KLEIN v. SAFELITE GROUP, INC. et al
Filing
71
OPINION. Signed by Judge Joseph H. Rodriguez on 6/25/2018. (rtm, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHELBY KLEIN,
Hon. Joseph H. Rodriguez
Plaintiff,
Civil No. 16-726 (JHR/JS)
v.
OPINION
SAFELITE GROUP, INC. D/B/A
SAFELITE AUTOGLASS,
Defendant.
This matter is before the Court on motion of Defendant Safelite
Group, Inc. for summary judgment pursuant to Fed. R. Civ. P. 56. The
Court heard oral argument on June 13, 2018 and the record of that
proceeding is incorporated here by reference. For the reasons given during
argument and those articulated below, Defendant’s motion will be granted.
Background
Plaintiff Shelby Klein brought this lawsuit against her former
employer Defendant Safelite Fulfillment, Inc. (incorrectly captioned as
“Safelite Group, Inc. d/b/a Safelite Autoglass”) asserting pregnancy
discrimination under the New Jersey Law Against Discrimination
(“NJLAD”) and retaliation under the Family and Medical Leave Act
(“FMLA”), as well as violations of the Equal Pay Act of 1963 and Lilly
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Leadbeater Fair Pay Act of 2009. Through the instant motion, Defendant
seeks summary judgment, arguing that Plaintiff was terminated on August
10, 2015 after years of poor performance as a store manager because she
continued to perform poorly after being placed on a performance
improvement plan.
Plaintiff began employment with Defendant in May of 1997 as a
Customer Service Representative. She was promoted to Store Manager at
Defendant’s Pleasantville, New Jersey location in October of 2007. As Store
Manager, Plaintiff was responsible for overseeing the daily operations of
the employees at her store, inventory and payroll for her store, hiring and
firing, providing high levels of customer service, developing and engaging
her team, and ensuring that key performance indicators (KPIs) met or
exceeded company goals.
One KPI is the Net Promoter Score (“NPS”) which is a percentage that
gauges customer delight based on surveys that are sent to customers—the
higher percentage, the better. Defendant’s minimum acceptable NPS is
87%. Another KPI is the employee engagement score which is based on
People Opinion Surveys administered by a third-party. All associates fill out
the People Opinion Surveys about their managers and the minimum
acceptable engagement score is 85%. Another KPI is the Customer Service
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Tracking (“CST”) Quality score which measures the quality of the work that
Technicians do on the job. Defendant’s maximum acceptable CST Quality
Store is 1.8%. The figure measures the quality of workmanship Technicians
from a site perform by tracking any damages or other work that needs to be
re-done after customer complaints.
Defendant maintains that Plaintiff demonstrated performance
deficiencies as early as 2011. On Plaintiff’s 2011 Performance Review, her
supervisor at the time, Joe Vance, noted that Plaintiff had the worst NPS
score in the Philadelphia Market. Vance also noted that Plaintiff fell short
on budgeting goals and numerous KPIs and needed to make sure that her
associates were getting the proper training and performing effectively on a
daily basis.
In October of 2012, Keenan McCafferty became Operations Manager
and Plaintiff’s new direct supervisor. McCafferty testified that because he
was new to the role and had limited personal knowledge of the Store
Managers’ performance, he gave all Store Managers in the Philadelphia
Market including Plaintiff a rating of “meets expectations” on their 2012
reviews.
However, Plaintiff’s KPIs dropped from 2012-2013. Throughout 2013,
McCafferty had conversations with Plaintiff about her store’s poor
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performance and KPIs. On her 2013 annual review, McCafferty noted
Plaintiff’s low NPS score, high CST Quality score, failure to make budget,
missing and unaccounted-for inventory, and poor employee engagement.
Plaintiff’s 2013 People Opinion Survey revealed a decline in her employee
approval rating from 70% in 2012 to 50% in 2013; her Performance
Excellence Index dropped from 79% in 2012 to 69% in 2013 and Consumer
focus dropped from 81% to 69%.
In or around April of 2014, McCafferty moved into the District
Manager position and Sambath Lok became the Operations Manager and
Plaintiff’s new direct supervisor. Similar to McCafferty, when Lok entered
the Operations Manager role, he wanted to give all of his Store Managers a
clean slate. However, by the middle of 2014, Lok had serious concerns
regarding multiple areas of Plaintiff’s performance that needed to be
improved. Lok noticed that Plaintiff had missing and unaccounted-for
inventory and had multiple discussions with her regarding this issue.
By this time, Plaintiff had become pregnant. She testified that in July
or August of 2014, Lok made a comment about her hormones. Specifically,
Plaintiff testified that Lok asked her if it was Plaintiff’s “hormones talking”
in response to a statement about Lok’s tendency to visit her store despite
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telling Plaintiff that he would not be there on that given day. Plaintiff
reported the comment to McCafferty.
Despite Lok’s verbal coaching, Plaintiff’s October 2014 inventory was
again unacceptable. Plaintiff’s store was also experiencing numerous
quality issues in 2014, as there was an excessive amount of damages
occurring to customers’ vehicles. Plaintiff allegedly was failing to make sure
that her Technicians had the right tools and equipment for their mobile
jobs. Additionally, Lok observed engagement issues with Plaintiff’s
associates. Lok received numerous complaints from associates in Plaintiff’s
store, which experienced significant turnover in 2014 in that at least six
Technicians left Plaintiff’s store either voluntarily or involuntarily.
Plaintiff was the only Store Manager in the Philadelphia Market to
receive an overall rating of “4- does not meet expectations” on the 2014
annual review. Plaintiff’s 2014 review noted her unacceptable NPS and CST
Quality scores as well as her failure to competently control expenses. Lok
stated on Plaintiff’s annual review that she had more below average results
in 2014 and KPIs that did not meet or exceed Company standards. Lok
testified that Klein was in need of significant improvement before leaving
on maternity leave, and he had expressed as much to her through verbal
coaching.
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In November of 2014, Plaintiff requested and received 12 weeks of
maternity leave under the FMLA, from November 17, 2014 through
February 18, 2015. After giving birth, Plaintiff did not experience any
lingering medical conditions relating to her past pregnancy or childbirth.
The results of Plaintiff’s 2014 People Opinion Surveys came out while
Plaintiff was out on her leave of absence and revealed the Plaintiff’s
engagement score dropped further from 50% in 2013 to 44% in 2014.
Plaintiff was placed on a performance improvement plan (“PIP”) which was
delivered to her two days after she returned from her leave of absence.
Lok continued to provide Plaintiff with verbal coaching after issuing
her the PIP. Employee engagement issues continued in 2015, however, and
another four associates in Plaintiff’s store voluntarily left their employment
and a fifth associate announced that he was quitting. While Plaintiff was
out on maternity leave, her store’s KPIs improved but they dropped again
once Plaintiff returned to work.
Given the continued turnover and Plaintiff’s failure to improve her
KPIs, Lok recommended to McCafferty that Defendant separate her
employment; McCafferty agreed. In consultation with Regional People
Business Partner Greg Byrd, McCafferty made the ultimate decision to
terminate Plaintiff’s employment effective August 10, 2015.
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Management’s decision and reasoning was reflected in an email from
McCafferty approximately a month before Plaintiff returned from leave:
From:
Sent:
To:
Cc:
Subject:
McCafferty, Keenan
Tuesday, July 14, 2015 4:52 PM
Byrd, Greg
Laski, Jonathan; Lok, Sambath
Shelby Klein
Greg,
Here is the information you asked me to put together. I also put
last year’s numbers into the worksheet. As far as this year her
NPS isn’t the lowest however she was on maternity leave in Jan
and Feb. The scores for those 2 months were 88.8 and 92.7.
Since her return this location has been dropping in NPS every
month and they had the lowest CSTQ for the first 2 months of
the year as well. Now they are at the bottom in CST since her
return. As you know her engagement for the past 2 years have
been extremely low. In 2014 her score was 50% and in 2015 it
went down to 30%. We put her on a PIP this year and were
going to pulse survey in July but in looking at her numbers and
also feedback we are getting from technicians in her store they
feel she is aggressive and really doesn’t want to hear them. We
have also sent multiple techs to her location from other stores
in our market and they all say they don’t want to go back down
there if they don’t have to. They seem to feel as though there is
no team work nor commitment from Shelby. We also have
managers and people within our market who have said aloud
they don’t understand why she is still here. The managers feel
that the Pleasantville Location at times keeps the entire market
from hitting certain sales goals. What also has been frustrating
to the market is that when we move resources down to help the
location her techs all call out of work and the help that was sent
down gets stuck trying to get all the additional work done or
possibly have to reschedule customers.
It is mine and Sam’s feeling that Shelby has gone as far as she
can in her management career. We have lost many techs out of
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that location in the past 2 years and we can’t continue the same
pattern with losing our people.
Keenan
(Safelite000107.)
After briefing was completed on the instant motion, and well after the
close of discovery, Plaintiff was granted leave to supplement the record with
a certification from Defendant’s former employee, Greg Manning, who also
has brought suit against Safelite and a certification from another former
employee, Nicholas Walters, who sought to join Manning’s suit but was
denied. Manning stated,
During the time of my employment I heard Sam Lok make
comments about Shelby Klein and her position as store
manager of the Pleasantville location. These comments
included Mr. Lok saying that he did not believe women should
be in the position of manger because they did not know how to
do the work themselves. After she became pregnant, I recall Mr.
Lok saying that her becoming pregnant is why women should
not be in management, she is going to be out for a long period
of time and she’s going to leave the company shorthanded.
(Manning Cert. ¶ 2-4.) Walters stated,
I was privy to conversations concerning Shelby Klein made by
Sambath Lok and Keenan McCafferty. Shortly after Shelby
Klein went on maternity leave it was stated that Ms. Klein
would need to be terminated, but they wanted to wait until she
returned so it would not seem as if she was being fired for
maternity leave.
(Walters Cert. ¶ 2-3.)
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Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact 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).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (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 determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 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. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp.
1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific facts
and affirmative evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere
allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus.,
Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.
1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a 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, 477 U.S. at 322. That is, the movant can support the assertion that
a fact cannot be genuinely disputed by showing that “an adverse party
cannot produce admissible evidence to support the [alleged dispute of]
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fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of
the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
NJLAD
Generally
“Title VII prohibits employers from engaging in discrimination on the
basis of race, color, religion, sex or national origin.” Atkinson v. LaFayette
College, 460 F.3d 447, 453-54 (3d Cir. 2006) (citing 42 U.S.C. § 2000e–2).
Pursuant to the Pregnancy Discrimination Act (“PDA”), an amendment to
Title VII, discrimination on the basis of sex includes discrimination
“because of or on the basis of pregnancy, childbirth, or related medical
conditions.” Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 363-64 (3d
Cir. 2008) (quoting 42 U.S.C. § 2000e(k)).
“Analysis of a claim under the NJLAD follows that of a claim under
Title VII.” Teubert v. SRA International, Inc., 192 F. Supp. 3d 569, 574
(D.N.J. 2016) (citing Schurr v. Resorts Intern. Hotel, Inc., 196 F.3d 486,
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498 (3d Cir. 1999)). As such, New Jersey has adopted the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as
the starting point in circumstantial evidence discrimination actions brought
under its Law Against Discrimination. Andersen v. Exxon Co., U.S.A., 446
A.2d 486, 490-91 (N.J. 1982). Though the McDonnell Douglas framework
is followed in cases of discriminatory discharge, the elements of the prima
facie case are modified to fit the circumstances. Clowes v. Terminix Int’l,
Inc., 538 A.2d 794, 805 (N.J. 1998); Bell v. K.A. Indus. Services, LLC, 567
F. Supp. 2d 701, 706 (D.N.J. 2008).
Once the employee has satisfied her burden of establishing a prima
facie case of discrimination under the LAD, the burden of production then
shifts to the employer to rebut the prima facie case by “articulat[ing] some
legitimate, nondiscriminatory reason” for its alleged unlawful action.
Clowes, 538 A.2d at 805; see also Laresca v. AT&T, 161 F. Supp. 2d 323, 335
(D.N.J. 2001). An employer has a legitimate, nondiscriminatory
reason to terminate an employee where their performance does not meet
company standards. See, e.g., Brewer v. Quaker State Oil Ref Corp., 72 F.3d
326, 330 (3d. Cir. 1995) (holding employer had legitimate, nondiscriminatory reasons to terminate plaintiff because plaintiff had
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continuous performance problems, including poor follow-up on customer
requests and poor communications with clients and with management).
“In order to defeat a summary judgment motion if the employer
answers the plaintiff’s prima facie case with [a] legitimate,
nondiscriminatory reason[ ] for its action, the plaintiff must point to some
evidence, direct or circumstantial, from which a fact finder could
reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s
action.” Laresca, 161 F. Supp. 2d at 335-36; accord Sheridan v. E.I. DuPont
de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996).
In evaluating employment cases, the task of the court is not to
second-guess employment decisions but is instead to determine whether
the employment decisions were motivated by an illegal discriminatory
purpose. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 525-27
(3d Cir. 1992). Thus, to establish pretext, “the plaintiff cannot simply show
that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent, or competent. Rather,
the non-moving plaintiff must demonstrate such weakness,
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implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence,’ and hence
infer ‘that the employer’ did not act for [the asserted] nondiscriminatory
reasons.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (quoting
Ezold, 983 F.2d at 531; Josey v. John R. Hollingsworth Corp., 996 F.2d
632, 638 (3d Cir. 1993)).
Pregnancy Discrimination
To establish a prima facie case of discrimination based on pregnancy,
a plaintiff must show (1) she was pregnant and the defendant knew that
fact, (2) she was qualified for her job, (3) she suffered an adverse
employment decision, and (4) there was “some nexus between her
pregnancy and the adverse employment action.” C.A.R.S. Protection Plus,
527 F.3d at 365. “While some effects of pregnancy linger beyond the act of
giving birth, at some point the female employee is no longer ‘affected by
pregnancy, childbirth, or related medical conditions,’ for purposes of the
PDA.” Kenney v. Ultradent Prod., Inc., No. 05-1851, 2007 WL 2264851 at
*5 (D.N.J. Aug. 6, 2007) (finding lack of temporal nexus to establish prima
facie case of pregnancy discrimination where plaintiff was terminated 535
days after returning from maternity leave) (citing Solomen v. Redwood
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Advisory Co., 183 F. Supp. 2d 748, 753 (E.D. Pa. 2002) (quoting 42 U.S.C. §
2000e(k) in holding that plaintiff failed to establish protected class status
where she was terminated 11 months after childbirth)). See also Brinkman
v. Kansas Dep’t of Corrections, 863 F. Supp. 1479, 1486 (D. Kan. 1994)
(finding that plaintiff who was terminated 9 months after childbirth failed
to establish protected class status under PDA). But see Rymas v. Princeton
Healthcare Sys. Holding, Inc., No. 15-8188, 2017 WL 4858123, *6 (D.N.J.
Oct. 27, 2017) (finding that a reasonable jury could conclude sufficient
temporal proximity where plaintiff was terminated 50 days after returning
from maternity leave).
“To be a member of the protected class when no longer within
temporal proximity to either pregnancy or childbirth, the plaintiff must do
more than ‘show she was, past tense, pregnant.’” Kenney, 2007 WL
2264851, at *5 (quoting Solomen, 183 F. Supp. 2d at 754). “The plaintiff
must have evidence that at the time of the adverse employment action she
had a medical condition related to either the pregnancy or childbirth.” Id.
(quoting Solomen, 183 F. Supp. 2d at 754).
In this case, Plaintiff returned to work February 18, 2015 with no
lingering medical conditions related to childbirth. She was terminated 173
days after returning to work, about 9 months after giving birth. She has not
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established a sufficient temporal nexus between her pregnancy and her
termination to establish a prima facie case of pregnancy discrimination
under the NJLAD.
Even if Plaintiff could show a prima facie case under the NJLAD, her
continued poor performance was a legitimate, non-discriminatory reason
for her discharge. Her performance issues arose and were documented
years prior to her becoming pregnant. Plaintiff received annual reviews that
identified numerous areas of deficiency, and her scores were not meeting
company standards. In addition, the comment allegedly made by Lok to the
effect that Plaintiff’s hormones were talking fails to establish that
Defendant’s reasons for terminating Plaintiff were pretext for pregnancy
discrimination. Stray remarks by decisionmakers unrelated to the decision
process are rarely given great weight, particularly if they were made
temporally remote from the date of the decision. See, e.g., Ezold, 983 F.2d
at 545.
Summary judgment will be granted on the claim of pregnancy
discrimination and the separate count for punitive damages under the
NJLAD.
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The Family and Medical Leave Act
Generally
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601,
(“FMLA”) was enacted to provide leave for workers whose personal or
medical circumstances require that they take time off from work 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 Act is intended “to balance the demands of the workplace
with the needs of families . . . by establishing a minimum labor standard for
leave” that lets employees “take reasonable leave for medical reasons, for
the birth or adoption of a child, and for the care of a child, spouse or parent
who has a serious health condition.” Churchill v. Star Enters., 183 F.3d 184,
192 (3d Cir. 1999) (quoting 29 U.S.C. § 2601(b)(1), (2)).
The FMLA guarantees eligible employees 12 weeks of leave in a oneyear period following certain events: a serious medical condition; a family
member’s serious illness; the arrival of a new son or daughter; or certain
exigencies arising out of a family member’s service in the armed forces. 29
U.S.C. § 2612(a)(1). Leave must be granted, when “medically necessary,” on
an intermittent or part-time basis. § 2612(b)(1). Upon the employee’s
timely return, the employer must reinstate the employee to his or her
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former position or an equivalent. § 2614(a)(1). Although employers may
adopt or retain leave policies more generous than any policies that comply
with the requirements under the FMLA, 29 U.S.C. § 2653, the “rights
established by the Act may not be diminished by any employment benefit
program or plan,” 29 C.F.R. § 825.700.
The Act makes it unlawful for an employer to “interfere with, restrain,
or deny the exercise of” these rights, § 2615(a)(1); to discriminate against
those who exercise their rights under the Act, § 2615(a)(2); or to retaliate
against those who file charges, give information, or testify in any inquiry
related to an assertion of rights under the Act, § 2615(b). An employer also
cannot “use the taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions, or disciplinary actions.” Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 159-60 (3d Cir. 1998) (quoting 29
C.F.R. § 825.220(c)). But where an employee is discharged during a
protected leave for a reason unrelated to the leave, there is no right to
reinstatement. Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135,
141 (3d Cir. 2004) (citing 29 C.F.R. § 825.216(a)(1)).
Retaliation
In cases alleging retaliation in the employment setting, courts
generally apply the familiar burden-shifting framework established in
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McDonnell Douglas, 411 U.S. 792. See Weston v. Pennsylvania, 251 F.3d
420, 432 (3d Cir. 2001). Again, the first step under McDonnell Douglas is
to establish a prima facie case of retaliation for requesting FMLA leave. 411
U.S. at 802. “To prevail on a retaliation claim under the FMLA, the plaintiff
must prove that (1) she invoked her right to FMLA-qualifying leave, (2) she
suffered an adverse employment decision, and (3) the adverse action was
causally related to her invocation of rights.” Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012).
To establish causation, a plaintiff “must point to evidence sufficient to
create an inference that a causative link exists between her FMLA leave and
her termination.” Id. at 307. A causal connection may be established by
circumstantial evidence, such as temporal proximity, a pattern of
antagonism, and pretext. Kachmar v. SunGard Data Sys., 109 F.3d 173, 177
(3d Cir. 1997). This indirect evidence is to “be considered with a careful eye
to the specific facts and circumstances encountered.” Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 279, n.5 (3d Cir. 2000). “Retaliation need not
be the sole reason motivating the adverse employment decision; rather, it
will suffice for the plaintiff to show that the retaliatory animus was a
determinative factor, i.e., that the action would not have been taken but for
the protected activity.’” Hall-Dingle v. Geodis Wilson USA, Inc., No. CV 15-
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1868, 2017 WL 899906, at *8 (D.N.J. Mar. 7, 2017) (internal quotations
omitted).
Once a prima facie case is established, the burden of persuasion shifts
back to the defendant to put forth “a legitimate, nondiscriminatory reason”
for the employment decision. Id.; Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 254 (1981). If the defendant succeeds in demonstrating that
the decision was based on a non-discriminatory reason, the plaintiff has the
burden of proving by a preponderance of the evidence that the stated
reason was pretextual. Burdine, 450 U.S. at 260; St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 508 (1993).
“[F]iring an employee for [making] a valid request for FMLA leave
may constitute interference with the employee’s FMLA rights as well as
retaliation against the employee.” Erdman v. Nationwide Ins. Co., 582 F.3d
500, 509 (3d Cir. 2009). On the other hand, an employer is not required to
suspend its termination proceedings just because the employee requests
medical leave. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
272 (2001). “A contrary holding might impede employers from permissible
terminations and encourage employees aware of an impending termination
to attempt to create their own ‘severance package.’” Windfelder v. The May
Dep’t Stores Co., 93 F. App’x 351, 355 (3d Cir. 2004).
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In this case, while Plaintiff was placed on a PIP just two days after
returning from FMLA leave, her performance issues arose and were
documented years prior to her taking leave. Plaintiff received annual
reviews that identified numerous areas of deficiency, and her scores were
not meeting company standards. Plaintiff’s continued poor performance
was a legitimate, non-discriminatory reason for her discharge which
Plaintiff has not shown to be pretext for FMLA retaliation.
Equal Pay Act
To establish a prima facie case under the EPA, Plaintiff must
demonstrate that employees of the opposite sex within the same
establishment were paid differently for performing “equal work on jobs the
performance of which requires equal skill, effort and responsibility, and
which are performed under similar working conditions.” 29 U.S.C. §
206(d)(1); Johnson v. Fed Ex Corp., 604 F. App’x 183, 187 (3d Cir. 2015).
Pay differentials based on merit, quantity, or quality of production, or
another factor than sex, are permitted under the EPA. 29 U.S.C. §
206(d). Such acceptable factors include “education, experience, prior
salary, or any other factor related to performance of the job.” Puchakjian v.
Twp. Of Winslow, 804 F. Supp. 2d 288, 295 (D.N.J. 2011).
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Plaintiff has alleged a violation of the Equal Pay Act based solely on
gender and tenure with the Defendant. However, “Safelite uses a merit
system to make annual salary adjustments for Store Managers. Specifically,
a Store Manager’s store volume, i.e. sales, units averaged daily, quality of
service, number of Technicians, employee engagement, and other key
performance indicators (“KPIs”) affect a Store Manager’s annual
compensation.” (McCafferty Decl. ¶ 2.) At the time of Plaintiff’s
termination, three male Store Managers in the Philadelphia Market, Marcel
Santiago, Bogdan Kril, and Andrey Skorobagatko, and one female Store
Manager, Donna Culp, were earning more money than Plaintiff. Plaintiff
earned more than two male Store Managers in the Philadelphia Market,
Tim Johnson and David O’Donnell. In 2014, Plaintiff was the only Store
Manager in the region to have received a “does not meet expectations” on
the annual review and the only Store Manager on a PIP. Plaintiff has failed
to show that she performed work of equal skill, effort, and responsibility to
the other Store Managers. Summary judgment on the EPA claim will be
granted.
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Case 1:16-cv-00726-JHR-JS Document 71 Filed 06/25/18 Page 23 of 23 PageID: 3001
Conclusion
For the reasons stated above, and in keeping with the discussion held
on the record during oral argument, Defendant’s motion for summary
judgment will be granted. An Order will accompany this Opinion.
Dated: June 25, 2018
/s/ Joseph H. Rodriguez
Joseph H. Rodriguez, USDJ
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