The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is DEFENDANT‟S MOTION FOR SUMMARY JUDGMENT (Doc. No. 44), filed with brief in support (Doc. No. 47). Defendant has also filed an appendix and a separate statement of material facts in support of its motion for summary judgment (Doc. Nos. 45 and 46) pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1. Plaintiff filed a response in opposition and a brief in support of that response. Doc. Nos. 48 & 49. Plaintiff also filed her own concise statement of material facts with attached exhibits in support of her response. Doc. No. 50. On August 8, 2011, Defendant filed a reply brief in support of its motion for summary judgment. Doc. No. 51. The issues have been thoroughly briefed and Defendant‟s motion for summary judgment is ripe for disposition. For the following reasons, Defendant‟s motion for summary judgment will be granted.
On May 5, 2010, Plaintiff, Dawn Crewl, initiated this case with the filing of her original complaint, which contained a total of five counts: two counts alleging violations of Title VII, one count alleging a violation of the Family Medical Leave Act of 2003, 29 U.S.C. § 2601, et seq., (hereinafter "FMLA"), and two counts of intentional infliction of emotional distress. Doc. No. 1. The complaint named the Port Authority of Allegheny County ("Port Authority"), and two Port Authority employees, William Steinmetz, and Eric Wells, as Defendants. Id. In response, Defendants moved to dismiss the Title VII allegations at counts I and II and the intentional infliction of emotional distress allegations at counts IV and V (Doc. No. 12), and answered the complaint with respect to count III (Doc. No. 14). On August 30, 2010, Plaintiff filed an amended complaint that alleged one claim under the FMLA for the allegedly wrongful termination of her employment by Defendant Port Authority, and one state law claim for the intentional infliction of emotional distress against Defendants Steinmetz and Wells. Doc. No.
18. Defendants moved to dismiss the state law claim at count II for a failure to state a claim upon which relief could be granted. Doc. No. 22. On October 20, 2010, this Court dismissed count II of the amended complaint for the lack of jurisdiction. Doc. No. 27. Whereas count II of the amended complaint was the only count directed against Defendants Steinmetz and Wells, both individually named Defendants have been dismissed from this action. Defendant Port Authority answered the amended complaint (Doc. No. 24) with a denial of any violation of the FMLA, and a period of discovery followed. Upon completion of the period of discovery, Defendant Port Authority filed its motion for summary judgment.
The facts as recounted here are taken from Plaintiff‟s amended complaint (Doc. No. 18),
Defendant‟s Statement of Material facts (Doc. No. 46), the appendix to Defendant‟s motion for summary judgment (Doc. No. 45), Plaintiff‟s Statement of Material Facts with attached exhibits (Doc. No. 50). The facts and all reasonable inferences are viewed in a light most favorable to Plaintiff, the non-moving party.
1. Plaintiff's employment background with Defendant and outside employer Plaintiff began her employment with Defendant as a bus operator in 1998, and during the period of her employment, she was based primarily in the Collier Garage. Doc. No. 46, Defendant‟s Statement of Material Facts ("Def. Stmt. of Mat. Facts"), at ¶¶ 1 & 2; see also, Doc. No. 50, Plaintiff‟s Stmt. of Mat. Facts, at ¶¶1 & 2. During the operative period of time relevant to her claims, Plaintiff also worked part-time as a bartender at an establishment known as Rocky‟s Bar, where she would work on Tuesdays and Friday evenings after finishing her shift with the Port Authority. Def. Stmt. of Mat. Facts at ¶¶ 10 & 11; see also, Pltf. Stmt. of Mat. Facts at ¶¶ 4 & 5. Plaintiff‟s employer at Rocky‟s Bar was flexible in terms of the time he expected her to begin her shift. Pltf. Stmt. of Mat. Facts at ¶ 6. Plaintiff was not expected to begin her bartending shift at any specific time, only that she report to work after her shift ended with the Port Authority. Id. at ¶¶ 5 & 6. As such, the schedule under which Plaintiff worked at Rocky‟s Bar did not conflict with her schedule with Defendant. Id. at ¶ 7.
Plaintiff was a member of Local 85, Amalgamated Transit Union ("ATU") and was employed pursuant to a collective bargaining agreement ("CBA") between Defendant Port Authority and the ATU. Def. Stmt. of Mat. Facts at ¶ 3; see also Pltf. Stmt. of Mat. Facts at ¶ 9. In accordance with the CBA, Plaintiff‟s bus route was determined pursuant to a "pick" process that was conducted four times a year and followed a sequence based upon seniority. Id. at ¶ 6; see also Pltf. Stmt. of Mat. Facts at ¶ 10. The pick process permitted employees to choose their schedules for the three month period that followed, and was a turn-based process, with the sequence of who got to select first being based upon seniority as defined under the terms of the CBA. Id. at ¶ 7. As a result of her relatively low seniority under the CBA, Plaintiff‟s "pick" would typically require her to work a swing shift, which meant that she would work a shift in the morning, not work for several hours during the middle of the day, and work for several hours in the afternoon/evening. Id. at ¶ 8; see also, Pltf. Stmt. of Mat. Facts at ¶ 11. Additionally, as the result of her lack of seniority, Plaintiff would typically be required to work a schedule that included work shifts falling on holidays that happened to occur during the period. Id. at ¶ 9.
2. Port Authority's procedures and policies
As part of its FMLA program, Port Authority promulgated a policy entitled "FMLA Policies and Procedures", a policy that was in effect throughout Plaintiff‟s employment. Def. Stmt. of Mat. Facts at ¶14. The policy was revised in January 2004, with the revised version in effect through the time up to and including the date of Plaintiff‟s discharge in October 2008. Id. at ¶ 16; see also, Pltf. Stmt. of Mat. Facts at ¶ 19. Port Authority‟s FMLA policy prohibits fraudulent use of FMLA leave, and specifically states that "An employee who fraudulently obtains FMLA leave is not protected from disciplinary action, including immediate termination of employment and all FMLA rights." Id. at ¶ 22; see also Pltf. Stat. of Mat. Facts at ¶ 22.
Pursuant to Port Authority‟s FMLA policy, employees who desire to request FMLA leave are provided with a standard packet that contains various documents to be completed by either the employee or her health care provider. Id. at ¶ 17; see also, Pltf. Stmt. of Mat. Fact at ¶ 25. The FMLA packet contains a one page FMLA request form on which the employee sets forth information pertaining to her requested leave, information such as whether the leave is to be intermittent or continuous, or whether it is for the employee‟s own serious health condition, as opposed to that of a family member. Id. at ¶ 18; see also, Pltf. Stmt. of Mat. Facts at ¶ 26. In addition, the packet contains a certification form to be completed by the employee‟s health care provider that seeks information regarding the employee‟s serious health condition, her treatment for such condition, and the expected duration and frequency of absences from work the health care provider anticipates. Id. at ¶ 19; see also Pltf. Stmt. of Mat. Facts at ¶ 27.
Terry Schneider, the Port Authority FMLA/Attendance Administrator, is responsible for administering the FMLA program, and performs duties such as processing employees‟ applications for FMLA leave, training managers, tracking employees‟ FMLA usage, and monitoring employees‟ FMLA use for possible abuse and/or fraud. Def. Stmt. of Mat. Facts at ¶ 13 -- 14; see also Pltf. Stmt. of Mat. Facts at ¶ 20. Once an employee has submitted a completed FMLA packet, it is Ms. Schneider who either approves or denies the request. Id. at ¶ 20; see also Pltf. Stmt. of Mat. Facts at ¶ 28.
Port Authority maintains a Performance Code that, inter alia, provides work rules and identifies various work rule violations that will result on discipline. Def. Stmt. of Mat. Facts at ¶¶ 4 - 5; see also, Pltf. Stmt. of Mat. Facts at ¶ 14. Included within the Performance Code are General Rule Violations, violations of which may be grounds for disciplinary action, and Major Rule Violations, violations of which may be sufficient cause for the immediate discharge of an employee. Doc. No. 45-2, Appendix, at Depo. Tr. of Pltf. at Depo. Exhibit 3; see also, Def. Stmt. of Mat. Facts at ¶83. Included among the Major Rule Violations is the rule that "Fraudulent behavior with regard to payment and/or receipt of wages, salaries, benefits, or workers‟ compensation payments." Id.; see also Pltf. Stmt. of Mat. Facts at ¶ 15. While she was employed by Defendant, Plaintiff was aware of her obligations as an employee requesting leave under the FMLA policy, and further, that the policy prohibited the fraudulent use of FMLA leave. Def. Stmt. of Mat. Facts at ¶ 21, 23 -- 24.
3. Plaintiff's use of FMLA leave
Beginning as early as 2002, Plaintiff consistently requested and was approved for intermittent FMLA leave. Deft. Stmt. of Mat. Facts at ¶ 25; see also Pltf. Stmt. of Mat. Facts at ¶
30. While Plaintiff originally requested FMLA leave in 2002 to care for her son, beginning in 2003, she began requesting intermittent leave for migraine headaches. Id. at FN 5. For 2003, and for every twelve month period thereafter up to and through the date of Plaintiff‟s discharge, Defendant granted Plaintiff‟s request for intermittent FMLA leave for migraine headaches. Id. at 30; Pltf. Stmt. of Mat. Facts at ¶ 36. Beginning in 2006, Plaintiff began requesting intermittent FMLA leave for additional conditions related to depression, anxiety, and panic attacks (hereinafter collectively referred to as "anxiety conditions"). Id. at 31; Pltf. Stmt. of Mat. Facts at ¶ 37. As such, Plaintiff was approved for FMLA intermittent leave on two separate bases, one for migraines and one for her anxiety conditions. Id. at ¶ 32; Pltf. Stmt. of Mat. Facts at ¶ 38. In March 2008, Plaintiff was approved for intermittent FMLA leave for both migraine headaches and anxiety for the period of March 28, 2008 through March 27, 2009. Def. Stmt. of Mat. Facts at ¶ 33.
In terms her migraine headaches, Plaintiff testified that she does not know in advance when the headaches would occur, and that they could occur suddenly. Def. Stmt. of Mat. Facts at ¶¶ 34; Pltf. Stmt. of Mat. Facts at ¶ 39. Plaintiff would suffer, on average, approximately two headaches a month, and was treated for her migraines by Lawrence Zelonis, D.O. Id. at ¶ 35 & 36; Pltf. Stmt. of Mat. Fact at ¶ 39. In terms of her anxiety conditions, Plaintiff suffered from attacks approximately three to four times a week, and that such attacks also occurred suddenly. Id. at ¶¶ 37 - 38; Pltf. Stmt. of Mat. Facts at ¶¶ 40 -- 41. Plaintiff was being treated by Christine P. Harenski, LCSW, for her anxiety conditions. Doc. No. 45-2, Dep. Tr. of Terry Schneider at Dep. Ex. 12. On some occasions during which Plaintiff would suffer from either a migraine headache or a panic attack, Plaintiff would not report to work for either the morning shift or the afternoon shift, while on other occasions, she would work the morning shift, then not work the afternoon/evening shift.
4. Plaintiff arranges to visit her brother in Las Vegas in early July
On May 8, 2008, Plaintiff requested and was granted two vacation days for June 30, 2008 and July 1, 2008. Deft. Stmt. of Mat. Facts at ¶ 62. On May 9, 2008, Plaintiff requested and was granted a personal day for July 2, 2008. Id. at 63. As a result of her "pick", Plaintiff was scheduled to work on both July 3, and the holiday of July 4. Id. at ¶ 64; Pltf. Stmt. of Mat. Facts at ¶ 55. Prior to departing on her trip, Plaintiff attempted to trade her shift for the 4th of July with other employees, but was unsuccessful. Id. at ¶ 66. Also, Plaintiff had been planning all along to stay in Las Vegas until July 5, 2008. Pltf. Stmt. of Mat. Facts at ¶ 50 & n. 4.
5. Port Authority's concerns over Plaintiff's use of FMLA leave
a. Pattern of FMLA leave on Fridays and holidays
As early as 2004, Port Authority became suspicious that Plaintiff was fraudulently using her intermittent leave given the emergence of a pattern of absences on Fridays and holidays. Def. Stmt. of Mat. Facts at ¶ 41. Port Authority was suspicious that despite either not working at all on Fridays, or working only the earlier shift, Plaintiff would nevertheless work as a bartender later that evening at Rocky‟s Bar. Deft. Stmt. of Mat. Facts at ¶ 49. For her part, Plaintiff admits that she would work at Rocky‟s Bar on such occasions "if I felt better when it was time to go." Doc. No. 45-1, Depo. Tr. of Pltf. at Tr. p. 61. In light of these suspicions, Port Authority requested that Plaintiff recertify her need for FMLA leave. Id. at ¶ 42. At the same time, however, Defendant continuously granted Plaintiff‟s requests for FMLA leave. Def. Stmt. of Mat. Facts at ¶ 45; Pltf. Stmt. of Mat. Facts at ¶ 35.
As part of Plaintiff‟s recertification process, Defendant required Plaintiff to receive a second opinion. Def. Stmt. of Mat. Facts at ¶ 46. The second opinion report regarding Plaintiff‟s anxiety conditions was received by Port Authority on June 3, 2008, and noted in relevant part:
Based on this examination, her psychiatric diagnosis is Adjustment Disorder with Anxiety and a Depressed Mood. Her adjustment disorder is prolonged, and its symptoms continue to be a focus of her attention. It is appropriately treated with psychotherapy and psychotropic medication. Ms. Crewl is thereby able to control her symptoms, and she knows how to use medication to stave off any impending panic attack. In my opinion, her health condition is no longer serious in the sense of incapacitating, but it does require periodic visits to a healthcare provider. With those visits, she functions in the normal range, and she has subjective complaints unsupported by objective findings. . The psychiatric interview, mental status ...