United States District Court, E.D. Pennsylvania
STENGEL, C. J.
Mullen brings this suit against Planet Fitness, Inc., his
former employer, alleging employment
discrimination based on retaliation. Planet Fitness filed
a motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, to which Mr. Mullen
responded. For the following reasons, I will grant the motion
in its entirety.
three years, Mr. Mullen worked in various capacities at
independent Planet Fitness franchises in Pennsylvania. In
late 2011, Mr. Mullen became an employee of Planet Fitness
upon the defendant's acquisition of the Pittston,
Pennsylvania facility. In October 2012, Mr. Mullen was
promoted to regional manager of the defendant's Long
Island Region. In February 2014, he laterally transferred to
the Pennsylvania East Region where he remained until his
termination on August 20, 2015.
regional manager, Mr. Mullen's responsibilities included:
(i) performing monthly club facility inspections; (ii)
hiring, training, promoting, and disciplining managers and
assistant managers; and (iii) engaging in quality assurance
checks on his region's locations through “info
calls” and tours. He was also responsible for visiting
each of his clubs several times per month when he would
evaluate the staff and the cleanliness of the club.
managers were also required to complete a manager payout
inspectionfor each club within his/her region on a
monthly basis. Between January 2015 and August 2015, Mr.
Mullen was responsible for eight Planet Fitness facilities
and, therefore, was required to perform eight inspections per
month. The purpose of a Corporate Inspection Review was to
evaluate, among other things, the particular club's
cleanliness and maintenance; to ensure that the club was
operating at “high standards;” and to ensure
customer satisfaction. The Corporate Inspection Review was
also used to evaluate the performance of the regional
managers, and the performance of the general manager and
18, 2015, Mr. Mullen became aware of a consensual sexual
relationship between Cody Michaels, a corporate operations
specialist,  and Laura Irwin, a front-desk associate at
the Downingtown facility. Sometime during this relationship
between May 2015 and June 2015, Mr. Michaels sent a picture
of his genitalia to Ms. Irwin via
Snapchat. Ms. Irwin saved the picture on her cell
phone and showed it to Abbey Jones, her roommate who also
worked at the Downingtown facility. Ms. Jones informed
Dominic Massino, the general manager of the Downingtown
location, of the relationship and the photograph. On June 18,
2015, Mr. Massino sent Mr. Mullen a text message which
stated: “Btw [Mr. Michaels] sent Laura a dick pic on
snapchat yesterday, just so you know haha.” That same
day, Mr. Mullen emailed Justin Alleman, Senior Regional
Manager and Mr. Mullen's direct supervisor, stating:
“Downingtown weekend front desk staff (Laura) told Dom
that she is currently in relations or being intimate with
Cody, our Operations Specialist. When I asked him how long, I
was told at least two weeks. Apparently, it all started when
he came into the gym a little more than a month ago . . . It
should also be noted that Laura is not very shy about telling
the entire staff about her and Cody as well. I will await
your instruction on how to handle this employee, if she was
so comfortable to freely share this information with her GM,
I'm concerned she is saying much more to employees and
following day, Mr. Mullen spoke with Alison Johnson, the
defendant's Associate General Counsel, to discuss the
picture that Mr. Michaels had sent to Ms. Irwin. A week
later, Mr. Michaels received an Employee Feedback/Warning
Notice, which set forth a “Plan for Improvement”
requiring Mr. Michaels to “use better judgment when
interacting with other Planet Fitness staff members”
and to read the Code of Ethics and Non-Fraternization Policy.
Mr. Alleman also advised Mr. Michaels that he would not be
deployed to the Downingtown facility for an indeterminate
amount of time. Mr. Michaels testified that he was also
informed that he could no longer work out at the Downingtown
facility in his private time.
deposition, Mr. Alleman testified that the defendant
determined that the relationship between Mr. Michaels and Ms.
Irwin did not violate the defendant's non-fraternization
policy because Mr. Michaels was not a direct supervisor of
Ms. Irwin and he possessed no authority to impact Ms.
Irwin's performance or career. Mr. Alleman did indicate,
however, that the defendant believed that Mr. Michaels had
violated the personal business relationship section of the
defendant's code of ethics. Had the behavior escalated,
it would have likely violated the non-fraternization policy.
deposition, Ms. Johnson testified:
“As far as I know, Cody and Laura were in a consensual
relationship and I know that from Cody and from Laura. So
there wouldn't be a reason that we would restrict Cody
from being in the club because of Laura. It wasn't the
kind of relationship that concerned us from an employment
series of issues about Mr. Mullen's management of his
facilities during the summer of 2015, Mr. Mullen was
terminated on August 20, 2015. Mr. Mullen believes that his
termination was really in retaliation for his continuing to
raise concerns about the possible sexual harassment of an
employee at one of his facilities. He claims that, after
making these complaints to higher management, he began to be
micromanaged, his supervisor “made mountains out of
molehills, ” and he was terminated for pretextual
STANDARD OF REVIEW
shall grant summary judgment 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). A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A factual dispute is
“material” if it might affect the outcome of the
case under governing law. Id.
seeking summary judgment always bears the initial
responsibility for informing the court of the basis for its
motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Where the non-moving party bears the burden
of proof on a particular issue at trial, the movant's
initial Celotex burden can be met simply by
“pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case.” Id. at 325. A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by: citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations,
admissions, interrogatory answers or other materials.
Fed.R.Civ.P. 56(c)(1)(A). That is, summary judgment is
appropriate if the non-moving party fails to rebut by making
a factual showing “sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. at
322. Under Rule 56, the court must view the evidence
presented on the motion in the light most favorable to the
opposing party. Anderson v. Liberty Lobby, Inc., 477
U.S. at 255. The court must decide not whether the evidence
unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the plaintiff on
the evidence presented. Id. at 252. If the
non-moving party has exceeded the mere scintilla of evidence
threshold and has offered a genuine issue of material fact,
then the court cannot credit the movant's version of
events against the opponent, even if the quantity of the
movant's evidence far outweighs that of its opponent.
Big Apple BMW, Inc. v. BMW of North America, Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992).
amended complaint, Mr. Mullen claims that the defendant
terminated his employment in retaliation for reporting to
management an inappropriate sexual relationship between a
corporate operations specialist and a female employee at the
defendant's Downingtown location, for reporting that
other female employees were uncomfortable working around that
corporate operations specialist, and for threatening to take
legal action against the defendant based on alleged
VII prohibits employers from retaliating against employees
for complaining about discrimination and harassment in the
work place. 42 U.S.C. § 2000e-3(a). The PHRA also
prohibits an employer from discriminating against employees
who oppose discrimination or file charges of discrimination.
43 PA. CONS. STAT. § 955(d). The elements of a
retaliation claim are the same under both statutes.
Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d
as here, there is no direct evidence of retaliation, claims
alleging retaliation under Title VII are analyzed under the
McDonnell Douglas burden-shifting framework.
Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir.
2006). Under this framework, a plaintiff must first establish
a prima facie case of retaliation under Title VII,
by showing that: (1) he engaged in protected
activity; (2) the employer took an adverse
employment action against him; and (3) there was a causal
connection between his participation in the protected
activity and the adverse employment action. Id. at
340-341. If the plaintiff establishes a prima facie
case of retaliation, then the burden shifts to the employer
to provide a legitimate, non-retaliatory reason for its
conduct. Id. at 342. If it does so, the burden then
shifts back to the plaintiff “to convince the
factfinder both that the employer's proffered explanation
was false, and that retaliation was the real reason for the
adverse employment action.” Id.; see also
Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir.
2007). Thus, the plaintiff must ultimately prove that his
employer's retaliatory animus was the cause or, put
differently, the “real reason, ” for the adverse
employment action. See Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 286 (3d Cir. 2000) (using the term
“real reason” to describe the plaintiff's
ultimate burden at the pretext stage).
purposes here, Mr. Mullen has established a prima
facie case for employment discrimination based on
retaliation. Mr. Mullen has satisfied the first element by
showing that he engaged in protected activity by bringing
concerns to his supervisor of what he judged to be an
inappropriate sexual relationship between a corporate
operations specialist and a front-desk employee at one of Mr.
Mullen's facilities. Further, Ms. Johnson testified that
Mr. Mullen had complained to her that the defendant was
retaliating against him. Mr. Alleman confirmed that thirty
days or less before his termination, Mr. Mullen advised him
that he was contemplating legal action against the defendant
for the retaliatory actions the defendant was taking against
him. Finally, Mr. Mullen testified that he also brought
concerns to management that other female staff members were
feeling uncomfortable working around Mr. Michaels given the
explicit nature of the picture that he had sent to Ms. Irwin.
Mullen has also satisfied the second element. On August 20,
2015, just two days after his final complaint to his
supervisor about that inappropriate relationship and the
perceived retaliation, Mr. Mullen was terminated from his
employment with the defendant.
not as certain, Mr. Mullen has satisfied the causation
component of the prima facie case by producing
evidence that “could support the inference . . . of a
causal connection” between the protected activity and
the adverse employment action. Farrell, 206 F.3d at
279; Kachmar v. SunGard Data Sys., Inc., 109 F.3d
173, 177 (3d Cir. 1997) (explaining that “the proffered
evidence, looked at as a whole, [must] suffice to raise the
inference” of causation). Since June 18, 2015, Mr.
Mullen complained to management about the potential sexual
harassment of one of his employees, and about his concerns of
a potential hostile work environment experienced by other
female staff members working with Mr. Michaels. He also
threatened to take legal action against the defendant
alleging retaliation. Mr. Mullen testified that his last
complaint was on August 18, 2015, the day before Mr. Alleman
traveled to Mr. Mullen's region for the first time, and
two days before Mr. Mullen was terminated. A span this short
is suggestive of retaliation at the prima facie
stage. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
Cir. 1989) (two days is unusually suggestive); Williams
v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751,
759-760 (3d Cir. 2004) (two months not unusually suggestive).
Further, Mr. Alleman testified that, thirty days before the
termination, Mr. Mullen informed Mr. Alleman that he was
contemplating legal action against the defendant for the
retaliation he was experiencing. A jury could infer that Mr.
Alleman was traveling to Mr. Mullen's region to search
for any problem he could find, not because he had legitimate
concerns about Mr. Mullen's performance, but because Mr.
Mullen had complained of sexual harassment and threatened
legal action based on retaliation.
that Mr. Mullen has successfully established a prima
facie case, the burden shifts to Planet Fitness who must
“articulate a legitimate, non-discriminatory reason for
its employment decision.” At this stage, the
employer's burden is “relatively light.”
Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994).
As explained by the United States Supreme Court, the burden
here is one of production rather than persuasion, thus
involving no credibility assessment. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
“The employer need not prove that the tendered reason
‘actually' motivated its behavior, as
throughout this burden-shifting paradigm the ultimate burden
of proving intentional discrimination always rests with the
plaintiff.” Fuentes, 32 F.3d at 763. Provided
the employer articulates a legitimate non-discriminatory
reason, the presumption of discrimination is eliminated.
McNeil v. Greyhound Lines, 69 F.Supp.3d 513, 522
(E.D. Pa. 2014).
Planet Fitness has proffered a legitimate, non-retaliatory
reason for the action taken against Mr. Mullen, namely, his
poor performance. It is important to note that the poor
performance began to be documented before Mr. Mullen learned
of the allegedly inappropriate relationship between the two
employees. In fact, throughout the summer ...