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Henderson v. NutriSystem

May 7, 2009

DONNA HENDERSON
v.
NUTRISYSTEM, INC.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is a case based on an allegation of racial discrimination and retaliation for the requested use of sick-time benefits. The plaintiff claims that she was fired by the defendant on account of her race or, alternatively, because she requested certain sick leave benefits. The defendant argues that the plaintiff was fired because of her violations of the defendant's "no call/no show" policy. The complaint includes four counts: (1) a violation of Title VII on the basis of race discrimination, (2) a violation of the Pennsylvania Human Rights Act, (3) common law wrongful termination based on breach of an implied contract and violation of public policy, and (4) violations of the Family Medical Leave Act. The defendant has filed a motion for summary judgment seeking judgment in its favor on each of these four counts. For the reasons discussed below, the Court will grant the defendant's motion as to each count.

I. The Summary Judgment Record

The plaintiff claims that her termination of employment at NutriSystem was illegally motived by her race. The defendant has argued instead that the plaintiff's repeated absences from work, along with her failure to inform her supervisors of those absences, provided a legitimate basis for her termination. The plaintiff claims that the defendant's asserted basis for her termination is pretextual. She denies that she violated any company policy and offers two other NutriSystem employees, both Caucasians, as examples of employees belonging to a different racial group who received more favorable treatment despite their own absences. This portion of the Court's opinion will recite the facts contained in the summary judgment record.

A. The Plaintiff's Employment with the Defendant

NutriSystem, Inc., is a marketer and provider of a weight management program that employs counselors who are available to answer questions and to make recommendations to customers. Def. Ex. C. The counseling department at NutriSystem is structured from bottom-up as follows: counselors, counseling supervisors responsible for about 60 counselors, and senior supervisors responsible for 3 or 4 counseling supervisors. Def. Ex. D at 12:5-16. Counselors handle incoming phone calls, answer emails and engage in online chatting with customers. Id. at 29:7-11.

The plaintiff, Donna Henderson, is an African-American female who was hired in May of 2005 as a counselor for NutriSystem. Pl. Ex. P-44. The plaintiff had two direct supervisors during her tenure at NutriSystem. The first was Laura Bansemer (née Van Zelst), the second was Jessica Saile.

Ms. Saile became the plaintiff's direct supervisor on November 13, 2006, and remained her direct supervisor until the end of the plaintiff's employment. Pl. Ex. P-44. The plaintiff has stated that Jessica Saile was her direct supervisor and that Laura was Saile's supervisor. Pl. Ex. F at 83:16-22.

NutriSystem provided the plaintiff with two employee handbooks during her tenure. Def. Exs K, M. Although the plaintiff was uncertain as to whether she received the second of these handbooks, she signed a document acknowledging receipt of that handbook. Def. Ex. N. The first handbook provides that an employee who will be absent must contact his/her supervisor prior to their scheduled starting time and give the reason for the unscheduled absence and the expected date of return. Failure to follow this procedure may result in disciplinary action, up to and including termination.

Def. Ex. K at NS150. The second handbook states that it is the employee's "responsibility to know the phone number of your immediate manager" and that "it is essential to notify your manager" when sick or late for work. Def. Ex. M at 48.

The defendant had an 800-number call out line, to which employees could place calls and leave a message providing their name and reason for absence. Def. Ex. R, 18-19. The plaintiff disputes the defendant's claim that the company's policy was for absent employees to call both the 800-number and their direct supervisor. Pl. Ex. F at 88.

The plaintiff's employee records state that she had one disciplinary warning regarding absences and tardiness prior to January of 2007. On November 15, 2006, the plaintiff was presented with a written disciplinary warning that referenced several instances of tardiness, absenteeism and failure to clock-out for required thirty-minute breaks. Def. Ex. T. The plaintiff disputes the factual basis for one aspect of the warning (specifically, an incident on October 27, 2006, when the plaintiff allegedly failed to clock out for a mandatory 30 minute break) and contends that the warning should have been given verbally, rather than in writing, as it was her first disciplinary warning. Pl. Ex. F at 109:2-110:5; Pl. Ex. G, ¶ 9.

B. The Plaintiff's Absences and Termination in January of 2007

Both parties agree that the plaintiff was absent from work on certain days in January of 2007. They also agree that she did not call into the office (either to a supervisor or to NutriSystem's 800-number) on certain of those days. The record contains the following evidence relating to the plaintiff's absences:

1. On January 7, 2007, the plaintiff states that she called Laura Bansemer, but does not provide a phone record of that call. Pl. Ex. F at 123.

2. Someone placed a call to NutriSystem from the cell phone that the plaintiff was using in January of 2007 at 12:19 a.m. on January 8. Pl. Ex. P-33.

3. According to the defendant's call log, the plaintiff's sister called on January 8, 2007, at 4:30 p.m. when the plaintiff's shift began at 2:00 p.m. Pl. Ex. 6. The plaintiff stated at her deposition that her sister called NutriSystem on her behalf once or twice throughout January of 2007. Pl. Ex. F at 198. Although the plaintiff at first claimed that her sister made these calls on the 8th of January, she then said "it could be afterwards, I'm not too sure." Id. at 198:14-15. The plaintiff's affidavit filed along with her opposition to the defendant's motion for summary judgment states that the plaintiff herself called NutriSystem on January 8, 2007.

4. For both January 7 and 8, the plaintiff states that she was preapproved for her absences by her direct supervisor. Pl. Ex. G, ¶ 10. A document dated January 5, 2007, and signed by Jessica Saile, does acknowledge that the plaintiff would be absent on January 7 and 8. Pl. Ex. P-26.

5. The defendant claims that on January 14, 2007, the plaintiff arrived for work thirty minutes late. An email from Jessica Saile, the plaintiff's direct supervisor, to the defendant's human resources department purports to memorialize this tardiness. Def. Ex. U. The plaintiff does not refute this or state that she called in on this day.

6. On January 17, 2007, a call from the plaintiff's phone was placed to the defendant's 800-number call-out line. The defendant states that no message was left on the answering service. The plaintiff states that she left a message requesting a medical leave of absence. Pl. Ex. F at 180. During her deposition, the plaintiff could not remember the time of day she placed this call, although she supposed it was in the morning. Pl. Ex. F at 181:15-17. The plaintiff did not remember the phone from which she placed that call. Pl. Ex. F at 181:24. She stated that she did not speak with her supervisor that morning and that was the reason "[she] was doing follow-up calls with [her supervisor]." Pl. Ex. F at 182:7. The plaintiff also states in an affidavit submitted along with her opposition to the motion for summary judgment that her sister called NurtiSystem on January 17. Pl. Ex. G, ¶ 16. As noted above, the plaintiff's deposition states that her sister called NutriSystem on her behalf once or twice. Pl. Ex. F at 198. Although the plaintiff at first claimed that her sister made these calls on the 8th of January, she then said "it could be afterwards, I'm not too sure." Pl. Ex. F 198:13-15.

7. On January 18 and 19, 2007, the plaintiff was absent from work. The defendant states that she did not call into NutriSystem on these days. Def. Ex. U. The plaintiff does not state specifically that she called on January 18, but does state that she called several times after January 17. Pl. Ex. F at 181:2-4.

8. On January 21, 2007, the plaintiff's cell phone records reflect that she made two calls to NutriSystem. Pl. Ex. P-33. The defendant recognizes that two calls were made from the plaintiff's phone to the call out number, but states that she did not leave a message. Def. Mot. at 11.

9. The defendant acknowledges that the plaintiff called NutriSystem on January 22, 2007, but states that she did not leave a message concerning her absence. Def. Ex. U.

10. The defendant does not keep records of voice messages left by employees on its call-in line. Oral Arg., April 15, 2009 at 49:11-17.

Throughout the plaintiff's absences, she suffered from a cold. Def. Ex. F at 123:6-17, 142:13-18. The plaintiff's medical records state that she visited her doctor's office on January 22, 2007. Pl. Ex. P-58. Her doctor's office recommended over-the-counter treatment with Robitussin and Tylenol P.M. Id. On January 26, 2007, the plaintiff received a "disability certificate" from her doctor's office stating that the plaintiff had been "totally incapacitated." Pl. Ex. P-22.

A series of emails between Jessica Saile and Heather Kelley (the senior supervisor of the counseling department), Nancy Adams (the defendant's senior human resource generalist) and Laura Bansemer, captures certain communications regarding the plaintiff's termination. Def. Exs U, X; Pl. Exs P-17-20. These emails were initiated by Jessica Saile and report the plaintiff's absences first to the senior counseling supervisor, Heather Kelley, and then to human resources. Jessica Saile asked how she should draft a corrective action notice. Def. Ex. X. Heather Kelley and Nancy Adams advised Saile on the proper means of drafting that notice. Id. Laura Bansemer did not contribute to the email chain provided by the parties although she was "carbon copied" on the original email from Jessica Saile. Def. Ex. U.

A letter dated January 24, 2007, and signed by Nancy Adams, states that the defendant terminated the plaintiff "due to no call/no show 4 times in the month of January." Def. Ex. Z. The plaintiff points to statements from certain of the defendant's employees that cast doubt on the actual date of termination. Pl. Ex. A at 88:15-18; Pl. Ex. P-28 (an Employee Action Notice listing the plaintiff's termination date as January 17, 2007). The defendant maintains that the discrepancy is explained by the fact that January 17, 2007, was the day after the plaintiff's final working day at NutriSystem. An Employee Action Notice listing January 15, 2007, as the plaintiff's final day at work was signed by Jessica Saile on January 24, 2007. Pl. Ex. P-28.

On January 26, 2007, the plaintiff states that she returned to NutriSystem with a note from her doctor's office, Pl. Ex. P-25, but that a supervisor refused to review the note and simply handed termination papers to her. Pl. Ex. G, ¶ 14.

C. Facts relating to the Plaintiff's Proposed Comparators

The plaintiff has named two former employees of NutriSystem, both Caucasian, who allegedly received better treatment from the defendant following patterns of behavior similar to the plaintiff's own absenteeism.

1. Catherine Meyer

The plaintiff's first comparator is Catherine Meyer. Ms. Meyer is a Caucasian who began working for NurtiSystem in January of 2004 as a weight loss counselor. Ms. Meyer was supervised by Ms. Bansemer and never by Ms. Saile. Def. Ex. BB.

Ms. Meyer took two leaves of absence while working for the defendant. The first was from July 1, 2005, to August 22, 2005. Ms. Meyer filled out an FMLA leave request covering these dates on June 27, 2005. Her second leave of absence was from August 22, 2006, to October 13, 2006. Ms. Meyer again filled out FMLA leave request ...


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