ALLEN v. NUTRISYSTEM, INC.

Filing 22

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS GRANTED AS TO COUNT I OF PLAINTIFF'S COMPLAINT AND COUNT III AS IT RELATES TO FMLA RETALIATION. JUDGMENT IS ENTERED ON THESE TWO CLAIMS IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF. DEFENDANT'S MOTION FOR LEAVE TO FILE A REPLY MEMORANDUM IS GRANTED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 4/25/13. 4/26/13 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LEANDRA ALLEN,
Plaintiff,
v.
NUTRISYSTEM, INC.,
Defendant.

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CIVIL ACTION
NO. 11-4107

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

April 25, 2013

In this case, Leandra Allen (“Plaintiff”) claims her
former employer, Nutrisystem, Inc. (“Defendant”), retaliated
against her in violation of 42 U.S.C. § 1981 and the Family and
Medical Leave Act (“FMLA”). Defendant moved for summary
judgment. For the reasons that follow, the Court will grant
Defendant’s motion and enter judgment in favor of Defendant on
all counts.
I. BACKGROUND
Plaintiff worked for Defendant as a customer service
representative from May 5, 2008, until her termination on
September 2, 2010. Allen Dep. vol. I, 41:13-16, Feb. 8, 2012, ECF
No. 16-15; Def.’s Mot. Summ. J. Ex. L, Hire Form, ECF No. 16-14.
Plaintiff's responsibilities included assisting Defendant’s

customers with any questions they had about its products,
handling billing issues, and dealing with outside vendors. Allen
Dep. vol. I, 35:3-36:6. As part of the hiring process, Plaintiff
signed various forms acknowledging receipt of Defendant’s
Employee Handbook, Call Center Code of Conduct, and job
description. See Def.’s Mot. Summ. J. Exs. J-K, ECF Nos. 16-12 to
-13. The Call Center Code of Conduct generally instructs
employees to work hard to solve customer issues and to treat
customers with respect. Def.’s Mot. Summ. J. Ex. J, at 3. The
Nutrisystem Employee Handbook specifies that disciplinary action
and discharge may be levied against employees who violate the
Call Center Code of Conduct. Def.’s Mot. Summ. J. Ex. K, at 3. It
is undisputed that rude treatment of customers subjects an
employee to immediate termination. Id.
During Plaintiff’s tenure at Nutrisystem, she had
several different supervisors. Allen Dep. vol. I, 36:7-37:7.
Their names and periods of supervision over Plaintiff are: (1)
Linda Hartman, who supervised Plaintiff from Plaintiff’s date of
hire until February 16, 2009; (2) Maureen Shaeffer, who supervised
Plaintiff from February 16, 2009 until July of 2010; and (3)
Patricia Houser, who supervised Plaintiff thereafter until
Plaintiff’s termination on September 2, 2010. Id.
Supervisors Hartman and Schaeffer gave Plaintiff a
performance examination in May 2009, almost one year after
2

Plaintiff started at Nutrisystem. See Def.’s Mot. Summ J. Ex. O,
Performance Appraisal 1, ECF No. 16-17. Plaintiff received a
rating of “meets expectations.” Id.1
Plaintiff then started having issues with other
Nutrisystem staff members. These complaints include the following.
On January 4, 2010, Plaintiff sent an email to Shaeffer about
“offenses” she wanted Shaeffer to investigate. See id. Ex. X, ECF
No. 16-27. Specifically, Plaintiff complained about rude comments
made by Matea Hartridge, an employee, and Mercedez Hobson,
Plaintiff’s Sunday supervisor, which Plaintiff believed were
directed at her. See id. These comments included Hartridge
saying “[Plaintiff] looks like shit every day” and “somebody is
going crazy.” Id. Plaintiff also alleges that Hobson said things
like “there is something wrong with [Plaintiff].” Id. Shaeffer
and Lynn Schmidt, another supervisor, spoke with Plaintiff for
40 minutes about her complaint. See id. Ex. Y. To resolve the
matter, Shaeffer told Plaintiff’s team, which included both
Hartridge and Hobson, that “rude and harassing behaviors would
not be tolerated.” Id. Ex. AA; see also Carrington Dep. 25:7-11,
Mar. 23, 2012, ECF No. 16-23.

1

“Meets expectations” is the third of five employee
ratings, which are, from worst to best: failed to perform; below
expectations; meets expectations; exceeds expectations; and
greatly exceeds expectations. See id.
3

On February 1, 2010, Plaintiff submitted a written
complaint with Defendant’s human resources department. Def.’s
Mot. Summ. J. Ex. BB, ECF No. 16-30. The complaint, in general,
included the same allegations against the parties above, but also
included allegations that Jameece Nickerson, another employee,
said rude things in her general direction. Id. at 2-3. Plaintiff
also complained that Hartridge was “rude when spoken to” and had
denied Plaintiff’s requests for help. Id. at 2. Defendant
investigated the complaint. Carrington Dep. 29:14-31:10.
Defendant also allowed Plaintiff to move her seat. Def.’s Mot.
Summ. J. Ex. CC, ECF No. 16-31. And Shaeffer and Lynnea
Carrington, one of Defendant’s human resources representatives,
met with Hartridge and requested that she refrain from engaging
in any offensive or inappropriate behavior. Id. Ex. DD, ECF No.
16-32; see also Carrington Dep. 37:14-38:6.
On June 1, 2010, Plaintiff submitted a written
complaint about Shaeffer. Def.’s Mot. Summ J. Ex. FF, ECF No. 1634. Therein, Plaintiff alleged that Shaeffer reprimanded her in
front of other employees, falsely accused her of violating
procedure, refused to let her read at her workstation, and
isolated her from the team. Id. In a subsequent meeting with Ms.

4

Carrington, Plaintiff accused Shaeffer of racism. Id. Ex. HH, ECF
No. 16-36.2
On July 6, 2010, Plaintiff submitted another written
complaint about Nickerson. Id. Ex. QQ, ECF No. 16-47. Plaintiff
alleged that Nickerson had jokingly accused her of having a
mental disorder and had implied that said disorder was the true
reason for her FMLA leave discussed below. Id. at 2-3.
In addition to Plaintiff’s internal complaints, on
June 25, 2010, Plaintiff filed a charge of racial discrimination
against Defendant with the EEOC. Id. Ex. OO, EEOC Charge, ECF
No. 16-45. The charge, stemming from the June 1, 2010,
complaint, alleged that Shaeffer engaged in harassing and
discriminating behavior towards Plaintiff on account of her
race. Id. at 1-4. Tom Veitz, one of Defendant’s human resources
representatives and a decision-maker in Plaintiff's termination,
testified to receipt of Plaintiff’s EEOC charge “at the end of
July.” Veitz Dep. 32:19-21, Mar. 23, 2012, ECF No. 16-33.
Around the time of these complaints, Plaintiff started
experiencing technical difficulties with her work phone. On June
8, 2010, Plaintiff complained in writing to Shaeffer that
customers could not hear her over the phone. Allen Dep. vol. I,

2

However, Plaintiff admits that she did not experience
direct discrimination or harassment based on race. See Allen
Dep. vol. II, 94:6-18, Mar. 14, 2012, ECF No. 20-1.
5

245:14-20; Pl.’s Resp. Ex. O, ECF No. 20-14. She requested a new
headset, because she had to strain her voice to talk. Pl.’s Resp.
Ex. O. On July 19, 2010, Plaintiff complained again in writing to
Houser that “[c]ustomers all day have been calling in and saying
they cannot hear me.” Id. Ex. P, ECF No. 20-15. She also
complained “that there were calls that were cutting out,” and she
“couldn’t hear the customer.” Id. Ex. B, at 13, ECF No. 20-1. She
stated that the problem had been going on for the past month. Id.
Ex. P. In response to each complaint, Defendant assisted her in
resolving the issue, first replacing the telephone headset and
then the batteries, although not the phone itself. See Allen Dep.
vol. I, 142:23-147:24.
Plaintiff also requested and took FMLA leave three
times during her employment: (1) from December 14 to December 20,
2009, Plaintiff took a one week leave of absence to stay home
with her son after the child’s hernia surgery, see Def.’s Mot.
Summ. J. Ex. P; see also Allen Dep. vol. I, 42:12-21, 58:14-17;
(2) from March 1, 2010, to April 5, 2010, Plaintiff took time off
after a car accident, which leave was extended until she returned
on May 12, 2010, see Def.’s Mot. Summ. J. Exs. Q-T, ECF Nos. 1619 to -22; see also Allen Dep. vol. I, 59:12-64:11; and (3) from
June 20 to June 27, 2010, Plaintiff took time off for stress and
anxiety, see Def.’s Mot. Summ J. Exs. V-W, ECF Nos. 16-24 to 25; see also Allen Dep. vol. I, 65:9-66:3.
6

After Plaintiff returned from her third leave of
absence and began experiencing issues with her telephone, and
after Defendant received her EEOC charge, she received three
write-ups. These included the following: (1) on July 28, 2010,
Houser issued a written warning to Plaintiff for a no call/no
show, Def.’s Mem. Supp. Summ. J. Ex. SS, Employee Corrective
Action Notice, July 28, 2010, ECF No. 16-49; (2) on August 18,
2010, Houser issued a “final written warning” to Plaintiff as a
result of her violation of Defendant’s call policies and her
treatment of customers, Id. Ex. TT, Employee Corrective Action
Notice, Aug. 18, 2010, ECF No. 16-50; and (3) on August 25,
2010, Plaintiff received a “coaching notice” regarding her
hanging up on a customer who was belligerent—Plaintiff did not
follow procedure and escalate the call to her supervisor. Id.
Ex. DDD, Employee Corrective Action Notice, Aug. 25, 2010, ECF
No. 16-60. Before she filed her charge, Plaintiff had never
received any write-ups. Pl.’s Resp. 5, ECF No. 19.
On August 20, 2010, Plaintiff emailed Veitz in response
to the final written warning, blaming mechanical issues with her
phone for problems Defendant had attributed to her performance.
Id. at 38. She said that inbound callers could not hear her and
that “the phone seemed to have some type of short in the line.”
Id. Ex. BBB, ECF No. 16-58. She said that no technician had
investigated until August 17, 2010. Id. She wanted the warning
7

struck from her record. Id. However, Veitz investigated her
complaint, discussing her telephone issues with the IT
department, and determined that Plaintiff’s conduct, and not
Plaintiff’s mechanical problems, was to blame. Veitz Dep. 29:2231:4.
On September 2, 2010, Defendant terminated Plaintiff.
Defendant told Plaintiff that it was firing her for poor
performance. Allen Dep. vol. II, 48:1-2. This performance
included “repeatedly hanging up on Nutrisystem customers” and
“improperly handling calls” that had been forwarded to her. Pl.’s
Resp. Ex. M, ECF No. 20-12. Specifically, Defendant presents that
Plaintiff improperly disconnected 94 calls on August 30, 2010; 13
calls on August 31, 2010; and 46 calls on September 1, 2010.
Def.’s Mot. Summ J. Ex. EEE, ECF No. 16-61. Plaintiff would
answer a customer’s call and then say nothing else, leaving the
customer on the line. Pl.’s Resp. Ex. M.3
Plaintiff places Defendant’s receipt of her EEOC
complaint at approximately six weeks before her termination.
3

In addition to Plaintiff repeatedly hanging up on
customers, Defendant notes, and Plaintiff admits, that she was
doing school work during her shift. Def.’s Mem. Supp. Summ. J.
20; Allen Dep. vol. I, 91:7-20; Allen Dep. vol. II, 71:11-89:7.
As evidence, Defendant attaches multiple emails Plaintiff sent
between her personal account and her Nutrisystem account. See
Def.’s Mem. Supp. Summ. J. Exs. LL & MM, ECF Nos. 40-42. This
included materials for Plaintiff’s English class and her anatomy
and physiology course. Id.

8

Pl.’s Resp. 5. Additionally, Plaintiff places her last FMLA leave
at approximately two and a half months before her termination.
Id. at 1.
II. PROCEDURAL HISTORY
On June 23, 2011, Plaintiff filed the operative
complaint in this case, which asserts claims for retaliation,
hostile work environment, and racial discrimination, all under
42 U.S.C. § 1981 (Counts I and II), as well as retaliation for
and interference with Plaintiff’s exercise of her FMLA rights
(Count III). Compl. 3-5. On August 12, 2011, Defendant answered.
Answer 1, ECF No. 6.
On April 4, 2012, Defendant filed a motion for summary
judgment on all of Plaintiff’s claims. Def.’s Mot. for Summ. J.
1. On April 25, 2012, Plaintiff responded. Pl.’s Resp. 1, ECF
No. 20.4 And on December 12, 2011, Defendant replied. Def.’s
Reply 1, ECF No. 21. The matter is now ripe for disposition.
III. LEGAL STANDARD
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
4

In her Response, Plaintiff withdrew Count II and her
FMLA interference claim in Count III. Id. Thus, only Plaintiff’s
§ 1981 and FMLA retaliation claims remain.
9

existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.
IV. SECTION 1981 CLAIM
Plaintiff asserts a retaliation claim under

10

42 U.S.C. § 1981.5 Defendant is entitled to summary judgment on
this claim.
Absent direct evidence of retaliation, a plaintiff
employee may prove such a claim under the McDonnell Douglas
framework. See Moore v. City of Philadelphia, 461 F.3d 331, 342
(3d Cir. 2006) (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir. 1994)). First, the plaintiff must establish a prima facie
case of discrimination. See Estate of Oliva ex rel. McHugh v.
New Jersey, 604 F.3d 788, 798 (3d Cir. 2010). Upon establishing
a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason
for taking adverse action against the plaintiff. See id. After
the defendant establishes such a reason, the plaintiff shoulders
the ultimate burden to prove that the proffered reason is false
or mere pretext, and that the real reason is discrimination. Id.
Here, Plaintiff fails to establish a prima facie case
of race discrimination. Furthermore, even if Plaintiff
5

42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.

42 U.S.C. § 1981(a) (2012).
11

successfully established a prima facie case, Defendant
articulates a legitimate, nondiscriminatory reason for taking
adverse employment action against Plaintiff. And Plaintiff fails
to establish that Defendant’s proffered reason is pretext.
1.

Prima Facie Case

Whether a plaintiff has established a prima facie case
is a question of law. Sarullo v. U.S. Postal Serv., 352 F.3d
789, 797 (3d Cir. 2009). To satisfy a prima facie case for
unlawful retaliation, a plaintiff must show: “(1) he engaged in
protected activity; (2) his employer took an adverse employment
action against him; and (3) there was a causal connection
between his participation in the protected activity and the
adverse employment action.” Estate of Oliva, 604 F.3d at 798
(citing Moore, 461 F.3d at 340-41). Defendant concedes that
Plaintiff engaged in protected activity and that she was
terminated; thus, she satisfies the first two prongs. The
parties dispute, however, whether Plaintiff satisfies the
causation prong. As discussed below, Plaintiff fails to do so
and thus fails to establish a prima facie case of retaliation
under § 1981.
Under the third prong of a prima facie retaliation
claim, a plaintiff can adduce causation of retaliation through
evidence that illustrates “close temporal proximity” and

12

circumstances indicating a “pattern of antagonism” following the
protected conduct. Marra v. Phila. Hous. Auth., 497 F.3d 286,
302, 306 (3d Cir. 2007) (citations omitted).
There is no clear demarcation as to what constitutes
“temporal proximity.” As described by the Third Circuit in
Fasold v. Justice, “when only a short period of time separates
an aggrieved employee’s protected conduct and an adverse
employment decision, such temporal proximity may provide an
evidentiary basis from which an inference of retaliation can be
drawn.” 109 F.3d 173, 178 (3d Cir. 2005) (emphasis added)
(citing Kachmar v. SunGuard Data Sys., Inc., 109 F.3d 173, 178
(3d Cir. 1997)). In Fasold, the Third Circuit found that the
plaintiff had shown temporal proximity when fewer than three
months had passed between the protected act and the challenged
employment decision. 409 F.3d at 189-90. But the timing of
alleged retaliatory conduct can, by itself, support a finding of
causation only “when the ‘temporal proximity’ between the
protected activity and adverse action is ‘unduly suggestive.’”
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307
(3d Cir. 2012) (quoting LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 232 (3d Cir.2007) (emphasis added)).
Although timing alone is insufficient, a showing of
timing paired with a pattern of antagonism will typically
provide sufficient support for a plaintiff’s retaliation claim.
13

Marra, 497 F.3d at 305. In Marra, the plaintiff’s computer was
vandalized, the vandalism was never investigated, the plaintiff
was excluded from an important meeting, and one of the
plaintiff’s key subordinates was reassigned to another
department against the plaintiff’s will. Id. at 304.
Comparatively, in Robinson v. Se. Pa. Trans. Auth., the Third
Circuit found a pattern of antagonism based on a “constant
barrage of written and verbal warnings[,] . . .

inaccurate

point totalings, and disciplinary action, all of which occurred
soon after plaintiff’s initial complaints and continued until
his discharge.” 982 F.2d 892, 895 (3d Cir. 1993).
In this case, Plaintiff fails to establish causality
between her EEOC charge and her termination. First, Plaintiff’s
evidence of temporal proximity is insufficient to stand alone as
evidence of causation, because it is not “unduly suggestive” of
retaliation. LeBoon, 503 F.3d at 232. Here, over a month elapsed
between Defendant’s receipt of her EEOC charge and her
termination.6 This is a far cry from Jalil v. Avdel Corp., where

6

Plaintiff argues that, in addition to Plaintiff’s
termination, the earlier warnings she received should constitute
adverse actions sufficient to reduce the time period between
Defendant’s receipt of her EEOC charge and the start of
Defendant’s retaliation. Plaintiff thus attempts to show that
the period is short enough to be unduly suggestive of
discrimination. However, Plaintiff’s termination is the only
adverse employment action that the Court considers to be
retaliatory conduct.
14

An adverse employment action occurs when a reasonable
employee finds the alleged retaliatory actions materially
adverse in that they “‘might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Moore,
461 F.3d at 341 (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)). “‘[T]he scope of the antiretaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm.’” Id. (quoting
Burlington, 548 U.S. at 67). The Third Circuit has recognized
this standard as applicable to adverse employment actions in
§ 1981 and FMLA retaliation cases. Estate of Oliva, 604 F.3d at
798 (Section 1981 cases); Erdman v. Nationwide Ins. Co., 582
F.3d 500, 507 n.2 (3d Cir. 2009) (FMLA cases).
Written warnings can constitute adverse employment
actions for the purpose of establishing the second prong of a
prima facie retaliation claim. See Fleck v. WILMAC Corp., No.
10-5562, 2011 WL 1899198, at *10 (E.D. Pa. May 19, 2011)
(finding plaintiff’s allegations of unwarranted discipline
sufficient to state a claim for FMLA retaliation when the
defendants issued a disciplinary notice in a manner inconsistent
with defendant’s disciplinary scheme). When a warning is part of
a progressive disciplinary policy such that each previous
infraction raises the penalty for a subsequent infraction,
courts in the Third Circuit have classified it as an adverse
employment action. See Rivers v. Potter, No. 05-4868, 2007 WL
4440880, at *9 (D.N.J. Dec. 18, 2007) (“If . . . [the employer]
employs a progressive disciplinary policy in which a previous
infraction raises the penalty for a subsequent infraction, an
employee could well choose not to . . . report discrimination if
that might result in a letter of warning appearing in a
personnel file even temporarily”).
Plaintiff has not presented evidence that the warnings
here were inconsistent with Defendant’s disciplinary scheme as
in Fleck, or that they were a part of a progressive disciplinary
policy as in Rivers. Thus, there is no evidence to support that
these warnings answer the “key inquiry [as to] ‘whether the
alleged retaliation might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Estate
of Oliva, 604 F.3d at 798 (quoting Moore, 461 F.3d at 342).
Further, even if the warnings satisfy the Burlington test,
Houser testified that, at the time she issued them, she was
unaware Plaintiff had filed an EEOC charge. Pl.’s Resp. Ex. F,
Houser Dep. 9:1-10:6, Mar. 23, 2012, ECF No. 20-5. Therefore,
15

the protected act and the plaintiff’s termination were separated
by only two days. 873 F.2d 701, 708 (3d Cir. 1989). As such,
Plaintiff must demonstrate circumstances indicating a pattern of
antagonism in conjunction with her temporal-proximity evidence
if she wishes to make out a causal link. However, Plaintiff
offers only the two warnings and the coaching notice she
received to establish a pattern of antagonism. When compared
with Marra and Robinson, above, wherein the plaintiffs
experienced continuous and extreme antagonistic treatment, the
“antagonism” to Plaintiff is slight. Hence, the Court finds that
Plaintiff has not met her burden with respect to the causation
prong of her prima facie case and, by extension, that
Plaintiff’s § 1981 claim fails.
2.

Legitimate, Nondiscriminatory Reason

Once a plaintiff establishes a prima facie case, the
burden of production (but not of persuasion) shifts to the
defendant to “articulate some legitimate, nondiscriminatory
reason for the employee’s [termination].” McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). This burden of
production is a low standard. See Iadimarco v. Runyon, 190 F.3d
151, 157 (3d Cir. 1999) ((“[T]he Defendant need not persuade the

only Plaintiff’s termination is applicable to the temporalproximity analysis.
16

court that it was actually motivated by the proffered reasons.”)
(internal quotation marks omitted)).
Even if Plaintiff could successfully establish a prima
facie case of retaliation, Defendant has articulated a
legitimate reason for terminating Plaintiff’s employment.
Namely, Plaintiff’s performance was poor over a period of
several weeks. Defendant provided evidence that Plaintiff was
doing school work and sending email between her home and
personal accounts during her shift. Defendant also provided
evidence that Plaintiff improperly disconnected 94 calls on
August 30, 2010, 13 calls on August 31, 2010, and 46 calls on
September 1, 2010.
3.

Pretext

Plaintiff has not established a prima facie case for
retaliation; nor has she sufficiently demonstrated that
Defendant’s proffered legitimate, nondiscriminatory reason for
terminating her is pretext. In general, “a plaintiff may defeat
a motion for summary judgment by either discrediting the
defendant’s proffered reasons or adducing evidence that
discrimination was more likely than not a determinative cause of
the adverse action.” Anderson v. Wachovia Mortg. Corp., 621 F.3d
261, 271 (3d Cir. 2010). A plaintiff cannot discredit a
defendant employer’s proffered reasons by showing they are

17

merely “wrong or mistaken” but must, instead, “demonstrate such
weaknesses, 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.” Fuentes, 32 F.3d at 764
(citations and internal quotation marks omitted).
Alternatively, a plaintiff may show evidence that
discrimination influenced adverse action in several ways. In
Simpson v. Kay Jewelers, the Third Circuit provided the
following example: “the plaintiff may show that the employer has
previously discriminated against [the plaintiff], that the
employer has previously discriminated against other persons
within the plaintiff’s protected class, or that the employer has
treated more favorably similarly situated persons not within the
protected class.” 142 F.3d 639, 645 (3d Cir. 1998).
When a plaintiff evidences such “comparators” to show
that an employer has previously discriminated against other
persons within the plaintiff’s protected class, those
comparators must be “similarly situated [to the plaintiff] in
all relevant respects.” Calero v. Cardone Indus., No. 11-3192,
2012 WL 2547356, at *14 (E.D. Pa. June 29, 2012) (citation
omitted). Employees who hold different positions are not valid
comparators. Id. Employees who engage in different misconduct
are not similarly situated. Id.
18

Other courts in this district have also suggested that
“[a]ppropriate comparators might be ‘[t]wo employees [who] dealt
with the same supervisor, were subject to the same standards,
and had engaged in similar conduct without such differentiating
or mitigating circumstances as would distinguish their conduct
or the employer's treatment of them.’” Klina v. Se. Pa. Transp.
Auth., No. 10–5106, 2011 WL 4572064, at *8 (E.D. Pa. Oct. 3,
2011) (quoting Murphy v. Se. Pa. Trans. Auth., No. 09-1590, 2010
WL 571799, at *8 (E.D. Pa. Feb. 12, 2010)). Additionally,
evidence that the employer treated other similarly situated
persons not of the plaintiff’s protected class more favorably
can serve as evidence of discriminatory motive. Fuentes, 32 F.3d
at 765.
Plaintiff cannot overcome Defendant’s articulated
legitimate reason for her termination. She has not
“demonstrate[d] such weaknesses, 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.” Id., 32 F.3d at 764 (citations and internal quotation
marks omitted).
Plaintiff does not dispute that she completed school
work during her shift. She does not dispute Defendant’s evidence
establishing dropped calls. She merely argues that Defendant is
19

wrong as to what caused the disconnections—she attributes them
to mechanical failure. While she complained about her phone a
few times during the course of her employment, Defendant
responded with assistance each time. Also, she did not complain
about her phone again after it was serviced on August 17, 2010.
The evidence of her disconnections as discussed above occurred
weeks after this date.7
Alternatively, Plaintiff fails to produce evidence of
pretext establishing that Defendant previously discriminated
against her, against other persons within Plaintiff's protected
class, or treated more favorably similarly situated persons not
within Plaintiff’s protected class. She proffers evidence of
comparators, but these comparators are within a class protected
by the FMLA, not § 1981, and are therefore inapplicable to the
present analysis. Therefore, as to her § 1981 claim, Plaintiff
fails to rebut Defendant’s legitimate, nondiscriminatory
justification for firing Plaintiff.

7

Plaintiff
further
argues
that
additional
inconsistencies exist regarding the nature of the investigations
of her various complaints and the identities of those involved
in the decision to terminate her. See Pl.’s Resp. 25-26.
Assuming arguendo that the record reflects such inconsistencies,
they
do
not
undermine
Defendant’s
proffered
reason
for
termination.
20

In conclusion, Plaintiff has not met any of the
requirements necessary to survive Defendant’s motion for summary
judgment on her § 1981 claim.
V. FMLA RETALIATION CLAIM
Plaintiff asserts a claim of FMLA retaliation.8
Defendant is entitled to summary judgment on Plaintiff’s FMLA
retaliation claim.
Similar to retaliation claims under § 1981,
retaliation claims under the FMLA that are based on
circumstantial evidence are assessed under the McDonnell Douglas
burden-shifting framework. Lichtenstein, 691 F.3d at 307 (citing
8

The FMLA provides, in relevant part:
Subject to section 2613 of this title, an eligible
employee shall be entitled to a total of 12 workweeks
of leave during any 12-month period for one or more of
the following:
(A) Because of the birth of a son or daughter of the
employee and in order to care for such son or
daughter.
(B) Because of the placement of a son or daughter with
the employee for adoption or foster care.
(C) In order to care for the spouse, or a son,
daughter, or parent, of the employee, if such spouse,
son, daughter, or parent has a serious health
condition.
(D) Because of a serious health condition that makes
the employee unable to perform the functions of the
position of such employee . . . .

29 U.S.C. § 2612 (2012).
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Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 147 (3d
Cir. 2004), modified on other grounds by Erdman v. Nationwide
Ins. Co., 582 F.3d 500 (3d Cir. 2009)). To establish a prima
facie case of FMLA retaliation, Plaintiff must show (1) she took
FMLA leave, (2) she suffered an adverse employment decision, and
(3) the adverse decision was causally related to her leave.
Conoshenti, 364 F.3d at 146. If Plaintiff can establish a prima
facie case, the burden of production shifts to the Defendant to
“articulate some legitimate, nondiscriminatory reason” for its
decision. Lichtenstein, 691 F.3d at 302 (quoting McDonnell
Douglass, 411 U.S. at 802 (1973)). If Defendant meets this
minimal burden, Plaintiff shoulders the ultimate burden to prove
that the proffered reason is false and that the real reason is
discrimination. Id. Plaintiff claims she was terminated in
retaliation for the following three FMLA-protected activities:
(1) a one-week leave of absence to care for her child after his
hernia surgery; (2) a two-month leave of absence to recover from
a car accident; and (3) a one-week leave of absence to recover
from stress and anxiety.
1.

Prima Facie Case

The parties agree that Plaintiff satisfies the first
two requirements for showing a prima facie case of retaliation
under the FMLA and dispute whether she satisfies the third. To

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demonstrate causation, she must point to evidence sufficient to
create an inference that a causative link exists between her
FMLA leave and her termination. Lichtenstein, 691 F.3d at 307
(3d Cir. 2012). But she is unable to show that Defendant’s
decision to terminate her was causally related to her leave. The
Court herein incorporates its analysis of temporal proximity and
circumstances indicating a pattern of antagonism discussed supra
Part IV.1.c. As a point of reference, Plaintiff’s last FMLA
leave occurred over two months before her termination. Thus, the
Court finds that Plaintiff’s temporal proximity evidence is even
weaker under her FMLA retaliation claim than under her § 1981
retaliation claim. Further, the Court reasserts that Plaintiff
has not met the evidentiary threshold for circumstances
indicating a pattern of antagonism. Therefore, she cannot
establish causation and cannot make out a prima facie case of
retaliation.
2.

Pretext

Assuming arguendo that Plaintiff has satisfied the
evidentiary burden of showing a prima facie case of FMLA
retaliation, she cannot show pretext by establishing that
Defendant discriminated against other members of Plaintiff’s
protected class. First, her comparator evidence is entirely
deficient insofar as Plaintiff’s comparators are not similarly

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situated in all relevant respects. Diana Murphy, Plaintiff’s
first comparator, had a different supervisor. Def.’s Mot. Summ.
J. Ex. GGG, at 1-2, ECF No. 16-63. Shirin Adams worked in a
different position than Plaintiff and had a different
supervisor. Id. Ex. HHH, at 1-2, ECF No. 16-64. Ashley ReedTorres also had a different supervisor. Id. Ex. JJJ, at 1, ECF
No. 16-66. Lastly, based on Plaintiff’s own admission, Edith
Munoz does not qualify as a comparator. See Pl.’s Resp. 15.9
Second, and as discussed above in the Court’s § 1981
retaliation analysis, Plaintiff fails to discredit Defendant’s
proffered reason for termination and instead merely argues that
the decision was wrong or mistaken. See discussion supra Part
IV.3. Importantly, § 1981 and the FMLA are not general labor-

9

The Court acknowledges that Plaintiff presented
evidence of two new hires who work under the same supervisor as
Plaintiff did, have never taken FMLA leave, and have not been
terminated. See Houser Dep. 34:20-35:20. Plaintiff argues that
this demonstrates Defendant’s favorable treatment of persons
outside of Plaintiff’s protected class, but similarly situated
to Plaintiff. However, Plaintiff’s bare bones description of the
new hires and total absence of details of their work habits does
not suffice to show that they are similarly situated to
Plaintiff “in all relevant aspects.” Plaintiff has not
demonstrated that these employees manifest similar habits, such
as completing outside work during their shifts, leaving
customers on hold, or disconnecting calls. The manifest lack of
evidence renders the Court unable to determine whether these new
employees “‘had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer’s treatment of them.’” Klina, 2011
WL 4572064, at *8 (quoting Murphy, 2010 WL 571799, at *8).

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relations statutes that address all matters of dispute in the
workplace. They specifically protects against certain types of
discriminatory conduct by an employer. Plaintiff ignores this
principle and instead spends the bulk of her deposition and
summary-judgment response discussing her petty office squabbles.
This is insufficient to show that Defendant’s legitimate,
nondiscriminatory reason for terminating her is pretext.
Accordingly, Plaintiff’s FMLA retaliation claim cannot stand.
VI. CONCLUSION
For the foregoing reasons, the Court grants
Defendant’s Motion for Summary Judgment, enters judgment in
favor of Defendant on all counts, and dismisses Plaintiff’s
Complaint with prejudice.

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