The opinion of the court was delivered by: Norma L. Shapiro, J.
Plaintiff Susan Folk ("Folk") brings this action against defendant Pennsylvania Department of Education ("DOE") for alleged violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 2000e et seq. Folk, an African-American woman, worked for DOE on a reduced schedule after being diagnosed with depression, anxiety, and stress. DOE required Folk to call her supervisors on days she would be absent; Folk failed to do so and eventually stopped reporting to work. DOE terminated Folk's employment.
Folk brings three counts: (1) employment discrimination; (2) retaliation; and (3) violation of the FMLA. She cites Titles VI and VII but fails to specify which counts arise under which statutes; the court assumes she brings discrimination and retaliation counts under Titles VI and VII and the FMLA. DOE moves for summary judgment on all counts. Folk moves to amend the second amended complaint to assert a retaliation count under state law. The court will grant the DOE Motion for Summary Judgment and deny the Folk Motion for Leave to Amend the Second Amended Complaint.
Between 2005 and 2007, DOE interviewed Folk twice for a position as an early intervention advisor. During one of the interviews, Folk saw only Caucasian employees. She then wrote letters to Congressman Chaka Fattah, Governor Edward Rendell, and State Representative Rosita Youngblood, and expressed her concern there were no persons of color in some DOE offices. Second Am. Compl. ¶¶ 4--6.
In November 2007, Folk began working as an early intervention advisor in Harrisburg, Pennsylvania. Mot. Summ. J.¶ 2. Three months later, she received an interim performance review; her performance was satisfactory. Id. ¶¶ 36--38.
In February 2008, DOE allowed Folk to work in King of Prussia, Pennsylvania. Four months later, she received her second interim performance review; her performance was satisfactory. Id. ¶¶ 39--42.
At her first annual performance review, Folk was rated "Needs Improvement" in all but one category. Id. ¶ 45. DOE gave Folk an Individual Development Plan listing goals and target dates. Id. ¶¶ 49--53. Around December 2008, DOE removed Folk from her position at the Montgomery County Intermediate Unit and replaced her with a Caucasian female. Second Am. Compl. ¶ 23.
Around August 2009, Folk and Lisa Parker, a Caucasian co-worker, were assigned to the Elwyn Philadelphia program as early intervention advisors. The program then requested a different early intervention advisor. Mark Ishman ("Ishman"), Folk's supervisor, and Maureen Cronin ("Cronin"), the Director of the Bureau of Early Intervention Services, called Lisa Parker to assure her she was not the problem and removed Folk from the assignment. Id. ¶ 14.
At her second annual performance review, Folk was rated "Needs Improvement" in all categories. Mot. Summ. J.¶ 61. Folk then told Ishman and Cronin she felt she was being treated "unfairly" and "differently." Id. ¶ 79.
In December 2009, Ishman informed Folk her office location would be moved to Harrisburg, Pennsylvania. Id. ¶ 85. Folk then filed a complaint with the EEOC and alleged race discrimination and retaliation. Id. ¶ 87--88.
Folk began working in Harrisburg in January 2010. Ishman then reviewed Folk's performance every two months. He reviewed the performance of other personnel, all of whom were Caucasian, annually. Second Am. Compl. ¶ 15.
Around April 2010, Folk requested information from DOE regarding FMLA leave and submitted a "Serious Health Certification" form to DOE. Mot. Summ. J.¶¶ 96, 99. Folk's medical provider stated in the form: (1) Folk suffered from "depression, anxiety, and stress" since February 2010; (2) Folk's condition caused periods of impaired concentration; and (3) Folk should work no more than two days per week from April 20, 2010 to October 20, 2010. Id.
On May 5, 2010, DOE approved the request for leave. Id. ¶ 105. Erroneously, DOE allowed Folk to have up to two days off per week, whereas Folk's medical provider advised Folk to work no more than two days per week. Id. ¶ 107. DOE corrected the error two months later. Id. ¶ 111.
Folk began taking two days off per week. Id. ¶ 114. Ishman required Folk to call him or another division chief before off-days; voicemails and emails were not acceptable. Id. ¶¶ 117--18. Folk initially complied with the call-off procedure but eventually stopped. Id. ¶ 123. Ishman advised Folk on complying with the procedure and gave her a "Memorandum of Instruction" warning her of possible disciplinary action. Id. ¶¶ 124--26.
On August 23, 2010, Folk stopped reporting to work. Id. ¶¶ 129, 134. Five days later, the DOE Director of Human Resources issued Folk a written reprimand for her failure to follow the call-off procedure. Id. ¶ 128.
On September 3, 2010, Ishman sent Folk a letter stating she had been absent from work without authorization and ordering her to return to work immediately. Id. ¶ 131. The letter required Folk to contact Ishman or Cronin before any future ...