FIORENTINI v. WILLIAM PENN SCHOOL DISTRICT
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 2/9/2016. 2/10/2016 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM PENN SCHOOL DISTRICT
MEMORANDUM AND ORDER
February 9, 2016
This is an employment discrimination case brought by Mona Fiorentini against the
William Penn School District (“District”). Fiorentini alleges that she was subjected to
age and disability discrimination that led to the termination of her employment and that
the District interfered with her right to medical leave. Fiorentini brings claims of
discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621, et seq.; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12101, et seq.; the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.;
and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S.§§ 955(a) and (e).
Presently before me is the District’s motion for summary judgment which I will grant.
I. FACTUAL BACKGROUND 1
In 2001, Fiorentini was hired by the District as a Literacy Coach and Certified
Reading Specialist at Park Lane Elementary School to work with children in kindergarten
through sixth grade. Am. Compl. at 4, Pl.’s Dep. at 46, ln. 1-13; 223, ln. 11-24.
Where facts are agreed, I have not cited the record.
Fiorentini was certified as a Reading Specialist, but did not possess a Pennsylvania
Elementary Teaching Certificate. Pl.’s Dep. at 41, ln. 1-5. Dujuana Ambrose was the
principal of Park Lane Elementary School from 2006-2010 and Fiorentini’s supervisor for
the relevant time period. Pl.’s Dep. at 55, ln. 15.
On September 14, 2009, Fiorentini informed Principal Ambrose that she had to
arrange for a biopsy to test for breast cancer. Pl.’s Dep. at 63, ln. 19-25, 66. Fiorentini
alleges that from that point on, she was treated as a “leper.” Pl.’s Dep. at 67, ln. 5-8. She
alleges that, inter alia, she was “segregated” in her employment, was no longer invited to
participate in meetings, excluded from communications, kept off planning committees
and denied an opportunity to attend a professional development conference. Am. Compl.
at 5-6. Prior to that time, Fiorentini did not have any problems with Principal Ambrose or
the District.2 Pl.’s Dep. at 50, ln. 1-4; 51, ln. 6-15.
Three (3) days after Fiorentini told Principal Ambrose that she had been diagnosed
with breast cancer, Ambrose verbally “demoted” her from a full-time literacy coach to a
combination literacy coach/reading specialist. Pl.’s Dep. at 78, 79, ln. 10-20. In doing so,
Fiorentini was assigned to working only with third through sixth grade students rather
than all students in first through sixth grades. Pl.’s Dep. at 223. Fiorentini felt that this
was a “demotion” because the position of reading specialist required less qualifications
Both parties agree that prior to September 2009, Principal Ambrose never treated
Fiorentini in an unfair manner and that Fiorentini received satisfactory reviews. Pl.’s Dep. at 51,
ln. 2-23; 56, ln. 1-5. Moreover, Fiorentini was unaware of Principal Ambrose discriminating
against any other person in the District. Pl.’s Dep. at 54, ln. 14-25; 55, ln. 1-10.
and because she had fewer students for instruction. Pl.’s Dep. at 78, ln. 15-22; 85, ln. 720. Fiorentini’s job title was not changed on her personnel record, nor was her salary
impacted. Pl.’s Dep. at 80-81, 94. Principal Ambrose testified that the reassignment of
work was done in preparation for the “PSSA,” standardized tests which were scheduled to
take place for the third through sixth grades. Ambrose Dep. at 106-110. Principal
Ambrose assigned another employee, Rosemary Mannis, a fellow teacher approximately
ten (10) years younger, to work with the non-testing grades, kindergarten through second
grade. Pl.’s Dep. at 223. Fiorentini states that when she asked Principal Ambrose why
her job duties had changed, she was told that it was due to Fiorentini’s health. Pl.’s Dep.
at 96. During that time, Principal Ambrose testified that she had the authority to change
the duties of an individual’s position, but not the job title. Ambrose Dep. at 12, ln. 16-25;
13, ln. 1-12; 42, ln. 14.
Fiorentini’s treatment for her breast cancer required surgery and subsequent home
healthcare. On February 22, 2010, the District approved Fiorentini’s request for a Family
and Medical Leave of Absence, effective March 22, 2010, through April 21, 2010, and an
unpaid Family and Medical Leave of Absence effective April 21, 2010, through May 17,
2010. On April 26, 2010, the District approved Fiorentini’s request for an unpaid medical
leave of absence effective May 18, 2010, through June 18, 2010. The District permitted
the teacher’s union to seek sick bank days from other teachers to donate to Fiorentini to
use when she went on unpaid leave. Effective May 1, 2010, through April 30, 2011, the
District approved Fiorentini’s request to go on medical sabbatical.
Denise Van Roy is the president of the Teachers Association (“Union”) of which
Fiorentini was a member. Van Roy has held that position for twenty-one (21) years. Her
job is to represent the interests of the teachers. In the spring of 2009, Van Roy testified
that she had discussed the possibility with Fiorentini that reorganization could cause her
to lose her job because she was only certified as a Reading Specialist and lacked
classroom experience. Van Roy Dep. at 45-46, at 82-83; Def.’s Ex. 15, Dec. 9, 2010
email. Moreover, the union held meetings with its members regarding the possibility of
layoffs and furloughs in the district due to funding issues. Van Roy Dep. at 39-40.
Fiorentini acknowledges that she was aware that her position “could” have been
eliminated due to reorganization before it happened. Pl.’s Dep. at 130.
In June 2010, all reading specialists and literacy coach employment positions were
scheduled for elimination. Pehlman Dep. at 48-49; Van Roy Dep. at 35-36. Denise Van
Roy and Betty Pehlman worked to place employees who were effected by funding cuts in
the District. Pl.’s Dep. at 132. A position for an Instructional Specialist K-6 was created
for existing employees.3 Def’s Ex. 8. The Instructional Specialist K-6 job posting was
issued on May 4, 2010, and had an application deadline of May 11, 2010. Def.’s Ex. 8;
Pl.’s Dep. at 130, ln. 21. Fiorentini never applied for, nor was she considered, for that
The job posting stated: “[t]he applicant for this position at the elementary level must
hold an active K-6, K-8 or reading specialist certificate and have had classroom teaching
experience.” Def.’s Ex. 16.
position. Pl.’s Dep. at 130-131; Pehlman Dep. at 70, ln. 12-15. Fiorentini testified that
she did not apply because she was told by Betty Pehlman and Denise Van Roy that she
was not qualified for the job.4 Pl.’s Dep. at 131. The District ultimately hired eight (8)
individuals for the Instructional Specialist positions, all of whom had Pennsylvania
Elementary Teaching Certificates.5 Def.’s Ex. 16, Ex. 26. Successful candidates ranged
in age from 38 to 66 years’ old. Def.’s Ex. 26.
On November 9, 2010, while on “medical sabbatical” leave, Fiorentini received a
letter stating that her employment was being suspended when she returned from leave on
April 30, 2011. Def.’s Ex. 9; Pl.’s Dep. at 148. The letter stated that Fiorentini did not
qualify for an “instructional coach position” due to the fact that “there are no positions in
the district that require only a reading certification” and because she did not have “the
classroom teaching experience required.” Def.’s Ex. 9. On November 22, 2010,
Fiorentini submitted a note that she had worked for the Archdiocese of Philadelphia for a
year. Def.’s Ex. 27. Ms. Pehlman informed Fiorentini that her work experience in the
Archdiocese did not count because it was not done under a Pennsylvania Elementary
It is reasonable to assume that Fiorentini was advised of the job posting in light of the
fact that she testified that she did not apply because she was told that she was not qualified for
the position. Pl.’s Dep. at 130-131.
An email to Betty Pehlman dated May 27, 2010, provided a list of former math
coaches, literacy coaches and reading specialists who were eligible to apply for the Instructional
Specialist job. The email specified that 10 candidates were recommended for Elementary
Instructional Specialist positions; 7 candidates applied for the positions and were not selected;
and 4 individuals did not apply for the position, including Fiorentini. Def.’s Ex. 32.
Teaching Certificate. Pl.’s Dep. at 153. Fiorentini argues that the requirement of
“classroom experience” fell within the District’s discretion and notes that the job posting
for Instructional Specialist failed to include the specific requirement that classroom
experience be conducted under a Pennsylvania Elementary Teaching Certificate. See
Pehlman Dep. at 83-84.
On February 23, 2011, in response to a grievance filed by Fiorentini, the District
decided not to take action to furlough her and concluded that it would “assess the
situation again when [Fiorentini] is released to return from her medical leave.” Def.’s Ex.
Fiorentini returned to work in May 2011, through June 2011, assisting an
instructional specialist at a different school. Pl.’s Dep. at 166-168. At the end of the
2010-2011 year, the District sought another reorganization of its programs, eliminated the
position of Instructional Specialist and created a School Site Facilitator position for the
2011-2012 year. Def.’s Ex. 20, Ex. 30. The School Site Facilitator position required a
Pennsylvania Elementary Teaching Certificate and a “[m]inimum of three years of
successful Classroom Teaching Experience in Pennsylvania public schools preferably at
William Penn.” Def.’s Ex. 30. There were 24 applicants for the job, 16 interviews were
granted and 8 individuals were hired as School Site Facilitators.6 Def.’s Ex. 26.
Successful candidates ranged in age from 38 to 66 years’ old. Id.
According to the District, Fiorentini was not granted an interview because she did not
have a Pennsylvania Elementary Teaching Certificate. See Def.’s Ex. 26.
On August 9, 2011, Fiorentini received an email confirming that she was being
furloughed as her certification as a reading specialist did not meet any of the positions in
the district at that time. She was fifty-seven years old.
II. STANDARD OF REVIEW
The standard for summary judgment is well established. I must consider the
evidence in a light most favorable to the non-moving party. If there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law,
summary judgment is appropriate. An issue is genuine only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
However, the non-moving party cannot rely on unsupported assertions, conclusory
allegations, or mere suspicions to defeat a summary judgment motion. The opinion of an
expert does not create a fact - it can only become a fact if the finder of fact gives it
credence. In deciding whether to accept an opinion, the finder of fact may consider the
expert’s background, for example, his education, experience, etc., and reasons given in
support of the opinion. Here, Fiorentini must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electrical Industrial Corp.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). She “must present affirmative evidence
in order to defeat a properly supported motion” and cannot “simply reassert factually
unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d
Cir. 1992); see also Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992).
Fiorentini brings claims of discrimination under the Age Discrimination in
Employment Act (“ADEA”); the Family and Medical Leave Act (“FMLA”); the
Americans with Disabilities Act of 1990 (“ADA”); and the Pennsylvania Human
Relations Act (“PHRA”). I will address each claim individually.
Count I: AGE DISCRIMINATION CLAIMS UNDER THE ADEA AND PHRA
A. A Prima Facie Case of Discrimination
Fiorentini brings age discrimination claims under the ADEA and PHRA both of
which prohibit an employer from discriminating against an individual based on her age.7
29 U.S.C. § 623. To prevail in an employment discrimination case under each of these
statutes, Fiorentini must first come forward with enough evidence to establish a prima
facie case of discrimination against the District. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir.
2009) (finding it is appropriate to analyze age discrimination claims pursuant to
McDonnell Douglas). To establish a prima facie case of age discrimination, Fiorentini
must show that: (1) she is a member of a protected class; (2) she was qualified for her
position; (3) she suffered an adverse employment action; and (4) similarly situated
individuals not of the protected class received more favorable treatment or the
Because the same legal standard applies to both the ADEA and the PHRA, I review
them collectively. Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 509 n.2 (3d Cir.
circumstances of the adverse employment action otherwise give rise to an inference of
unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. Fiorentini is only
required to produce evidence sufficient to create an inference that an employment
decision was based upon an illegal discriminatory criterion. Pivirotto v. Innovative Sys.,
Inc., 191 F.3d 344, 356-57 (3d Cir. 1999). The burden then shifts to the District to
“articulate some legitimate, nondiscriminatory reason” for the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. If the employer does so, Fiorentini must
show by a preponderance of the evidence that the legitimate reasons proffered by the
District were a pretext for discrimination. Id. at 804.
Fiorentini has established the first element of her prima facie case because she was
over the age of forty when the alleged discrimination occurred. I need not make a
determination as to whether Fiorentini was qualified at this stage in order to satisfy the
second element of the prima facie case because, as discussed below, I conclude that
Fiorentini’s claim fails at the third step. In order to establish the third element of her
prima facie case, Fiorentini argues that both her reassignment in early 2010 and her 2011
furlough are adverse employment actions. The District argues that only the 2011 furlough
can be construed as an adverse employment action. I will review each separately.
In December 2009 or January 2010, Fiorentini was reassigned to work with third
through sixth graders rather than kindergarten through sixth grade as a literary
coach/reading specialist. A teacher approximately ten (10) years younger was assigned to
work with the kindergarten through second grade children. Principal Ambrose testified
that the reassignment of work was done in preparation for impending standardized tests
for the third through sixth graders. Fiorentini contends that this reassignment was a
demotion and thus, an adverse employment action based on her age.
“An ‘adverse employment action’ is one that is ‘serious and tangible enough to
alter an employee’s compensation, terms, conditions, or privileges of employment.’”
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001); see Galabya v. New York City Bd.
of Educ., 202 F.3d 636, 640 (2nd Cir. 2000) (concluding that delay in teacher’s
reassignment, transfer to purportedly inferior facilities, and change in responsibilities
from teaching special education students to teaching mainstream students, did not
constitute an adverse employment action). Fiorentini has failed to create a genuine issue
of material fact as to whether her alleged “demotion” was an adverse employment action.
Here, there is no significant evidence of a “demotion.” Fiorentini’s salary, reporting
requirements and general duties remained the same. Pl.’s Dep. at 81, ln. 8-9. Although
she was responsible for fewer students, Fiorentini was tasked with preparing those
children for testing. When considering the importance to the District that its students do
well on standardized tests, Fiorentini’s duty to prepare them to do so may have been seen
by the District as more challenging in the short run than the day to day teaching of
younger students. Indeed, the only significant disadvantage Fiorentini can point to is her
fear that a reduction in the number of grades she was responsible for made her appear less
accomplished and that she may be perceived as performing less prestigious tasks. Pl.’s
Dep. at 82-83. Such a concern is not significant enough to establish a materially adverse
change in her employment.
In support of her argument that her reassignment was a “demotion,” Fiorentini
relies on the expert testimony of Edward F. Dragan, EdD, who opined that the “change to
plaintiff’s job title and reduction of the instructional duties and responsibilities . . . imply
and can be interpreted as a demotion.” Expert Witness Aff. at 3. This opinion is no
opinion at best. Dr. Dragan does not say he interpreted the revision of her duties as a
demotion or just who in this vast world of ours might do so. Indeed, Fiorentini’s expert’s
opinion cannot create a material issue of fact simply by stating that the factual
circumstances “can be interpreted as a demotion.” Dr. Dragan also fails to mention
discrimination, age or disability in his affidavit. Despite providing broad statements that
the District’s actions “showed signs of possible attempts to purposefully exclude her from
employment,”8 Dr. Dragan does not provide any insight or explanation as to why the
District would attempt to do so. Expert Witness Aff. at 3.
It is within my purview to reach the legal conclusion as to whether the
circumstances surrounding Fiorentini’s 2009/2010 assignment of duties was an actual
“demotion” and adverse employment action. Highway Material, Inc. v. Whitemarsh Tp.,
Maybe beats vague.
Montgomery County, Pa., 2004 WL 2220974, at *19 (E.D. Pa. Oct. 4, 2004). I conclude
that Dr. Dragan’s opinion has little value and does not raise a material issue as to whether
Fiorentini’s reassignment of duties was an adverse employment action. The District
denies the reassignment of duties was a demotion and it is clear Fiorentini did not suffer
the usual consequences of a demotion such as reduction in pay or seniority.
Consequently, I find that Fiorentini’s reassignment of duties was not a demotion and
therefore, cannot be used to establish the adverse employment action prong of McDonnell
I now turn to an analysis of Fiorentini’s furlough as it relates to her prima facie
case for age discrimination. The District concedes that Fiorentini suffered an adverse
employment action when she was furloughed in 2011. However, Fiorentini cannot
establish the fourth element of a prima facie case because she is unable to point to
younger, similarly situated individuals who received more favorable treatment or that the
circumstances of her furlough otherwise gives rise to an inference of unlawful
discrimination. McDonnell Douglas, 411 U.S. at 802. In determining “similarly situated”
employees, I must “undertake a fact-intensive inquiry on a case-by-case basis rather than
in a mechanistic and inflexible manner.” Monaco v. American General Assur. Co, 359
F.3d 296, 305 (3d Cir. 2004).
Here, although Fiorentini was the only Literacy Coach/Reading Specialist who was
furloughed, she was also the only Literacy Coach/Reading Specialist who possessed only
a reading certificate and had no teaching experience under with Pennsylvania teaching
certification. All of the instructors hired for the Instructional Specialist Position and the
Site Facilitator positions had Pennsylvania elementary teaching certifications.9 See Def.’s
Ex. 16. As a result, I find that those who were ultimately hired for Instructional Specialist
and the Site Facilitator positions are not considered “similarly situated.”10 Moreover,
even it Fiorentini was “similarly situated,” she had not shown others were treated more
favorably. In fact, two individuals selected for the Instructional Specialist and Site
Facilitator positions were older than Fiorentini and only one individual selected was
younger than 40 years. See Def.’s Ex. 26, Joe Conley Aff.
Legitimate/Nondiscriminatory Reason - Rationale for Furlough
Even if Fiorentini could establish a prima facie case, any reasonable fact finder
would have to conclude that she has failed to carry her burden at the next step of the
McDonnell Douglas analysis. Once a plaintiff has established her prima facie case, the
burden shifts to the District to offer a legitimate, non-discriminatory reason for its actions.
Atkinson v. LaFayette College, 460 F.3d 447, 454 (3d Cir. 2006). This burden is
As previously noted, Fiorentini never applied for the position for Instructional
Fiorentini points to June Tolomeo as an employee who was similarly situated, yet
treated differently, because Ms. Tolomeo was ultimately hired as a Site Facilitator despite a
question of fact regarding Tolomeo’s level of classroom experience. I find Ms. Tolomeo was not
“similarly situated” because, unlike Fiorentini, she possessed a Pennsylvania Elementary
“relatively light,” fulfilled by the employer “introducing evidence which, taken as true,
would permit the conclusion that there was a nondiscriminatory reason for the
unfavorable employment decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
As set forth above, the District’s decision to furlough Fiorentini was based on her lack of
the proper Pennsylvania teaching certification and Pennsylvania public classroom
teaching experience. This is clearly a legitimate, non-discriminatory reason for her
furlough so the burden shifts back to Fiorentini to show it is a pretext for discriminatory
Evidence of Pretext
To avoid summary judgment Fiorentini must offer evidence rebutting the District’s
proffered legitimate reasons. The evidence “must allow a fact finder reasonably to infer
that each of the employer’s proffered non-discriminatory reasons . . . was either a post
hoc fabrication or otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Fuentes, 32 F.3d at 764 (internal citations, emphasis and
footnotes omitted). In other words, Fiorentini must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the defendants’
proffered legitimate reasons for her termination that a reasonable fact finder could
rationally find them ‘unworthy of credence’ and, hence, infer that the defendants did not
act for asserted non-discriminatory reasons.” Gosnell v. Runyun, 926 F.Supp. 493, 497
(M.D. Pa. 1995) (citing Fuentes, 32 F.3d at 765).
Fiorentini has not done this by any evidence before me. As previously noted,
Fiorentini was advised by her union representative that her lack of a teacher certification
could effect her position in the event of an anticipated reorganization. Moreover, the
District has presented evidence that Fiorentini did not have the proper qualifications for
any positions established after restructuring of the District. In addition, the candidates
selected for those positions all had Pennsylvania elementary teaching certification.11
Finally, Fiorentini has failed to offer evidence that this restructuring had an
adverse impact on older teachers. The ultimate test in employment discrimination cases is
whether discriminatory animus was a motivating factor in causing the adverse
employment action. Costa v. Desert Palace, 539 U.S. 90, 95 (2003). Fiorentini has not
offered any evidence from which it could be found that age discrimination was the
motiving factor in her furlough. See Ezold v. Wolf Block, 983 F.2d 509, 527 (3d Cir.
1992) (without some evidence to cast doubt on the employer’s stated reason, the court
will not interfere in an otherwise valid management decision). Fiorentini does not offer
any direct evidence of discrimination to satisfy the McDonnell Douglas test, i.e., no
derogatory comments made to her concerning her age. Nor is there any circumstantial
evidence that supports her claims as teachers older than Fiorentini with Pennsylvania
teaching certificates were not selected for furlough. There is no evidence that a younger
teacher with the same certification and experience was saved from furlough.
When viewing the evidence in its entirety, I conclude that a reasonable fact finder
Fiorentini does not argue that the certification requirement was in and of itself
could not rationally find the District’s reasons for her furlough unworthy of credence, and
thus, conclude that the District did not act for the asserted non-discriminatory reasons.
As the Third Circuit has stated:
A decision affecting an employee in the protected class does not become a
discriminatory decision merely because made in the context of a
reorganization, or because a younger employee is benefitted by the decision.
Rather, the inquiry is whether the decision was motivated by the affected
employee’s age. If the employer’s decision was based on legitimate
business concerns, i.e., choosing the person the employer believes is the
best person for a job, the employee’s disagreement with this decision does
not prove pretext.
Billet v. CIGNA Corp., 940 F.2d 812, 827 (3d Cir. 1991) (citation omitted) overruled in
part on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Fiorentini
has failed to present any evidence that her furlough was motivated by her age; therefore, I
will grant the District’s motion for summary judgment for her age discrimination claims.12
Count II: FAMILY AND MEDICAL LEAVE ACT (“FMLA”)
The FMLA entitles “employees to take reasonable leave for medical reasons.” 13
29 U.S.C. § 2601(b)(2). “The FMLA is meant to prohibit employers from retaliating
against employees who exercise their rights, refusing to authorize leave, manipulating
positions to avoid application of the Act, or discriminatorily applying policies to
Even if Fiorentini had made out a prima facie case of employment discrimination with
regard to her “demotion,” I would conclude for the reasons stated, supra, that Fiorentini has
failed to demonstrate that the District’s articulated reasons for her reassignment were pretextual.
“Eligible employees ‘shall be entitled to a total of twelve workweeks of leave during
any twelve-month period’ if the employee has a ‘serious health condition that makes the
employee unable to perform the functions of the position of such employee.’” Callison v. City of
Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005) (citing 29 U.S.C. § 2612(a)(1)(D)).
discourage employees from taking leave.” Callison v. City of Philadelphia, 430 F.3d 117,
120 (3d Cir. 2005) (citing 29 C.F.R. § 825.220). When an employee returns from FMLA
leave, the employer must restore the employee to the same or equivalent position she
held, with equivalent benefits and with conditions of employment comparable to those
she had when she left. Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (citing 29
U.S.C. §§ 2612(a)(1), 2614(a)).
The FMLA contains two relatively distinct types of provisions prohibiting
employers from: (1) interfering with an employee’s exercise of this right; and (2)
discriminating or retaliating against an employee who exercises this right. 29 U.S.C. §
2615(a); Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Fiorentini
alleges violation of both the interference and retaliation provisions of the FMLA.
The first aspect of Fiorentini’s claim centers on the “interference” provision of the
FMLA. To make a claim of interference under the FMLA, a plaintiff must establish:
(1) he or she was an eligible employee under the FMLA; (2) the defendant
was an employer subject to the FMLA’s requirements; (3) the plaintiff was
entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his
or her intention to take FMLA leave; and (5) the plaintiff was denied
benefits to which he or she was entitled under the FMLA.
Ross, 755 F.3d at 191-92 (citations omitted). There is no dispute that Fiorentini satisfied
the first four prongs of an interference claim, namely that she was an eligible employee
entitled to FMLA leave who gave proper notice of her intent to invoke that leave. The
only question then is if the District denied Fiorentini benefits under the FMLA.
Fiorentini argues that Principal Ambrose reassigned her to different tasks once it
was clear she would be taking FMLA leave thereby “demoting” her and interfering with
the exercise of her right to take FMLA leave.14 However, “[a]n interference action is not
about discrimination, it is only about whether the employer provided the employee with
the entitlements guaranteed by the FMLA.” Callison, 430 F.3d at 120. Because such a
claim is not based on discrimination, the “McDonnell Douglas burden-shifting analysis is
not required.” Ross, 755 F.3d at 192 (citing Sommer v. The Vanguard Grp., 461 F.3d
397, 399 (3d Cir. 2006). In order “for an interference claim to be viable, the plaintiff
must show that FMLA benefits were actually withheld.” Ross, 755 F.3d at 192.
Here, the District did not engage in any activities which interfered with or withheld
Fiorentini’s FMLA benefits. In fact, the District provided Fiorentini with the all of the
entitlements of the FMLA.15 Because Fiorentini has failed to show any prejudice and has
failed to make a prima facie showing of interference, I will grant the District’s motion for
summary judgment on her FMLA interference claim.16 Ross, 755 F.3d at 192.
The spectre of “demotion,” like Marley’s ghost, keeps re-appearing.
Fiorentini fully exhausted her FMLA time, was granted additional unpaid medical
leave, provided with donated leave from her co-workers, and then was granted medical sabbatical
leave. See Pl.’s Dep. at 116-120.
To the extent that Fiorentini argues that her termination after she took her FMLA leave
amounted to a denial of FMLA benefits, her argument is misplaced in the “interference” context.
As previously noted, for an interference claim to be viable, the plaintiff must show that FMLA
benefits were withheld. Ross, 755 F.3d at 192. Fiorentini’s FMLA benefits were not withheld;
therefore, her “proximity” of termination arguments are unavailing.
Fiorentini also argues that the District retaliated against her by “demoting” her in
the Fall of 2009, after she advised Principal Ambrose that she had cancer.17 To prove an
FMLA retaliation claim, Fiorentini must show that: (1) she invoked her right to FMLA
benefits; (2) she suffered an adverse employment decision; and (3) the adverse decision
was causally related to the invocation of her rights. Erdman v. Nationwide Ins. Co., 582
F.3d 500, 509 (3d Cir. 2009) (modifying Conoshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 146 (3d Cir. 2004)). Retaliation claims based on circumstantial evidence are
guided by the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Lichenstein v. University of Pittsburgh Medical Center, 691 F.3d 294,
302 (3d Cir. 2012).
There is no dispute that Fiorentini properly invoked her rights under the FMLA
thereby establishing the first element of her prima facie case. In order to demonstrate the
second prong, Fiorentini must establish that she suffered an adverse employment
decision. Fiorentini argues that she suffered an adverse employment decision when she
was “demoted” by Principal Ambrose once she indicated that she had cancer “thereby
The parties disagree as to the adverse employment decision at issue here. In its motion
for summary judgment, the District focused on Fiorentini’s furlough in 2011 as a retaliatory
action. In her response, Fiorentini focused on her alleged “demotion” in the Fall of 2009 as the
retaliatory action at issue. Because Fiorentini does not respond to the District’s discussion of her
furlough as an adverse employment decision made in retaliation for her FMLA leave, any
argument in support thereof is waived. See Ankele v. Hambrick, 286 F.Supp.2d 485, 496 (E.D.
Pa. 2003). As a result, although I have already determined that Fiorentini’s reassignment of
duties, or “demotion,” was not an adverse employment decision, I will focus solely on the
“demotion” as the adverse employment action at issue in the interest of a complete analysis.
triggering an expectation that [Fiorentini] would be taking some type of leave.” See Pl.’s
Br. at 22.
Fiorentini’s alleged “demotion” took place in the Fall of 2009 after Fiorentini
advised Principal Ambrose that she had cancer, but before Fiorentini formally invoked
and took FMLA leave. Even if I were to find that Fiorentini’s notice to Principal
Ambrose that she had cancer was sufficient to invoke her FMLA rights, she is unable to
establish that the action taken by Principal Ambrose was adverse, for the reasons
discussed above. Because Fiorentini has failed to establish that she suffered an adverse
employment action due to the invocation of her FMLA rights, I will grant the District’s
motion for summary judgment for this portion of her FMLA claim.
Count III: DISABILITY DISCRIMINATION CLAIMS UNDER THE ADA AND
Fiorentini argues that the District discriminated against her due to her cancer
diagnosis in violation of the ADA and the PHRA.3 A plaintiff presents a prima facie case
of discrimination under the ADA by demonstrating: (1) she is a disabled person within
the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions
of the job, with or without reasonable accommodations by the employer; and (3) she has
suffered an otherwise adverse employment decision as a result of discrimination. Gaul v.
Lucent Techs, Inc., 134 F.3d 576, 580 (3d Cir. 1998) (citing Shiring v. Runyon, 90 F3d
Because the PHRA and the ADA are “basically the same,” Pennsylvania courts
generally interpret the PHRA in accord with its federal counterpart. Buskirk v. Apollo Metals,
307 F.3d 160, 166 n.1 (3d Cir. 2002) (citations omitted).
827, 831 (3d Cir. 1996)).
The District concedes that Fiorentini was “disabled” within the meaning of the
ADA. Next, it must be determined whether Fiorentini was “otherwise qualified” for
employment in the District. Shiring, 90 F.3d at 832. This burden fall on the employee.
Shiring, 90 F.3d at 832.
A two-part test is used to determine whether someone is a qualified
individual with a disability. First a court must consider whether the
individual satisfies the prerequisites for the position, such as
possessing the appropriate educational background, employment
experience, skills, licenses, etc. Second, the court must consider
whether or not the individual can perform the essential functions of
the position held or desired, with or without reasonable
Gaul, 134 F.3d at 580 (internal quotations and citations omitted).
For the reasons previously discussed, Fiorentini was not qualified for further
employment in the District at the time of her furlough because she lacked a Pennsylvania
elementary teaching certificate.4 Thus, Fiorentini is not a “qualified individual” under the
ADA and cannot establish a prima facie case of discrimination.
Moreover, Fiorentini cannot establish the third element of her prima facie case
because she has not presented any evidence that her medical condition was a
“determinative factor” in her furlough.5 Watson v. Southeastern Pennsylvania Transp.
Although Fiorentini once again argues in this context that her reassignment of duties by
Principal Ambrose was an “adverse employment action,” this argument is dismissed for the
reasons discussed supra.
Fiorentini points to comments regarding her health made by Principal Ambrose;
however, I find these comments irrelevant as Fiorentini had not argued that Principal Ambrose
Authority, 207 F.3d 207, 215 (3d Cir. 2000). As previously discussed, Fiorentini was
advised by her union representative 4-5 months prior to her cancer diagnosis that the fact
that she held only had a Reading Specialist certificate could effect her position in the
event of an anticipated reorganization. Because the decision to furlough Fiorentini was
based on the lack of necessary teaching qualifications, summary judgment will be granted
to the District as to Fiorentini’s ADA claim.
Having found that no reasonable finder of fact could conclude that Fiorentini’s
termination was based on any discriminatory animus, I must grant the defendant’s motion
for summary judgment on all counts. An appropriate order follows.
had any role in the decision to furlough Fiorentini.
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