The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiff Angie Johnson ("Johnson") brings this action against her former employer, Resources for Human Development, Inc. ("RHD"), and its Executive Director, Robert Fishman ("Fishman"). Johnson claims that Defendants terminated her in retaliation for her engaging in an activity protected by the state whistleblower law and that Defendants violated her federal rights under the Family and Medical Leave Act ("FMLA"), 26 U.S.C. § 2601 et seq.*fn1 Defendants move for summary judgment on all counts. Defs.' Mot. Summ. J., ECF No. 40. For the reasoning explained below, I will grant in part and deny in part Defendants' Motion.
Defendant RHD is a nonprofit corporation that sponsors human services programs in over eleven states. Id. Ex. D. For the eight years preceding her termination, Plaintiff Johnson was the director of RHD's Adolescent Career and Employment Services ("ACES") program. ACES provided training for at-risk youth aged sixteen to twenty-one on how to find, secure, and retain employment. See id. Ex. A. The program received funding from the City of Philadelphia Department of Human Services ("DHS"). Hales-Slaughter Dep. 22:5-14, Oct. 6, 2010.
On a Friday in July 2004, Johnson and a group of RHD co-workers had a birthday celebration. Johnson Dep. 126-128, Aug. 20, 2010. At the meal, a co-worker joked to Johnson that she was "'going to be a grandmother.'" Id. at 128:1-2. The co-worker explained that Sherone Daniels ("Daniels"), an employee in RHD's Central Office, "was having a baby by Keith" ("Jenkins"), an ACES consumer. See id. at 128:7-9. That Monday morning, Johnson shared the rumor with her then-supervisor, Monique Hales-Slaughter ("Hales-Slaughter"). Johnson "wanted to let her know we needed to investigate" because Johnson believed the rumored behavior constituted "inappropriate conduct" prohibited by RHD's policy about employees' relationships. Id. at 157:17-158:23.
Hales-Slaughter arranged a telephone call that afternoon with her supervisor, Marsha O'Hara ("O'Hara"), and Johnson to discuss the matter. A larger meeting was held the next day with Johnson, Hales-Slaughter, O'Hara, Fishman, and Daniels. At this meeting, Johnson expressed that Daniels's behavior was also inappropriate because Daniels was "[h]aving sex with a consumer that was underage." Id. at 164:4-5; see id. at 155:3-14.*fn3 In Johnson's account of the meeting, she and Hales-Slaughter insisted that Daniels had violated company policies while Fishman argued that it was not a violation and "that they were two consensual adults who had sex."*fn4 Id. at 164:14-18. Johnson did not report her suspicions about Daniels to the police, DHS, Jenkins's probation officer, or Jenkins's parents. Id. at 158:2-13. There is nothing in the record that shows Johnson's report was further discussed by or with Johnson after this July 2004 meeting.
In 2005, Johnson inquired about the director position for the new E3 program but was told it had already been filled. Id. at 114:9-10. She was frustrated because, she says, "we didn't know about the applications or the position, nobody ever told [sic] about the interview." Id. at 114:7-9. That same year, Johnson heard about a director position for a community reintegration program. Again she inquired and was told that it was already filled. Id. at 116:5-117:5. Both director positions were listed in a Human Resources bulletin of in-house job listings that was posted at the RHD Central Office and placed in employees' mailboxes. Id. at 119:10-120:22. Johnson states that she does not believe anyone prevented her from obtaining the positions. Id.; Pl.'s Resp. Mot. Summ. J. 6, ¶¶ 18, 22, ECF No. 46. When the other positions were filled, Johnson received a salary increase to make her salary the same as the new directors. Hales-Slaughter Dep. 25:14-26:9; Pl.'s Resp. Mot. Summ. J. 7, ¶¶ 23-24.
In summer 2007, Jennifer Arthur-Lewis ("Arthur-Lewis") became Johnson's direct supervisor. On Arthur-Lewis's first day, she told Johnson that the management team said Johnson needed to be under strict supervision. Johnson Dep. 182:10-13, 201:10-202:14. In early August, Arthur-Lewis admonished Johnson for continuing to engage Johnson's previous supervisor regarding daily issues at ACES, rather than following Arthur-Lewis's directives. Id. at 187:12-20; see Defs.' Mot. Summ. J. Ex. P. Defendants offer additional testimony that Johnson was scolded by multiple supervisors for other problems such as unexcused absences from work and communication problems with staff. E.g., Arthur-Lewis Dep. 33:17-34:23, 39:11-44:21, July 21, 2010; Gunter Dep. 27:13-19, 83:15-91:21, 141:3-20, Sept. 2, 2009. Johnson denies both the behavior underlying these allegations and that her supervisors ever addressed these issues with her.
In fall 2008, DHS considered suspending its funding for the ACES program due to the City's budgetary problems.*fn5 In December 2008, Fishman told Gunter and Arthur-Lewis that he wanted to meet with Johnson personally due to the problems they had been having with her.
Fishman Dep. 42:1-10, July 21, 2010. On December 8, 2008, Fishman met with Johnson; Gunter and Arthur-Lewis also attended. Johnson Dep. 182:15-21, 225:1-7. At the meeting, Fishman confronted Johnson about why she was absent from work on a particular day in November 2008. Id. at 216:7-217:19. Johnson said that she was at a doctor's office. Fishman suspected that Johnson was lying. Fishman told her to provide the doctor's name and phone number so that her visit could be verified, and he warned her that if she did not do so by the end of the day he would issue an instruction to others to dismiss her. Id. at 221:22-222:3; Fishman Dep. 29:23-31:3, 34:11-22. Johnson failed to provide Fishman with the information by the end of the day. Johnson Dep. 222:4-5; Fishman Dep. 31:2-3.
Later that same day, Plaintiff visited a medical provider due to anxiety.Johnson Dep. 234:7-24. The next morning, Johnson called her supervisors and Fishman to inform them that she would be out from work sick.*fn6 That day, Human Resources approved her for FMLA leave. Id. at 241:16-24; Defs.' Mot. Summ. J. Ex. S. One of the FMLA forms she was given stated that her current position fell within the FMLA definition of a "key employee" and "[a]ccordingly, if it is determined that there is a need to replace your functions during your absence, RHD is permitted to do so under FMLA." Defs.' Mot. Summ. J. Ex. U; Johnson Dep. 242:13-15. Johnson's duties were temporarily taken over by Arthur-Lewis's assistant. Arthur-Lewis Dep. 12:1-13. In January 2009, RHD hired someone to fill Johnson's position permanently as the director of ACES. Id. at 60:19-61:6.
On February 23, 2009, Johnson visited RHD to inform them that she was cleared to return to work a week early, on February 25. Johnson's supervisor, Arthur-Lewis, was not in the office at the time, and Arthur-Lewis's supervisor, Gunter, informed Johnson that she had been terminated. Johnson Dep. 249:10-13, 252:4-10; Gunter Dep. 59:5-60:15. Gunter gave Johnson a letter stating that because she was a key employee, RHD did not hold her position open for her and she had been replaced. Defs.' Mot. Summ. J. Ex. X; Johnson Dep. 263:2-10. The letter further stated that "RHD has chosen to declare you ineligible for rehire within the company" due to "behavioral issues in the months and days preceding your disability leave." Defs.' Mot. Summ. J. Ex. X.
Summary judgment is appropriate only if the moving party shows that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" on that claim or defense. Fed. R. Civ. P. 56(a). A dispute is "genuine" if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the case under governing law. Id.
The moving party bears the initial responsibility of identifying the basis for its motion and portions of the record which demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To oppose the motion, the nonmoving party must show that a fact is genuinely disputed by citing to the record or showing that the materials cited by the moving party do not establish the absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Summary judgment may be granted if the nonmoving party fails to respond with a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.
Plaintiff asserts three causes of action against Defendants: (a) a retaliatory discharge claim under the Pennsylvania Whistleblower Law ("Whistleblower Law"), (b) a common law wrongful discharge claim, and (c) a Family Medical Leave Act ...