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Mullen v. Planet Fitness, Inc.

United States District Court, E.D. Pennsylvania

March 22, 2018



          STENGEL, C. J.

         Michael Mullen brings this suit against Planet Fitness, Inc., his former employer, alleging employment discrimination[1] 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.

         I. BACKGROUND

         For 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.

         As a 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.

         Regional managers were also required to complete a manager payout inspection[2]for 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 staff.

         On June 18, 2015, Mr. Mullen became aware of a consensual sexual relationship between Cody Michaels, a corporate operations specialist, [3] 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.[4] 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 members.”

         On the 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.[5]

         At his 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.

         At her 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 standpoint.”

         After a 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 reasons.


         A court 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.

         A party 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).


         In his 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 retaliation.

         Title 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 Cir. 1997).

         Where, 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;[6] (2) the employer took an adverse employment action[7] against him; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action.[8] 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).

         For our 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.

         Mr. 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.

         Though 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.

         Now 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).

         Here, 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 ...

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