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Carla Myles v. University of Pennsylvania Health System

December 12, 2011


The opinion of the court was delivered by: Buckwalter, S.J.


Defendant University of Pennsylvania Health System d/b/a University of Pennsylvania Hospital ("Defendant") filed the present Motion for Summary Judgment against Plaintiff Carla Myles ("Plaintiff") on all claims. For the following reasons, the Motion is denied.


Plaintiff was hired by Defendant in February 2003 to work as a customer service representative. (Pl.'s Resp. Opp'n, Ex. B 4-5.) In 2004, she was diagnosed with irritable bowel syndrome ("IBS"), which caused cramps, stomach aches, and diarrhea. (Id., Ex. A, Dep. of Carla Myles ("Myles Dep."), 110:4-10, 44:6-9, June 6, 2011) As a result of this condition, Plaintiff applied for leave pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). (Myles Dep. 50:25-51:4) Plaintiff's leave commenced in April 2004, was mostly intermittent in nature, and continued until the end of her employment. (Id.; Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem."), Exs. G ¶ 6, H 11:1-4.)*fn1

In January 2008, Defendant implemented its Performance Improvement and Progressive Steps policy ("the Policy"). (Def.'s Mem., Ex. J.) Pursuant to the Policy, an employee's performance issues, absences, or instances of tardiness are addressed through five sequential Progressive Steps: Coaching, First Written Warning, Second Written Warning, Final Warning, and Termination. (Id.) A Progressive Step remains active for a period of one year; if the employee has another performance or attendance issue while a previous Progressive Step is still active, he or she will receive the next level of discipline. (Id.) This process continues until the termination level is reached. (Id.)

In February 2008, Plaintiff was asked by Defendant's agents to submit to an independent medical examination ("IME") to verify her need for FMLA leave. (Myles Dep. 128:6-18.) Also in February, Plaintiff was given her first formal written discipline under the newly-implemented Policy -- the Coaching -- for five instances of lateness. (Pl.'s Resp. Opp'n, Ex. P.) On March 6, 2008, Plaintiff received her First and Second Written Warnings under the Policy, also for lateness. (Id., Ex. NN.) The First and Second Written Warnings -- but not the Coaching -- stated that they would be rescinded upon approval of Plaintiff's FMLA paperwork. (Id., Exs. P & NN.)

On April 3, 2008, Plaintiff's IME was performed by Dr. Barry Corson. (Id., Ex. U.) Dr. Corson found that Plaintiff appeared to have experienced IBS "for at least the last three or four years," but he did not specifically comment on whether Plaintiff needed FMLA leave as a result of this condition. (Id.) On April 14, 2008, Plaintiff was given her fourth disciplinary document -- the Final Warning -- for unexcused absences. (Id., Ex. OO.)

On May 23, 2008, Plaintiff was notified by Maribel Fernandez, Defendant's Senior Benefits Specialist, that she would have to undergo a second IME with Dr. Jeffrey Retig. (Id., Ex. I.) Dr. Retig, a certified gastroenterologist, examined Plaintiff on June 26, 2008. He found that Plaintiff's symptoms were consistent with IBS, and that he could not discount the possibility that they were disabling enough to miss work. (Id., Ex. W.) He also noted, however, that she had not been properly medicated prior to May 2008, and suggested that her symptoms could be controlled with therapy. (Id.) On July 28, approximately one month after her visit with Dr. Retig, Plaintiff was approved for intermittent FMLA leave, which was applied retroactively to January 24, 2008 and extended until August 28, 2008. (Id., Ex. PP.)

In August 2008, Plaintiff received two separate disciplinary documents: one for lateness and another one for performance-related issues.*fn2 (Id., Exs. R & S.) Apparently, Plaintiff's retroactive approval for FMLA leave rescinded all previous disciplinary measures except for her Coaching, as the documents she received in August were marked "First Written Warning" and "Second Written Warning." (Id.) Several months later, on February 27, 2009, Plaintiff requested approximately five weeks of FMLA leave in March for a surgery, which was approved. (Id., Ex. BB.) That same day, Plaintiff was given her Final Warning for lateness. (Id., Ex. L.)

Finally, on March 10, 2009, Plaintiff was terminated from her position with Defendant. The termination letter stated that Plaintiff received a Coaching for lateness in February 2008, her First and Second Written Warnings for lateness and unacceptable phone averages in July 2008, and her Final Written Warning for lateness in February 2009. (Id., Ex. K.) The letter also stated that Plaintiff had unacceptable phone time averages on February 2, 3, 4, 5, and 6, and that "[t]he February phone time results in the termination of your employment effective today." (Id.) The termination occurred exactly one day before Plaintiff's extended FMLA leave was supposed to have commenced. (Id., Exs. K, BB.)

Plaintiff filed her Complaint in this Court on August 16, 2010. The Complaint alleges the following: (1) Defendant interfered with Plaintiff's rights under the FMLA and retaliated against her for exercising those rights (Count I); (2) Defendant unlawfully retaliated against Plaintiff in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA") (Count II); (3) Defendant discriminated against Plaintiff when it terminated her because of health problems, in violation of the ADA (Count III); and (4) Defendant's unlawful termination of Plaintiff violated the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et seq., ("PHRA") (Count IV). (Compl. ¶¶ 23-42.) On August 5, 2011, Defendant filed the present Motion for Summary Judgment. Plaintiff filed her Response in Opposition on September 15, 2011. Defendant filed a Reply on October 7, 2011, and Plaintiff filed a Sur-Reply on October 24, 2011.


Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for ...

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