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Ferraro v. Temple University and Temple Physicians, Inc.

Superior Court of Pennsylvania

April 26, 2018

BARBARA FERRARO Appellant
v.
TEMPLE UNIVERSITY AND TEMPLE PHYSICIANS, INC.

          Appeal from the Judgment Entered July 18, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): June Term, 2015 No.2478

          BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM [*] , J.

          OPINION

          RANSOM, J.

         Appellant Barbara Ferraro appeals from the judgment entered on July 18, 2017, in favor of Appellees Temple University and Temple Physicians, Inc. (collectively, "Temple"), in her age discrimination and retaliation action, relating to her dismissal from Temple's employment. We affirm.

         In January 2012, Ferraro, who was then sixty-two years old, was fired from her full-time position at Temple as a manager of patient accounting. Amended Trial Court Opinion (TCO), 7/18/17, at 1-2. According to Temple, Ferraro was fired for taking inappropriate disciplinary action against an employee whom she oversaw. Ferraro contends that her firing was due to her age and in retaliation for events beginning in 2010.

         In 2010, Temple commenced an office-wide implementation of new accounting software. Notes of Testimony (N.T.), 1/4/17, at 66-72, 91, 94-97; TCO at 2. Ferraro maintains that, during the software rollout, she was excluded from training meetings, her team was the last to be trained, and Temple offered training to her younger peer, then-thirty-six-year-old Tiffany Richardson, instead of Ferraro. During this time, Ferraro's supervisor asked her when she was going to retire.

         Appellant Ferraro also insists that Richardson, who is a single mother with three children, received substantially better treatment than she from 2010 until her termination in 2012. N.T., 1/6/17, at 179-85, 193-94, 198-200; TCO at 11-12. For example, Temple allowed Richardson to have a flexible schedule. Additionally, even though Richardson was disciplined for her attitude and rudeness several times, she only ever received counseling and was asked to apologize, unlike Ferraro, who was terminated after a disciplinary action.

         Ferraro filed an internal age-discrimination complaint in 2010. TCO at 1-2; N.T., 1/4/17, at 67-68. The subsequent investigation, conducted by Temple Human Resources employee Carolyn Ashburn, found no discrimination against Ferraro.

         In its opinion, the trial court correctly sets forth additional facts of this case, as follows:

Ferraro began to oversee Diane James . . . in March of 2010, giving rise to the events that led to her termination in 2012. By all accounts, Ms. James seemed to be an insubordinate employee. She received corrective actions for leaving work early, tardiness, and other performance issues such as failing to meet quota. Ms. James eventually applied for and was granted Family Medical Leave ("FMLA") for herself and her son. Soon after, she began to clash with Ms. Ferraro over documenting her FMLA absences. [Temple]'s rules require an employee to inform her supervisor two weeks prior to an FMLA absence. If a [Temple] employee's family member also qualifies for FMLA, the employee must clarify, without giving substantive detail, whether the FMLA absence pertains to the employee or family member. Ms. James consistently failed to communicate this information to Ms. Ferraro. Ms. Ferraro kept meticulous records of Ms. James's frequent and unexplained comings and goings because of this communication breakdown.

TCO at 3 (citations to the record omitted).

         On September 27, 2011, James sent an e-mail at 8:36 a.m. informing Ferraro that she had a doctor's appointment at 12:00 p.m. and would be taking a half day of FMLA time. N.T., 1/4/17, at 187-88; Exs. P-16 & P-26. Ferraro inquired as to whether the FMLA time was for James or her son. James responded that it was for herself. Temple's employees are required to provide two weeks' notice of doctor's appointments. Ferraro thus inquired further as to why James was only giving less than four hours' notice of this appointment. During trial, Ferraro represented that she "never asked [James] what was wrong with her" and did not ask James to tell her the reasons that qualified James for FMLA.

Ferraro contacted Richard West . . ., a manager in the absence management department, about how to handle the situation with Ms. James. Mr. West instructed Ms. Ferraro to classify unexplained absences as attendance incidents and, remind Ms. James of her responsibility to inform [Temple] of FMLA related absences. Ms. Ferraro followed Mr. West's suggestions but Ms. James continued her insubordinate behavior. When Ms. Ferraro pressed Ms. James for clarifications, Ms. James responded by filing a harassment claim against her in January of 2011.

TCO at 3 (citations to the record omitted).

         Temple's Associate Director for Human Resources, Brenna Woods, investigated James's complaint against Ferraro and provided a copy of her report to Ashburn in December 2011. N.T., 1/5/16, at 31, 35-39, 54-55. Ashburn wrote a note on Woods's report stating that Ferraro had brought an age discrimination complaint in November 2010, but she later testified that she never discussed Ferraro's age discrimination complaint with Woods.

         Ferraro was "fired in January of 2012 for FMLA violations against Ms. James. [Temple]'s position is that Ms. Ferraro's inquiries and record keeping constituted discrimination against the FMLA rights of Ms. James, a fireable offense. [Temple] also claims that Ms. Ferraro issued Ms. James an improper citation." TCO at 3-4 (citations to the record omitted). Ferraro "was replaced by a women who is approximately 50 years old." Id. at 6.

         In January 2012, Ferraro filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging discriminatory discharge based upon her age and retaliation for having previously engaged in protected conduct. N.T., 1/4/17, at 191-92; N.T., 1/6/17, at 201-03. The EEOC ruled that the complaint was unsubstantiated.

         In June 2015, Ferraro commenced this action by writ of summons. In July 2015, Ferraro filed a complaint, alleging that Temple had violated the Pennsylvania Human Relations Act ("PHRA").[1] Compl., 7/1/15, at 3-5 ¶¶ 22-23, 31-32, 36. A bench trial was held in January 2017. In June 2017, the trial court found in favor of Temple.

         After receiving Ferraro's post-trial motions challenging the weight of the evidence and requesting a new trial, the trial court again found in favor of Temple in July 2017. In August 2017, Ferraro filed a notice of appeal and a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, the trial court relied upon its prior opinions.

         Ferraro now presents the following issues for our review:

1. Did [t]he [trial c]ourt commit an error of law by ruling that the credibility of the proffered reason offered by [Temple] for the termination of [Ferraro]'s employment is not relevant to the determination of whether [Temple]'s reason for discharging [Ferraro]'s employment is a pretext?
2. Did the [t]rial [c]ourt commit an error of law and go against the weight of evidence by failing to identify [Ferraro]'s pretext evidence and, instead, mistakenly identify evidence of protected activity (and direct evidence of age discrimination) as pretext evidence?
3. Did the [t]rial [c]ourt commit an error of law and go against the weight of the evidence by not determining that the reasons offered by [Temple] for ...

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