The opinion of the court was delivered by: Conti, District Judge
Susan Paul ("plaintiff"), initiated this action against her former employer, UPMC Health System ("defendant"), alleging violations of the Fair Labor Standards Act of 1938, as amended ("FLSA"), 29 U.S.C. §§ 201 et seq., the Pennsylvania Minimum Wage Act, as amended ("PMWA"), 43 PA. CONS. STAT. §§ 333.101 et seq., the Family and Medical Leave Act of 1993, as amended ("FMLA"), 29 U.S.C. §§ 2601-54, and the Pennsylvania Whistleblower Protection Act, as amended ("WPA"), 43 PA. CONS. STAT. §§ 1421 et seq. The alleged violations of these statutes are set forth in three counts: count I alleges violations of the FLSA and PMWA, count II alleges a violation of the FMLA, and count III alleges a violation of the WPA. Pending before the court is defendant's motion for summary judgment on all three counts (Doc. No. 15).
After considering defendant's motion for summary judgment, plaintiff's response (Doc. No. 21), the joint statement of material facts (Doc. No. 28), and the parties' other submissions, the court will grant defendant's motion for summary judgment with respect to all of plaintiff's claims because plaintiff withdrew her claim under the WPA and no reasonable trier of fact could render a verdict in favor of plaintiff on any of the other claims.
In 1996, plaintiff accepted employment with defendant as manager of grants, funding and budgets at Beaver Valley Mental Health Services ("Beaver Valley H. Serv."). (Joint Statement of Material Facts (Doc. No. 28), Def.'s Stat. Facts ("Def.'s S.F.") ¶ 1.) Beaver Valley H. Serv. was a satellite office of Western Psychiatric Institute & Clinic ("WPIC"), providing mental health services on an outpatient basis. (Id.; Deposition of Plaintiff ("Pl.'s Dep.") at 17.) Plaintiff described her job responsibilities as "putting together numbers and gathering information"; plaintiff testified she was involved largely in clerical and data input functions. (Joint Statement of Material Facts (Doc. No. 28), Pl.'s Stat. Facts ("Pl.'s S.F.") ¶ 1; Pl.'s Dep. at 17-28.) The primary duties of plaintiff's position concerned Beaver Valley H. Serv.'s fiscal operations, including preparation of budgets and financial reports, and preparing, auditing, and insuring compliance with contracts entered into by WPIC with various local entities for the provision of mental health services. (Def.'s S.F. ¶ 6.) The "job purpose" was set forth in the job description for plaintiff's position as follows:
Prepares or supervises the preparation of MH/MR, Children & Youth, United Way and BCTA contracts and budgets. Works closely with the Controller of Finance, Director of Mental Health Services and Department Managers relating to the hospital, ie. preparing budgets, studies and financial reports. Supervises Contract Billing Clerk.
(Def.'s S.F. ¶ 7; Pl.'s Dep. Ex. F.)
Plaintiff stated that she performed, inter alia, the following duties:
I did budgets, and I also worked on county contracts where I pulled together the budget and all of the information from the county, like Children & Youth, I did contracts. They would send it to my office, I would put together the information. And then this would all have to go up to Oakland. They would review everything and they would make changes, if necessary. And then they would send it back to me and tell me it was -- they would sign it. I had to have the vice president of finance sign all my contracts.
So, after they approved it, made any changes, they would sign the contracts, send them back to me. I would do things like make the copies and send them to the appropriate offices and then send the originals back to the county's agency I was working with.
So I did this with CYS, I also did it with Mental Health/Mental Retardation, that's MH/MR in our county. I also did it with the Beaver County Transit Authority. So, kind of all that funneled into my office, I did all of the kind of data entry work and put in the appropriate sheets of paper than needed to be done, whether it be if they need a certificate, then I would write an E-mail and get a certificate. And I kind of packaged it together and then sent it up to accounting for their review and change. (Pl.'s Dep. at 19-20.) A person who worked under plaintiff's supervision handled billing. (Pl.'s Dep. at 89-90.)
As part of plaintiff's responsibility to oversee the billing of contracts, plaintiff prepared budgets under those contracts. WPIC would at times propose various "cuts" in the budgets to save defendant money. Plaintiff had the authority to decide whether to include the cuts in the budgets that were submitted to the Oakland financial office. (Pl.'s Dep. at 83-86.)
Despite working on contracts, plaintiff had no authority to negotiate contracts. (Pl.'s S.F. ¶ 7) Much of plaintiff's work was sent to superiors in defendant's Oakland financial office for review. (Pl.'s S.F. ¶ 4.) Those superiors would make necessary corrections. (Id.) Plaintiff reported directly to Diane Ludewig ("Ludewig"), the director of Beaver Valley H. Serv. (Def.'s S.F. ¶ 2.)
In January 2006, the title of plaintiff's position was changed to financial analyst II. (Def.'s S.F. ¶ 4.) This change was implemented because plaintiff's salary exceeded the maximum salary allowed under the former position. (Id.) The financial analyst II position had a higher maximum salary, and the switch allowed defendant to continue to award plaintiff annual salary increases contemplated by defendant's compensation system. (Id.) The change did not, however, alter plaintiff's duties and responsibilities with respect to fiscal and budgetary matters. (Def.'s S.F. ¶ 5.)
In 2002, plaintiff alleges Ludewig attempted to misrepresent financial information. At the time, defendant had a contract with Children and Youth Services under which that agency reimbursed defendant for one half of the salary of an employee of defendant. Ludewig suggested the submission of a proposed budget to the WPIC financial office that shifted the employee's entire salary to Children and Youth Services. Such a shift would have saved defendant approximately $25,000. Plaintiff, however, objected to Ludewig's suggestion, arguing that the contract did not permit that cost shifting. Ludewig argued that a head of the agency agreed to that cost shifting, but plaintiff insisted that the shift was not permitted without written verification from Children and Youth Services. Plaintiff refused to communicate Ludewig's proposal to WPIC, and Children and Youth Services was never billed for the full salary. (Def.'s S.F. ¶ 45; Pl.'s Dep. at 84-91, 100-01.)
Also in 2002, plaintiff alleges that Ludewig instructed her to not provide information "to Oakland" unless "they asked." (Def.'s S.F. ¶ 46; Pl.'s Dep. at 92-93.) Plaintiff told Ludewig that a significant amount of overtime compensation was paid to employees on a certain project. Plaintiff testified that she told Ludewig "we're supposed to cut it." (Def.'s S.F. ¶ 46; Pl.'s Dep. at 92-93.) Ludewig allegedly responded to plaintiff that she was not to "report that to Oakland," because the "the people [Ludewig] work with in Oakland, they've okayed anything I do." (Def.'s S.F. ¶ 46; Pl.'s Dep. at 92-93.) In addition, Ludewig restricted plaintiff for a time period from asking questions by email to certain people in defendant's organization. (Pl.'s S.F. ¶ 16; Pl.'s Dep. at 33-35.)
On another occasion, Ludewig desired to purchase equipment with approximately $10,000 in excess funds not spent under a contract. Plaintiff contended that the contract did not permit the funds to be spent on the items Ludewig wished to purchase. Plaintiff contacted the other party to the contract, and determined that defendant could not spend the money on equipment. (Def.'s S.F. ¶ 47; Pl.'s Dep. at 96-100.)
At certain times of the year, plaintiff had more work to do than at other times of the year. (Pl.'s Dep. at 23-25.) During the peak times, plaintiff worked an average of forty-five to fifty hours per week. (Def.'s S.F. ¶ 13; Pl.'s Dep. at 73-74.) From 1996 until August 2002, plaintiff worked a full-time schedule, was paid an annual salary, and was paid the same amount each week regardless of the number of hours she worked. (Def.'s S.F. ¶ 14.) In 2001, Ludewig expanded plaintiff's responsibilities to include the oversight of finances for a private physicians' office located at Beaver Valley H. Serv. (Def.'s S.F. ¶ 10.) Ludewig reorganized office functions in 2002, and decided that plaintiff would no longer oversee this physicians' office. (Def.'s S.F. ¶ 21.) Ludewig advised plaintiff of this change on June 5, 2002. (Id.) Plaintiff wrote an email message to Ludewig on June 6, 2002, requesting that Ludewig "please let me know when your new plan goes into effect and when I will no longer be in charge of the physicians' office." (Def.'s S.F. ¶ 22.) On July 11, 2002, physicians, managers, and staff were informed that a new department had been created and that plaintiff no longer had responsibility for the physicians' office. (Def.'s S.F. ¶ 23.)
On July 2, 2002, plaintiff went on leave under the FMLA due to stress. (Def.'s S.F. ¶ 24; Pl.'s Dep. at 11-15.) Plaintiff returned on August 13, 2002. (Def.'s S.F. ¶ 24.) Although plaintiff was never criticized or reprimanded for taking medical leave, Ludewig informed her upon her return that she would no longer manage the physicians' office. (Def.'s S.F. ¶¶ 25, 26.) At that time of plaintiff's return, Ludewig also told plaintiff that because of the reorganization and the nature of her position, she would be reclassified from a full-time employee to a "Flexible, Full-Time Employee." (Def.'s S.F. ¶¶ 15, 26.) As a Flexible, Full-Time Employee, plaintiff was scheduled to work full time during the budget period time of year, and part time during the non-budget period time of year, depending upon Beaver Valley H. Serv.'s budget schedule. (Def.'s S.F. ¶ 16.) When working part time, plaintiff was ordinarily scheduled to only work twenty hours per week, but plaintiff continued to perform the same duties as she did when working full time. (Def.'s S.F. ¶¶ 16, 17.) During the non-budget period, plaintiff was paid on an hourly basis. (Def.'s S.F. ¶ 19.) While employed part time, plaintiff never worked in excess of forty hours during any work week. (Def.'s S.F. ¶ 20; Pl.'s Dep. Ex. I.)
Plaintiff contested the reclassification, believing her position had always been full time prior to June 2002, and, even though she had been relieved of the duties with respect to the physicians' office, she claimed she had been given additional work to compensate for the loss. (Def.'s S.F. ¶ 27.)
During the budget period, plaintiff was paid a salary. (Def.'s S.F. ¶ 18.) When plaintiff was classified as a full-time employee, she recorded on her time sheets that she worked forty hours per week; she was instructed to do so. (Pl.'s S.F. ¶ 13; Pl.'s Dep. at 30-31, 56-57.) Ludewig did not expect plaintiff's time sheets to reflect the actual hours plaintiff worked during the budget period. (Pl.'s S.F. ¶ 35.) Plaintiff was paid for forty hours per week, even if she worked more, at a rate of over $22.00 per hour. (Pl.'s Dep. at 30.) Plaintiff was paid, on a consistent basis when working full time, a fixed amount of more than $880 per week. When plaintiff was working full time, she was required to use paid sick time or vacation time to take time off due to personal or medical reasons. (Pl.'s S.F. ¶ 14; Pl.'s Dep. at 56-59.)
Plaintiff communicated her belief about the reclassification to defendant on a number of occasions. (Def.'s S.F. ¶ 27.) On October 13, 2003, plaintiff drafted a memorandum to Ludewig in support of her contention that her job required a forty-hour work week. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. R.) On November 24, 2004, plaintiff drafted a memorandum to Ludewig and David Bobrzynski ("Bobrzynski"), vice president of WPIC's finances, listing plaintiff's job duties to support her claim for the "need for staying on a full-time basis." (Def.'s S.F. ¶ 27; Pl.'s Dep. At 117-18; Pl.'s Dep. Ex. T.) On July 7, 2005 plaintiff sent a letter to Ludewig, objecting to her upcoming change to a part-time schedule, expressing her belief that the reduction in hours was "personal" as opposed to operational, and requesting a written justification for the reduced schedule. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. V.) On August 17, 2005, plaintiff sent an email message to Ludewig concerning plaintiff's August 3, 2005 request to be scheduled for additional hours. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. W.) On November 15 and 16, 2005, plaintiff sent email messages to Ludewig concerning her request to be scheduled full time due to her work load. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. Y.) On December 1, 2005, plaintiff sent an email message to David Sveizkas ("Sveizkas"), who was in defendant's finance department, containing a matrix of her work load in support of her request to be scheduled full time commencing January 1, 2006, and referencing the denial of her request to be so scheduled for December 2005. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. Z.) On June 23 and 26, 2006, plaintiff sent email messages to Ludewig in which plaintiff again challenged her upcoming change to a part-time schedule. (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. EE.) On September 25, 2006, plaintiff sent an email message to Ludewig in which plaintiff wrote, "I don't believe that I will be able to complete all this only working 28 hrs [sic] per week." (Def.'s S.F. ¶ 27; Pl.'s Dep. Ex. GG.)
After plaintiff's June 2006 request, Ludewig warned plaintiff that "she would write [plaintiff] up as being insubordinate if [plaintiff] ever bring [sic] up needing more hours to work." (Pl.'s Dep. Ex. NN.) On October 4, 2006, Ludewig met with plaintiff and told plaintiff that if she cannot do her job within the time allotted, then she should consider resigning. (Def.'s S.F. ¶ 34; Pl.'s Dep. Ex. KK.)
When advised of plaintiff's resistance to her summer 2006 schedule, Eleanor Medved ("Medved"), who was vice president of ambulatory services for WPIC, initiated a review by the WPIC fiscal department of the time needed to perform plaintiff's job. (Def.'s S.F. ¶ 37.) Medved in fact had been involved in determining and evaluating the number of hours plaintiff needed to fulfill her job duties since 2004. (Def.'s S.F. ¶ 38; Medved Dep. at 18.) The "discussion of termination" of plaintiff's employment was initiated shortly after plaintiff resisted her part-time schedule in 2006, but Medved cannot recall the exact date those discussions began. (Medved Dep. at 37-38, 44-45.) Upon completion of the review, WPIC decided that the fiscal responsibilities of plaintiff's position could be absorbed by WPIC's fiscal department and other employees at Beaver Valley H. Serv. (Def.'s S.F. ¶ 39; Medved Dep. at 40-46.) WPIC handled fiscal responsibilities in this manner with respect to its other satellite offices. (Def.'s S.F. ¶ 39.) Beaver Valley H. Serv. was at the time operating at an annual loss of between $600,000 and $800,000 over the course of several years, and WPIC's fiscal department was searching for ways to cut expenses. (Id.)
On October 9, 2006, plaintiff filed an internal grievance letter against Ludewig. (J.S. ¶ 43.) The grievance letter stated:
My problems with Diane Ludewig started in 2002. Diane Ludewig has asked me to misrepresent financial information to Oakland and also I was told to not give Oakland any information unless they asked. There was another Manager present when Diane Ludwig [sic] wanted me to report that CYS was going to give us additional money and it was not approved by CYS. Diane Ludewig was told to cut the budget or find a way to meet the budget numbers requested by Oakland. I have documentation and details if needed. I have had to endure an extremely unhealthy work environment for several years. This includes intimidation; being yelled at, bullied, threaten [sic] with losing my job and shunning from Diane Ludewig. . . . I know UPMC does not promote this type of behavior. According to the Standards of Conduct UPMC is committed to honesty, just management, and fairness, providing for a safe and healthy environment, and respecting the dignity due everyone.
(Def.'s S.F. ¶¶ 44, 48; Pl.'s Dep. Ex. NN.) The grievance letter included a recitation of the history underlying plaintiff's claims against Ludewig. (Def.'s S.F. ¶ 49.) Plaintiff specifically referred to Ludewig's 2002 decisions to remove her from management of the physicians' office and to reclassify her position as a Flexible, Full-Time Employee. (Id.) Plaintiff noted that Ludewig communicated those decisions to her immediately upon her return from medical leave. (Id.)
Plaintiff asserted that the FMLA requires an employer to restore an employee to his or her original job upon return from leave with equivalent pay, benefits, and other terms and conditions of employment. (Id.) Plaintiff argued that this was not done, and even if defendant wanted to reorganize job responsibilities, her position upon return from leave had to be full time as required by law. (Id.) In relevant part, the grievance letter stated:
I was given Medical Leave by UPMC-WPIC from 7-2-02 to 8-13-02. (This was because of health issues that developed from work.) I returned to work on 8-13-02 with a doctor's excuse to work the first two weeks after my return at 4-6 hrs per day and then go back to full-time. On 8-14-02 Diane Ludewig met with me at 10:30 AM and informed me that I would be a flexible full-time employee. I received a memo from her stating this also. At the meeting on 8-14-02- I had the following questions: Why was this done? Diane Ludewig stated a business decision. Also in a memo (7/11/02) Diane Ludewig stated, "We also want to extend our thanks to [plaintiff] for her management of the physicians' offices. As the number of grants we receive has increased, we need her expertise full time in the fiscal arena." She also states the same thing in Management Meeting minutes on July 18, 2002. All documents on my Medical Leave should be in my HR file.
I returned to work on August 13th, and on August 14th, Diane Ludewig met with me to inform me that she would no longer need me to work full-time. Per memo, I am to work 6 months at 20 hrs. per week and 6 months at 40 hrs. per week. While I was off the Physicians Office was put under another manager. Prior to me overseeing the Physicians Office, I was a full-time employee at the WPIC, Rochester site. On May 31, 2002, I wrote Diane Ludewig suggestions to change the physicians' office. If this is an honest system change than my job should not have been affected. They had to promote a line staff to a manager and have another manager oversee the work that I was expected to do plus my full-time financial role. As I stated I had a full-time position at the Rochester site prior to the physician's office responsibilities were given to me. I have been requesting from Diane Ludewig to give me a office manager for over a year to assist me because of my heavy workload I was told that she is aware of my needs but could not do this because of a law suite [sic] pending with Beverly Davis (who was the office manager) regarding age discrimination. Diane Ludewig knew from the beginning that I would need to have an office manager to properly run the Physicians Office because of my workload. There are months that I don't leave my office when I am working on Budgets and Contracts.
Also, according to the Family and Medical Leave Act of 1993; Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. This was not done and even if Diane Ludewig wanted to restructure the Physicians' Office and other services my job was full-time at Rochester prior to her giving me the Physicians' Office duties. Diane Ludewig has the right as Director to change operations but not to use this change to penalize me. (Pl.'s Dep. Ex. NN.)
On October 10, 2006, plaintiff sent the grievance letter to Kelli-Ann Reale ("Reale"), Maureen Szewczyk ("Szewczyk"), and Kathryn Devine ("Devine"), who are members of defendant's human resources department. (Def.'s S.F. ¶ 50; Pl.'s S.F. ¶ 17; Pl.'s Dep. at 104-05.) After Reale received the grievance, she forwarded it to Edward McGinley ("McGinley"), an attorney in UPMC's legal department. In an email message Reale stated that there were ongoing discussions about a possible termination of plaintiff's employment at the time. (Def.'s S.F. ¶ 50; Medved Dep. Ex. 1.) Reale did not show the grievance to either Medved or Ludewig, because Reale had already been discussing the elimination of plaintiff's job with those two individuals. (Id.) Although it was customary for Reale to perform an investigation after receiving a grievance request, Reale did not perform an investigation in this situation. (Reale Dep. at 54-55.)
Ludewig, Reale, Bobrzynski, Sveizkas, and McGinley were all involved in the decision to terminate plaintiff. (Medved Dep. at 26-27.) Medved testified that she did not recall the date of the decision to terminate plaintiff's employment. (Medved Dep. at 36-38.) On October 19, 2006, plaintiff was informed that her position had been eliminated for business reasons. (Def.'s S.F. ¶ 40.) Specifically, plaintiff was informed that the duties of her position could be assumed by other employees, and that defendant was experiencing financial difficulties. (Id.)
After plaintiff was terminated, many of her job duties were assumed by Ludewig and Andre West ("West"), a crisis manager at Beaver Valley H. Serv. and one of plaintiff's former co-workers. (Pl.'s S.F. ¶ 29.) Neither ...