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Rimma Turevsky v. Fixtureone Corp.

October 18, 2012

RIMMA TUREVSKY, PLAINTIFF,
v.
FIXTUREONE CORP., LINDA IACONELLI, KEN SCHUTZ, AND LAURENCE LARSSON, DEFENDANTS.



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

MEMORANDUM & ORDER

Before this Court are Plaintiff's Motion for Summary Judgment (Doc. No. 90), Defendant Iaconelli's Motion for Summary Judgment (Doc. No. 91), and Plaintiff's Response thereto (Doc. No. 94). For the reasons set forth below, the Court grants Plaintiff's motion in part and denies it in part, and grants Defendant's motion in part and denies it in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Rimma Turevsky ("Plaintiff" or "Ms. Turevsky") is the alleged victim of discrimination on the basis of sex and pregnancy.*fn1 She worked for FixtureOne ("Defendant" or "FixtureOne") from December of 2005 until she was terminated in November of 2007. In June of 2007, Plaintiff notified her employer that she was pregnant. On October 30, 2007, she informed Ken Schutz ("Defendant" or "Mr. Schutz"), the CEO of FixtureOne, Laurence Larsson ("Defendant" or "Mr. Larsson"), the CFO of FixtureOne, and Linda Iaconelli ("Defendant" or "Ms. Iaconelli"), Plaintiff's supervisor, that she would begin her maternity leave in thirty days. On November 11, 2007, the Plaintiff further informed Mr. Schutz and Mr. Larsson that she would begin her maternity leave on December 7, 2007, and return to work twelve weeks later on March 3, 2008. On November 16, 2007, the Plaintiff was verbally notified that she was being laid off.

The record contains many conflicting statements about the reasons for the Plaintiff's termination. In March of 2007, Mr. Schutz and Mr. Larsson discussed over email Ms. Turevsky's role in the company, suggesting that she was unproductive and underutilized. In September of 2007, Mr. Schutz sent an email to the Director of Operations, Anita Fridman, informing her that Ms. Turevsky had mixed up deposits and as a result several checks bounced, and suggesting that they should discuss her continued employment. In the beginning of October of 2007, Mr. Schutz suggested to Mr. Larsson that the Plaintiff should be terminated after she left a sensitive document on the copy machine. On November 11, 2007, Mr. Schutz emailed Mr. Larsson after receiving the Plaintiff's email notifying them of her FMLA dates, stating "I was going to suggest that Rimma be laid off this week as she is not needed any longer to do payroll," and asking whether this would be legal. Finally, in Plaintiff's Notice of Determination of Unemployment Compensation, the findings of fact stated: "The Employer indicates she [Turevsky] was terminated due to a previous back injury and her current condition was unable to perform her job functions."

At some point after Plaintiff's termination, she received a number of emails from Ms. Fridman, her former co-worker at FixtureOne. Ms. Fridman gave the Plaintiff a jump drive with information on it, and told the Plaintiff that the information would be useful for her, without telling her where she obtained the information. The Plaintiff downloaded the contents of the jump drive onto her own computer and returned it to Ms. Fridman.*fn2

Ms. Turevsky filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") on April 10, 2008. This complaint was dual filed with the Equal Employment Opportunity Commission (EEOC). On June 4, 2009, the PHRC notified Plaintiff that, one year having passed since the filing of the complaint, she could now bring suit in the Court of Common Pleas for the alleged violations of the Pennsylvania Human Relations Act ("PHRA"). Plaintiff chose not to file suit at that time, and the PHRC continued to handle the complaint, with an eye toward a hearing to adjudicate the merits. Before the hearing date, however, the Plaintiff notified the PHRC that she had filed suit in federal court. The PHRC dismissed the complaint without a final adjudication.

Plaintiff's present federal suit was filed on June 17, 2010 (Doc. No. 1), with an amended complaint filed on August 30, 2010 (Doc. No. 17). The case is before this Court on federal-question jurisdiction, for claims arising under Title VII and the Family and Medical Leave Act ("FMLA"), and supplemental jurisdiction, for claims arising under the PHRA. Defendants Schutz and FixtureOne Corporation filed counterclaims against the Plaintiff for civil conspiracy, misappropriation, and conversion. (Doc. No. 22). On December 23, 2010, this Court denied Defendants' Motion to Dismiss the Plaintiff's Amended Complaint, and the case proceeded to discovery.

A number of motions were filed and issues raised before the Court in the time between the denial of the Motion to Dismiss and the present Motions for Summary Judgment. The Plaintiff withdrew Counts III and IV of her Amended Complaint. (Doc. No. 58). On April 2, 2012, this Court ordered that the Plaintiff was to be sanctioned for her non-responsiveness to a compelled mental examination by prohibiting her from supporting her claims for mental anguish and emotional distress. (Doc. No. 79). On April 11, 2012, this Court ordered that after Defendants Schutz and Larsson failed to respond to the Plaintiff's Requests for Admissions, those Requests for Admission were deemed admitted against FixtureOne, Schutz, and Larsson, except for one request, which was a conclusion of law.*fn3 (Doc. No. 85).

The Plaintiff now moves for summary judgment on the two counterclaims against her and on the FMLA interference and notification violation claims in Count VII of her Amended Complaint. (Doc. No. 90). Defendant Iaconelli has also moved for summary judgment due to lack of evidence, lack of witnesses and substance. (Doc. No. 91).

II. STANDARD OF REVIEW

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). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party; a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 535 (3d Cir. 2007); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the non-moving party cannot rely on "bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005). When the non-moving party is the plaintiff, she must "make a showing sufficient to establish the existence of [every] element essential to [her] case and on which [she] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. DISCUSSION

A. Plaintiff's Motion for Partial Summary Judgment

The Plaintiff has moved for partial summary judgment on Count VII of the Amended Complaint, and the two counterclaims against her. Specifically, Plaintiff seeks summary judgment on the FMLA interference claim and the claim for a violation of 29 C.F.R. ยง 825.300(b) in Count VII, the civil conspiracy claim against her in Counterclaim Count I, and the misappropriation and conversion claims against her in Counterclaim Count II. Plaintiff has submitted a brief in support of ...


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