The opinion of the court was delivered by: Ludwig, J.
This is an employment discrimination action. Jurisdiction is federal question. 28 U.S.C. § 1331. The complaint alleges that plaintiff Barbara Jordan, a SEPTA employee, was disciplined and wrongfully terminated in retaliation for making complaints about race and sex discrimination.*fn1 The parties have filed cross-motions for summary judgment on Count Eight, which alleges violations of the FMLA.*fn2 Defendants' motion will be granted, and judgment entered in favor of defendants and against plaintiff on Count Eight.*fn3
Correspondingly, plaintiff's motion will be denied.
The record*fn4 establishes that beginning in 1993, plaintiff was employed by SEPTA as a bus operator. Plaintiff's Concise Statement of Facts, ¶ 1. On December 2, 2009, while on duty, plaintiff reported to dispatch at SEPTA that she was experiencing pain and was taken to the hospital by ambulance for evaluation and treatment. Deposition testimony of Barbara Jordan, p. 247-48, Exhibit B to defendant's motion; Plaintiff's Concise Statement of Facts, ¶ 7. On December 3, 2009, plaintiff submitted an Operator's Accident Report and an Employee Injury Report. Exhibits C and D to defendant's motion. Also on that date, plaintiff called in sick and faxed a copy of a doctor's note to SEPTA Dispatcher Veronica Jerry. Deposition testimony of Veronica Jerry, p. 37-40, Exhibit B to plaintiff's motion; Plaintiff's "Sick Record", Exhibit D to plaintiff's motion; doctor's note, Exhibit F to plaintiff's motion.*fn5
By letter dated December 4, 2009, plaintiff's supervisor directed
plaintiff to report to her work location for an appointment to be seen
by a SEPTA physician. Exhibit G to defendant's motion.*fn6
Plaintiff did not do so. On December 9, 2009, plaintiff's
supervisor issued a written directive to plaintiff to appear at her
work location to schedule an appointment with a SEPTA physician.
Exhibit G to defendant's motion ("You are hereby directed to report to
me at Southern District at 8:00 AM on Monday, December 14, 2009 in
order to schedule a panel doctor visit. Failure to comply with this
directive will result in your being dropped from the rolls of the
Authority"). Again, plaintiff did not appear, and as a result, her
employment was terminated. Plaintiff's deposition, p. 291-97; December
15, 2009 correspondence, Exhibit H to defendant's motion ("Your
failure to comply with this directive makes it necessary to drop you
from the rolls of the Authority."); Authority Standard Rule
9.16.b, Exhibit I to defendant's motion ("The following behaviors are
prohibited and subject to disciplinary action, up to and including
discharge . . . (16) disobedience of rules or directive").
On December 10, 2009, plaintiff submitted a Sick Benefit Application Form. Exhibit E to defendant's motion. This form triggered plaintiff's request for FMLA leave. See Exhibit E ("By applying for Sick Benefits, you have notified us of a potential FMLA qualifying event. . . . Please be advised that approval for Sick Benefits does not guarantee approval for FMLA leave."). Plaintiff was not advised that her request for FMLA leave was denied because of ineligibility and, as noted, she was discharged on December 15, 2009.
Plaintiff's Concise Statement, ¶¶ 40, 44.
AmeriHealth Casualty administers FMLA benefits for SEPTA employees. Affidavit of Vicky Duggan, Medical Program Manager of SEPTA's Human Relations Department, ¶ 6, Exhibit J to defendant's motion. As SEPTA's third-party administrator, it maintains records of employee hours worked for purposes of calculating FMLA leave. Id.; AmeriHealth Hours Worked Detail, Exhibit K to defendant's motion. Here, its records reflect that, as of December 3, 2009, plaintiff had worked 1,046 hours in the preceding 12 months. Exhibit K.*fn7
According to plaintiff, SEPTA's failure to advise her that she was ineligible for FMLA leave and its termination of her employment while she was using FMLA leave*fn8 constitute interference with and retaliation for utilization of her rights under FMLA. Defendant's position is that plaintiff was not eligible for FMLA leave, and therefore, as a matter of law, cannot state an interference claim or a retaliation claim.
Under FMLA, "an eligible employee shall be entitled to a total of twelve workweeks of leave during any twelve month period." 29 U.S.C. § 2612(a)(1)(D). "The term 'eligible employee' means an employee who has been employed - (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period."
29 U.S.C. § 2611(2)(A). "'In order to assert a claim of interference [with rights under FMLA], an employee must show that he was entitled to benefits under the FMLA and that his employer illegitimately prevented him from obtaining those benefits.'" Koller v. Riley Riper Hollin & Colagreco, 2012 WL 628009, at * 3 (E.D. Pa., filed Feb. 28, 2012), quoting Sarnowski v. Air Brooke Limousine Service, Inc., 510 F.3d 398, 401 (3d Cir. 2007). "'An interference action is not about discrimination, it is only about whether an employer provided the employee with the entitlements guaranteed by FMLA.'" Koller, at * 3, quoting Callison v. City of Philadelphia, 430 F.3d, 117, 119 (3d Cir. 2005).
With respect to the retaliation claim, "a plaintiff must establish a prima facie case by demonstrating that (1) he is protected under the FMLA; (2) he suffered an adverse employment action; and (3) there was a causal connection between exercising an FMLA right and the adverse employment action." Prigge v. Sears Holding Corp., 201 WL 2731589, at *5 (E.D. Pa., filed Jul. 9., 2010), citing Conoshenti v. Pub. Serv. Eec. & Gas Co., 364 F.3d 135 (3d Cir. 2004).
Here, plaintiff did not work the requisite 1,250 hours in the 12 months preceding her request for FMLA leave and, therefore, was not eligible for leave or otherwise protected under the Act. Accordingly, her claims under the FMLA must be rejected as a matter of law.
Plaintiff maintains that SEPTA is estopped to deny her protection under the Act because it did not inform her of her ineligibility for FMLA leave before terminating her employment. ...