The opinion of the court was delivered by: Conti, District Judge
MEMORANDUM OPINION AND ORDER
Pending before the court is a renewed motion for judgment as a matter of law (the "Motion") (Defendant Alderwoods Group, Inc.‟s Renewed Motion for Judgment as a Matter of Law (ECF No. 278)), filed by defendant Alderwoods Group, Inc. ("defendant" or Alderwoods"), pursuant to Federal Rule of Civil Procedure 50(b). The dispositive issue in the Motion is whether, under the circumstances of the case, plaintiff Deborah Prise ("plaintiff" or "Prise") suffered an adverse employment action sufficient to establish an unlawful retaliatory suspension by defendant. For the reasons set forth below, the Motion will be denied.
In 2006, Prise brought claims of employment discrimination against Alderwoods alleging that defendant subjected her to various forms of illegal discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Pennsylvania Human Relations Act, 43 PA. CON. STAT. §§ 951 et seq. (the "PHRA"), and the Equal Pay Act, 29 U.S.C. § 206(d). On September 21, 2009, this court issued a memorandum opinion and an order granting Alderwoods Group, Inc.‟s motion for summary judgment (ECF No. 169) with respect to all claims except plaintiff's retaliation claims under Title VII and the PHRA. With respect to the retaliation claims, the court concluded, inter alia, that genuine material issues of fact were in dispute about whether plaintiff was fully paid and if she suffered an adverse employment action necessary to state a claim. As a result, the only claims that remained for trial*fn2 were plaintiff's retaliation claims.
On May 4, 2010, plaintiff's claims of retaliatory discrimination went to trial before a jury. At the close of plaintiff‟s case-in-chief on May 10, 2010, defendants moved for judgment as a matter of law under Rule 50(a). Defendant argued that plaintiff could not establish an unlawful retaliatory suspension because she failed to show that she was not fully paid during the suspension. Defendant argued that as a result of this failure, plaintiff could not prove the adverse employment action necessary to state a claim for retaliatory suspension. The court deferred ruling on this initial Rule 50 motion until after the jury verdict was returned.
On May 14, 2010, the jury rendered a verdict in favor of Prise with respect to her claim that Alderwoods Group, Inc. retaliated against Prise when it suspended her after she filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") and the Pennsylvania Human Relations Commission (the "PHRC"). The jury rendered a verdict in favor of Alderwoods on all other retaliation claims filed by Prise. (See Verdict Slip (ECF No. 251).) No damages were awarded.
On September 29, 2010, defendant filed the instant Motion with respect to the retaliation claim on which plaintiff prevailed concerning her suspension after she filed a charge of discrimination with the EEOC and the PHRC. On October 19, 2010, plaintiff filed a response to the Motion. (Pl.‟s Resp. to Def.‟s Renewed Mot. for J. as a Matter of Law (ECF No. 284)). On November 9, 2010, defendant filed a reply brief to plaintiff‟s response. (Def. Alderwoods Group, Inc.‟s Br. in Reply to Pl.‟s Opp‟n to the Renewed Mot. for J. as a Matter of Law (ECF No. 288).)
A motion for judgment of as a matter of law filed at the end of trial is governed by
Federal Rule of Civil Procedure 50(b) which provides:
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a)*fn3 , the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged--the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law. FED. R. CIV. P. 50(b)(1)-(3).
Entry of judgment as a matter of law is a Asparingly@ invoked remedy. CGB Occup. Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 383 (3d Cir. 2004). It should only be granted if Aviewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.@ Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). The court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury. The court may, however, grant the motion if upon review of the record, it can be said as a matter of law that the verdict is not supported by legally sufficient evidence. Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 691-92 (3d Cir. 1993), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa, 316 F.3d 392 (3d Cir. 2003). A mere scintilla of evidence presented by the plaintiff is not sufficient to deny a motion for judgment as a matter of law. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). ""The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party.‟" Id. (quoting Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)). In resolving this motion, the court should consider all the evidence available, excluding only evidence which the jury was not entitled to believe, and drawing all reasonable inferences in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000). A district court may grant a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), "ʻonly if, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.‟" Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (quoting Powell v. J.T. Posey Co., 766 F.2d 131, 133-34 (3d Cir. 1985)).*fn4
Defendant argues that plaintiff was required at trial to prove each element of a prima facie retaliation claim. Prior to submitting the case to the jury, defendant argued that plaintiff‟s retaliation claim should be dismissed because she did not adduce any evidence of economic damages and therefore could not prove the specific adverse employment action element of a retaliation claim. In the Motion, defendant reiterates that plaintiff cannot prove a valid retaliation claim for purposes of retaliation under Title VII absent showing she suffered a materially adverse employment action. Defendant reargues that plaintiff failed to show such adverse action because she did not provide any evidence of economic loss related to her suspension. Defendant‟s position is predicated on a two-fold proposition: 1) a fully paid leave cannot rise to the level of a materially adverse action for purposes of retaliation under Title VII; and 2) under the circumstances, plaintiff‟s suspension was a fully paid leave.
Defendant contends that plaintiff defeated summary judgment on this point by promising to demonstrate at trial that her immediate supervisor at the relevant time, Pat McDermott ("McDermott"), received commissions to which plaintiff was entitled. Defendant argues that plaintiff‟s failure to do is fatal to her retaliation claim. Defendant notes that the jury found that plaintiff did not suffer any economic loss as a result of her suspension and that plaintiff expressly forfeited her claim for back pay. Defendant maintains that plaintiff otherwise admitted that she was fully paid during her suspension. (Mot. 5 (ECF No. 278).)
Defendant reasons that the court denied its Rule 50(a) motion because plaintiff could later produce during the trial additional evidence of her allegedly lost payment. Id. Defendant argues that plaintiff‟s claim of lost commissions during her suspension was subsumed in her express abandonment of her claim to any back pay. Defendant concludes that the result of plaintiff‟s failure to produce any specific evidence of her lost commissions is that she cannot meet her burden to show that her suspension period was not fully paid, and consequently failed to establish the requisite adverse employment action element of a prima facie Title VII retaliation claim.
Defendant relies upon one district court decision affirmed by the Court of Appeals for the Third Circuit and a number of decisions in other circuits holding that a fully paid suspension cannot be a materially adverse employment action as a matter of law. See, e.g., Solomon v. Phila. Newspapers, Inc., No. 05-05326, 2008 WL 2221856, 2008 U.S. Dist. LEXIS 41978, at *49 (E.D. Pa. May 21, 2008) (holding that paid leave is not materially adverse), aff‟d, 2009 WL 215340, 2009 U.S. App. LEXIS 2210 (3d Cir. 2009)).*fn5
2. Plaintiff‟s Response (ECF No. 284)
Plaintiff argues that defendant misstates the test for what constitutes an adverse employment action under the law. Plaintiff contends that defendant ignores the standard set forth in Burlington Northern v. White, 548 U.S. 53 (2006), which defines a materially adverse employment action for a retaliation claim to mean that the retaliatory action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 67-68. Plaintiff maintains that it is her lost commissions and the loss of the opportunity for earning commissions which would discourage a reasonable employee from filing a charge of discrimination. Plaintiff notes that the court denied defendant‟s Rule 50(a) motion on the basis that defendant‟s assertion would place a difficult burden on plaintiff and require conjecture, i.e., defendant‟s position that plaintiff needed to introduce testimony with respect to specific instances - which in fact occurred - in order to provide evidence that her leave was not fully paid.
Plaintiff contends that she is not required to show the amount of money she lost or the amount she hypothetically could have earned; rather, only that defendant‟s retaliatory actions ""might have dissuaded a reasonable worker from filing a Charge of Discrimination.‟" (Pl.‟s Resp. 4 (quoting Burlington, 548 U.S. at 67-68 (ECF No. 284).) In support, plaintiff points to her testimony at trial that part of her income as a location manager for defendant included commissions she received for the sale of pre-need insurance.
PLAINTIFF: I think I was making like $11,000 -- or $11 and hour as an intern. Then I forget what I was making, $18 an hour as a funeral director. Then I got bumped up to $50,000, plus ...