The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant Verizon Pennsylvania, Inc. (Document Nos. 45 and 46), the BRIEF IN OPPOSITION filed by Plaintiff, Robin Morrow (Document No. 51), and the REPLY BRIEF filed by Defendant Verizon Pennsylvania, Inc. (Document No. 57).
The issues have been fully briefed and the factual record has been thoroughly developed via the Concise Statement of Material Facts filed by Defendant (Document No. 47), the Appendix in Support of Defendant‟s Motion for Summary Judgment (Document No. 48), the Response filed by Plaintiff (Document No. 52), the Counter-Statement of Material Facts filed by Plaintiff (Document No. 52), the Appendix to Plaintiff‟s Counter-Statement of Material Facts (Document No. 54), and the Response to Plaintiff‟s Counter Statement of Material Facts filed by Defendant (Document No. 58).
After careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Robin Morrow. Therefore, for the reasons that follow, Defendant‟s Motion for Summary Judgment will be granted in its entirety.
Plaintiff, Robin Morrow, initiated this lawsuit on June 10, 2009, by the filing of a Complaint in which she asserts claims against Defendant, Verizon Pennsylvania, Inc., ("Verizon") for allegedly violating her rights to be free of retaliation, discrimination, and interference under the Family Medical Leave Act, 29 U.S.C. §§ 2615(a)(2) and (a)(1) ("FMLA").
Verizon filed the instant motion for summary judgment, in which it contends that Plaintiff is not able to establish a prima facie case on her claims. In the alternative, Verizon argues that Plaintiff‟s employment was terminated for legitimate, nondiscriminatory reasons, namely that Plaintiff violated Verizon‟s Code of Conduct by adding services and upgrades to customer accounts without permission.
As the law requires, all disputed facts and inferences are to be viewed in the light most favorable to Plaintiff. The pertinent facts are as follows:
A. Verizon Incoming Customer Sales and Service Consultants
The responsibilities of a Verizon Incoming Customer Sales and Service Consultant ("consultant") include, inter alia, taking calls from customers, as well as selling Verizon products, such as telephone service, internet service, and FIOS television service to both new and existing customers. In addition to a base salary, consultants receive commission based on customer sales; however, in order for the consultant to receive the commission, the customer must have the service installed and activated. If the service is cancelled before activation or installation, the consultant will not receive the commission. Consultants are also eligible fordaily incentives based on sales. Incentives include cash, gift cards, and points that can be redeemed on the internal Verizon shopping system.
B. The Verizon Sales Process
Section 3.1.1 of the 2008 Verizon Code of Conduct provides, in relevant part, as follows:
3.1.1 CREATE ACCURATE RECORDS * * *
You must create accurate records that reflect the true nature of the transactions and activities that they record (including the reporting of time and documenting attendance and absence). You must resolve discrepancies in any records and make appropriate corrections. If you suspect or learn that records are misleading or contain errors, you must promptly inform your supervisor and, if applicable, customers and business providers. Because even a minor error can affect the truthfulness of a record, you must report all errors, regardless of their size or how long ago they may have occurred.
Verizon does not tolerate falsification or improper alteration of records.
Verizon Code of Conduct, 2008 version.
An earlier version of the Code of Conduct included a similar provision, which provided:
We will prepare company records completely, accurately and truthfully. We should apply the highest standards in accurately recording (or reconciling known) data discrepancies for each transaction to make correct and timely entries and postings so that all data elements mirror physical assets. We will not knowingly prepare, maintain or provide false or misleading records or data. We will not knowingly suppress relevant information in any company record or system.
Consultants must obtain customer approval prior to adding any service or product to a customer‟s account. Therefore, if a consultant places an order on a customer‟s account without first obtaining the customer‟s approval, that consultant would be in violation of Verizon‟s Code of Conduct. Further, a consultant is required to "recap" a customer at the end of a conversation, which means that the consultant must confirm any services or products the customer has ordered and explain the costs and billing information relative to those services or products.
According to the summary judgment record, there is no progressive discipline for a violation of sales integrity. See Depo. of Copeland, at 68.
C. FMLA Requests and Other Leaves of Absence
At Verizon, FMLA requests are reviewed and approved or denied by the Verizon Absence Reporting Center ("ARC") located in Valhalla, New York. An employee‟s supervisors are not involved in the administration of FMLA leave.
Susan D. Nelson ("Nelson") is the Verizon Absence Administrator in Pittsburgh. She does not have any responsibility for approving or denying employees requests for absences. Rather, she gathers the information from an employee about a requested absence and forwards that information on to ARC in New York. See Nelson Depo. at 19. Nelson reports to a different management chain than the management chain of the consultants. Therefore, if necessary, she would talk to her management about an employee‟s absence, she would not talk to that employee‟s management about their absence. Id. at 36-37. It is not disputed that Nelson was not involved in any way in the decision to terminate Plaintiff‟s employment.
D. Plaintiff‟s Employment With Verizon
Plaintiff was employed by Verizon as an internal consultant from January 14, 2006, until her employment was terminated on November 7, 2008. During her employment with Verizon, Plaintiff requested and received her full twelve (12) weeks of FMLA leave in both 2007 and 2008. Following each leave, Plaintiff was returned to the same job with the same pay and benefits.
At various times during her employment with Verizon, Plaintiff reported to the following first-level supervisors, also known as Team Leaders: Alyssa LNU, Carrie Cross, and Symone Copeland ("Copeland"). Rori Ann Broggi ("Broggi") was Plaintiff‟s second level supervisor at all times during her employment. Broggi testified that she has a group of first-level supervisors that report to her, and then she "has a call center with roughly 200 reps that handle incoming calls." Broggi Depo. at 12.
Plaintiff contends that her termination was due to her continued need for FMLA leave and in retaliation for her protected activity of complaining to the United States Department of Labor about Verizon‟s practices. It is undisputed that Broggi and Copeland were the only two people who made the decision to terminate Plaintiff‟s employment.
1. Employment During 2007
As a result of an injury sustained in 1997 while working in a nursing home, Plaintiff suffers from a herniated disc, arthritis, and muscle spasms in her back. In January 2007, upon her one year anniversary of employment with Verizon, Plaintiff requested and received FMLA leave due to her back pain. According to Plaintiff, when she initially requested the FMLA leave in January 2007, Susan Nelson, Verizon‟s Absence Administrator in Pittsburgh, commented that it was convenient that Plaintiff had a disability or FMLA condition the day that she became covered to take FMLA leave. Nelson testified that the reason she made this comment was because Plaintiff had a good attendance record and was asking if there were things Plaintiff had previously done which helped her condition.
In March 2007, Plaintiff‟s physician signed an FMLA certification which indicated that Plaintiff needed leave due to her back pain and stated that the "period of incapacity" was from February 23, 2007, through May 23, 2007. The FMLA certification did not indicate that intermittent leave was needed.
Plaintiff took time off in February and March 2007 pursuant to that FMLA certification. She returned to work on March 23, 2007, but was absent again on March 28, 2007. This absence was coded by ARC as an unapproved absence because there was no intermittent leave certification on file. As a result of Plaintiff‟s "unauthorized" absence, she was suspended without pay for three days. On May 7, 2007, Plaintiff filed with Verizon an appeal of the denial for intermittent leave in which she contended that she was under the impression that she did not need additional FMLA forms because she believed that the FMLA certification for back pain covered intermittent absences. After her appeal was denied, Plaintiff informed Nelson that she would be calling the United States Department of Labor ("DOL") because the issue was not resolved through the Union grievance process. In July 2007 Plaintiff filed a complaint with the DOL regarding her three-day suspension.
In June 2007, Broggi asked Plaintiff to train in Verizon‟s Fiber Department. Plaintiff declined and specifically told Broggi that she felt that she could not handle the Fiber training at that time because she had a number of doctor‟s appointments and was on a lot of medication. Plaintiff also told Broggi that she was taking time off for back surgery. Broggi testified in her deposition that she assumed Plaintiff‟s leave was covered under the FMLA, but Plaintiff did not reference the FMLA during this conversation.
On September 24, 2007, Nelson sent an email to Elizabeth Mears, on which Rori Broggi and others were copied. The subject line was "AMTS problems." Nelson sought assistance from Mears with respect to the problems "with AMTS not coding properly when the approvals or denials come through." In the email, Nelson specifically discussed Plaintiff‟s situation, as follows:
This is one that I urgently need an answer on or to be worked. Robin Morrow‟s attendance is recently INCREASED to at 28.76% and she has been in contact with the union, labor and relations board and lawyers trying to save her job since she knows what is due to come. However, with the delays, I am now concerned how tight our case is going to be for terminating her.
This is an employee who I can terminate IF I could get 4.4 more days approved, the rest would default to denials since she is out of FLMA. The problem is that AMTS is not updating the approvals, nor is it generating the paperwork for the recertifications. As you can see, she clearly has more than 4.4 days pending and they go back to April. I have been continuously in contact with ARC, who had previously advised me the paperwork went out. . . .
Today when I spoke with Ensley at ARC, he advised me the recertification paperwork was not generated! He also did advise part of the reason that the days are coming in as approved for 1 day her (sic) and there based on how the doctor is filling out the paperwork.
Nelson explained in her deposition that she did not want to terminate Plaintiff‟s employment and sent the email because Plaintiff, at that time, had more pending absences than she had FMLA days available to her, and Nelson did not know the status of the pending requests.
According to Nelson, ARC had been taking a long period of time to approve or deny absences and she wanted to "ensure that everything is the way it‟s supposed to be before I do any type of discipline." Nelson Depo. at 82.
Broggi testified that she did not recall seeing the September 2007 email from Nelson, and that she would not have read the email because the subject was "AMTS problems" and that issue would not pertain to her.
Plaintiff also argues that she was subjected to antagonistic comments on November 5, 2007, made by Michael Billups ("Billups"), the director of consumer sales in Pennsylvania and Delaware, during her second formal grievance regarding her three-day suspension. Specifically. Billups noted during the grievance that Plaintiff had missed 73 days of work so far that year. Billups testified in his deposition that the reason he noted the number of days Plaintiff had missed was because it showed that "she was not dependable." Billups further testified that even if any of those 73 days that Plaintiff had missed were covered by the FMLA, that would not change his statement that she was not dependable.
On December 3, 2007, the DOL notified Verizon‟s ARC that it had received complaints from eight (8) employees "concerning Verizon/ARC processing of requests for intermittent leave under the Family and Medical Leave (FMLA). . . ." Among the specific complaints brought to Verizon‟s attention was the following made by Robin Morrow:
Morrow states that [Susan Nelson, the Absence Administrator] is coding all absences as new absences. This is apparently the result of Morrow‟s confusion concerning the necessity of Sections B and C of the medical certification in determining intermittent FML. Consequently, Morrow‟s physician was completing the medical certifications indicating the need for leave for specific blocks of incapacity instead of prospective intermittent periods of leave. Morrow did not submit a medical cert for [3/28/07] because she thought this was included in one covering 2/23/07 through 5/23/07. At this point Morrow was not aware that her medical certifications were for specific blocks of time and not for intermittent leave. She filed an administrative review request and provided a medical cert. Her denial letter indicated that she had until 5/7/07 to provide the required documentation. Her appeal was denied because she did not submit her medical cert until 5/7/07. . . . .
It should be noted that in August, 2007 Morrow‟s physician, Dr. Jeffrey Hein, received a call from Dr. Hart at ARC. Dr. Hart instructed Dr. Hein on how to properly fill out the medical cert regarding frequency and duration of ...