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Miguel Calero v. Cardone Industries

June 29, 2012

MIGUEL CALERO
v.
CARDONE INDUSTRIES, INC.



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

Memorandum Granting Defendant's Motion for Summary Judgment

I. Introduction

Plaintiff Miguel Calero ("Mr. Calero") alleges that his rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., have been violated. Specifically, Mr. Calero avers that his former employer, Defendant Cardone Industries, Inc. ("Cardone"), both (1) interfered with his FMLA rights and (2) retaliated against him for exercising his FMLA rights, because Cardone discharged him soon after he requested FMLA leave to care for his ailing father. Cardone claims that it legitimately terminated Mr. Calero because he falsified his time records.

Cardone moved for summary judgment pursuant to Fed. R. Civ. P. 56.*fn1 For the reasons discussed below, the Court GRANTED Cardone's Motion on May 30, 2012 (ECF No. 38).

II. Factual Background

The following facts are undisputed*fn2 or reflect Mr. Calero's version of the facts in the record, pursuant to this Court's duty to view all facts and inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

A. Mr. Calero's Employment History with Cardone

Cardone originally hired Mr. Calero in 1988. Def.'s SUF ¶ 2. Mr. Calero voluntarily resigned in 1991 but was rehired as a Machine Operator/Assembler in 1999. Def.'s SUF ¶ 3. Cardone promoted Mr. Calero four times in fewer than ten years, with Mr. Calero eventually becoming a Supplier Quality Inspector. Def.'s SUF ¶¶ 4-8. In that role, Mr. Calero worked at Cardone's Rising Sun Avenue facility in Philadelphia, inspecting automobile parts before they received further processing on the assembly line. Def.'s SUF ¶¶ 8-9. Mr. Calero's daily work shift began at 6:00 a.m. Def.'s SUF ¶ 9. During the last year and a half of Mr. Calero's employment with Cardone, he was supervised by Daniel Muniz. Def.'s SUF ¶ 10; Pl.'s SUF ¶ 10. Mr. Muniz was Cardone's Brakes Division Quality Manager, and reported to Paul Spuler, the Plant Manager for Cardone's Brakes Division. Def.'s SUF ¶¶ 10-11.

Cardone employed fifty or more employees at Mr. Calero's work site or within a seventy-five mile radius and Mr. Calero worked at least 1,250 hours in the year prior to being terminated. Pl.'s Counter SUF ¶¶ 24-27.

B. Relevant Cardone Policies

When he was rehired, Mr. Calero read Cardone's Work Rules for Employees as well as Cardone's Absenteeism and Tardiness policy. Def.'s SUF ¶¶ 13, 15. When Cardone promoted Mr. Calero to supervisor, Cardone provided Mr. Calero a copy of the company's Performance Improvement Booklet, which Mr. Calero understood contained the company's progressive discipline guidelines. Def.'s SUF ¶ 16. These policies apply equally to all employees. Pl.'s Counter SUF ¶ 49.

Cardone utilizes four levels of discipline, as described in Cardone's Performance Improvement Plan ("PIP"). Def.'s SUF ¶ 17. A level four offense is the most serious. Def.'s SUF ¶ 18. The PIP states that a level four offense warrants "[d]iscipline up to immediate discipline. If termination is appropriate, a termination meeting will be held with the employee, the Union Shop Steward (or designated representative) and a senior HR leader and complete a P.I.P. form . . . ." Pl.'s Ex. O at CAR000112. If a level four offense may result in immediate termination, a termination meeting must be held with the employee, union representative, and a senior human resources representative. Def.'s SUF ¶ 17.

Level four offenses include sleeping on the job, bringing weapons into the workplace, sexual harassment, fighting in the workplace, falsifying time records, being under the influence of alcohol or drugs, and theft. Pl.'s Counter SUF ¶ 51. The PIP lists the following examples of falsifying time records: "[f]ailure to record proper time when badge is lost, punching another employee's time card, submitting false proof for absence reason, incorrect driver logs, etc." Def.'s Ex. 9, PIP at CAR000112.

Mr. Calero understood that he could be disciplined for violating Cardone's policies, including that he could be terminated for a first offense of falsifying time records. Def.'s SUF ¶¶ 15, 19.

Cardone also maintains an FMLA policy, which human resources employee Erika Batycki administers. Def.'s SUF ¶ 21. Ms. Batycki does not have authority to discipline or terminate employees. Def.'s SUF ¶¶ 64. Mr. Muniz does not have authority to approve FMLA leave requests. Def.'s SUF ¶ 70.

C. Mr. Calero's FMLA History with Cardone

Mr. Calero requested and was granted FMLA leave in 2007, 2009 and 2010, at which times Mr. Calero was supervised by someone other than Mr. Muniz. Def.'s SUF ¶ 28; Pl.'s SUF ¶ 28. Mr. Calero never had a problem with taking this FMLA leave. Def.'s SUF ¶ 68. However, at one point in or around February 2011, Mr. Muniz questioned Mr. Calero about why he was missing so much work. Pl.'s Ex. A, Calero Dep. Tr. 130:122-124, 131:1, 13-16; Def.'s SUF ¶ 29. After Mr. Calero informed Mr. Muniz that he had missed work due to his father's illness, Mr. Muniz told Mr. Calero that "we all have issues . . . you can't miss any more time." Pl.'s Counter SUF ¶¶ 15; Pl.'s Ex. A, Calero Dep. Tr. 131:10-12.

On March 4, 2011, Mr. Calero requested one year of intermittent FMLA leave from human resources employee Erika Batycki. Def.'s SUF ¶¶ 21, 29; Pl.'s Ex. A, Calero Dep. Tr. 131:13-16. Ms. Batycki supplied Mr. Calero the relevant forms and granted him an extension to fill them out. Def.'s SUF ¶ 30. On March 29, 2011, Ms. Batycki received the necessary medical certification and then granted Mr. Calero's request for intermittent leave. Def.'s SUF ¶ 31. Mr. Calero was granted intermittent medical leave for one year, which officially began on March 15, 2011. Pl.'s Counter SUF ¶ 19.

D. Mr. Calero's Termination from Cardone

Mr. Calero wasterminated from his employment at Cardone on April 6, 2011. Pl.'s Ex. A, Calero Dep. Tr. 77:3-7. That morning, Mr. Calero did not clock in before 6:00 a.m. Def.'s SUF ¶¶ 33-34; Pl.'s Ex. A, Calero Dep. Tr. 81:10-18. Cardone employees are not permitted to clock in more than three minutes before starting a work shift. Pl.'s Counter SUF ¶¶ 31-32.

Mr. Calero arrived at work at 5:46 a.m. but the gate did not open when he scanned his badge because the scanner was damaged. Def.'s Ex. 1, Calero Dep. Tr. 78:12-14, 22-24, 79:1-10, 80:15-22. Mr. Calero was only able to enter the building when someone in an automobile exited through the gate or when someone else scanned in and entered. Def.'s SUF ¶ 33; Pl.'s Counter SUF ¶ 29; Def.'s Ex. 1, Calero Dep. Tr. 79:11-14, 80:23-24, 81:1-7. Mr. Calero arrived at his work station at 5:50 a.m., saw his co-worker "V.G." Thomas there, and went straight to work. Def.'s SUF ¶ 35; Def.'s Ex. 1, Calero Dep. Tr. 81:10-18. Mr. Calero called maintenance to inform them about the scanner, but no one answered the phone and Mr. Calero did not leave a message. Def.'s Ex. 1, Calero Dep. Tr. 93:11-24.

At 6:23 a.m., Mr. Calero sent Mr. Muniz an e-mail with the subject line "Forgot to punch in." Def.'s SUF ¶ 34. In the e-mail, Mr. Calero stated that he arrived at 5:46 a.m. Def.'s SUF ¶ 34; Def.'s Ex. 9, April 6, 2010 e-mail from Mr. Calero to Daniel Muniz at CAR00018. He then explained that "[b]ecause it too early to punch in I started to get myself ready and before I realized I started to work and forgot to punch in." Id. The e-mail does not mention a broken scanner. Id.

After receiving the e-mail, Mr. Muniz communicated with either Reney Cherian, Human Resources ("HR") Manager at Cardone's Rising Sun facility, or Robyn Rivers, the Brakes Department time keeper, regarding Mr. Calero's e-mail.*fn3 One of them asked him to verify Mr. Calero's arrival time. Mr. Muniz e-mailed Ms. Cherian and Ms. Rivers for a "leader's excuse"*fn4 for Mr. Calero's failure to properly clock in. Def.'s SUF ¶ 38; Pl.'s SUF ¶ 38; Def.'s Ex. 9, April 6, 2011 e-mail from Daniel Muniz to Reney Cherian and Robyn Rivers, carbon copying Mr. Calero at CAR000204; Pl.'s Ex. 9, Muniz Dep. Tr. 100:2-4; Def.'s Ex. 3, Cherian Dep. Tr. 33:507,12-24, 121:63-24, 122:1-24, 123:1-4. To verify Mr. Calero's arrival time, Mr. Muniz interviewed at least two employees-Able Kelly and VG Thomas-but could not determine from these interviews when Mr. Calero arrived. Def.'s SUF ¶¶ 39-42. Mr. Muniz also stated that he spoke with Edival Mercado, but Mr. Mercado testified that Mr. Muniz never questioned him about Mr. Calero's arrival time. Compare Pl.'s Ex. L, Muniz Dep. Tr. 102:20-24, 103:1-7, with Pl.'s Ex. N, Mercado Dep. Tr. 49:24, 51:1. Mr. Mercado did not know when Mr. Calero arrived at work that day. Def.'s Ex. 8, Mercado Dep. Tr. 51:2-5.

Remembering that Mr. Calero typically used an electronic key to enter the building, Mr. Muniz also telephoned Mark Wolf in security to determine when Mr. Calero arrived that morning based on his swipe card activity in the building. Pl.'s Ex. L, Muniz Dep. Tr. 97:17-24, 98:1-13, 106:10-21, 107:7-16. Mr. Wolf informed Mr. Muniz that Mr. Calero did not arrive before 6:00 a.m. Pl.'s Ex. L, Muniz Dep. Tr. 98:10-11; Def.'s SUF ¶¶ 42-45.

Mr. Muniz and Mr. Spuler then sought guidance from Ms. Cherian, who thereafter contacted security directly for her own report on Mr. Calero's electronic badge activity. Def.'s SUF ¶¶ 49-52. Based on that report and the email Mr. Calero sent Mr. Muniz, Ms. Cherian determined that termination was appropriate, received approval to terminate Mr. Calero from her supervisor, and then called a meeting with Mr. Calero, Mr. Muniz, Mr. Spuler, and a union representative. Def.'s SUF ¶¶ 51-56; Def.'s Ex. 3, Cherian Dep. Tr. 69:1-24, 70:1-6, 71:2-18, 77:18-23, 85:9-24, 86:2-17.

Ms. Cherian told Mr. Calero that he had been charged with falsifying time and would be terminated immediately. Def.'s SUF ¶ 56. To explain his swipe card activity, Mr. Calero explained that the scanner had been broken and suggested that Abel Kelly and Edival Mercado could confirm his timely arrival at work. Def.'s SUF ¶¶ 57, 60; Pl.'s Ex. A, Calero Dep. 77:17-23, 78:1-24, 79:1-14. However, records from the scanner show other employees using it to enter the facility before and after Mr. Calero's arrival. Def.'s SUF ¶ 48; Pl.'s Ex. A, Calero Dep. Tr. 111:23-24, 1112:1-24, 113:1-24, 114:1, 115:23-24, 116:1-24, 117:1-24, 118:1-15. Mr. Spuler also checked the scanner during the meeting and stated that it was working properly. Pl.'s Ex. A, Calero Dep. Tr. 87:10-17.

Mr. Calero denied falsifying time but did not contest the termination decision. Def.'s SUF ¶¶ 61, 63; Pl.'s SUF ¶ 61. At the time she determined that Mr. Calero should be terminated, Ms. Cherian was unaware that Mr. Calero had been granted any FMLA leave or that Mr. Calero's father was in poor health. Def.'s Ex. 3, Cherian Dep. Tr. 60:11-24; Def.'s Ex. 5, Batycki Dep.

Tr. 36:6-8, 13-14.

E. Comparator Evidence

Since Ms. Cherian became HR Manager in 2008, all employees found to have falsified time records were terminated. Def.'s SUF ¶ 20; Def.'s Ex. 3, Cherian Dep. Tr. 7:2-3, 7-10, 34:19-24, 35:1-10.

Mr. Calero points to fifteen Cardone employees who he claims are similarly situated to him but received more favorable treatment. These employees committed level four offenses other than falsifying time and were not terminated. See generally Pl.'s Ex. R, Discipline Records. Four of these individuals-Reynaldo Castellanos, Fatmir Licaj, Daniel Zeyger, and Varghese Parambath-worked at the same facility as Mr. Calero. Ex. 1 to Def.'s Reply 1, Cherian Dec. ΒΆ 6; Pl.'s Ex. R, Discipline Records at CAR000263-64, 270-72, 287. Three of the individuals-Reynaldo Castellanos, Fatmir Licaj, and Varghese Parambath-were disciplined by Ms. Cherian. Pl.'s Ex. R, Discipline Records at CAR000263-64, 270-71, 287. Fatmir Licaj and Carghese Parambath requested FMLA leave at some point while working for Cardone. Ex. 1 to Def.'s Reply, ...


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