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Lamarca v. Verizon Pennsylvania

May 20, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer



This action involves allegations by Plaintiff Victoria Lamarca ("Plaintiff" or "Lamarca") that her current employer, Defendant Verizon Pennsylvania, Inc., ("Defendant" or "Verizon") retaliated against her in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2610 et. seq. In her Complaint, Plaintiff avers that Defendant retaliated against her for taking FMLA leave by assigning her a van rather than a bucket truck in 2002 and 2006 and by reclassifying her position in 2007. (Docket No. 1). Presently before the Court is Defendant's Motion for Summary Judgment. (Docket No. 33). Defendant first argues that Plaintiff's claims related to Defendant's assignment of a van rather than a bucket truck to her are barred by the applicable statute of limitations. (Docket No. 34). Defendant further maintains that, as to all of Plaintiff's claims, she has failed to present a prima facie case of retaliation and has not demonstrated that Defendant's proffered nondiscriminatory reasons for its actions were pretextual. (Id.). Defendant's Motion has been fully briefed by the parties in accordance with Local Rule 56, the Court heard oral argument from counsel at a hearing on April 15, 2010, and accepted supplemental briefing thereafter. (Docket Nos. 33, 34, 35, 36, 38, 39, 40, 44, 45, 47, 48, 49). After careful consideration of the record and the parties' arguments, and for the following reasons, Defendant's motion [33] is granted.


The following facts were compiled from the parties' submissions pursuant to Local Rule 56. Unless otherwise specified, the facts of record are uncontested. Viewed in the light most favorable to Plaintiff, they are as follows.

A. Plaintiff's Employment History and Cable Splicer Duties

"Plaintiff began her employment with Bell of Pennsylvania, a predecessor to Verizon, in 1978." (Docket No. 35 at ¶ 1; Docket No. 39 at ¶ 1). "Plaintiff was hired as a Production Splicer and worked out of the Company garage located at 2806 Broadway Boulevard, Monroeville, Pennsylvania." (Docket No. 35 at ¶ 2; Docket No. 39 at ¶ 2). "In 2002, Plaintiff was employed by Verizon as a Cable Splicing Technician ('Cable Splicer')." (Docket No. 35 at ¶ 3; Docket No. 39 at ¶ 3). "As a Cable Splicer, Plaintiff worked outside restoring telephone service to Verizon customers. Plaintiff's job duties included working on aerial and underground lines to restore/repair telephone dial tones." (Docket No. 35 at ¶ 4; Docket No. 39 at ¶ 4). "Plaintiff also repaired wiring and associated equipment for Verizon customers." (Docket No. 35 at ¶ 5; Docket No. 39 at ¶ 5). "Cable Splicers travel in Company-provided vehicles between various locations and perform outdoor work, which among other things, requires them to climb ladders and telephone poles." (Docket No. 35 at ¶ 6; Docket No. 39 at ¶ 6).

The vehicles are owned by Verizon and are not the employee's personal property. (Docket No. 35 at ¶ 15; Docket No. 39 at ¶ 15). Cable Splicers are assigned bucket trucks or vans, for use in performance of these duties. (Docket No. 35 at ¶¶ 16-17; Docket No. 39 at ¶¶ 16-17). Verizon does not have a formal rule or policy requiring that a Cable Splicer be assigned a bucket truck. (Docket No. 35 at ¶ 16; Docket No. 39 at ¶ 16). However, Plaintiff testified that the majority of Cable Splicers working out of the Monroeville garage were assigned bucket trucks. (Docket No. 35 at ¶ 17; Docket No. 39 at ¶ 17). She further testified that she could perform her job duties with a van and a ladder, although using a van and a ladder as opposed to a bucket truck made it take longer to perform certain parts of her job. (Docket No. 35 at ¶ 19; Docket No. 39 at ¶ 19).

B. Plaintiff's Return from Leave in 2002: First Bucket Truck Incident

"In 2002, Susan Baker was Plaintiff's supervisor." (Docket No. 35 at ¶ 7; Docket No. 39 at ¶ 7). "Plaintiff testified that in 2002 she 'was off for a very long time . . . close to a year' for knee and foot surgeries." (Docket No. 35 at ¶ 8; Docket No. 39 at ¶ 8). "Upon her return to work, Plaintiff was assigned a van for a period of time ... and then [later] reassigned a bucket truck." (Docket No. 35 at ¶ 9; Docket No. 39 at ¶ 9). Plaintiff could not recall how long she was without a bucket truck. (Id.).

C. Plaintiff's Return from Leave in 2006: Second Bucket Truck Incident*fn1

On July 2, 2006, Plaintiff "sustained a work injury while descending the back of a bucket truck." (Docket No. at 39 at ¶ 42; Docket No. 45 at ¶ 42). She returned to work full duty following this injury on August 28, 2006. (Docket No. at 39 at ¶ 43; Docket No. 45 at ¶ 43). "At that time, she was informed by her supervisor that her bucket truck had been removed, and would not be reassigned because of safety concerns." (Docket No. at 39 at ¶ 44; Docket No. 45 at ¶ 44; see also Docket No. 35 at ¶ 11; Docket No. 39 at ¶ 11).

However, "[o]n the same day that Plaintiff returned to work and was told that she was being assigned a van, Plaintiff informed the Company that she had reinjured her knee and began another medical leave." (Docket No. 35 at ¶ 11; Docket No. 39 at ¶ 11). "As a result, although Plaintiff was assigned a van upon her return to work in [2006], she did not drive it for even a day because she immediately told the Company she had reinjured herself." (Docket No. 35 at ¶ 12; Docket No. 39 at ¶ 12; Docket No. 36-1, Pl's Depo. at 99).

Plaintiff also completed a grievance form on August 28, 2006, which was filed by her union, Local 13000, CWA, AFL-CIO. (Docket No. at 39 at ¶¶ 45-46; Docket No. 45 at ¶¶ 45-46). The "Description of Grievance" marked on the form is "Discrimination/Harrassment [sic]." (Docket No. 40-7). Plaintiff's "Statement" on the grievance form is the following:

I injured my left knee cap on July 3, 2006. Work Related. Followed all the necessary avenues to be off work - rehabilitation was prescribed by my orthopedic doctor. He released me [to] full duty for Aug. 28[, 2006]. When I entered the garage my supervisor welcomed me back. (Sue Baker). Told me not to "CAT" in! I gave her my doctor's excuse to report back "full duty"! In the conversation I asked about my truck I had assigned to me before I left. She said "it was relocated." Told me I'd be using a van. All my stuff she pulled off was up [at] MacBeth and in the ladies room. This happened to me in 2002 after knee surgery. The union fought to get me a bucket.

Kevin Carter (Splicer) was off for months with a knee problem. He came back to his truck. No van.

Larry Nelson (CIRT) was off for awhile. He came back and got a bucket.

This is discrimination and harassment!

I got 28 yrs service and lost a bucket. We got FTTP Splicers with NO service in brand new trucks! (Docket No. 40-7). Defendant denied her grievance. (Docket No. at 39 at ¶ 47; Docket No. 45 at ¶ 47).

On February 2, 2007, Plaintiff filed a Charge of Discrimination with the EEOC and PHRC related to this incident. (Docket No. at 39 at ¶ 53; Docket No. 45 at ¶ 53). In her EEOC Charge, Plaintiff states that "I believe that [Verizon] discriminated against me because of my gender, female; my disabilities and/or in retaliation for having filed both internal and external (EEOC) charges of discrimination against [Verizon] in violation of Title VII of the Civil Rights Act of 1964, as amended and the Americans with Disabilities Act of 1990." (Docket No. 40-13, EEOC Charge dated 2/2/07). Her "grievance concerning the second bucket truck removal was marked as 'pending' until the ruling from the EEOC on [her] second filing was returned." (Docket No. at 39 at ¶ 63; Docket No. 45 at ¶ 63).

As to the Defendant's safety concerns, "[o]n December 22, 2005 and January 18, 2006, Ms. Baker and Union Representative Lisa Fazzini reviewed [Plaintiff's] Personnel File," including all accidents which Plaintiff sustained during her employ with Defendant. (Docket No. at 39 at ¶¶ 48, 49; Docket No. 45 at ¶¶ 48, 49). "From 1/8/80 through 1996, Ms. LaMarca sustained eight accidents." (Docket No. at 39 at ¶ 50; Docket No. 45 at ¶ 50). "None of those accidents were caused by descending or ascending a bucket truck." (Docket No. at 39 at ¶ 51; Docket No. 45 at ¶ 51). Plaintiff's "only accidents involving a bucket truck occurred on 2/11/04-2/13/04, 11/17/04-12/2/04, and 7/3/06-8/28/06." (Docket No. at 39 at ¶ 52; Docket No. 45 at ¶ 52).

D. Same Pay, Same Job, Same Benefits

Although Plaintiff was assigned a van rather than a bucket truck after her return from leave in both 2002 and 2006, after returning from both leaves, "Verizon reinstated Plaintiff to the same job at the same location with the same pay and same benefits." (Docket No. 35 at ¶ 13; Docket No. 39 at ¶ 13). Specifically, Plaintiff testified:

Q: During those several years under which you were reporting to Ms. Baker, you took numerous leaves of absence, correct?

A: Yes.

Q: And during all but one of those leaves [referring to the time Plaintiff was reclassified as a Maintenance Administrator after five months without being recertified in pole climbing.] Ms. Baker reinstated you to the same job, right?

A: Yes.

Q: Same pay?

A: Yes.

Q: And same ...

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