burden-shifting analysis"); Williams v. Shenango, Inc.,
986 F. Supp. 309, 318 (W.D. Pa. 1997). As explained by Judge Simandle in Parker, 234 F. Supp. 2d at 492
Under this framework, plaintiff must first establish
a prima facie case of discrimination by showing (1)
that she took advantage of the protected right to
leave under the FMLA, (2) that she was adversely
affected by an employment action taken by defendants,
and (3) the unfavorable employment action was caused
by her choice to take the leave under the FMLA. Then,
the burden shifts to defendants to articulate a
legitimate, non-discriminatory reason for the adverse
employment action. Then, plaintiff must show that the
non-discriminatory reason given is really a pretext
for actual discrimination.
LCCC argues that Plaintiff cannot satisfy the first element of
her prima facie case of retaliation "that she took advantage of
the protected right to leave under the FMLA." Id. In this
regard, plaintiff, in response to Defendant's Statement of
Material Facts, acknowledged that she never made any written
application to the college specifically requesting FMLA leave;
that she was informed that she was taking leave under the college
leave policy; and that it was her understanding that the college
followed its own policy for leave. (SMF at ¶¶ 15-17.)
Plaintiff, without citation to any authority, suggests that an
employee's failure to invoke the protections of the FMLA (as well
as be subjected to its limitations) does not insulate an employer
from liability on a retaliation claim. According to Plaintiff,
"the proper analysis is whether or not the employer's motivation
in refusing to restore the employee was on account of the
employee's taking leave that qualified for FMLA protection."
(Brief in Opp. to S.J. Mot. at 6 n. 1; emphasis in original.)
Thus, Plaintiff's position is that retaliation for taking leave
is enough to support a claim, regardless of whether leave was taken under
Plaintiff's position does not square with the language employed
by Congress. The legislative proscription is that an employer not
"discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this
subchapter." 29 U.S.C. § 2615(a)(2). Congress did not proscribe
retaliation for taking leave that may have qualified for
protection under the FMLA. Nor can support for Plaintiff's
position be found in the Department of Labor regulations, which
state that "employers cannot use the taking of FMLA leave as a
negative factor in employment actions. . . ." Plaintiff did not
take FMLA leave, and there is no evidence that the employer
treated the absence as FMLA leave.
The difficulty with Plaintiff's argument is that it would
extend liability to any adverse employment action taken after an
employee returns from leave that could have qualified under the
FMLA, even where the employee understands that the leave is not
taken pursuant to the FMLA. This is the scenario presented here.
Plaintiff explicitly acknowledges that she understood that her
leave was not covered by the FMLA. Yet, to recover on her
retaliation theory, she must prove that the motivating factor for
the alleged adverse employment action was her exercise of
FMLA-protected rights. Because she cannot show that she invoked a
right protected by the FMLA in the first instance, she cannot
show that LCCC took action in retaliation for the exercise of
such a right.
The flaw in Plaintiff's logic is revealed by the fact that the
argument in support of her retaliation claim advanced in her opposition brief meanders into
the issue of whether she was denied a substantially equivalent
position upon her return from leave. As noted above, both the
interference and retaliation claims are based upon the difference
in job authority and responsibilities upon her return from leave.
On an interference claim, plaintiff need not prove discriminatory
intent, but only that she was entitled to reinstatement and
denied it, with the burden then resting on the employer to show
that the job duties would have changed regardless of whether or
not she took leave. See Parker, 234 F.Supp. 2d at 486. On the
other hand, retaliation requires proof of retaliatory intent.
Allowing a plaintiff to pursue a retaliation theory for adverse
action taken after a leave of absence that the employee did not
take (for whatever reason) under the FMLA, would effectively
conflate the interference and retaliation theories of recovery.
Plaintiff could recover on a retaliation theory without showing
an intent to retaliate for the exercise of a protected right. A
plaintiff who claims that she was denied access to FMLA rights by
not receiving proper notice, and consequently did not invoke FMLA
leave, and then seeks recovery on an interference theory, simply
cannot simultaneously pursue a retaliation theory of recovery. An
employer who manipulates an employee into taking leave not
covered by the FMLA and then demotes or discharges the employee
upon return to employment cannot have been motivated to retaliate
for the exercise of a right protected by the FMLA because the
employee did not exercise such a right. In the scenario presented
here, the premise for a retaliation claim the exercise of a
right protected by the FMLA is necessarily absent. Accordingly, LCCC is entitled to summary judgment on the FMLA
B. The Title VII and PHRA Claims (Counts III and IV)
Plaintiff's other statutory causes of action are based upon
Title VII and the PHRA. A claimant must exhaust the
administrative remedies and procedures under Title VII and the
PHRA prior to seeking relief under either of those statutes in a
court of law. See Burgh v. Borough Council of the Borough of
Montrose, 251 F.3d 465, 469 (3d Cir. 2001); Bailey v.
Storlazzi, 729 A.2d 1206, 1214 (Pa.Super. 1999). Plaintiff has
not alleged in her Complaint that she satisfied the
administrative prerequisites to bringing suit. Nor has Plaintiff
cited any authority that would relieve her of the obligation to
pursue administrative remedies on her statutory claims because of
the earlier Consent Decree. Significantly, the Consent Decree
does not purport to waive an administrative remedy exhaustion
requirement for future statutory claims. In this case, the
conduct that is allegedly actionable under the
anti-discrimination statutes is some five years removed from the
entry of the Consent Decree. The claim in this case involves a
different college president than the one involved in the Consent
Decree. The retaliation claims advanced under Title VII and the
PHRA plainly exceed the scope of the administrative complaint
that lead to the 1997 Consent Decree. It certainly cannot be said
that the retaliation claims advanced here fall within the scope
of the original administrative complaint pursued years ago.
Accordingly, the Title VII and PHRA claims will be dismissed for
failure to comply with the administrative exhaustion requirement.
See Spindler v. Southeastern Pennsylvania Transportation Authority, 47 Fed. Appx. 92, 94 (3d
Cir. 2002); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996).
C. Breach of Consent Decree (Count II)
Count II of Plaintiff's Complaint is titled "Enforcement of
Consent Decree," and is premised upon the assertion that LCCC
breached the terms of the September 23, 1997 Consent Decree
entered into by the parties in Reid-Falcone v. Luzerne County
Community College, No. 3:CV-96-2000 (M.D. Pa.).*fn5 In
moving for summary judgment, LCCC has relied upon the standards
governing civil contempt, and Plaintiff has done likewise. Thus,
for purposes of determining whether summary judgment is
warranted, I, too, will apply the civil contempt standards.
A court has the "inherent power to enforce compliance with
[its] lawful orders through civil contempt." Spallone v. United
States, 493 U.S. 265, 276 (1990) (quoting Shillitani v. United
States, 384 U.S. 364, 370 (1966)). To hold a defendant in
contempt, the court must find that (1) a valid court order existed; (2) the defendant had knowledge of
the order; and (3) the defendant disobeyed the order. Harris v.
City of Philadelphia, 47 F.3d 1311, 1326 (3d Cir. 1995); Roe v.
Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990). Willfulness
is not a necessary element. Harley-Davidson, Inc. v. Morris,
19 F.3d 142, 148-49 (3d Cir. 1994). Contempt must be proven by
"clear and convincing evidence," and where there is ground to
doubt the wrongfulness of the conduct, the defendant should not
be held in contempt. Robin Woods Inc. v. Woods, 28 F.3d 396,
399 (3d Cir. 1994).
LCCC does not dispute the fact that a valid Consent Decree
existed or that Dr. Paloumpis had knowledge of the Consent
Decree, despite the fact that he was not affiliated with the
college when the Consent Decree was signed. Therefore, the only
issue is whether there is a genuine dispute of material fact as
to whether LCCC "disobeyed the order."
Among other things, the Consent Decree directed that LCCC "not
in any way, directly or indirectly, retaliate against Plaintiff,
or permit the occurrence of retaliation against Plaintiff by any
person or parties under their control or accountable to them, on
account of the filing of the [1996 lawsuit]." (Consent Decree, ¶
4.) The Consent Decree also provided that LCCC "shall comply with
all provisions of its policies pertaining to sex discrimination
and sexual harassment." (Consent Decree ¶ 1.) Finally, pertinent
here was the directive that "Plaintiff not be terminated from
employment or otherwise have her terms, conditions, and/or
benefits of employment adversely affected except for just cause."
(Consent Decree, ¶ 6.) As noted above, the burden of proof standard that applies where
a party seeks to hold another in civil contempt is the "clear and
convincing" standard. Robin Woods, 28 F.3d at 399. Thus, the
pertinent inquiry on LCCC's summary judgment motion is whether
the evidence is of a sufficient "caliber or quantity to allow a
rational finder of fact to find [a breach of the consent decree]
by clear and convincing evidence." Anderson, 477 U.S. at 253.
As noted above, Ms. Reid-Falcone asserts that LCCC failed to
comply with policies pertaining to sexual harassment, retaliated
against her for having brought the original 1996 action, and
adversely changed the terms and conditions of her employment
without just cause. The quality and quantity of evidence
presented by Plaintiff is sufficient to survive summary judgment
on at least this last alleged instance of a breach of the consent
It is undisputed that Plaintiff's authority and
responsibilities were changed substantially when she returned
from her leave of absence. Plaintiff has also presented evidence
that her pre-leave performance had been regarded as satisfactory.
Other than claiming the president's prerogative to reorganize
staff and staff functions, LCCC has not pointed to any evidence
that would suggest "just cause" for elimination of the authority
and reduction in responsibilities. Plaintiff, by way of contrast,
has pointed to evidence of Dr. Paloumpis' animosity towards her.
She has also pointed to evidence suggesting an anti-woman bias on
his part. A jury could find that the evidence is sufficiently
clear and convincing to support a determination that LCCC adversely altered the terms and conditions of her employment
without just cause.*fn6 Thus, summary judgment on the
alleged breach of the consent decree is not warranted.
For the reasons set forth above, judgment will be entered in
favor of LCCC on Plaintiff's FMLA retaliation claim as well as
her Title VII and PHRA claims. In all other respects, LCCC's
motion for summary judgment will be denied. An appropriate Order
NOW, THIS 28th DAY OF JUNE, 2005, for the reasons set forth
in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendant's "Motion for Summary Judgment" (Dkt. Entry 18) is
GRANTED IN PART AND DENIED IN PART.
a. Defendant's motion for summary judgment on
Plaintiff's claim of interference with her FMLA
rights is DENIED.
b. Defendant's motion for summary judgment on
Plaintiff's FMLA retaliation claim is GRANTED.
c. Defendant's motion for summary judgment on the
issue of a breach of the 1997 Consent Decree is
d. Defendant's motion for summary judgment on
Plaintiff's claims asserted under Title VII and the
PHRA is GRANTED. 2. A telephonic scheduling conference shall be held on
Thursday, July 21, 2005 at 3:00 p.m. Counsel for Plaintiff
shall make the arrangements for the conference call.