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Constant v. Mellon Bank

July 3, 2006


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant Mellon Bank, N.A., and the brief in opposition filed by Plaintiff, Susan Constant. After careful consideration of Defendant's motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Susan Constant, on her claim of retaliation under the Family and Medical Leave Act. Therefore, the Court will grant the motion for summary judgment of Defendant, Mellon Bank, N.A.


Plaintiff Susan C. Constant ("Plaintiff") brought this lawsuit under the Family and Medical Leave Act ("FMLA") on November 7, 2003, in which she alleges that Defendant Mellon Bank N.A. ("Mellon") illegally terminated her employment in retaliation of her request to take FMLA leave.

Mellon has filed the instant motion for summary judgment in which it contends that Plaintiff is unable to establish a prima facie case of retaliation under the FMLA. In the alternative, Mellon contends that assuming arguendo that Plaintiff could state a prima facie case of FMLA retaliation, summary judgment should still be granted in its favor because there is no evidence that Mellon's legitimate, articulated reason for Plaintiff's discharge (poor performance) was false and that Plaintiff's request for FMLA leave was the real reason for her discharge.


The facts relevant to this discussion, and viewed in the light most favorable to Plaintiff, are as follows. In February 2002, Plaintiff was hired by Mellon as a Marketing Specialist III in its Corporate Marketing Department. As a Marketing Specialist III, Plaintiff worked on a variety of internal and external marketing and communications projects, often in conjunction with other Mellon employees. Plaintiff's supervisor throughout her employment with Mellon was Peter Hayes, Director of Marketing for Mellon. Mr. Hayes reported to Rose Cotton Gabbianelli, Senior Vice President and Director of Corporate Affairs for Mellon.

On May 26, 2002, Plaintiff and her husband were arrested at their home after they were involved in a domestic dispute which resulted in a Mt. Lebanon police officer being shot. Plaintiff was arrested and charged with conspiracy to commit attempted murder, conspiracy to commit aggravated assault, recklessly endangering another person, and obstructing the administration of justice.*fn1 Following Plaintiff's arrest, she was incarcerated for five days in the Allegheny County Jail, after which she returned to her job at for Mellon. As a result of her arrest, Plaintiff missed four days of work; however, she used four vacation days for the work days that she missed.

Plaintiff testified during her deposition that Mellon was supportive of her following her arrest and return to work. After she returned, Mr. Hayes advised her that she needed to maintain a professional demeanor and keep her personal issues outside of the workplace. Plaintiff worked in a cubicle which had no door and was in close proximity to co-workers.

During the time period following her release from jail, it was necessary for Plaintiff to occasionally attend court hearings and meet various court/bail requirements, such as court-mandated drug and alcohol testing, preliminary hearings, and meetings with her attorney, during the work day. Also, Plaintiff testified that she frequently discussed her legal situation with her co-workers during work hours and made personal calls from work to discuss her legal situation (including calls to her counselor and her attorney). See Pl. Depo. at 41-42.

The record reflects that in the four months following her arrest, Plaintiff was absent from work on no fewer than twenty-two (22) separate occasions and that Mellon granted her permission to miss work on each of these occasions. Pl. Depo. at 46-57, Pl. Depo. at 56-57, Exhs. 1-14. In her deposition Plaintiff testified that she was not disciplined as a result of any of these absences.

On August 7, 2002, Mr. Hayes met with Plaintiff for her 2002 mid-year performance review. According to Plaintiff, Mr. Hayes complimented her work on the CFI website and on the branding brochures she had written, but he also advised her that she needed to minimize the number of personal telephone calls she made from work and informed her that she spoke loudly on the telephone. See Pl. Affidavit at ¶ 7; Pl. Depo. at 59. Plaintiff agreed to minimize her personal calls. Pl. Depo. at 59.

Two days later, on August 9, 2002, Mr. Hayes met with Plaintiff and again specifically asked her not to make telephone calls from her desk about her legal situation, to reduce the number of personal calls in general, and to lower her voice during those calls so as not to disrupt her co-workers. Pl. Depo. Exh. 15.

During the week of October 7, 2002 Plaintiff made several personal calls from her office, which apparently disrupted the workplace. Pl. Depo. Exh. 15. As a result, on November 4, 2002, Mr. Hayes issued a disciplinary memo to Plaintiff which stated the following:

RE: Corrective Action/Initial Warning

The purpose of this memo is to notify you that you are being placed on the first stage of corrective action due to disruptive and inappropriate behavior in the workplace.

As you will recall, when you returned to work in June, it was clearly stated to you that you must maintain a professional demeanor, keep your personal issues outside the workplace, and avoid discussing your personal situation with co-workers while in the workplace. However, within a few weeks you began to conduct personal conversations over the telephone that were clearly overheard by others in the department (including myself), as well as raising the topic of your personal situation with others in the department. You were reminded of the requirement to separate your personal and professional activities while in the workplace during your mid-year review on August 7th, and, on August 9th we held a separate conversation in which I specifically asked you not to make telephone calls from your desk to discuss your personal situation, and to minimize your personal calls (and to be sure they couldn't be overheard if personal calls were made). I also reminded you that these activities were not acceptable and that if I were forced to raise the issue again you would be placed on corrective action.

It is now clear that during the week of October 7th you made repeated personal calls which have been overheard by others, and have caused inappropriate and unnecessary disruption in the workplace. As a result, you are being placed on corrective action/initial written warning.

This memo formally initiates the corrective action process. If immediate and sustained improvement is not shown, additional steps will be taken, up to and including termination of your employment at Mellon.

Pl. Depo. at 62-63, Ex. 15. Following this written warning, Plaintiff once again agreed to curtail her personal calls while at work. Pl. Depo. at 65.

The summary judgment record reflects that Plaintiff did not file any complaint regarding the November 4, 2002, corrective action/initial warning with Human Resources or Mellon management because she felt it was "justified." Pl. Depo. at 66.

On December 13, 2002, Plaintiff once again engaged in a loud and disruptive personal conversation at work. Pl. Depo. at 66-67. This conversation was overheard by Plaintiff's co-workers, who complained about the conversation and one of her co-workers allegedly was so upset by the conversation that she left work. See Depo. of James Lauteri at 15-16; Hayes Depo. at 71-73.

On January 27, 2003, Mr. Hayes met with Plaintiff for her year-end performance review and evaluation. In the section titled "Comments on Year End Assessment" on Results-Based Goals, Mr. Hayes wrote:

Susan met all of her goals for 2002 and exceeded them in some cases, especially in the case of the marketing communications items. She was directly responsible for the development of the sector brochures to support the brand campaign, and completed this difficult assignment on time, despite a variety of hurdles including the need to work with a variety of departments and personnel to gain the approvals needed to print the brochures. In addition Susan has started to provide other writing support to the department to help offset the increasing requests for marketing writing that are being made through Design and Video. Susan was also instrumental in getting the CFI web site up and running and in maintaining it over the course of the last 9 months of the year.

Pl. Depo, Exh. 16 at 3.

In the year-end evaluation, Mr. Hayes also noted, however, that Plaintiff "needed improvement" in the category ...

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