Giddens v. UPS Supply Chain Solutions

Filing 78

OPINION GRANTING 71 motion for summary judgment. Signed by Judge Noel L. Hillman on 9/30/2014. (bkb)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
______________________________
MYRON GIDDENS,

Civil No. 11-616 (NLH/JS)
Plaintiff,

v.

OPINION

UPS SUPPLY CHAIN SOLUTIONS,
Defendant.
______________________________
APPEARANCES:
Stephen Price Norman, Esq.
Daniel Charles Herr, Esq.
The Norman Law Firm
30838 Vines Creek Road
Suite 3
Dagsboro, DE 19939
Counsel for Plaintiff, Myron Giddens
Jennifer C. Bebko Jauffret, Esq.
Lori A. Brewington, Esq.
Richards, Layton & Finger, PA
One Rodney Square
920 N. King Street
Wilmington, Delaware 19801
Counsel for Defendant, UPS Supply Chain Solutions, Inc.
HILLMAN, District Judge:
This matter comes before the Court by way of motion of
Defendant, UPS Supply Chain Solutions, Inc., seeking summary
judgment pursuant to Federal Rule of Civil Procedure 56.

1

The

Court has reviewed the parties’ submissions and decides this
matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant’s motion will be
granted.
I.

JURISDICTION
Plaintiff, Myron Giddens, brings this action against

Defendant asserting claims under the Family Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq. (“FMLA”), and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”).

Accordingly, the Court has jurisdiction over Plaintiff’s

claims under 28 U.S.C. § 1331.
II.

BACKGROUND
In February 2008, Plaintiff began working at Defendant’s

facility in Newark, Delaware as a collection associate.
Am. Compl. (hereafter, “SAC”) ¶ 4; Answer ¶ 4.)
Plaintiff’s employment was terminated.

(Second

In July 2008,

(SAC ¶ 12; Answer ¶ 12.)

Plaintiff challenged the discharge through Defendant’s internal
Employee Dispute Resolution (“EDR”) program.
¶ 17.)

(SAC ¶ 17; Answer

As a result of the EDR process, Plaintiff’s employment

was reinstated on or about October 2, 2008.

(SAC ¶ 19; Answer ¶

19.)
Plaintiff contends that upon his return to work, his
performance came under “intense scrutiny.”

(SAC ¶ 20.)

Plaintiff submits, for example, that his supervisor challenged
2

the legitimacy of the doctor’s notes Plaintiff provided
regarding his absences from work, even going so far as calling a
dentist to confirm that Plaintiff had his wisdom teeth
extracted.

(Decl. of Lori A. Brewington (hereafter, “Brewington

Decl.”), Ex. 1 at 140:10-22.)

Plaintiff also states that when

he was on sick leave in August 2009, he received a letter from
his superiors requiring him to return to work when the doctor
had not yet authorized his return.

(Id. at 145:8-18.)

Plaintiff represents that other employees on medical leave did
not receive the same level of scrutiny.

(Id. at 150:20-151:8.)

Based on the foregoing, Plaintiff filed charges of
discrimination against Defendant with the Delaware Department of
Labor and the Equal Employment Opportunity Commission
(hereafter, “EEOC”) on or about December 7, 2009.

(Brewington

Decl., Ex. 38.)
On Saturday, December 19, 2009, Plaintiff began to
experience flu-like symptoms.
182:4-12.)

(Brewington Decl., Ex. 1 at

Plaintiff called out sick from work on Monday,

December 21, 2009 through Thursday, December 24, 2009.
187:24-15, 200:24-201:10, 204:2-15, 217:10-23.)

(Id. at

He went to his

doctor, Scott Harrison, D.O., on Monday, December 28, 2009.
(Id. at 230:22-231:7.)

Dr. Harrison diagnosed Plaintiff as

having an upper respiratory infection and pharyngitis.
(Brewington Decl., Ex. 6 at 21:17-20.)
3

Dr. Harrison cleared

Plaintiff to return to work as of December 28, 2009, instructed
Plaintiff to continue taking over-the-counter fluids and
medicines, and noted that Plaintiff could come back if his
symptoms did not improve.

(Id. at 22:2-3, 23:3-15.)

Plaintiff

returned to work on December 28 or December 29, 2009.
(Brewington Decl., Ex. 1 at 239:6-9.)
Defendant asserts that Plaintiff called out on December 21,
2009 and December 22, 2009 due to weather and/or car trouble,
and did not at that time advise that he was sick.
Decl., Ex. 2 ¶¶ 29-30.)

(Brewington

On December 24, 2009, Plaintiff

purportedly advised his supervisor, Nadene Reuling, that he had
already gone to the doctor and obtained a doctor’s note.
(Brewington Decl., Ex. 33.)

In the same conversation, however,

Plaintiff subsequently stated that he did not have a doctor’s
appointment until December 28, 2009 and would not have a note
until after the appointment.

(Id.)

The doctor’s note excused

Plaintiff for December 22, 2009 through December 25, 2009.
(Brewington Decl., Ex. 2 ¶ 39.)

The inconsistencies in the

information provided by Plaintiff caused Ms. Reuling to question
Plaintiff’s integrity, and she believed that Plaintiff had lied
to her and did not have a legitimate reason for missing work the
week of December 21, 2009.

(Id. at ¶ 41.)

4

Ms. Reuling thus

recommended that Plaintiff’s employment be terminated.

(Id. at

¶ 40.)
Plaintiff’s employment was subsequently terminated.
Defendant represents that the decision to fire Plaintiff was
made on December 29, 2009.

(Brewington Decl., Ex. 4 ¶ 33.)

Defendant’s representatives planned to notify Plaintiff of the
discharge in person on January 5, 2010.

(Id. at ¶ 34.)

However, Plaintiff did return to work for more than one week, so
Defendant decided to notify Plaintiff of the termination by
mail.

(Id. at ¶ 37.)

By letter dated January 14, 2010,

Plaintiff was notified that his employment had been terminated.
(Brewington Decl., Ex. 39.)
III.

DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citing
Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
5

party’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

A fact is

“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit.

Id.

“In

considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the nonmoving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004)(citing Anderson, 477 U.S. at 255, 106 S. Ct. 2505).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”)(citation
omitted); see also Singletary v. Pa. Dept. of Corr., 266 F.3d
186, 192 n.2 (3d Cir. 2001) (“Although the initial burden is on
the summary judgment movant to show the absence of a genuine
issue of material fact, ‘the burden on the moving party may be
discharged by “showing -- that is, pointing out to the district
6

court -- that there is an absence of evidence to support the
nonmoving party’s case’ when the nonmoving party bears the
ultimate burden of proof.”)(citing Celotex, 477 U.S. at 325, 106
S. Ct. 2548).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324, 106 S. Ct. 2548.

Celotex, 477

A “party opposing summary

judgment may not rest upon the mere allegations or denials of
the . . . pleading[s.]”

Saldana v. Kmart Corp., 260 F.3d 228,

232 (3d Cir. 2001) (internal quotations omitted).

For “the non-

moving party[ ] to prevail, [that party] must ‘make a showing
sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322,
106 S. Ct. 2548).

Thus, to withstand a properly supported

motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those

7

offered by the moving party.

Anderson, 477 U.S. at 256–57, 106

S. Ct. 2505.
B.

Analysis
1. Title VII Claim
a. Timeliness of Title VII Filing

Defendant first contends that Plaintiff’s claim under Title
VII, set forth in Count III of the Second Amended Complaint,
should be dismissed as time-barred.

Defendant specifically

asserts that Plaintiff did not file a complaint in this matter
within ninety days of receipt of a Notice of Right to Sue from
the EEOC (hereafter, “Notice”), as required by 42 U.S.C. §
2000e-5 and 29 C.F.R. § 1614.47(a).

(Mem. in Supp. of Def.’s

Mot. for Summ. J. (hereafter, “Def.’s Br.”) 10.)
indicates that it was mailed on April 8, 2011.
Decl., Ex. 40.)

The Notice
(Brewington

Plaintiff did not recall at his deposition the

date on which he received the Notice. 1
at 171:9-172:17.)

(Brewington Decl., Ex. 1

Defendant argues that Plaintiff is deemed to

have received the notice on April 11, 2011, three days after it
was mailed by the EEOC.

(Def.’s Br. 11.)

Consequently,

Defendant submits, Plaintiff was required to file suit within

1

The Notice contains a date stamp of April 11, 2011.
(Brewington Decl., Ex. 40.) Defendant asserts that the date
stamp is the date on which Plaintiff’s counsel received the
Notice, but the stamp does not indicate who received the Notice
and is not sufficient evidence to demonstrate that Plaintiff
received the notice on April 11, 2011. (Def.’s Br. 11.)
8

ninety days of April 11, 2011, which would have been July 10,
2011.

(Id.)

Because July 10, 2011 was a Sunday, Defendant

states that Plaintiff had one extra day, until July 11, 2011, to
file suit.

(Id.)

Plaintiff did not file a complaint in this matter until
July 12, 2011.

(See Compl.)

Defendant argues that Plaintiff’s

attempt to file suit one day after the expiration of his ninetyday window warrants dismissal of the Title VII claim.
Br. 11.)

(Def.’s

Plaintiff does not dispute that he filed this lawsuit

one day late.

(Pl.’s Mem. in Opp. to Def.’s Mot. for Summ J.

(hereafter, “Pl.’s Br.”) 7.)

Rather, Plaintiff notes that

Defendant did not assert a timeliness issue in connection with a
prior motion to dismiss and a motion to amend in this case, and
in failing to assert timeliness as a defense in the past two and
a half years has waived its right seek dismissal on timeliness
grounds at this time.

(Id.)

Plaintiff also notes that at the

time the complaint was filed, he was represented by counsel who
was subsequently suspended from the practice of law.

(Id.)

In

reply, Defendant argues that it was appropriate to wait until
the summary judgment stage to seek dismissal on timeliness
grounds, because discovery was needed to determine the date on
which Plaintiff or his attorney received the Notice.

9

(Reply

Mem. in Supp. of Def.’s Mot. for Summ. J. (hereafter, “Def.’s
Reply Br.”) 2.)
42 U.S.C. § 2000e–5(f)(1) provides that if the EEOC takes
no action on a complaint within a specified period of time, the
agency “shall so notify the person aggrieved and within ninety
days after the giving of such notice a civil action may be
brought. . . .”

42 U.S.C. § 2000e-5(f)(1).

The time for the

filing of a complaint begins to run when the plaintiff has
notice of the EEOC's decision, which occurs on the date he or
his attorney receives a right-to-sue letter from the agency,
whichever is earlier.

Seitzinger v. Reading Hosp. & Med. Ctr.,

165 F.3d 236, 239 and n.1 (3d Cir. 1999) (citations omitted).
The ninety-day filing requirement has been treated by the
courts as a statute of limitations rather than a jurisdictional
prerequisite to suit.

Id. at 239-40.

Thus, failure to meet the

ninety-day filing deadline may be raised as an affirmative
defense.

See Fed. R. Civ. P. 8(c)(1).

While “‘parties should

generally assert affirmative defenses early in litigation, so
they may be ruled upon, prejudice may be avoided, and judicial
resources may be conserved’ . . . there is no hard and fast rule
limiting defendants’ ability to plead the statute of
limitations.”

Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494,

506 (3d Cir. 2006) (internal quotation omitted).

“Accordingly,

affirmative defenses can be raised by motion, at any time (even
10

after trial), if plaintiffs suffer no prejudice.”

Id. (citation

omitted).
Here, Defendant’s Answer to the Second Amended Complaint
does not assert an affirmative defense based on Plaintiff’s
failure to institute litigation with the ninety day window
provided under Title VII.

(See Answer 14.) 2

Furthermore,

Plaintiff contends –- and Defendant does not dispute -- that a
timeliness issue was not raised in connection with prior motion
practice.

Defendant argues that it nonetheless raised the issue

when it specifically denied in its Answer Plaintiff’s allegation
that suit was filed within ninety days of receipt of the EEOC
Notice.

(Def.’s Reply Br. 2; see also Answer ¶¶ 8-9.)

The Court agrees with Defendant that the Answer provided
Plaintiff with sufficient notice that a contested issue in this
case would be whether Plaintiff timely filed the complaint.
Plaintiff alleged in the Second Amended Complaint that “[t]his
action is brought within ninety (90) days of receipt of the
Right to Sue Letter by Plaintiff.”

(SAC ¶ 9.)

Defendant

specifically denied Plaintiff’s allegation, thereby placing
Plaintiff on notice that the timeliness of his filing was a fact

2

Moreover, although the Answer contains a “Reservation of
Rights” whereby Defendant “expressly reserv[ed] the right to
amend this Answer to assert any and all” defenses that may have
become apparent during discovery, Defendant never moved to amend
its Answer. (See Answer 14.)
11

in dispute.

(Answer ¶ 9.)

Furthermore, Plaintiff does not

argue that he has suffered prejudice as a result of Defendant’s
failure to raise the timeliness issue earlier in the litigation.
The Court thus concludes that Defendant did not waive its right
to challenge the timeliness of this lawsuit.
The Court turns, then, to the issue of whether Plaintiff’s
Title VII claims are barred because Plaintiff did not file a
complaint within ninety days of receipt of the Notice.

As noted

supra, Plaintiff does not dispute that he failed to timely file
suit pursuant to 42 U.S.C. § 2000e-5(f)(1), but notes that at
the time he was represented by an attorney who was later
disciplined and suspended from the practice of law.
7.)

(Pl.’s Br.

The ninety-day period for filing a Title VII claim may be

tolled if a plaintiff has been “prevented from filing in a
timely manner due to sufficiently inequitable circumstances[,]”
which may include, inter alia, gross attorney error.
Seitzinger, 165 F.3d at 240-41 (citations omitted).

However,

“[t]he principles of equitable tolling . . . do not extend to
what is at best a garden variety claim of excusable neglect’ by
an attorney.”

Id. at 241 (quoting Irwin v. Dept. of Veterans

Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435
(1990)).
In a prior Order in this case, Magistrate Judge Schneider
noted that Plaintiff’s former counsel, Ronald G. Poliquin,
12

Esquire, was suspended in August 2012 by the Delaware Supreme
Court for six months and one day due to performance deficiencies
and a lack of candor with the court in unrelated cases.

(Order

3, Jan. 31, 2013) (citing In re Poliquin, 49 A.3d 1115, 11201122, 1146 (Del. 2012)).

This Court has reviewed the Report and

Recommendation of Sanction issued by the Delaware Board of
Professional Responsibility.

According to the Report and

Recommendation, counsel’s performance deficiencies were
initially caused because he had attention deficit disorder, but
the issues were then compounded by an addiction to medication,
including Adderall and Benz, that had been prescribed to address
his medical condition.

In re Poliquin, 49 A.3d at 1129, 1136.

Counsel recognized his drug dependency in or about March 2011,
and he entered a drug rehabilitation program in Texas from late
May 2011 to approximately June 27, 2011.

Id.

The Court finds that the circumstances presented here
warrant tolling of the ninety-day statutory period for filing
suit under Title VII.

This is not a case of “garden variety”

excusable neglect by counsel.

Rather, Plaintiff’s counsel was

coping with a chemical dependency severe enough to require
treatment at an in-patient rehabilitation facility.

Counsel

received such treatment from May 2011 through June 2011, which
time period directly coincides with the ninety-day statutory
time period -- April 11, 2011 through July 11, 2011 -- for
13

filing suit in this case.

Plaintiff should not be penalized by

dismissal of his Title VII claim on timeliness grounds solely
because his counsel of record was coping with a serious drug
addiction, particularly where Defendant asserts no prejudice as
a result of the one-day delay.

The Court will therefore accept

as timely Plaintiff’s Title VII claim as set forth in the
complaint filed on July 12, 2011.
b. Merits of Title VII Retaliation Claim
Defendant argues that Plaintiff cannot establish a prima
facie case of retaliation under Title VII, specifically the
requisite causal connection between Plaintiff’s protected
activity and the adverse employment action taken against him.
Pursuant to Title VII,
It shall be an unlawful employment practice
for an employer to discriminate against any
of his employees . . . because he has
opposed any practice made an unlawful
employment practice by this subchapter, or
because he has made a charge, testified,
assisted, or participated in any manner in
an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a).

“To establish a prima facie case of

retaliation under Title VII, a plaintiff must tender evidence
that: ‘(1) she engaged in activity protected by Title VII; (2)
the employer took an adverse employment action against her; and
(3) there was a causal connection between her participation in
the protected activity and the adverse employment action.’”
14

Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.
1995)).
If the employee establishes this prima facie
case of retaliation, the familiar McDonnell
Douglas approach applies in which “the
burden shifts to the employer to advance a
legitimate, non-retaliatory reason” for its
conduct and, if it does so, “the plaintiff
must be able 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. at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494,
500-01 (3d Cir. 1997)).

“To survive a motion for summary

judgment in the employer's favor, a plaintiff must produce some
evidence from which a jury could reasonably reach these
conclusions.”

Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764

(3d Cir. 1994)).
Here, the first two factors are satisfied.

The parties do

not dispute that Plaintiff engaged in an activity protected by
Title VII, that is, the filing of an EEO complaint grieving
about discrimination.

Nor do the parties dispute that Plaintiff

suffered a materially adverse employment action when Plaintiff
was terminated from his job.
Instead, Defendant challenges the existence of any causal
connection between that protected activity and the adverse
employment action.

Specifically, Defendant submits that its

15

decisionmakers had no knowledge that Plaintiff filed an EEO
complaint when they decided to terminate his employment.
Plaintiff, in turn, relies on the temporal proximity between the
filing of the EEO complaint and his termination to infer a
causal connection, arguing that only two weeks ensued between
Defendant’s purported receipt of the EEO complaint and the
adverse employment action.

(Pl.’s Br. 9.)

“[T]he mere fact that adverse employment action occurs
after a complaint will ordinarily be insufficient to satisfy the
plaintiff’s burden of demonstrating a causal link between the
two events.”

Krouse, 126 F.3d at 503 (quoting Robinson v. City

of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)).

When the

timing of an adverse employment action is “‘unusually
suggestive’” of retaliatory motive, then a causal link may be
inferred.

Id. (quoting Robinson, 120 F.3d at 1302).

However,

“[k]nowledge of an employee’s protected conduct is an essential
element of establishing a causal connection.”

Warfield v.

SEPTA, 460 F. App’x 127, 131 (3d Cir. 2012).
The Court finds that Plaintiff fails to make a prima facie
case because he does not sufficiently establish causality.

The

Charge of Discrimination filed with the Delaware Department of
Labor is dated December 7, 2009.

(Brewington Decl., Ex. 38.)

The Delaware Department of Labor sent the Notice of Charge of
Discrimination to Defendant by letter dated December 29, 2009.
16

(Id.) 3

Plaintiff received notice that his employment was

terminated approximately two weeks later, by letter dated
January 14, 2010.

(Brewington Decl., Ex. 39.)

As set forth

below, the undisputed evidence of record demonstrates that
Defendant made a decision to terminate Plaintiff’s employment on
December 29, 2009.

Moreover, the record is devoid of evidence

that those who decided to terminate his employment had any
knowledge, at the time such decision was made, that Plaintiff
filed an EEO complaint.
Defendant has provided the affidavits of three individuals
–- Nadene Reuling, Reba Alexander Businsky, and Brian Katz -who were involved in the decision to terminate Plaintiff’s
employment.

Each of these individuals affirms that the final

approval to terminate Plaintiff’s employment was given on
December 29, 2009.

Each of these individuals also affirms that

3

Plaintiff argues that the letter is evidence that Defendant
knew of the EEO complaint on December 29, 2009. (Pl.’s Br. 89.) The letter from the Delaware Department of Labor is dated
December 29, 2009 and indicates that it was sent to Defendant
via certified mail. The letter does not indicate that a copy
was hand-delivered or sent via email on the same date, nor does
Plaintiff point to any other evidence to support the claim that
Defendant knew of the EEO complaint on or before December 29,
2009. The Court finds that the letter itself is insufficient
evidence to establish that Defendant had knowledge of the EEO
complaint on the same day that the letter was mailed. Cf. Fed.
R. Civ. P. 6(d) (when service made by mail, three days added
after period would otherwise expire).
17

they did not have knowledge of Plaintiff’s EEO complaint at the
time the decision to terminate Plaintiff’s employment was made.
Ms. Reuling was Plaintiff’s immediate supervisor and worked
as an Accounts Receivable Supervisor in Defendant’s Order to
Cash Department at the time Plaintiff was employed by Defendant.
(Brewington Decl., Ex. 2 ¶ 3.)

Ms. Reuling states that she

recommended termination of Plaintiff’s employment on December
23, 2009.

(Id. at ¶ 32.)

According to Ms. Reuling, her

recommendation was based on Plaintiff’s failure to report to
work from December 21, 2009 through December 23, 2009, his
inconsistent reasons for his absence, and his receipt of prior
written warnings for attendance.

(Id.)

Defendant also

submitted an email from Ms. Reuling to her superior, Ms.
Businsky, dated December 23, 2009, advising that Plaintiff was
late for three consecutive days and noting that his employment
could be terminated immediately under company policy.
(Brewington Decl., Ex. 32.)
Ms. Businsky was a Human Resources Supervisor for Defendant
at the time Plaintiff was Defendant’s employee.
Decl., Ex. 3 ¶ 3.)

(Brewington

Ms. Businsky states that she agreed with Ms.

Reuling’s recommendation of December 23, 2009 and therefore sent
on the same date a request to her supervisor, Brian Katz, to
terminate Plaintiff’s employment.

(Id. at ¶ 30; Ex. 32.)

Mr.

Katz was the Area Human Resources Manager for Defendant at the
18

time Plaintiff was employed by Defendant.
Ex. 4 ¶ 3.)

(Brewington Decl.,

In responding to Ms. Businsky’s email of December

23, 2009, Mr. Katz advised that a decision on Plaintiff’s
employment should not be made until Plaintiff had an opportunity
to explain his absences.

(Brewington Decl., Ex. 32.)

The

following day, December 24, 2009, Plaintiff provided, in Ms.
Reuling’s estimation, inconsistent and suspect information that
caused her to believe he had not been sick and had no legitimate
reason for missing work.

(Brewington Decl., Ex. 2 ¶¶ 40, 41.)

Ms. Reuling and Ms. Businsky thus renewed their request to
terminate Plaintiff’s employment, and Mr. Katz represents that
he gave final approval for such action on December 29, 2009.
(Brewington Decl., Ex. 4 ¶¶ 31-33.)

Mr. Katz further represents

that at that time, he was not aware that Plaintiff had filed a
Charge of Discrimination.

(Id. at ¶ 33.)

Ms. Reuling and Ms.

Businsky similarly state that they did not become aware that
Plaintiff had filed a Charge of Discrimination until after a
final decision to terminate Plaintiff’s employment was made.
(Brewington Decl., Ex. 2 ¶ 49, Ex. 3 ¶ 43.)
The foregoing undisputed evidence demonstrates that
Plaintiff’s superiors made a decision to terminate Plaintiff’s
employment on December 29, 2009.

On the same date, the Delaware

Department of Labor sent Plaintiff’s Charge of Discrimination to
Defendant.

There is no evidence in the record that Defendant
19

received a copy of the letter on the day it was sent or
otherwise had notice that Plaintiff had filed an EEO complaint.
Because Plaintiff does not point to any evidence that the
decisionmakers were aware of his EEO filing when they decided to
terminate his employment, there could be no causal link between
the filing of the EEO complaint and the decision to terminate
Plaintiff’s employment.

Plaintiff thus fails to make a prima

facie case of Title VII retaliation. 4

See Dooley v. Roche Lab

Inc., 275 F. App’x 162, 165 (3d Cir. 2008) (plaintiff “fails to
make a prima facie case because she does not point to any
evidence that the decisionmakers in those instances were aware
of her internal complaints (and thus that there could be a
causal link between the complaints and those decisions).”)
(emphasis in original); Warfield, 460 F. App’x at 131 (“SEPTA

4

In so finding, the Court notes Plaintiff’s representation that
he was instructed by Ms. Reuling on January 6, 2010 to apply for
short-term disability. (Pl.’s Br. 6.) Through this statement,
Plaintiff seemingly implies that a decision to terminate his
employment must not have been made until after January 6, 2010.
Plaintiff, however, does not provide the cited pages of his
deposition transcript with respect to the issue, and accordingly
there is no evidence in the record to support Plaintiff’s
contention. Moreover, even assuming Ms. Reuling did so advise
Plaintiff on January 6, 2010, her advice is not sufficient to
create a genuine issue of fact as to the date on which a final
decision was made to terminate Plaintiff’s employment,
particularly in light of Mr. Katz’s sworn statement that he gave
such approval on December 29, 2009, and Ms. Reuling’s and Ms.
Businsky’s sworn statements that they received approval from Mr.
Katz on December 29, 2009.
20

decided to terminate [plaintiff] before it was aware that she
had filed a complaint with the [Pennsylvania Human Relations
Commission].

There is no evidence of a causal connection

between the complaint and her termination.

[Plaintiff] thus has

failed to offer evidence establishing a prima facie case of
retaliation.”). 5
Furthermore, even if Plaintiff had met his burden of
establishing a prima facie case of retaliation, he fails to meet
his burden of proving that retaliation was the real reason for
his termination.

The Court notes that Defendant submits various

instances of performance deficiencies, absenteeism, tardiness
and other conduct by Plaintiff which purportedly served as nonretaliatory reasons for terminating Plaintiff’s employment. 6

5

In the Second Amended Complaint, Plaintiff alleged an
alternative ground for his Title VII claim, namely, that he
engaged in protected activity when he called the UPS Help Line
on September 9, 2009 to report the retaliatory and harassing
conduct of his superiors. (SAC ¶ 133.) By contrast, Plaintiff
notes in the motion papers that “[t]he events leading to
Plaintiff’s termination occurred in December 2009 and January
2010.” (Pl.’s Br. 3.) As Plaintiff fails to present any
evidence to support the allegation that events in September 2009
led to his termination, the Court shall grant summary judgment
in favor of Defendant to the extent Plaintiff’s Title VII claim
is predicated on retaliation for calling the Help Line.
6

The Court makes no finding as to whether the evidence
submitted by Defendant is sufficient to meet its burden at the
summary judgment stage that it had a legitimate, non-retaliatory
reason for terminating Plaintiff’s employment. The Court notes
only that even if Defendant met such burden, Plaintiff fails to
then satisfy its burden under McDonnell Douglas to demonstrate
pretext.
21

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973), Plaintiff bears the burden of
showing that such reasons proffered by Defendant are mere
pretext.

Rather than attempt to satisfy its burden, Plaintiff

dismisses the incidents as “irrelevant” and an attempt to “muddy
the waters” by discussing “past acts of alleged dishonesty and
Defendant’s criminal background.”

(Pl.’s Br. 13-14.)

In so

doing, Plaintiff fails to create a genuine issue as to whether
Defendant’s proffered reasons for termination were pretextual.
For these reasons, Defendant’s motion for summary judgment
as to Count III will be granted.
2. FMLA Claims
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601,
et seq., was enacted to provide leave for workers whose personal
or medical circumstances necessitate leave in excess of what
their employers are willing or able to provide.

Victorelli v.

Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29
C.F.R. § 825.101).

The FMLA is both intended and expected to

benefit employers as well as their employees in order to balance
the demands of the workplace with the needs of families. 29
C.F.R. § 825.101(b), (c).
The FMLA affords eligible employees “a total of 12
workweeks of leave during any 12–month period” because of “a
serious health condition that makes the employee unable to
22

perform the functions of the position of such employee.”
U.S.C. § 2612(a)(1)(D).

29

Following FMLA leave, an employee is

entitled to be reinstated to the former position or an alternate
one with equivalent pay, benefits and working conditions.
U.S.C. § 2614(a)(1).

29

The FMLA provides relief for interference

with these FMLA rights as well as for retaliation for exercising
these FMLA rights.
In this case, Plaintiff first contends that Defendant
interfered with his rights under the FMLA when it terminated him
rather than allowing him to take sick leave in December 2009.
Plaintiff also contends that Defendant violated the FMLA by
terminating his employment in retaliation for taking sick leave.
The FMLA declares it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided” in the FMLA.
2615(a)(1).

29 U.S.C. §

Such a claim is typically referred to as an

“interference” claim.

Sommer v. The Vanguard Group, 461 F.3d

397, 398–99 (3d Cir. 2006).

To assert an interference claim,

“the employee only needs to show that he was entitled to
benefits under the FMLA and that he was denied them.”
399 (citation omitted).

Id. at

“An interference action is not about

discrimination, it is only about whether the employer provided
the employee with the entitlements guaranteed by the FMLA.”
(citation omitted).

In contrast, the “retaliation theory
23

Id.

protects employees from suffering discrimination because they
have exercised their rights under the FMLA.”

Santosuosso v.

Novacare Rehab., 462 F. Supp. 2d 590, 596 (D.N.J. 2006)
(internal citation and quotes omitted).
As an initial matter, before availing himself of the
benefits of the FMLA, Plaintiff bears the burden of
demonstrating that he had a “serious health condition” that
rendered him unable to perform the functions of his job.

29

U.S.C. § 2612(a)(1)(D); see also Rankin v. Seagate Tech., Inc.,
246 F.3d 1145, 1147 (8th Cir. 2001)(“Where absences are not
attributable to a ‘serious health condition,’ however, FMLA is
not implicated and does not protect an employee against
disciplinary action based upon such absences.”).

The Court, in

an Opinion dated June 27, 2012, previously addressed what
constitutes a “serious health condition” under the FMLA.

As

noted in the Opinion, pursuant to the FMLA, a “‘serious health
condition’ entitling an employee to FMLA leave means an illness,
injury, impairment or physical or mental condition that involves
inpatient care as defined in § 825.114 or continuing treatment
by a health care provider as defined in § 825.115.”

29 CFR §

825.113(a).
Plaintiff does not contend that he can satisfy the
“inpatient care” prong of the definition of “serious medical
condition.”

Thus, the Court considers only the “continuing
24

treatment” prong in more detail.

Under the “continuing

treatment” prong, Plaintiff must prove (1) that he had a “period
of incapacity” relating to the medical condition, (2) that the
“period of incapacity” lasted more than “three consecutive, full
calendar days;” and (3) that he received “subsequent treatment”
by a health care provider two or more times within thirty days
of the first day of incapacity, or received treatment by a
health care provider on at least one occasion which resulted in
a regimen of continuing treatment under the supervision of the
health care provider.

29 C.F.R. § 825.115(a)(1)-(2).

The first

in-person visit must take place within seven days of the first
day of incapacity.

29 CFR § 825.115(a)(3).

In his initial complaint, Plaintiff averred that he
suffered from the flu, 7 but he did not allege any complications
due to the flu nor did he assert facts in support of continuing
treatment pursuant to 29 CFR § 825.115.

7

(Op. 14-15, June 27,

The FMLA clarifies that “[o]rdinarily, unless complications
arise, the common cold, the flu, ear aches, upset stomach, minor
ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health
condition and do not qualify for FMLA leave.” 29 CFR §
825.113(d) (emphasis added). However, absences due to the common
cold or flu may be protected under the FMLA when the standard
set forth in the regulation is met. Rankin, 246 F.3d at 1147
(internal quotation omitted). Plaintiff’s physician never
diagnosed him as having the flu; Plaintiff was diagnosed as
having an upper respiratory infection and pharyngitis.
(Brewington Decl., Ex. 6 at 35:1-13.)
25

2012.)

Plaintiff’s FMLA claims were thus dismissed without

prejudice, with the right to file an amended complaint.
15-16.)

(Id. at

Subsequently, Plaintiff sought leave to file a second

amended complaint, 8 and Magistrate Judge Schneider granted the
motion, finding that Plaintiff’s factual allegations were
sufficient to show that Plaintiff’s absences may be covered by
the FMLA.

(Order 12, Jan. 31, 2013.)

In so finding, the

Magistrate Judge noted Plaintiff’s allegations that he was
incapacitated for over three consecutive days, that he visited a
health care provider within seven days of incapacitation, and
that he visited his doctor for a second time on January 13, 2010
because his alleged incapacitation continued.

(Id.)

Although Plaintiff may have averred sufficient allegations
to survive dismissal of the Second Amended Complaint, he must at
this time adduce sufficient evidence to generate a genuine issue
of material fact to avoid summary judgment.

Plaintiff’s own

deposition testimony, however, is fatal to his FMLA claims in
this case.

In the Second Amended Complaint, Plaintiff avers

that he experienced flu-like symptoms on Monday, December 22,

8

Plaintiff filed an amended complaint on July 18, 2012, but new
counsel was thereafter substituted because Plaintiff’s original
counsel was suspended from the practice of law as discussed
supra. Plaintiff’s new counsel sought leave to file a second
amended complaint because he determined that the amended
complaint filed by predecessor counsel suffered from the same
deficiencies as the initial complaint. (Order 3-4, Jan. 31,
2013.)
26

2009.

(SAC ¶ 46.)

Plaintiff does not allege that he

experienced symptoms prior to this date.

By contrast, at his

deposition, Plaintiff testified that he had flu-like symptoms at
least as early as Saturday, December 19, 2009.
Decl., Ex. 1 at 183:4-8.)

(Brewington

Such symptoms, according to

Plaintiff, continued on Sunday, December 20, 2009 through
Thursday, December 24, 2009.
218:4-8.)

(Id. at 186:14-188:6, 203:15-21,

On either December 21, 2009 or December 22, 2009,

Plaintiff contacted the office of his physician, Scott Harrison,
D.O., and scheduled the first available appointment which was on
December 28, 2009.

(Id. at 189:4-20, 193:10-22, 208:14-18.)

Plaintiff was examined by Dr. Harrison on December 28, 2009.
(Id. at 241:20-25.)
Given these facts, Plaintiff did not visit a health care
provider for the flu within seven days as required by 29 C.F.R.
§ 825.115(a)(3).

His testimony establishes that he first

experienced flu-like symptoms as early as December 19, 2009 but
did not obtain treatment from a health care provider until

27

December 28, 2009, nine days later. 9

Consequently, Plaintiff

fails to meet the regulatory requirements sufficient to
demonstrate that he experienced a “serious medical condition”
warranting the protections of the FMLA.
Furthermore, Plaintiff fails to meet the FMLA requirement
that he was under a “regimen of continuing medical treatment”
for a “serious health condition.”

Plaintiff’s physician, Dr.

Harrison, testified that on December 28, 2009, he merely advised
Plaintiff to continue taking the over-the-counter medicine that
he was already taking.

(Brewington Decl., Ex. 6 at 22:24-23:7.)

9

The Court notes Plaintiff’s representation that because of the
holiday season, the first available appointment was Monday,
December 28, 2009. However, no party addresses whether these
circumstances warrant an extension of the seven-day requirement,
or whether the Court even has the authority to extend the sevenday requirement.
29 C.F.R. § 825.115(a)(1) provides that a party must see a
health care provider “two or more times, within 30 days of the
first day of incapacity, unless extenuating circumstances
exist,” and extenuating circumstances are defined in Subsection
(a)(5) as “circumstances beyond the employee's control that
prevent the follow-up visit from occurring as planned by the
health care provider[.]” 29 C.F.R. § 825.115(a)(1), (a)(5).
The regulation provides as an example: “extenuating
circumstances exist if a health care provider determines that a
second in-person visit is needed within the 30–day period, but
the health care provider does not have any available
appointments during that time period.” 29 C.F.R. §
825.115(a)(5). Thus, while the plain language of the regulation
provides for an extension of the thirty day requirement when the
“follow-up visit” cannot be scheduled within thirty days, the
regulation provides no leeway for the initial visit due to a
health care provider’s schedule. The initial visit must occur
within seven days of incapacity.
28

Dr. Harrison also testified that he did not require Plaintiff to
return for a follow-up visit, but Plaintiff could return if he
did not get better.

(Id. at 23:11-15.)

These facts are

insufficient to demonstrate that Plaintiff’s visit to Dr.
Harrison on December 28, 2009 resulted in a “regimen of
continuing treatment” for purposes of the FMLA.

FMLA

regulations clearly state that “the taking of over-the-counter
medications such as aspirin, antihistamines, or salves; or bedrest, drinking fluids, exercise, and other similar activities
that can be initiated without a visit to a health care provider,
is not, by itself, sufficient to constitute a regimen of
continuing treatment for purposes of FMLA leave.”

29 C.F.R. §

825.113(c).
Because his single visit to Dr. Harrison on December 28,
2009 did not satisfy the requirement of “continuing treatment”
under 29 C.F.R. § 825.115(a)(2), Plaintiff must have received
“subsequent treatment” by a health care provider two or more
times within thirty days of the first day of incapacity.
C.F.R. § 825.115(a)(1).

29

The Court assumes for purposes of this

analysis that Plaintiff’s first visit to Dr. Harrison occurred
in the first seven days of incapacity, notwithstanding its
finding to the contrary discussed above.

Plaintiff saw Dr.

Harrison again on January 13, 2010, which is within thirty days
of the first day of incapacity of December 19, 2009.
29

However,

this subsequent treatment was not within the same period of
incapacity for which Plaintiff was unable to work in December
2009.
The Tenth Circuit, in Jones v. Denver Public Schools, held
that where a plaintiff attempts to avail himself of the benefits
of the FMLA, the “[t]reatment two or more times” requirement
described in 29 C.F.R. § 825.115(a)(1) must take place during
the “period of incapacity.”
1315, 1323 (10th Cir. 2005).

Jones v. Denver Pub. Sch., 427 F.3d
In Jones, the plaintiff fell and

aggravated a pre-existing back injury.

Id. at 1317-18.

He

visited a doctor who cleared him for work for one week due to a
“wrenched back.”

Id.

The plaintiff then missed two days the

following week due to the flu, and his employment was terminated
upon his return to work.

Id. at 1318.

Approximately two weeks

later, the plaintiff returned to the doctor for a follow-up
visit concerning his back.

Id.

The Tenth Circuit concluded

that the period of incapacity only involved a single treatment.
Id. at 1323.

In so finding, the Tenth Circuit noted that “to

allow an indefinite timeframe for the second doctor's visit
would invite strategic behavior by plaintiffs, who could
schedule a second visit to ‘determine if a serious health
condition exists’ long after all symptoms have subsided, solely

30

to bolster their claim of entitlement to FMLA leave in
anticipation of litigation.”

Id. at 1322-23.

Here, Plaintiff visited Dr. Harrison on December 28, 2009,
at which time Dr. Harrison cleared Plaintiff to return to work
with no restrictions.

(Brewington Decl., Ex. 7.)

Dr. Harrison

testified that there was no reason that Plaintiff could not have
returned to work at that time.

Thus, the period of incapacity

had ended as of December 28, 2009, at which time Plaintiff had
only seen a doctor one time.

As in Jones, a decision to

terminate Plaintiff’s employment was then made on December 29,
2009, before Plaintiff had visited a doctor a second time.
Although a decision had already been made, which at the time was
proper, Plaintiff subsequently visited his physician, which
according to Plaintiff made Defendant’s decision unlawful
retroactively under 29 C.F.R. § 825.115(a)(1).

Plaintiff’s

argument is akin to that made by the plaintiff in Jones, and
this Court rejects the argument for the same reasons set forth
in Jones.

Accordingly, Plaintiff was not entitled to FMLA leave

31

and cannot make out a claim for FMLA interference or
retaliation.
Defendant shall therefore be granted summary judgment on
Plaintiff’s FMLA interference and retaliation 10 claims, as set
forth in Counts I and II of the Second Amended Complaint.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary
judgment shall be granted.
An Order shall be entered consistent with this Opinion.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Dated: September 30, 2014
At Camden, New Jersey

10

Summary judgment as to Plaintiff’s FMLA retaliation claim may
also be granted in favor of Defendant for the same reason that
the Title VII retaliation claim fails. FMLA retaliation claims
are decided pursuant to the McDonnell Douglas test articulated
supra. Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 324
(3d Cir. 2014). Plaintiff must therefore address whether the
purportedly legitimate, non-retaliatory reasons for his
termination proffered by Defendant are pretextual. Plaintiff
does not address the issue of pretext in connection with
Defendant’s asserted legitimate, non-retaliatory reasons for
terminating Plaintiff’s employment.
32