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Lynnette D. Brown v. the Children's Hospital of Philadelphia


January 29, 2013


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


Plaintiff, Lynnette Brown, filed suit against her former employer, The Children's Hospital of Philadelphia ("CHOP") and two management employees of CHOP, alleging that her employment was terminated in violation of the Family and Medical Leave Act ("FMLA"). *fn1

Plaintiff also alleges that her termination was in retaliation for a claim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964 *fn2 and 42 U.S.C. § 1981. *fn3 Defendants have moved for summary judgment on all claims. For the following reasons, the motion will be denied.


A. Undisputed Facts Plaintiff, an African-American woman, was hired by CHOP in 2005 as an Outpatient Financial Counselor. *fn4 She was later employed as Office Administrator in the Emergency Department, and then, beginning on September 23, 2007, as one of four Office Coordinators in the Research Business Management Department ("Department"). *fn5 As an Office Coordinator, Plaintiff reported to Defendant Maria Cacciatore, a Department Manager; Ms. Cacciatore reported to Brigid Czyszczon, the Department's Assistant Director. *fn6

On October 28, 2008, Plaintiff requested intermittent FMLA leave to care for her father and the request was approved for the period from October 23, 2008 to April 23, 2009. *fn7 Plaintiff did take intermittent leave during this period. On March 18, 2009, Plaintiff applied for intermittent FMLA leave to care for her son and this second request was approved for the period from March 13, 2009 to September 12, 2009. *fn8

On April 27, 2009, Defendants Cacciatore and Czyszczon presented Plaintiff for the first time with a formal written memorandum that set forth specific instances in which they asserted there had been problems with Plaintiff's processing of documents and stating that if Plaintiff's performance did not improve within 30 days she would be terminated. *fn9 On May 12, 2009, Defendant Cacciatore issued a "Performance Improvement Plan" ("PIP") to Plaintiff, setting forth stated deficiencies with Plaintiff's performance and giving her 30 days to correct these deficiencies. *fn10 On May 15, 2009, Plaintiff filed a Complaint of Discrimination with the

Philadelphia Commission on Human Relations ("PCHR"); in a letter to the PCHR, CHOP stated that it received a copy of the complaint on June 2, 2009. *fn11 Plaintiff's employment was terminated on June 12, 2009. *fn12 The parties have stipulated that "Plaintiff admitted to making errors after being placed on the PIP" and that "Plaintiff admits to making some errors during her employment with CHOP." *fn13

B. Disputed Facts

1. Plaintiff's Performance Defendant Cacciatore testified that there were problems with Plaintiff's performance as Coordinator "[a]lmost immediately." *fn14 However, Plaintiff's only written evaluation was a mandatory six-month evaluation dated June 13, 2008 (nearly nine months after she began working in the Department). *fn15 In this evaluation, Plaintiff received a rating of "Fully Meets" goals and standards in eight of nine categories under the sections of performance and developmental goals and job responsibilities; the ninth category ("serve as customer service representative") was rated as "Partially Meets" the set standard. *fn16 In the section of core competency, Plaintiff received a rating of "Fully Effective" in all six categories. *fn17

In the comment section, the evaluation stated:

Employee's major strengths in the job Lynnette is very organized and timely in the processing of all RBO paperwork. She consistently meets specified deadlines of Research Finance to ensure timely reimbursement to the research community.

Focus areas for improvement Lynette needs further development in responding to customer questions and inquiries. More specifically identifying issues and resolving or directing customer to the appropriate resource. *fn18

The evaluation was signed by Plaintiff and Defendant Cacciatore. Defendant Czyszczon testified in deposition that the positive evaluation was "a mistake" given so as not to "ruin [Plaintiff's] chances" of transferring to a different department, as Plaintiff had expressed interest in doing. *fn19

After this evaluation, Defendants encouraged Plaintiff to attend training sessions, which it appears she did, and instituted periodic meetings with all Office Coordinators where procedures were discussed. *fn20 Defendant Cacciatore testified in her deposition that she instructed Plaintiff orally not to use interoffice mail for follow-up on inquiries, but to use email to avoid delays and the possibility of lost documents. *fn21 Similar instructions were communicated through emails sent by Defendant Cacciatore to Plaintiff in 2009, and some customers sent email complaints to Defendants about interactions with Plaintiff. *fn22

2. Plaintiff's Complaints of Racial Discrimination and Assertion of FMLA Rights Plaintiff testified in her deposition that Defendants Cacciatore and Czyszczon requested that Plaintiff not take FMLA leave to help her father in connection with his cancer treatment unless Plaintiff could secure coverage from another Coordinator. *fn23 Plaintiff also testified that Defendants began "picking apart" her work after the approval of her second FMLA request in March 2009. *fn24

On April 1, 2009, Plaintiff met at her request with Nichole Lewis of CHOP's Human Resources department. Ms. Lewis testified in deposition that Plaintiff stated that she was having difficulty communicating with Defendant Cacciatore, but that Plaintiff never complained about race discrimination and never mentioned "FMLA" and that Ms. Lewis did not tell Defendants Cacciatore and Czyszczon about the meeting. *fn25 In contrast, Plaintiff testified in deposition that she told Ms. Lewis that she thought the problems she was having with Defendant Cacciatore were "because I requested the FMLA for my son, that I had already had FMLA for my dad." *fn26

Plaintiff also testified that she told Ms. Lewis that Plaintiff "felt like [she] was being discriminated against because of [her] race." *fn27 Plaintiff testified that she received "hostile" emails from Defendant Cacciatore after she made her FMLA requests and that the emails were "heightened" after the meeting with Ms. Lewis. *fn28 In addition, Plaintiff has produced affidavits from co-workers who aver that Defendants treated Plaintiff differently and with marked hostility in the months preceding Plaintiff's firing. *fn29


Upon motion of a party, summary judgment is appropriate 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." *fn30 A party moving for summary judgment has the initial burden of supporting its motion by reference to admissible evidence showing the absence of a genuine dispute of a material fact or showing that there is insufficient admissible evidence to support the fact. *fn31 Once this burden has been met, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." *fn32

Summary judgment should be granted only if the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." *fn33 A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. *fn34 A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." *fn35

In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. *fn36

Further, a court may not weigh the evidence or make credibility determinations. *fn37 Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record. *fn38 "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." *fn39


A. FMLA Retaliation

A retaliation claim under the FMLA requires Plaintiff to demonstrate first a prima facie case, meaning that (1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights. *fn40 The burden of production then shifts to Defendants to provide a legitimate, nondiscriminatory reason for the adverse action. *fn41 If Defendants can do so, then Plaintiff must identify direct or circumstantial evidence that would permit a reasonable factfinder to disbelieve Defendants' reason. *fn42

For purposes of the summary judgment motion the parties do not dispute that Plaintiff requested intermittent FMLA leave *fn43 or that Plaintiff's termination constitutes an adverse employment action. *fn44 The third element of the prima facie case, causation, must be considered "with a careful eye to the specific facts and circumstances encountered." *fn45 If the protected activity and the adverse action were so close in time to be unusually suggestive, an inference of discrimination may be raised. *fn46 However, if the temporal proximity is not unusually suggestive, then a court looks to the evidence as a whole to determine whether an inference of discrimination has been raised. *fn47

In this case, the Court finds sufficient evidence of causation by which Plaintiff may establish a prima facie case. Plaintiff argues particularly that heightened criticism of her work began after her second request for FMLA was approved in March 2009, and escalated again after her meeting with Ms. Lewis on April 1, 2009. Defendant Czyszczon testified that she decided to administer written discipline to Plaintiff in April 2009. *fn48 Thus, the timing is somewhat suggestive of causation, and when considered with the overall circumstances, Plaintiff has produced sufficient evidence to create an inference of a causal link between her seeking FMLA leave and her termination. *fn49

The burden then shifts to Defendants, and the Court has no difficulty in concluding that Defendants have produced sufficient evidence of a legitimate reason for Plaintiff's termination: that her performance in a customer-service oriented position was inadequate, generating complaints from customers, and that Plaintiff failed to improve. Therefore, Plaintiff must be able to cast doubt upon this explanation. The Court finds Plaintiff has produced sufficient evidence to do so. *fn50

Plaintiff has produced evidence that Defendants made negative comments about her requests for intermittent FMLA leave and objected to her taking such leave without arranging for coverage. There is also evidence that after more than a year without any formal notice of problems with her performance, Defendants Cacciatore and Czyszczon began to criticize her work shortly after her second leave request. Defendants contend that there were problems with Plaintiff's performance from the time she began working in the Department. This contention is undercut, however, by the positive evaluation Defendants gave Plaintiff after she had been working in the Department for almost nine months. *fn51 Defendants Cacciatore and Czyszczon have explained that this evaluation was a mistake and was given to assist Plaintiff in possibly transferring to another position which would be a better fit for her. A factfinder certainly could credit this explanation. A factfinder also could disbelieve this explanation, and as the Supreme Court has explained, "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." *fn52 Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. *fn53 Where, as here, the parties' credibility is at issue on crucial points of evidence, summary judgment must be denied. *fn54

B. Retaliation for Complaint of Discrimination Defendants also move for summary judgment on Plaintiff's Title VII and § 1981 retaliation claims. Section 704(a), 42 U.S.C. § 2000e-3(a) of Title VII states:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

An employer is prohibited from taking retaliatory action against an employee when that employee complains of a practice that would violate Title VII. *fn55 The Court employs the same burden-shifting framework as for the FMLA claim. *fn56 Here, the parties do not dispute that Plaintiff suffered an adverse employment action or that Plaintiff filed a formal complaint of discrimination on May 15, 2009 (after the PIP was issued). The parties do dispute whether or not Plaintiff told Ms. Lewis on April 1, 2009, that Plaintiff felt that she was being discriminated against on the basis of her race. For purposes of summary judgment, the Court must accept Plaintiff's version of events. The question then becomes whether there is sufficient evidence by which Plaintiff can establish a causal link between her complaints of discrimination and the termination of her employment.

Defendant argues that even if Plaintiff did complain of racial discrimination to Ms. Lewis, Ms. Lewis did not make the decision to fire Plaintiff and there is no evidence that Defendants Cacciatore and Czyszczon were aware of this complaint. Although there is no direct evidence of such knowledge, it is undisputed that Defendants Cacciatore and Czyszczon worked with Ms. Lewis to create the PIP and that Ms. Lewis was in the meeting when the PIP was presented to Plaintiff. *fn57 If a factfinder were to credit Plaintiff's testimony that Plaintiff told Ms. Lewis that she felt Defendants were discriminating against her because of her race, and disbelieve Ms. Lewis on this point, the factfinder reasonably could infer that Defendants Cacciatore and Czyszczon became aware of the complaint while working with Ms. Lewis to develop the PIP, and the complaint may have influenced Defendants' actions. In this regard, the Court notes that the hearing panel that decided Plaintiff's internal grievance questioned why there had been no mid-year review of Plaintiff's performance in January or February 2009 and why the PIP gave Plaintiff one month to improve, when the PIP form permits a range of one to three months. *fn58 A reasonable factfinder therefore could conclude that Defendants' minds had been made up before issuing the PIP, and determine that Defendants were retaliating against Plaintiff because of her complaint of discrimination. *fn59 Viewing the evidence in the light most favorable to Plaintiff, and considering the timing of the complaint and the attendant circumstances, Plaintiff has adduced sufficient evidence to demonstrate a causal connection for purposes of establishing a prima facie case of retaliation based upon a complaint of racial discrimination. For the reasons explained in the analysis of the remaining elements of the burden-shifting analysis in connection with the FMLA retaliation claim, summary judgment will be denied on this claim as well.


Because factual disputes render this case ill-suited to summary resolution, Defendants' motion is denied. An order will be entered.

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