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Galimore-Roberts v. United Parcel Services

June 11, 2009


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


Melanie Galimore-Roberts brings this employment discrimination suit against United Parcel Service, Inc.*fn1 ("UPS") raising allegations of violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count I), retaliation (Count II), violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (Count III), and violation of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601-2654 (Count IV). Defendant moves for summary judgment as to all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes summary judgment for defendant as to Counts I and III, but plaintiff does not oppose summary judgment for defendant as to Counts II and IV. For the reasons discussed herein, the court will grant defendant's motion.

I. Factual Background

For the present motion, the court views all facts and justifiable inferences in the light most favorable to plaintiff, the nonmoving party. See, e.g., Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 192 (3d Cir. 2008). Because plaintiff failed to comply with the court's scheduling order with respect to serving a statement of disputed material facts,*fn2 the court will deem the uncontroverted portions of defendant's Statement of Undisputed Facts ("Def.'s SUF") admitted. Accordingly, the facts are as follows for purposes of the present motion:

A. Plaintiff's Job History at UPS "UPS is a package delivery company . . . ." (Def.'s SUF ¶ 1.) Plaintiff Melanie Galimore-Roberts "is as an African American woman who suffers from fibroid tumors[] and anemia." (Id. ¶ 87.) Plaintiff "began her part-time employment at [UPS] on November 3, 1995, as an Internal Document Auditor at [UPS's] airport facility in Philadelphia, and remained part-time at UPS until 2006." (Id. ¶ 2.) "On November 1, 1999, Plaintiff, at her own request, was laterally transferred to the UPS Internal Engineering Department ('IE Dept.')." (Id. ¶ 4.) "From January 2000, while Plaintiff was employed part-time with UPS, she was simultaneously employed full-time by the Commonwealth of Pennsylvania's Department of Public Welfare, where she continues to be employed full-time to the present day." (Id. ¶ 13.) "On July 15, 2002, Plaintiff was promoted within the IE Dept. to the position of Administrative Office Technician ('AOT'), and thereafter received a salary raise." (Id. ¶ 5.)

"Plaintiff worked as an AOT in the IE department until she was discharged from UPS on September 12, 2006." (Id. ¶ 8.) "Plaintiff worked part-time, and was given a flexible start-time from 9:30 pm to 10:00 pm." (Id. ¶ 6.) "Prior to 2005, Plaintiff and Antonita White were the only part-time AOTs in the IE Dept. Both White and Plaintiff enjoyed a flexible time standard that no other employee was permitted. White was voluntarily transferred to a day position, and thereafter, Plaintiff was the only part-time AOT in the IE Dept. in 2006." (Id. ¶ 7.)*fn3

"In 2005, Michael Delfin ("Delfin") became Plaintiff's immediate supervisor." (Id. ¶ 9.) "In 2006, Plaintiff reported [to] Mike Delfin (Supervisor), as well as Paul Plechner (IE Night Section Leader) . . . , and James Stubblebine, (IE Section Leader)." (Id. ¶ 10.) "In 2006, Peggy Spayde was the Human Resources representative for the night shift at the UPS Airport Facility." (Id. ¶ 11.) "Approximately 50 to 60 percent of Plaintiff's duties in the IE Dept. were comprised of maintaining the Label Training Certification ('LTC') database." (Id. ¶ 12.)

Delfin kept a log regarding plaintiff's attendance and work performance. (Def.'s Mot. Summ. J. ("Def.'s Mot.") Ex. 5, "Delfin-3-4".) "In 2005, Plaintiff took 15 vacation days off from work, 10 discretionary days, called in absent from work 7 times, was late 11 times, and was unable to perform her duties due to improper footwear once." (Id. ¶ 82.) "In 2006, Plaintiff took 13 discretionary days off (discounting the 12 days she reported were required medical leave), called-out from work 6 times, was absent from work without prior notification 3 times, was late 3 times, and was unable to perform her duties due to improper footwear once." (Id. ¶ 81.)

In plaintiff's May 2005 performance appraisal, Delfin initially assessed plaintiff with an overall rating of 3.63 out of 6; however, Delfin later raised that score to 4.15. (Def.'s Mot. Ex. 5, "Delfin-3"; Def.'s Mot. Ex. 1 Part 8, "GR-35".) "On December 12, 2005, Plaintiff received a six-month performance appraisal rating of one out of six for 'punctuality and attendance.' This rating signifies that the employee 'needs much improvement.'" (Id. ¶ 14.) "On July 8, 2006, Plaintiff was unable to perform her work because, for the second time in one year, Plaintiff arrived at work wearing improper footwear." (Id. ¶ 15.) "Plaintiff received poor evaluations regarding her attendance and punctuality in her six-month appraisals on December 12, 2005 and June 29, 2006 . . . ." (Id. ¶ 16.) The parties dispute whether defendant ever informed plaintiff that one more absence from work would lead to her termination (Dep. of Michael Delfin 33:9-11, Oct. 24, 2008 ("Delfin Dep."); Pl.'s SOF ¶ 20 (citing Def.'s Mot. Ex. 1 Part 8, "GR-29")); therefore, I accept plaintiff's version. Undisputedly, defendant told plaintiff that the trend in her attendance "would need to change to ensure her employment with UPS." (Def.'s Mot. Ex. 1 Part 8, "GR-29"; Def.'s SUF ¶ 17.)

"[D]uring the June 29, 2006 performance appraisal, Plechner explained to Plaintiff that Plaintiff had already used her ten permitted discretionary days, plus one additional non-paid day." (Def.'s SUF ¶ 18.)*fn4 It is undisputed that "Plechner informed Plaintiff that it was unacceptable that, despite her uniquely flexible arrangement wherein she was permitted to have a flexible start-time that allowed her to clock into her shift within sixty (60) minutes of the scheduled time, Plaintiff still managed to be tardy." (Def.'s SUF ¶ 19.) Moreover, Plechner informed plaintiff that she would have received lower evaluation scores from him had he conducted her evaluation rather than Delfin. (Id. ¶ 20.) Plechner also explained to plaintiff that "her attendance influences her performance." (Id.) "In addition to her attendance issues, Plechner discussed with Plaintiff her failure to work efficiently, as her time worked had failed to decrease in proportion to the decrease in her workload." (Id. ¶ 21.) Regarding plaintiff's attendance, Plechner told her she "had a problem and it cannot continue." (Def.'s Mot. Ex. 6.) Were it to continue "at this pace further discipline [would] follow; up to and including termination." (Id.) "On or around July 17, 2006, Delfin and Plechner met with Plaintiff to address [plaintiff's] repeated violations of UPS employment procedures which prohibit part-time employees from working over five hours a shift without management approval." (Def.'s SUF ¶ 24.)

On August 1, 2006, plaintiff sent Plechner an email in which she expressed "continued unease in working under the current conditions here on the night side and in particular with Mike [Delfin]." (Def.'s Mot. Ex. 1 Part 2, "GR-19".) Plaintiff further stated:

I feel that [Delfin] has no respect for me as an individual and I don't trust that he has my best interest at heart when it comes to me improving upon my performance appraisal for the next six month period. I believe that he is acting more towards hindering my progress instead of helping.

Id. Plaintiff also wrote that her concerns were: nothing new between [Delfin] and myself. It has been going on from the time of his promotion to his current position, beginning with the first Performance Appraisal that he conducted with me. I believe that part of that contention stems from the fact that I did not agree with that first Appraisal and requested a reconsideration. Things have been touchy ever since.


Plaintiff wrote on her calendar for the summer of 2006 that she met with "Jay [Stubblebine] about prob working on nite side, LTC/Mike/Brenda [Jaskolka], trust issue." (Def.'s Mot. Ex. 1 Part 2, "GR-4".) Plaintiff also wrote that Stubblebine offered a meeting "with HR," and that plaintiff subsequently emailed Stubblebine to request such a meeting to discuss her "complaint about Mike [Delfin] and office." (Id.) Plaintiff also wrote on her calendar that she wished to include Antonita White in the meeting "as support." (Id.) There is no evidence that any such meeting occurred.

"On August 3, 2006, Plaintiff informed Paul Plechner that she would be absent from work on August 4, 2006 and August 21, 2006, and apologized for providing 'such short notice.'" (Id. ¶ 25.) "On August 8, 2006, Plaintiff contacted Mike Delfin to report that she had fallen down the stairs in her home, and would not come to work that night." (Id. ¶ 26; Pl.'s SOF ¶ 27.) "On August 10, 2006, Plaintiff left work early." (Id. ¶ 27.) Plaintiff also "call[ed] out from work on August 9, . . . August 11, and August 14." (Id.) "From August 15, 2006 through August 17, 2006, Plaintiff was absent from work, and failed to contact her supervisors to inform them that she would be absent." (Id. ¶ 28.)

"On August 18, 2006, Plaintiff left a message with Damian Ciarmella*fn5 stating that Plaintiff would be absent from work that evening, and that she had a letter from her doctor indicating that it was necessary for Plaintiff to be absent from work for the following two (2) weeks." (Id. ¶ 29.) "Plaintiff provided a letter from her physician dated August 16, 2006 stating that she would be out of work for the following two (2) weeks." (Id. ¶ 33; Def.'s Mot. Ex. 1 Part 2, "GR-11".) The letter stated that plaintiff was receiving "daily intravenous iron infusions" as treatment for "iron deficiency anemia." (Def.'s Mot. Ex. 1 Part 2, "GR-11".) "On August 28, 2006, Plaintiff called Delfin and informed him that her doctor advised her to miss an additional week of work. Delfin requested that Plaintiff call again the next day (August 29, 2008) to discuss the situation with Plechner. Plaintiff did not call Delfin or Plechner on August 29, 2006 as she was instructed and had agreed to do." (Def.'s SUF ¶¶ 30-32 (internal citations omitted).) "Plaintiff provided a second letter from her physician dated August 30, 2006, stating that she would be out of work 'this week.'"*fn6 (Id. ¶ 34; Def.'s Mot. Ex. 1 Part 2, "GR-12".) This letter also referred to "daily intravenous iron therapy." (Def.'s Mot. Ex. 1 Part 2, "GR-12".) "Plaintiff provided a third letter from her physician dated September 5, 2006, stating [that plaintiff had received intravenous iron therapy on September 5th and] that Plaintiff could return to work part-time on September 6, 2006." (Def.'s SUF ¶ 35; Def.'s Mot. Ex. 1 Part 2, "GR-13".)

Plaintiff returned to work on September 6, 2006. (Def.'s SUF ¶ 36.) "On September 11, 2008 Plaintiff called into UPS and reported that she would be absent from work that evening due to 'complications from a medical procedure.'" (Id. ¶ 37.) "At no point did Plaintiff submit to Delfin or anyone else at UPS any further letters or documentation from a physician stating her need to be absent from work past September 6, 2006." (Id. ¶ 38.) Plechner decided to terminate plaintiff's employment and Stubblebine approved. (Id. ¶¶ 83-84.) "On September 12, 2008 Plaintiff met with Delfin, Plechner and Spayde, and was informed that her employment with UPS was being terminated for her unreformed attendance and performance issues." (Id. ¶ 39.) Plaintiff's September 11th absence from work prompted her termination. As Delfin testified:

Q: You told her if she missed one more day for the rest of the year she would be terminated?

A: Yes, without extenuating circumstances.

Q: What's an extenuating circumstance?

A: Similar to what she incurred, medical.

Q: You terminated her anyway?

A: After her medical, after she was absent for a medical, beyond her medical time.

Q: What do you mean beyond her medical time?

A: We terminated her after she was cleared to come back to work and ...

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