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DE LUCA v. TRUSTEES OF UNIVERSITY OF PENNSYLVANIA
834 F.Supp.2d 282 (2011)
Teresa DE LUCA
v.
TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA.
Civil Action No. 10-5919.
United States District Court, E.D. Pennsylvania.
November 30, 2011.
MEMORANDUMDALZELL, District Judge. Teresa De Luca ("De Luca") brings this suit against her former employer, the Trustees of the University of Pennsylvania ("Penn" or "the University"), alleging violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"). De Luca specifically alleges that Penn interfered with her rights under the FMLA and retaliated against her for availing herself of her FMLA-protected rights. Penn has filed a motion for summary judgment, to which De Luca has responded and as to which Penn filed a reply. For the reasons set forth below, we will grant the University's motion for summary judgment. I. Factual Background Under Fed.R.Civ.P. 56(a), "[t]he 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," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 Fed.Appx. 130, 133 (3d Cir.2011). We will thus begin by reciting the undisputed facts in this matter and then consider the disputed facts that the parties have supported with specific citations to the record. In so doing, we will keep in mind that "[h]earsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment," Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.2009), and that we should not credit statements in affidavits that "amount[] to (i) legal argument, (ii) subjective views without any factual foundation, or (iii) unsupported assertions made in the absence of personal knowledge." Reynolds v. Dep't of Army, 439 Fed.Appx. 150, 152-53 (3d Cir.2011).
1. De Luca misconstrues this letter as "confirmation" that her request for intermittent leave was granted. Pl.'s Opp'n Mot. Summ. J. at 8. As the above excerpt of the letter shows, Penn only provisionally designated the leave as FMLA leave and Penn notified De Luca of her need to "provide appropriate certification." We do not consider this a disputed fact since the record is unambiguous on this point.
2. Dr. McNett authored a report on April 8, 2011 detailing the child's birth, diagnosis, and later treatment. Pl.'s Opp'n Mot. Summ. J. 10, Ex. E. ¶ 3.
3. Because we decide this particular question on other grounds, we do not reach the question of whether plaintiff's declaration contains inadmissible hearsay statements. We also note the possibility, without deciding the question, that plaintiff's declaration is deficient for failing to comply with 28 U.S.C. § 1746.
4. FMLA interference arises under 29 U.S.C. § 2615(a)(1), which provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."
5. "Serious health condition" is defined by 29 U.S.C. § 2611(11) as: "an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider." "Continuing treatment" is further defined in 29 C.F.R. § 825.115.
6. Furthermore, the FMLA provides that for leave taken under § 2612(a)(1)(C):
An employer may require that a request for leave ... be supported by a certification [1] issued by the health care provider of the eligible employee or of the son, daughter, spouse, or parent of the employee, or of the next of kin of an individual in the case of leave taken under such paragraph (3), as appropriate. [2] The employee shall provide, in a timely manner, a copy of such certification to the employer.
§ 2613(a) (footnote added). Section 2613(b) lays out the FMLA requirements for "sufficient certification."
Defendant-employer Penn requires that leave requested under § 2612(a)(1)(C) be supported by a certification. Policy No. 631, effective since April 1, 2009, states in pertinent part:
If FMLA leave is based on a serious health condition, whether it involves the employee or a family member (parent, spouse/same-sex domestic partner or child), medical certification from a health care provider will be required. Failure to provide such certification may result in a delay of the employee's leave.... Please contact your supervisor or the Division of Human Resources for available medical certification forms.
Penn Policy No. 631; Family and Medical Leave Act (FMLA), http://www.hr.upenn.edu/ policy/policies/631.aspx.
7. In Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir.2007), our Court of Appeals noted that "the District Court was correct that, for [an employee] to have been entitled to benefits under § 2612(a)(1)[C] ... he must have provided notice to [employer] of his need for leave." Thus, the Sixth Circuit's rehearsal of the elements appropriately teases this aspect out of our Court of Appeals's use of the word "entitlement."
8. As the Department of Labor has expressly reserved § 825.208 of the regulations, and thus it contains no operative language, plaintiff's citation to this phantom regulation remains a mystery to us.
9. This is a question that we do not reach because we decide De Luca's interference claim on another basis.
10. The Seventh Circuit also found it suspect that it was not until the employee was fired that he produced a note from his wife's doctor citing complications in her pregnancy — and the court took pains to point out that "employer has ... a right to be notified ... as soon as practicable" of the reason for the requested leave, which the court found came "too late" in this case. Id. at 952-53. The court also found that the employee's wife's ailments did not rise to the level of a serious health condition within the meaning of the statute and applicable regulations. 29 U.S.C. § 2611; 29 C.F.R. §§ 825.112(c), 825.114(a)(2)(ii). Because we decide De Luca's interference claim on another basis, we do not reach the question of whether the adopted child's condition constituted a "serious health condition" under the FMLA.
11. For purposes of this analysis, we will assume arguendo that De Luca offered a satisfactory "serious health condition".
12. It also bears mention that, at worst, De Luca was on constructive notice of the differences between adoption-based leave requests and serious health condition leave requests because she had access to Penn's online FMLA policy. Furthermore, the contents of the Penn FMLA form letters issued in response to De Luca's FMLA requests directed her to consult this online policy, and these letters also included the warning that the FMLA request must also contain the requisite certification.
13. 29 C.F.R. § 825.214 provides, in pertinent part: "On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment."
14. In Lepore v. Lanvision Systems, Inc., 113 Fed.Appx. 449, 454 (3d Cir.2004), our Court of Appeals declined to opine on whether the temporal proximity of plaintiff's termination to the end of her maternity leave constituted prima facie causation. Lepore affirmed the district court's grant of summary judgment because plaintiff failed to meet her burden of showing that the employer's reasons for termination were pretextual. See also Constant v. Mellon Financial Corp., 247 Fed.Appx. 332 (3d Cir.2007) (affirming district court's award of summary judgment because plaintiff failed to adequately show pretext, thus declining to reach district court's finding of lack of causation).
15. Because we find that De Luca fails to carry her burden under McDonnell Douglas step three, we do not reach the question about her failure to establish her retaliation prima facie case under McDonnell Douglas step one.
16. Plaintiff calls our attention to the Gill and Pliszka declarations, Pl.'s Opp'n Mot. Summ. J. Exs. J & K, that defendant relies upon in support of its motion for summary judgment. Plaintiff notes that, in contravention of Fed. R.Civ.P. 37(c), the University did not supplement its initial Rule 26(a) disclosure, Pl.'s Opp'n Mot. Summ. J. Ex. AA, nor did it supplement its interrogatory responses that identified persons with knowledge of (1) the facts and circumstances at issue in this litigation, or (2) persons from whom oral or written statements may be taken, and (3) persons whom defendant expects to call as witnesses at trial. Id. Ex. BB; Pl.'s Opp'n Mot. Summ. J. 23 n. 12.
Penn indeed failed to supplement its initial disclosure and interrogatory answers. The University does not attempt to justify its failure and we find that such a failure was not harmless to plaintiff because it introduces two specific declarants that plaintiff might have deposed had these individuals been properly identified earlier in the litigation. Since defendant has violated Rule 37(c)(1), it is "not allowed to use that information [contained in the declarations] ... to supply evidence on a motion, at a hearing, or at a trial[.]" Rule 37(c)(1); cf. Williams v. Morton, 343 F.3d 212, 222-23 (3d Cir.2003) (implying district court might have abused its discretion if it had denied plaintiffs' motion to exclude affidavit attached to summary judgment reply brief had plaintiffs not been allowed to depose affiant and amend previously-filed summary judgment brief, thus mitigating plaintiffs' potential harm from the admission).
Penn characterizes De Luca's request that we ignore these affidavits as a "technical defect," Def.'s Reply Mot. Summ. J. 8. Though Penn mentioned David Pliszka and David Gill in its answer to Interrogatory Six, this interrogatory addressed the individuals who assumed all or some of De Luca's job duties following the end of her employment, and their inclusion in this answer does not anticipate the declarations submitted in support of Penn's motion for summary judgment.
Furthermore, though the University noted that "[s]ome staff members raised concerns regarding Plaintiff's management and performance[]" during De Luca's absence from work and that Cario had "significantly more contact with the staff that Plaintiff supervised," Pl.'s Opp'n Mot. Summ. J. Ex. BB at Interrog. 9, Penn then failed to identify Pliszka and Gill as the sources of this information. We will not permit any party to shirk its disclosure obligations under the Federal Rules. Thus, we will proceed with our analysis without considering the Gill or Pliszka declarations.
17. De Luca's allegation that Silverman and Rizzo were "retaliated" against for not sharing negative information with Penn about her also does not speak to Penn's motive in creating the job expectations document. Pl.'s Opp'n Mot. Summ. J. Ex. E ¶ 11. De Luca's statement about Patrick Appenzeller also misses the relevant inquiry of Penn's motive for creating the job expectations document. Id. ¶ 12.
18. De Luca cites Jalil v. Avdel Corp., 873 F.2d 701, 709 and n. 6 (3d Cir.1989), to support her argument that "temporal proximity between the protected activity and the adverse action may create a fact question alone where the adverse employment action follows the protected conduct." Pl.'s Opp'n Mot. Summ. J. 32. Jalil is distinguishable because our Court of Appeals found that the "timing of the discharge in relation to [plaintiff's] EEOC complaint may suggest discriminatory motives on the part of [defendant]." 873 F.2d at 709. In Jalil, the plaintiff, president of his union's Local, was initially terminated three days after he filed his first grievance with his union claiming that his employer was discriminating against him because of his union activity. Id. at 703. After his union interceded, the plaintiff was restored to his position, and his penalty was reduced to a three-day suspension. But plaintiff soon filed another grievance that remained unsettled, alleging harassment and discrimination on the basis of national origin and union activity. About three weeks later — on the same day that plaintiff filed a charge of discrimination with the EEOC alleging that his employer denied him access to his personnel file and suspended him for filing a grievance with his union and because of his national origin — his employer simultaneously terminated him. Id. at 703. Thus, under our Court of Appeals's reasoning, the temporal proximity of the employer's adverse employment action to the employee's filing of an EEOC complaint suggested a discriminatory motive because it was accompanied by record evidence beyond mere temporal proximity including (1) the sordid history of tension between employer and employee, including the employer's own prior questionable termination of the employee, and (2) the near simultaneity of the employee's filing of the EEOC complaint and his employer's termination of his employment.
De Luca neither adduces the same circumstantial evidence to buttress her temporal proximity claim nor does she show that Penn's action was simultaneous with her decision to invoke her FMLA rights because De Luca received the job expectations document shortly after her return from an eleven week continuous FMLA leave and not (1) before or immediately after her initial one-week FMLA leave, (2) at any time in between her one-week leave and her eleven week continuous leave, or (3) at any time during her eleven week leave. Pl.'s Opp'n Mot. Summ. J. Ex. E ¶ 1. In addition, De Luca alleges no other retaliatory "adverse employment action" during this time period.
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