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Seifert v. Commonwealth of Pennsylvania Human Relations Commission

September 27, 2007

MARILYN SEIFERT, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA HUMAN RELATIONS COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

In this memorandum opinion, the court considers the motion for summary judgment (Doc. No. 21) filed by defendant Commonwealth of Pennsylvania Human Relations Commission ("defendant" or "PHRC"). Plaintiff Marilyn Seifert ("plaintiff" or "Seifert") asserted one claim against defendant for retaliation in violation of the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. §§ 2601 et seq. ("FMLA"). Defendant's motion seeks summary judgment in favor of defendant with respect to plaintiff's sole claim premised upon the argument that the two-year statute of limitations applicable to FMLA actions in general, 29 U.S.C. § 2617(c)(1), expired prior to the filing of this lawsuit and that plaintiff must show a willful violation of the FMLA in order to bring this action within the three-year statute of limitations set forth in 29 U.S.C. §2617(c)(1)(2). Defendant argues plaintiff failed to adduce evidence that defendant acted wilfully and thus summary judgment should be granted in its favor because plaintiff's claim is time-barred under the two-year statute of limitations. After considering the submissions of the parties, the court determines that no reasonable finder of fact could find defendant acted willfully in violation of the FMLA and will grant summary judgment in favor of defendant.

Factual Background*fn1

PHRC Policies

Plaintiff admitted that the following PHRC policies existed, but denied that they were consistently followed or enforced in the office where she worked:

The PHRC's Western Regional Office*fn2 has an administrative policy governing time and attendance which requires all employees to sign in when they arrive each morning and sign out at the end of the day. (Id. at 9.)

Except in emergencies, all leave usage by an employee requires pre-approval by the employee's immediate supervisor. An STD 330, commonly referred to as a "leave slip", is the standard form utilized by the Commonwealth of Pennsylvania and the PHRC to request leave and account for time out of the office during normal working hours at all times relevant to this matter. (Id.)

Under standard Commonwealth, PHRC and Pittsburgh Regional Office policy, each employee is required to complete a leave slip in advance indicating the amount of time they contemplate taking. (Id.)

The leave slip is to be signed by the employee and the employee's supervisor and submitted to Harrisburg by the leave clerk with the employee's official time and attendance report twice monthly at the end of every pay period. (Id. at 10.)

The only exception for not having a leave slip signed by the supervisor in advance of taking leave is if there is a legitimate emergency. In that case, the leave slip is to be completed by the employee immediately upon his or her return to the office. (Id.)

The PHRC follows a form of progressive discipline which begins with verbal reprimands or counseling, followed by written reprimands and, if necessary, suspension or discharge. (Id. at 11.)

Plaintiff's Employment Background

George Simmons ("Simmons") is the regional director of the PHRC Western Regional Office located in Pittsburgh, Pennsylvania and has held that position for the past thirty-two years. (Doc. No. 29, Joint Concise Statement of Material Facts ("J.S.") at 2.) As the regional director, Simmons manages and directs the operations of the PHRC for thirty-three counties in Western Pennsylvania. (Id.) Dr. Iris Cooley ("Cooley") was the personnel director/director of human resources for the PHRC from 1982 until her retirement in May 2003. (Id.) Human resources is located at PHRC headquarters in Harrisburg, Pennsylvania and oversees all employment related issues, including hiring, training, time and attendance, payroll and benefits for all employees throughout the Commonwealth of Pennsylvania. (Id.) Homer C. Floyd ("Floyd") is the executive director of the PHRC and has held that position since February 1970. (Id. at 3.) As executive director, Floyd is responsible for directing the overall operations of the PHRC. Among other things, he recommends policy to the commissioners of the PHRC, oversees implementation of policy, approves programs and budget expenditures, and makes the final decisions regarding hiring, promotion and the suspension or termination of PHRC employees. (Id.)

In 1992, after an interview with Simmons and others, Seifert was hired to fill the vacant position of administrative officer for the PHRC Western Regional Office. (Id.) The administrative officer position is a highly demanding, management level, confidential position, with responsibility for a wide variety of administrative duties, including ensuring the smooth operation of the office. (Id.) Simmons was plaintiff's boss and immediate supervisor. (Id. at 7.) Seifert was provided with a written job description and had a clear understanding of her duties before she accepted the position. (Id. at 3.) She understood that her position was to assist Simmons in the day-to-day management of the office and that Simmons was her boss and immediate supervisor. (Id.) Seifert did not sign in everyday when she arrived at the office. (Id.) After her first couple of years of employment, Seifert requested a promotion to Administrative Officer II which was denied. (Id. at 5.) Plaintiff's employment with the PHRC was terminated effective April 12, 2002. (Id. at 19.)

Leave and Leave Clerk Duties

The Commonwealth provides a paid and unpaid leave program for its employees. (Id. at 4). The major categories of paid leave include annual, personal, sick and sick family. The rules and regulations regarding paid leave are set forth in the Governor's Manual. (Id.) All time that a Commonwealth employee is absent from the work place for more than .25 hours is to be appropriately recorded and charged to a specific, Commonwealth approved leave category. (Id.) Under Commonwealth policy, proof of illness in the form of a certificate from a doctor is required when three or more consecutive days of sick leave or sick family leave are used. (Id. at 5.) Each employee is responsible for maintaining his or her own time and attendance records and for obtaining the appropriate leave slips documenting approval for leave. (Id.) Defendant's policy on payroll required employees to sign timesheets showing hours actually worked and countersigned by the immediate supervisor. (Id. at 8.) Payroll was actually calculated based on fax transmittals to the head office in Harrisburg and the fax transmittals were based on the information on the timesheets, which would be forwarded by mail. (Id.) The Commonwealth time and attendance rules apply to all Commonwealth employees, including Simmons. (Id.) Leave attributed to time taken under the FMLA is to be designated as "FL" on the leave slip and the time and attendance report although time taken under the FMLA could also be coded as sick or annual leave with pay if the employee had such leave available. (Id. at 15.)

Shortly after plaintiff began her employment, responsibility for reporting time and attendance for the Western Regional Office was transferred into her job description and she officially became the "leave clerk" for the Pittsburgh office. (Id. at 4.) The leave clerk is charged with responsibility for administering the Commonwealth of Pennsylvania attendance/leave and holiday programs and for promptly and accurately reporting leave usage for all employees in the Pittsburgh office except the regional director. (Id.) The leave clerk is responsible for gathering leave slips from the supervisors, attaching them to the employees' time and attendance sheets and timely submitting them to human resources at the end of every pay period, for monitoring the employees' compliance with the Commonwealth and PHRC time, attendance, and leave policies and the employees' leave usage and for reporting any abuse or misuse of time and attendance by any employees. The time and attendance reports are the basis for the pay issued to each employee. (Id. at 10.) Supervisors, like Simmons, are also responsible for verifying that employees' records are accurate before signing them prior to submitting them to the leave clerk. (Id. at 11.)

As the leave clerk/administrative officer, Seifert had all the Commonwealth manuals and directives available to her in her office and she was well acquainted with the different types of leave and the policies and procedures to be followed in requesting, recording and reporting leave usage and balances. (Id. at 4.) Simmons lost leave slips submitted to him and other employees made reporting errors. In such instances, plaintiff would have to recreate leave slips. (Id. at 10.) In July and September 2001, plaintiff received notices from human resources that numerous employees and supervisors in the Pittsburgh office were not properly submitting time and attendance records. (Id. at 8.) The leave reporting for the Pittsburgh Regional Office was replete with problems and Seifert and Simmons received numerous calls from Harrisburg about the leave reporting for the Pittsburgh office. (Id. at 5.)

In the summer of 2001, more than one-third of the employees in the Pittsburgh office had noncompliant time records, but no action was taken against any employee except for plaintiff, who was the leave clerk. (Id. at 25.) Plaintiff addressed memos to Simmons with copies to Cooley requesting his cooperation and assistance in correcting these problems, but received none. (Id. at 23.) When she received the complaints from Harrisburg regarding employee time records in July 2001 and September 2001, plaintiff was not informed that there was any problem with her own time records. (Id. at 24.) Prior to October 2001, Cooley had not been made aware that there was any big issue with regard to plaintiff's time and attendance records and if any major problem existed, it was not documented. (Id. at 24.)

Relationship Between Simmons and Plaintiff

Simmons expressed irritation with Seifert in 1996 for not being in the office when she was supposed to be there and not submitting leave slips. This was a persistent problem but Simmons signed all of plaintiff's time sheets, which was his certification that her leave slips were in order. (Id. at 12.) In 1996, Simmons perceived that Seifert was arriving late, leaving early, disappearing from the office and not putting in leave slips. (Id. at 13.) In April 1996, plaintiff took an extended medical leave due to personal illness. (Id. at 20.)

In Cooley's judgment, the conduct Simmons had engaged in toward plaintiff, resulting in plaintiff's complaint of January 30, 1997, was sufficient to expose defendant to a charge of disability discrimination. (Id. at 20.) Cooley went on to point out that, although Simmons had complained about plaintiff in the past, he had never instituted disciplinary action, nor completed a performance evaluation for plaintiff. (Id.) Cooley also stated that Simmons had been complaining about plaintiff's performance since he hired her. (Id. at 21.)

In a memo dated February 4, 1997, Seifert summarized a meeting at which Simmons berated her for "poor performance, lack of accountability, and leave and attendance history." Seifert complained of unconscionable and unfair treatment by Simmons and attributed this to her "medical condition." (Id. at 5.) In 1996 and 1997 the working relationship between Seifert and Simmons was deteriorating. (Id.) After discussing the matters set forth in plaintiff's memo of February 4, 1997 with plaintiff and Simmons, Cooley reported her conclusions to Floyd in a memo dated February 7, 1997. (Id. 5, 20.) Cooley informed Floyd of the deteriorating relationship. (Id. at 5.)

Throughout their working relationship, there was mutual distrust between Seifert and Simmons. Simmons perceived continuing problems with Seifert's performance, attendance and leave. He frequently complained to her that he could never find her and they exchanged words about it. (Id. at 13.) Simmons consulted Cooley for advice and instructions on how to handle his employment problems with Seifert. (Id. at 5.) While Cooley was not helpful, Seifert consulted Cooley "many times" for assistance in dealing with her problems with Simmons. (Id. at 14.)

Commonwealth policy requires that each employee's immediate supervisor must complete a performance review on the employee for every year of employment. (Id. at 21.) Simmons did not regularly conduct employee evaluations for any of his management level employees. (Id.) In the ten years that plaintiff was employed by defendant, although she repeatedly requested the reviews to which she was entitled, Simmons completed only one review of plaintiff's performance, for the period from July 1997 to June 1998, in which he rated plaintiff's overall performance as satisfactory. (Id.) In that same review, Simmons rated her as "commendable", the second-highest rating possible, in the area of interaction with her co-workers. (Id.)

Encouragement to take and taking of FMLA Leave

In 2000, Cooley encouraged plaintiff to consider taking leave under the FMLA. (Id. at 14.) Cooley had suggested to Seifert that she consider taking time off under the FMLA on previous occasions. (Id.) By letter dated January 30, 2001, Cooley reminded Seifert that she may seek leave pursuant to the FMLA. (Id. at 5.)

In March 2001, plaintiff requested and was granted FMLA leave to care for her mother, who was dying of cancer. (Id. at 8.) By memo dated March 21, 2001, Seifert requested approval of 37.5 hours of anticipated sick family and 37.5 hours annual leave for pay period ending March 9, 2001 and approval to take FMLA. (Id. at 6.) By letter dated March 27, 2001, Floyd approved Seifert's request, set forth her leave balances and her rights under the FMLA. (Id.) Floyd was always supportive of Seifert's requests for leave, including her request for FMLA leave. (Id.)

An employee who has been approved for leave under the FMLA must continue to adhere to all the Commonwealth policies and procedures regarding leave, including submission of leave slips in advance and indicating the amount of time to be taken under the FMLA absent an emergency. (Id.) Even when an employee is approved for FMLA, he or she typically exhausts all available paid leave first, which is what plaintiff did in 2001. (Id. at 22.) In October 2001, plaintiff had exhausted her accumulated personal, sick and annual ...


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