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Kelley v. AmerisourceBergen Corp.

September 29, 2009


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


Before the Court is Defendant AmerisourceBergen Corporation's Motion for Summary Judgment (Doc. No. 11), Plaintiff Susan I. Kelly's Responses in Opposition thereto (Doc. Nos. 15 & 25), and Defendant's Reply (Doc. No. 19.) For the following reasons, Defendant's Motion will be granted.

I. Summary of Relevant Procedural History

On May 21, 2008, Plaintiff filed a Complaint against Defendant AmerisourceBergen Corporation ("AmerisourceBergen") alleging that it violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. On August 8, 2008, Defendant filed an Answer to the Complaint. This case was reassigned to my docket on November 14, 2008.

On February 13, 2009, Defendant filed a Motion for Summary Judgment and a Statement of Undisputed Facts. On March 12, 2009, Plaintiff filed a Response in Opposition to Defendant's Motion ("Response I"). This Response relied entirely on the allegation in Plaintiff's Complaint and the admissions in Defendant's Answer; it did not point to any evidence in support of Plaintiff's claim. Defendant filed a Reply on March 30, 2009. May 26, 2009, Plaintiff filed a revised Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment. On May 27, 2009, Plaintiff filed a Revised Statement of Undisputed Material Facts. None of Plaintiff's filings attach any exhibits in support of her FMLA claim. Plaintiff's Revised Statement of Undisputed Material Facts refers to certain pages of deposition transcripts which have not been submitted to this Court as part of the summary judgment record.

II. Factual Allegations

The Court recites the facts as viewed in the light most favorable to Plaintiff.

Plaintiff's First Year at AmerisourceBergen Plaintiff Susan I. Kelley began working for AmerisourceBergen on June 5, 2006. (See Def.'s Mot. for Summ. J., Ex. C., Offer of At-Will Employment, May 2, 2006 ("Employment Offer"); Def.'s Mot. for Summ. J., Ex. A, Dep. of Susan I. Kelley ("Pl. Dep.") 47.) Plaintiff's position was Inventory Clerk / Slot Info Clerk ("Slot Info Clerk") at Defendant's pharmaceutical distribution center in Bethlehem, Pennsylvania. (Employment Offer; Pl. Dep. 47-48. ) In addition to Plaintiff, the Bethlehem distribution center employed two other Slot Info Clerks, Nehemias "Nick" Cruz and Suzanne Flick, and one Slot Info Specialist, Hope Chappelle. (Pl. Dep. 51; Def.'s Mot. for Summ. J., Ex. D, Decl. of James Borthwick ("Borthwick Decl.") ¶ 5; Def.'s Mot. for Summ. J., Ex. B, Dep. of Elaine M. Marchese ("Marchese Dep.") 31). Cruz began working at Defendant company on the same day as Plaintiff. (Pl. Dep. 51; Marchese Dep. 21). Flick began working at the company in February 2006. (Marchese Dep. 21.) Plaintiff, Cruz, Flick, and Chappelle all reported directly to James Borthwick. (Pl. Dep. 51; Borthwick Decl. ¶ 5.)

Plaintiff underwent periodic performance evaluations, which were conducted by Borthwick. (Pl. Dep. 60.) She underwent one such evaluation on September 6, 2006, after 90 days of employment. (Pl. Dep. 60; Def.'s Mot. for Summ. J., Ex. E., Susan Long 90-Day Associate Review Form, Sept. 6, 2006 ("90-Day Review").) In her 90-day evaluation, Plaintiff either fully met or exceeded four out of six performance expectations. (90-Day Review at 1.) Plaintiff partially met two of the performance expectations: learning and becoming proficient in tasks and processes and establishing an excellent attendance record. (90-Day Review at 1.) Overall, Plaintiff fully met the requirements of her position, and had "established herself as a reliable and positive member of the Slot Info team. . . [a]side from a few attendance issues. . . ." (90-Day Review at 3.) Plaintiff sat down and reviewed her evaluation with Borthwick. (Pl. Dep. 60-61, 66-67.) During that discussion, Plaintiff told Borthwick that she had been tardy because she had difficulty waking up due to personal issues, including that she was going through a divorce and assisting her parents. (Pl. Dep. 67; Borthwick Decl. ¶¶ 12-13.) At that time, Plaintiff was not aware of any need for time off from work. (Pl. Dep. 67.)

On January 31, 2007, Plaintiff was given corrective action, in the form of a verbal counseling, for being tardy to work on thirteen (13) occasions in January 2007, based on the time Plaintiff had logged in on the time clock. (Def.'s Mot. for Summ. J., Ex. F, Corrective Action, Susan Long, Jan. 31, 2007 ("Pl.'s 1/13/07 Corrective Action"); Marchese Dep. 38; Pl. Dep. 76.) This corrective action was documented in writing, and Plaintiff signed the corrective action form on February 2, 2007, after meeting with Borthwick and Elaine Marchese, the Human Resources Manager of the Bethlehem facility. (Pl.'s 1/13/07 Corrective Action; Marchese Dep. 6, 38-39; Pl. Dep. 76-78.) Plaintiff was informed that she must display an immediate improvement in overall attendance, and that failure to improve could result in additional disciplinary measures, up to and including dismissal. (Pl.'s 1/13/07 Corrective Action.) Borthwick and Marchese told Plaintiff that her tardiness was unacceptable, and, since she was tardy only by minutes, they could not understand why she could not leave home ten minutes earlier. (Pl. Dep. 78.) Plaintiff did not disagree with Borthwick and Marchese; she acknowledged that they had a legitimate complaint about her tardiness. (Pl. Dep. 78.) During the meeting, someone read to Plaintiff a company policy regarding tardiness. (Pl. Dep. 80, 92.) That policy may have been included in the handbook that Plaintiff received during her first week of employment. (Pl. Dep. 92.) Under normal circumstances, Plaintiff would have been terminated for so many incidences of tardiness, but Borthwick chose to give her a verbal counseling instead. (Marchese Dep. 39-40. See also Def.'s Mot. for Summ. J., Ex. H, AmerisourceBergen Attendance Policy at 2 (stating that an associate will be terminated for twelve latenesses of five minutes or more within one year, and that continual tardiness of 5 minutes or less will be addressed on a case-by-case basis).)

After February 2, 2007, Plaintiff was tardy to work on other occasions. (Pl. Dep. 82.) On April 17, 2007, she was given a second corrective action, this time in the form of a written warning, for tardiness. (Pl. Dep. 79-80; Def.'s Mot. for Summ. J., Ex. G, Corrective Action, Susan Long, April 17, 2007 ("Pl.'s 4/17/07 Corrective Action").) The corrective action form stated that Plaintiff had occurrences of tardiness of five minutes or greater on March 26, April 2, and April 11 of that year, and that she had continued to be tardy for five or fewer minutes through the first two quarters of 2007. (Pl.'s 4/17/07 Corrective Action.) On April 18, 2007, Plaintiff met with Borthwick and Marchese to discuss this corrective action and was told that failure to improve could lead to disciplinary measures or termination. (Pl. Dep. 79-81).

On May 14, 2007, Plaintiff met with Borthwick to discuss her year-end performance evaluation. (Pl. Dep. 70-71; Def.'s Mot. for Summ. J., Ex. I, Performance Management -Warehouse Associates for Susan Long, May 14, 2007 ("Pl.'s Year-End Evaluation"); Marchese Dep. 11.) Plaintiff received mixed reviews in this evaluation. (See Pl.'s Year-End Evaluation.) For instance, in the Initative section, Borthwick commented that Plaintiff "display[ed] an eagerness to learn new skills, and take on additional responsibilities. As priorities change, however, Susan tends to respond negatively to feedback or suggestions." (Pl.'s Year-End Evaluation at 1.) In the Quality of Work section, Borthwick commented that Plaintiff "has struggled with maintaining an acceptable attendance record during the rated period [and] was issued a Verbal Warning for tardiness on 1/31/07." (Pl.'s Year-End Evaluation at 1.) Plaintiff's overall rating was "partially meets expectations." (Pl.'s Year-End Evaluation at 2.) Plaintiff signed the third page of the year-end performance evaluation on May 14, 2007, but she never saw the first two pages of the document. (Pl. Dep. 70; Pl.'s Year-End Evaluation at 3.) Borthwick did Plaintiff's review by talking to her with a laptop in front of him, while typing things into the computer. (Pl. Dep. 70.) However, Plaintiff and Borthwick did discuss the contents of the evaluation. (Pl. Dep. 74.) In addition, on several occasions, Plaintiff expressed to Borthwick her unhappiness with the word "attendance" in her evaluation. (Pl. Dep. 71.) Although Plaintiff had problems with tardiness, she always attended work. (Pl. Dep. 71.)

August 2007: Plaintiff's FMLA Leave and Termination On Friday August 3, 2007, at the end of a week-long vacation, Plaintiff telephoned Marchese and said that Plaintiff's father was seriously ill and had been placed in hospice care earlier that week. (Pl. Dep. 99.) Plaintiff asked to use her two remaining vacation days on August 6 and 7. (Pl. Dep. 99; Marchese Dep. 14-15.) Plaintiff also informed Marchese that she would be applying for FMLA leave to care for her father. (Pl. Dep. 99; Marchese Dep. 11-12.) Plaintiff received the two requested vacation days. (Pl. Dep. 99-100; Marchese Dep. 15.) She also met with Marchese on August 7 to get paperwork for the FMLA leave, which included the name and contact telephone number for MetLife Insurance Company, the administrator of FMLA leave for AmerisourceBergen. (Pl. Dep. 99-100; Marchese Dep. 12-13.) On August 7, Marchese explained to Plaintiff that she would be responsible for paying healthcare premiums while on FMLA leave and that she would be required to report to Marchese each month with an update on her FMLA status. (Pl. Dep. 101; Def.'s Mot. for Summ. J., Ex. J, Heath Insurance Premium Statement, Aug. 7, 2007.) On August 7 or August 8, Plaintiff telephoned MetLife to apply for FMLA leave in order to care for her father. (Pl. Dep. 101, 107; Marchese Dep. 14.) MetLife sent Plaintiff a letter, dated August 8, 2007, confirming her request for FMLA leave to care for a family member and enclosing the Health Care Provider Certification Form that needed to be completed. (Pl. Dep. 107; Def.'s Mot. for Summ. J., Ex. K, Letter from MetLife to Plaintiff, Aug. 8, 2007.) She received the form on August 9, 2007. (Pl. Dep. 110.) Her father signed the form on August 10, 2007. (Pl. Dep. 109.)

Plaintiff's father passed away on August 12, 2007. (Pl. Dep. 112,) As the family was leaving the funeral home before Plaintiff's father's cremation, Plaintiff's mother fell and hurt her knee. (Pl. Dep. 111.) On August 13, 2007, Plaintiff called MetLife and sought to extend her FMLA claim in order to care for her mother. (Pl. Dep. 111-12, 115-16.) Plaintiff received verbal approval due to the urgent nature of the claims. (Pl. Dep. 123.) MetLife sent Plaintiff another set of forms, for Plaintiff's father and mother. (Pl. Dep. 112, 116, 119.) On August 14, 2007, a doctor completed the Health Care Provider Certification for leave covering the care of Plaintiff's father and mother from August 8, 2007, through September 6, ...

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