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Helene O'donnell v. Passport Health Communications

April 10, 2013


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


April ___, 2013

Presently before the Court are cross-motions for summary judgment: Plaintiff's Motion for Partial Summary Judgment (Doc. 51); Defendant's Response in Opposition (Doc. 68); Plaintiff's Reply (Doc. 72); Defendant's Motion for Summary Judgment (Doc. 66); Plaintiff's Response in Opposition (Doc. 69); and Defendant's Reply (Doc. 71). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Plaintiff's motion will be denied in its entirety and Defendant's motion will be granted in part and denied in part.


Plaintiff Helene O'Donnell ("O'Donnell"), a Pennsylvania resident, brings suit against her former employer Defendant Passport Health Communications, Inc. ("Passport"), a Delaware corporation that is headquartered in Franklin, Tennessee.

On or about September 6, 2006, O'Donnell began her employment with Passport as a sales executive, an at-will position. For about five years, from September 6, 2006 to January 6, 2011, O'Donnell worked from her home and reported to Passport's office located in King of Prussia, Pennsylvania. In 2009, Charles Penrose ("Penrose"), Vice President of Sales for Healthworks (a division of Passport) became O'Donnell's supervisor. Penrose was also based at the King of Prussia office. Throughout her employment, O'Donnell's compensation consisted of her base salary, commissions, and other benefits. At Passport, eligibility for commissions is governed by Passport's Sales Compensation Plan Document (the "Plan"). Pursuant to the Plan, employees must be employed at the time of payment to receive commissions. O'Donnell signed an acknowledgment of the Plan.

Beginning in August 2010, Passport's President and CEO Scott MacKenzie ("MacKenzie") began working with Scott Bagwell ("Bagwell"), Senior Vice President of Sales and Marketing, to reorganize the sales force. This reorganization included eliminating the separate sales teams, including that in King of Prussia, and instead building a larger national sales team. Penrose learned of the potential King of Prussia sales force elimination in August 2010, at which time he discussed the possibility with O'Donnell. Penrose received confirmation in October that the eliminations would occur, including O'Donnell's position, and informed O'Donnell.

On January 6, 2011, O'Donnell was advised that due to this reorganization, her position was being eliminated as of this date. O'Donnell was offered two alternatives: she could accept a severance agreement and leave Passport or she could accept an alternative sales position as a Regional Vice President as part of the national sales team based in Franklin, TN. O'Donnell was advised that in order to accept the new position, she would be required to sign the offer letter and a non-competition agreement ("non-compete"). O'Donnell was familiar with the non-compete as she had received a copy months prior to January when everyone else in the company also received it. However, O'Donnell did not sign the non-compete at that time either.

O'Donnell requested that she be able to have the opportunity to have an attorney review the non-compete, and she also requested an increase in her base salary to reflect the increase in her job-related responsibilities. Passport gave O'Donnell until January 10, 2011 to accept the offer and sign the non-compete. On January 8, 2011, Vera Payne ("Payne"), Passport's Human Resources Manager, sent O'Donnell an email containing copies of her offer letter, job description, the Plan, and the non-compete agreement. Payne also reiterated the January 10, 2011 deadline to accept the position. On January 10, 2011, Payne sent a follow-up email because O'Donnell had not responded to her email or accepted the position. Later that afternoon, O'Donnell called Payne to explain she could not yet accept the position.

It is here that the parties' version of events begins to diverge. Passport contends that from January 11, 2011 to January 19, 2011, O'Donnell continued to refuse to accept the new position and sign the non-compete. O'Donnell claims that between January 11, 2011 and January 19, 2011, she was awaiting a response from Bagwell or Payne regarding her request for an increase in salary and her proposed revisions to the non-compete agreement. O'Donnell also claims that from January 6, 2011 until she was terminated on January 28, 2011, she assumed the responsibilities of her new position as Regional Vice President - even though she had not yet signed the offer or the non-compete.

The parties agree that on January 19, 2011, Payne received an email from O'Donnell, attached to which was a doctor's note stating that O'Donnell would not be able to work until at least January 31, 2011. It subsequently became clear that O'Donnell was being treated for anxiety and panic attacks. In addition, O'Donnell's return date was later revised to February 2, 2011. On January 21, 2011, O'Donnell and Bagwell exchanged emails and phone calls regarding the position and new salary, and Bagwell agreed to increase O'Donnell's base salary by $5,000. Later that same day, Payne sent O'Donnell an email containing the offer (revised to reflect the proposed increase in salary) and the non-compete. Payne's January 21, 2011 email emphasized that O'Donnell had until January 28, 2011 to accept the offer, and also reiterated the deadline for O'Donnell to accept the severance agreement in the event she chose not to accept the offer. Payne's email further emphasized that if Passport did not receive the signed offer letter and non-compete by January 28, 2011, Passport would assume O'Donnell had declined the job offer and it would be revoked. Payne also followed up with O'Donnell via telephone that evening.

On January 27, 2011, Payne sent a reminder email to O'Donnell which indicated that Passport was still expecting a response by January 28, 2011 and reminded O'Donnell to sign the appropriate documents. The next day, January 28, 2011, O'Donnell sent Payne a fax stating the following: "I assure you that I am not voluntarily resigning my employment and that I am fully involved in beginning work as the Regional VP, Sales." However, O'Donnell did not to execute the offer letter and the non-compete agreement, despite knowing that this was required to formally accept the position. In the same fax, O'Donnell also stated she had been working in the position since January 6, 2011. Later that same day, Payne sent two emails to O'Donnell indicating that she needed to formally accept the position by signing the documents by close of business that day or the offer would be revoked. O'Donnell did not sign the documents. Accordingly, by letter dated February 1, 2011, Passport notified O'Donnell that her failure to execute the necessary documents resulted in her termination as of January 28, 2011.


Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed R. Civ P. 56(c); see also Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 501 (3d Cir. 2008). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248; Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002).

The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 327 (1986). Once the moving party has carried its burden under Rule 56, "its' opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007). Under Fed. R. Civ. P. 56(e), the opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007).

At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249; Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Horsehead Indus., Inc. v. Paramount Communications, Inc., 258 F.3d 132 (3d Cir. 2001). The court must award summary judgment on all claims unless the non-moving party shows through affidavits or admissible evidence that an issue of material fact remains. See, e.g., Love v. Rancocas Hosp., 270 F.Supp.2d 576, 579 (D.N.J. 2003); Koch Materials Co. v. Shore Slurry Seal, Inc., 205 F.Supp.2d 324, 330 (D.N.J. 2002).


O'Donnell's Complaint asserts five claims against Passport. First, O'Donnell alleges that Passport violated her entitlement to medical leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2611 et seq., through interference and retaliation. Secondly, O'Donnell claims that Passport breached the terms of her employment by unlawfully terminating her while she was out due to illness, and refusing to compensate her for payments owed to her. Third, O'Donnell claims that Passport was unjustly enriched by O'Donnell's services, experience, and efforts to generate revenue for its benefit. Forth, O'Donnell claims that Passport violated Pennsylvania's Wage Payment and Collection Law ("WPCL"), 43 P.S. 260.9(a), again by failing to compensate her. Fifth and finally, O'Donnell alleges that the conduct of Passport constituted intentional infliction of emotional distress. O'Donnell has moved for partial summary judgment on her FMLA and WCPL claims. Passport has moved for summary judgment on all of O'Donnell's claims. The Court will examine each claim in turn.

A.Violation of Family Medical Leave Act ("FMLA") (Count I)

The FMLA grants eligible employees the right to take up to twelve workweeks of leave in any twelve-month period if a "serious health condition ... makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). Even when these qualifying circumstances exist, employees cannot invoke rights under the FMLA if they fail to provide adequate notice of their need for leave. 29 U.S.C. § 2612(e). When the need for leave is unforeseeable, employees are obligated to notify their employer "as soon as practicable," 29 C.F.R. § 825.303(a), and "provide sufficient information for an employer to reasonably determine whether the FMLA may apply." 29 C.F.R. § 825.303(b).

When employees invoke rights protected by the FMLA, employers may not "interfere with, restrain, or deny the exercise of or attempt to exercise" these rights. 29 U.S.C. § 2615(a)(1). Employers also cannot "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful." 29 U.S.C. § 2615(a)(2). "The former provision is generally, if imperfectly, referred to as 'interference' whereas the latter is often referred to as 'retaliation.'" Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012)(citingCallison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005)).

Once these threshold qualifications requirements have been met, the court may consider whether the plaintiff has made out a prima facie case for interference or retaliation. In order to assert a claim of interference, an employee must show that she was entitled to benefits under the FMLA and that her employer impermissibly denied her those benefits. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007) (internal citation omitted). To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that (1) she took FMLA leave, (2) she suffered an adverse employment decision, and (3) the adverse decision was causally related to her leave. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). The Third Circuit has observed:

Because FMLA retaliation claims require proof of the employer's retaliatory intent, courts have assessed these claims through the lens of employment discrimination law. Accordingly, claims based on circumstantial evidence have been assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), while claims based on direct evidence have been assessed under the mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, ...

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