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.
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.
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.
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.
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
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.
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).
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).
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.
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.
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.
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"). 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.
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.
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
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 ...