CHECA v. DREXEL UNIVERSITY et al
MEMORANDUM. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/28/2016. 6/28/2016 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DREXEL UNIVERSITY, et al.
June 28, 2016
Congress passed the Family and Medical Leave Act to, among other things, protect
employees from employers interfering with authorized leave or retaliating against them for
taking the authorized leave. If, after the full authorized leave, the employee returns to her same
job with no change, she bears a difficult factual burden to show her employer retaliated against
her for taking leave. Today we address whether an employer retaliates by either: a discourteous
welcome back to work including holding a meeting to address tasks not completed by an
employee before leave resulting in the employee's impetuous resignation; or, declining to accept
the employee's next day effort to rescind her impetuous resignation. Based on facts adduced
during discovery, we grant the employer's motion for summary judgment in the accompanying
Order as we do not find co-worker discourtesies, a "first day back" meeting called to remedy
pre-leave job performance deficiencies or deciding not to accept the employee's next-day
decision to rescind her resignation constitutes the level of retaliation providing a remedy under
the Family and Medical Leave Act.
Undisputed Facts 1
Plaintiff Debra Checa began working at Defendant Drexel University College of
Medicine ("Drexel") in 2010. Since April 2013, she worked for Drexel's Division of
Rheumatology as a Program Manager and Fellowship Coordinator. 2 Dr. James Reynolds leads
Drexel's Department of Medicine.
Checa's supervisor, Dr. Carolyn O'Connor, leads the
Rheumatology Division.3 Defendant Kathy Lally provided administrative support to the
Rheumatology Division and served as a resource to Checa, though she did not have disciplinary
authority over her. 4 Checa's pre-leave duties included managing scheduling issues for clinical
patients, attending physicians, and rheumatology fellows, and performing general office duties
such as answering phones, ordering supplies, and managing expense reimbursements and travel
Checa sought FMLA leave to receive carpel tunnel surgery.
Drexel approved all of
Checa's requested leave under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.,
("FMLA") including from June 25, 2014 through September 14, 2014. 6 Checa notified Dr.
O'Connor of the requested 2015 leave approximately one (1) month before it began, and Dr.
O'Connor subsequently told Lally. 7 Lally arranged for Christina Zervoudakes to cover Checa's
fellowship duties during her leave. Zervoudakes and Checa compiled a list of tasks for Checa to
complete before she took leave. 8
While on leave and recovering from her surgery, Checa's mother passed away. 9 Due to
her mother's passing, and extended physical therapy, Drexel approved Checa's request to extend
her leave until September 15, 2014. 10 Checa returned to Drexel on September 16, 2015, and met
with both Lally and Zervoudakes to discuss transitioning work back to her and review tasks
which Checa failed to complete before taking leave.
Checa claims neither Lally nor
Zervoudakes gave Checa a warm welcome, or offered condolences on her mother's passing. 12
During this "first day back" meeting, Zervoudakes presented Checa with the list of incomplete
tasks which Checa agreed to complete before taking leave. Checa became upset during this
meeting, and stood up and said, "I quit." 13 Checa returned to her office and called Dr. O'Connor,
informed her of the meeting, and said "I quit," again. 14 Later the same day, Checa emailed Dr.
O'Connor and Lally again affirming her resignation,
I am sorry but I did not expect to be attacked by a very unhappy, miserable, "perfect"
person (Christina) who agreed to cover while I was out, and be told about everything I
didn't do, and how everything I did do was incorrectly done .... This is not the place for
me. I hope you find someone more competent, maybe (sic) ... My last day will be Friday,
October 10, 2014. 15
The next morning, Checa met with Dr. 0' Connor and attempted to retract her
resignation. 16 Dr. O'Connor informed Dr. Reynolds of Checa's desire to rescind her resignation,
and Dr. Reynolds did not accept this request. 17
Checa argues Lally orchestrated the "first day back" meeting as a "planned attack" and
Drexel's retaliatory intent motivated its refusal to accept her next day attempt to rescind her
Checa relies on statements from Drexel employees Beverly Johnson who
allegedly said Drexel employees set her up and Joyce Segal who told her "she has seen Lally do
this before." 19
Drexel moves for summary judgment because Checa fails to establish a prima facie case
for FMLA retaliation. 2 FMLA retaliation claims require proof of employer's retaliatory intent,
and claims based on circumstantial evidence are assessed under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green. 21 Under this framework, Checa must first
establish a prima facie case by citing evidence sufficient to create a genuine factual dispute about
each of the three (3) elements of her retaliation claim. 22 To prevail on a FMLA retaliation claim,
"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." 23 If Checa establishes a prima facie case, the burden shifts to Drexel to
"articulate some legitimate, nondiscriminatory reason for the adverse action." 24 To satisfy this
burden, Drexel must introduce evidence which, taken as true, "would permit the conclusion that
there was a nondiscriminatory reason for the unfavorable employment decision." 25 If Drexel
meets its burden, then Checa must "point to some evidence, direct or circumstantial, from which
a factfinder 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." 26
A. Checa has not established a prima facie retaliation case.
No party disputes Checa availed herself of a protected right to FMLA leave. Drexel
argues Checa fails to establish the second or third elements of her prima facie case because she
did not suffer a materially adverse employment action and she cannot show a sufficient causal
link between the protected FMLA leave and the decision to not allow her to rescind her
resignation. Checa argues both the "first day back" meeting and Drexel's refusal to allow her to
rescind her resignation the next day qualify as adverse employment actions. Checa also argues
she suffered a constructive discharge. Checa argues sufficient evidence of causation exists based
on the temporal proximity between the alleged adverse actions and invoking her FMLA rights.
We find Checa cannot establish a prima facie retaliation case because she cannot show
the "first day back" meeting constituted constructive discharge or the decision not to accept her
next day resignation qualifies as an adverse employment action. Even assuming she could show
Drexel's decision not to accept Checa's resignation constitutes an adverse employment action,
we still must grant summary judgment to the Defendants as Checa also cannot establish
causation between the alleged adverse employment acts and her FMLA leave.
Checa cannot show an adverse employment action.
An adverse employment action is "an action that alters the employee's compensation,
terms, conditions, or privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an employee." 27 In Budhun, our Court of
Appeals held a reasonable jury could find replacing an employee after her failure to return for
work following FMLA-leave constitutes an adverse employment action because she could not
return to her previous job or be transferred to another position, which "certainly altered her
privileges of employment."28 Our Court of Appeals does not require formal termination as a
necessary element of an adverse employment action as much less serious actions have sufficed. 29
In Title VII retaliation claims, the United States Supreme Court expanded the definition
of "adverse employment actions."30
In retaliation claims, a plaintiff need only establish an
action is materially adverse, "which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination."31 The Supreme Court
imposed the "material" requirement "to separate significant from trivial harms. " 32 The standard
is more general than Title VII' s substantive provision because "the real social impact of
workplace behavior often depends on a constellation of surrounding circumstances, expectations,
and relationships."33 The Supreme Court noted a change in an employee's work schedule may
be trivial to one employee, but crucial to a young mother with school-age children because it
impedes her ability to work and take care of her family; a supervisor's refusal to invite an
employee to lunch is trivial, but a refusal to invite an employee to a training lunch can be
materially adverse because it impedes career advancement.
Our Court of Appeals has not yet
decided whether this expanded definition applies to FMLA retaliation claims.
Title VII "provides helpful guidance" in FMLA retaliation cases, courts in this Circuit have
applied the Burlington standard. 36 We need not predict whether our court of appeals would
apply the broader standard espoused in Burlington, because under either standard, Checa cannot
establish an adverse employment action.
Drexel's "first day back" meeting is not an adverse
Drexel argues the "first day back" meeting between Checa, Lally, and Zervoudakes does
not rise to the level of an adverse employment action. Checa claims Lally and Zervoudakes did
not exchange pleasantries at the start of the meeting, nor did they offer their condolences for the
loss of Checa's mother during her leave. Drexel counters Lally conducted the meeting to
transition Checa's job duties back to her and the failure to exchange niceties combined with
work-related discussions is not a materially adverse employment action. Lally acknowledged the
meeting concerned work-related issues discovered during Checa's absence.
stated he knew about the meeting two (2) weeks prior to Checa's return from leave, and he
considered the meeting to be a disciplinary form of employee counseling.
Although unsatisfactory job evaluations or disciplinary actions can constitute adverse
employment actions, Checa still fails to show why this particular meeting constitutes a materially
adverse employment action. The meeting did not alter her terms or conditions of employment as
in Budhun, nor did attending this meeting significantly impact her ability to work or advance in
her career. Checa did not suffer a change in job title with less prestige, a suspension of pay, or a
change in work schedule. We further find a reasonable jury could not find the meeting would
dissuade a reasonable person from invoking their right to FMLA leave in the future.
meeting discussed pre-leave issues Checa failed to complete. Also, as discussed above, there is
no indication Drexel reassigned Checa' s fellowship duties to Zervoudakes. Although we should
take into account the expectations and relationships when considering if an adverse action is
material, Lally's and Zervoudakes' failure to exchange pleasantries with Checa is not an adverse
Checa argues Lally's supervisory authority, combined with Dr. Reynolds' knowledge of
the meeting, qualifies the meeting as a disciplinary action or unsatisfactory job evaluation. Dr.
Reynolds' awareness of the meeting does not alter the nature of the meeting. Also, Lally did not
have disciplinary authority over Checa. 38
Checa did not receive a formal written or oral
performance evaluation at this meeting, but merely received criticisms about failing to complete
some of her assigned tasks before she left.
This does not rise to the level of a negative
performance evaluation or disciplinary action.
The "first day back" meeting, and the issues discussed at the meeting, do not qualify as a
materially adverse employment action. Under Checa's reasoning, an employer should forget
about pre-leave performance deficiencies or deliver them in a more courteous manner. But our
workplace discrimination laws are not designed to remedy everyday slights or "trivial harms."39
We see no basis for extending Congress' remedial mandate to this type of employer conduct.
Checa has not shown constructive discharge equating to an
adverse employment action. 40
Checa has not shown the "first day back" meeting is a constructive discharge. We may
find constructive discharge where "the employer knowingly permitted conditions of
discrimination in employment so intolerable that a reasonable person subject to them would
resign." 41 Whether a constructive discharge occurred is measured by an objective standard, and
the harassment must be so severe and pervasive to cause a reasonable worker to resign. The
requisite level of harassment must be even greater than is required for a hostile work
environment. 42 Factors indicative of a constructive discharge include a threat of discharge or
suggestions of resignation, demotions or reductions in pay or benefits, involuntary transfer to a
less desirable position, alteration of job responsibilities, or unsatisfactory job evaluations. 43
Checa argues Drexel had a premeditated plan to discipline her the day she returned from
leave. Checa cites Dr. Reynolds' knowledge of the meeting two (2) weeks before her return and
his belief the meeting was a disciplinary form of employee counseling. Because this meeting
occurred the day she returned from leave, Checa argues any reasonable employee would feel set
up for taking FMLA leave.
Checa cannot establish a constructive discharge claim because although the first day back
meeting upset her, a reasonable employee in her position would not have found one (1) meeting
so intolerable she had to resign. In fact, the next day she changed her mind and wanted to stay
employed. She offered no evidence to show an environment with extensive, severe, and
pervasive levels of harassment to cause a reasonable worker to resign. A brief meeting involving
criticisms of her pre-leave work, without pleasantries or condolences, does not rise to the level of
harassment warranting a constructive discharge. Although Checa may have been upset by this
meeting, no witness described a pervasive environment of harassment so great a reasonable
worker would have resigned. At the meeting, the parties discussed tasks left incomplete by
Checa before her FMLA leave. This meeting, despite its critical nature, and despite Lally's and
Zervoudakes' alleged unfriendly tone, does not rise to the level of harassment to support a
constructive discharge claim.
Refusing to accept Checa's rescinded resignation is not an adverse
Drexel argues its decision to not allow Checa to rescind her voluntary written resignation
is not an adverse employment action. Our Court of Appeals has not recognized voluntary
resignations to be adverse employment actions. 44 Courts in this circuit specifically decline to
recognize the refusal to allow an employee to rescind his resignation to be an adverse
employment action, without a contractual or statutory duty to do so, or without a finding of a
constructive discharge. 45 Checa argues her claim is different. She now alleges constructive
discharge. As shown, we see no constructive discharge.
Drexel's decision may be construed as an adverse employment action under other facts
evidencing a constructive discharge by the employer. But not here. Under the undisputed facts,
the "first day back" meeting did not constitute a constructive discharge. An adverse employment
action is "an action that alters the employee's compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or adversely affects his or her
status as an employee."46 Drexel's decision to not allow Checa to rescind her resignation, as she
had already resigned, did not alter her privileges of employment, deprive her of employment
opportunities, or adversely affect her status as an employee. She resigned, scheduled to leave on
October 10, 2014. Drexel's decision not to accept her next day rescission did not alter her
employment status. Drexel's decision is not actionable under the FMLA.
Checa lacks evidence of causation between Drexel's action and
invoking her FMLA rights.
Drexel argues Checa's repeated voluntary resignations broke any causal link between the
conclusion of Checa's FMLA leave and Dr. Reynolds' decision to not allow her to rescind her
resignation. Drexel argues the two (2) verbal resignations, and the written resignation via email,
breaks the causal link between the leave and the perceived adverse decision by Reynolds.
To establish a causal link between FMLA leave and an adverse employment action,
Checa must show either: (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link. 47 Temporal proximity alone is not sufficient to establish a causal
connection, unless it is unusually suggestive. 48 Instead, a "broad array of evidence" is used to
determine whether a sufficient causal link exists to survive a motion for summary judgment.49
Factors such as intervening antagonism, retaliatory animus, inconsistencies in the employer's
articulated reasons for terminating the employee, or temporal proximity can support the
inference of causation. 50 The entire record as a whole is used to establish causation, because the
inquiry into causation requires an inquiry into the motives of an employer, which is contextspecific.51
Circumstantial evidence can be taken into account to establish the causal
A causal link between an employee's protected activity and an adverse employment
action can be broken by an intervening event. 53 In Weiler, the court found the plaintiff's
abandonment of the job site broke the causal link between the protected activity, reporting of the
employer's inappropriate behavior, and the adverse employment action, being plaintiff's
termination. 54 In Calero, the court found the timing was not unusually suggestive, the manager
who terminated the plaintiff was unaware of the FMLA leave request, and, most notably, the
plaintiff's alleged falsifying of time records severed any causal connection between the leave
request and any termination. 55
Checa argues the temporal proximity is unduly suggestive and indicative of Drexel's
retaliatory intent. Checa specifically notes Zervoudakes received increased compensation for the
extra work she performed during Checa's leave, and no fellow within the fellowship program
suffered as a result from Checa' s uncompleted tasks. Checa argues no legitimate reason existed
to discipline her on the day she returned from leave. Checa also argues causation exists under a
"cat's paw" theory. Under a "cat's paw" theory, Checa can establish liability if one or more of
her nonsupervisory coworkers: "(l) performed an act motivated by discriminatory animus; (2)
the act was intended by the coworker to cause an adverse employment action; (3) that act is a
proximate cause of the ultimate employment action, and either (a) defendants acted negligently
by allowing the co-worker's acts to achieve their desired effect though they knew (or reasonably
should have known) of the discriminatory motivation, or (b) the coworker was aided in
accomplishing the adverse employment action by the existence of the agency relation."56
Although the timing between Checa' s leave and Drexel's decision is less than two (2)
days, Checa prompted this close temporal proximity, not Drexel. Drexel refused to allow Checa
to rescind her resignation because Checa decided to resign the day she returned from leave.
Factors such as intervening antagonism, retaliatory animus, or inconsistencies in the employer's
articulated reasons for terminating the employee are not present here. Although Lally and
Zervoudakes may not have been as friendly as hoped, or their criticisms may have been harsh,
these instances do not qualify as intervening antagonism or retaliatory animus in response to
FMLA leave. Also, no inconsistency exists among Drexel employees' testimony regarding the
decision to not allow Checa to rescind her resignation. Dr. Reynolds testified Checa's reaction
to the meeting and repeated resignations prompted his decision. 57
This is consistent with
Drexel's proffered reasons, and the testimony of O'Connor, Lally, and Zervoudakes. Even if a
causal link existed between Checa's leave and Dr. Reynolds' decision, Checa's repeated
resignations, and the nature of her written resignation, serves as an intervening event to sever any
causal link. As in Weiler, Checa's decision to resign is a sufficient intervening event to break
Even if Checa showed a prima facie retaliation case for retaliation, her claim
fails because she cannot defeat Drexel's legitimate, non-discriminatory
reasons for the adverse actions.
Even if we found Checa established a prima facie retaliation claim, Drexel is entitled to
summary judgment because it offers legitimate, non-discriminatory reasons for the adverse
actions, and Checa cannot show competent evidence which would cause a fact finder to
disbelieve Drexel's reasons or believe a discriminatory reason actually motivated the decision.
Drexel proffered legitimate, non-discriminatory reasons.
Drexel offered legitimate, non-discriminatory reasons for the alleged adverse
employment actions. Drexel contends it conducted the "first day back" meeting to correct
Checa's work-related issues occurring before her FMLA leave and to transition work back to her
after her return from leave. Drexel did not allow Checa to rescind because of her inability to
accept constructive criticism during the meeting and her unprofessional resignation. All of these
reasons, if taken as true, "would permit the conclusion that there was a nondiscriminatory reason
for the unfavorable employment decision," satisfying Drexel's burden under the McDonnell
Douglas framework. 58 Drexel cites Checa's inability to specifically remember any of the alleged
unfinished work items discussed at the meeting. Checa does not assert an employee fabricated
comments or said them to her for a retaliatory reason.
Checa did not show Drexel's stated reasons are pretext.
Checa argues Drexel's reasons are pretext for retaliation and Drexel acted to further a
discriminatory purpose not for the legitimate proffered reasons. Checa argues because Drexel
has offered "multiple story-lines," it has not offered a legitimate, non-discriminatory reason for
the refusal, and so it must be a pretext for retaliation. 59 Dr. Reynolds acknowledged the meeting
had a disciplinary nature and Lally contradicted herself about whether the meeting had a critical
nature. Checa also argues pretext because Zervoudakes complained about the work Checa left
incomplete but received increased compensation for the extra work. Checa also notes Drexel
eliminated a woman's position the day she returned from leave and argues this decision can be
considered a pattern of routine practice evidence under F.R.E. 406. 60
To demonstrate Drexel's reasons are pretext, Checa must "point to some evidence, direct
or circumstantial, from which a factfinder could reasonably ... disbelieve the employer's
articulated legitimate reasons." 61 Checa must "demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [Drexel's] proffered legitimate reasons for its
actions" to allow a reasonable fact finder to find them "unworthy of credence."62 In Lichtenstein,
the court found the plaintiff did show enough contradicting evidence to defeat her former
employer's explanation for her discharge. UPMC, Lichtenstein's former employer, claimed
Lichtenstein's late arrival to work motivated the decision, not her request for FMLA leave. To
defeat these defenses, Lichtenstein demonstrated inconsistencies in these reasons, by showing
her supervisor could not remember the date of this late arrival or when he made the decision to
terminate the plaintiff, the exclusion of this late arrival from UPMC's explanation to the EEOC,
and its exclusion from the staff log her supervisor reviewed before the discharge. 63 Based on
these reasons, the court found a reasonable fact finder could infer this incident did not truly
motivate the decision to discharge, but served as merely a pretext for taking FMLA leave. 64
Checa fails to show Drexel's refusal to allow her to rescind her resignation is a pretext for
retaliation, because by her own admission, neither Lally nor Zervoudakes said anything negative
to her about her FMLA leave. Checa acknowledged the core problems with the meeting were the
lack of greetings and the criticisms of her failing to complete certain tasks before taking leave.
Moreover, Lally's alleged contradiction of her own testimony is nothing more than a
characterization issue. In her deposition, Lally described what she said during the meeting
regsarding "the issues that were incomplete". 65 Checa's attorney asked her, "That wasn't a
criticism?" and Lally responded, "No. That was my job."66 Checa observes Lally stated in her
statement to the Equal Employment Opportunity Commission "Ms. Checa resigned because she
was angry about the criticism made .... " 67 It can hardly be the case this semantical argument
evidences the real reason behind Drexel's decision not to rescind Checa's resignation, or hold the
September 16 meeting at all, was to retaliate against her for taking FMLA leave.
Additionally, Checa's claim for a retaliatory motive stems from conversations she had
with Beverly Johnson who allegedly said Drexel set her up, and Joyce Segal who said "she has
seen Lally do this before."68 Beverly Johnson denied ever saying this, and the parties did not
depose Joyce Segal. Checa has vague feelings and intuitions, which are not substantiated by any
actual evidence, whether direct or circumstantial. Also, unlike Lichtenstein, Checa has not
pointed to any factual inconsistencies from which a reasonable factfinder could disbelieve
Drexel's proffered legitimate, non-discriminatory reasons. Checa fails to show the "first day
back" meeting served as a pretext for retaliation.
Drexel's refusal to allow Checa to rescind her resignation did not serve as a pretext for
retaliation. Dr. Reynolds stated Checa's unprofessional actions and the distasteful manner in
which she resigned motivated his decision to not allow her to rescind her resignation. 69 Checa's
claim of a retaliatory motive stems from Beverly Johnson's denied statement. Even assuming a
question of credibility as to whether she ever said "Drexel set her up", Beverly Johnson's
opinion cannot be imputed to Drexel. She is, at worst, parroting rumor. Checa adduces no
evidence Beverly Johnson has any foundation for claiming Drexel "set her up" to retaliate for
Checa's FMLA leave. Mere rumors cannot overcome Drexel's legitimate business reasons. 70
Unlike Lichtenstein, Checa has not pointed to any factual inconsistencies from which a
reasonable factfinder could disbelieve Drexel's proffered legitimate, non-discriminatory reasons.
Checa offered no evidence to disprove, or lead a factfinder to reasonably disbelieve, Reynolds'
reasons for the discharge and cannot show retaliation motivated his decision.
Checa's pretext evidence focused on additional compensation paid to Zervoudakes during
her leave would mitigate against pretext; why would Drexel want to pay more compensation to
do Checa's job? It is better off having Checa do the job had she not resigned.
may have wanted, or appreciated, more pay but there is no evidence Dr. Reynolds' made his
decision based on any Zervoudakes' compensation.
Similarly, Checa's reference to Drexel
eliminating a woman's position on the same day that woman returned from maternity leave has
no connection to its decision not to accept Checa's rescinded resignation. 71 She quit. Drexel did
not eliminate her job.
Checa failed to establish a prima facie FMLA retaliation claim because she cannot show
an adverse employment action or prove causation between an adverse employment action and
her FMLA leave. Even if we found a prima facie retaliation claim, Drexel and Lally prevail
because Checa cannot defeat Drexel's several legitimate, non-discriminatory reasons for the
alleged adverse actions. We grant Drexel's and Lally's motion for summary judgment in the
accompanying Order. 72
The Court's Policies require that a Statement of Undisputed Material Facts ("SUMF") be filed
in support of a Fed.R.Civ.P. 56 motion, as well as an appendix of exhibits or affidavits.
Defendants filed their SUMF at ECF Doc. No. 32 ("Defs.' SUMF"). Plaintiff responded to the
Defendant's SUMF at ECF Doc. No. 35-1, referred to as "Pl.'s SUMF." References to exhibits
in the appendices shall be referred to by Bates number, for example, "Appendix (A.) l."
(A. at 48.)
(A. at 223, 13:15-20.)
(A. at 187, 10:7-11:5, 12:24-13: 23.)
(A. at 118, 133: 11-134:13.)
(A. at 52.)
(A. at 133, 191:15-24; A. at 188, 16:1-20.)
(A. at 53-58.)
(Defs.' SUMF, ~ 66; A. at 11, ~ 33.)
(Defs.' SUMF, ~ 70.)
(A. at 66; A. at 192, 31:4-10; A. at 193, 34:20-35:4)
(A. at 95, 40:11-41:22).
(A. at 96 at 44:1-3).
(A. at 96 at 45: 15-22).
(A. at 73.).
(A. at 97, 48: 7-22.)
(A. at 176, 41:14-42:1.)
(A at 94, 36: 21-23.)
Beverly Johnson denied under oath making this statement. (A. at 259, 33: 12-20.) The parties
did not depose Joyce Segal. (A. at 100, 61: 4-17.)
Summary judgment is proper when there is no genuine dispute of material fact and the movant
is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a material fact is
genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary
judgment, the court must consider the "underlying facts and all reasonable inferences therefrom
in the light most favorable to the party opposing the motion." Slagle v. Cnty. of Clarion, 435
F.3d 262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its initial burden of
showing the basis of its motion, the burden shifts to the non-moving party to go beyond the
pleadings and point to "specific facts showing that a genuine issue exists for trial." Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). In other words, the non-moving party "must present
more than just bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (citation and
internal quotation marks omitted). Summary judgment must be granted against a non-moving
party who fails to sufficiently "establish the existence of an essential element of its case on
which it bears the burden of proof at trial." Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014).
Lichtenstein v. Univ. of Pitt. Med. Ctr., 691F.3d294, 302 (3d Cir. 2012).
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014).
Lichtenstein, 691 F.3d at 302.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Id. at 763.
Budhun, 765 F.3d at 257 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
See Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (holding the transfer to light
duty with less prestige to be an adverse employment action because it significantly altered the
employee's duties and status); Weston v. Pennsylvania, 251 F.3d 420, 430-31 (3d Cir. 2001)
(holding suspension without pay, change of work schedule, or reassignment can constitute
adverse employment actions).
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006).
Id. at 68.
Id. ("Title VII, we have said, does not set forth a general civility code." (internal quotation
Id. at 69.
Budhun, 765 F.3d at 257 n.6.
Grosso v. Fed. Express Corp., 467 F. Supp. 2d 449, 458-59 (E.D. Pa. 2006); Chapman v.
UPMC Health Sys., 516 F. Supp. 2d 506, 423-34 (W.D. Pa. 2007).
(A. at 193, 34:20-23).
(A. at 187-188, 12:24-13:5).
Burlington, 548 U.S. at 68.
In our Order-Memorandum dismissing Checa's complaint in part, we found she could not
establish a compound hostile work environment and constructive discharge claim. (ECF Doc.
No. 29) While it is possible our decision applies with equal force to the constructive discharge
claim before us now, we recognize we did not give an in depth examination of the constructive
discharge elements. Accordingly, we address the issue in full here.
Lanza v. Postmaster Gen. of the U.S., 570 F. App'x 236, 240 (3d Cir. 2014) (quoting
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)).
Lebofsky v. City of Phila., 394 F. App'x 935, 939 (3d Cir. 2010) (citing Clowes v. Allegheny,
991 F.2d 1159, 1161 (3d Cir. 1993)).
See Schofield v. Metro. Life Ins. Co., 252 F. App'x 500, 503 (3d Cir. 2007) (affirming an
employee who voluntarily resigns cannot show he suffered an adverse employment action at the
hands of the employer).
Jones v. McCormick & Schmick's Seafood Restaurants, Inc., No. 12-4503, 2014WL1669808,
at *5 (D.N.J. Apr. 28, 2014); See also Hibbard v. Penn-Trafford Sch. Dist., No. 13-622, 2014
WL 640253, at *10 (W.D.Pa. Feb 19, 2014) (holding a voluntary resignation, and the employer's
subsequent failure to accept her rescission of the voluntary resignation, is not an adverse
Budhun, 765 F.3d at 257 (quoting Robinson, 120 F.3d at 1300 ).
l d. at 258.
See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) ("Temporal proximity
alone will be insufficient to establish the necessary causal connection when the temporal
relationship is not 'unusually suggestive."')
Weiler v. R&T Mech., Inc., 255 F. App'x 665, 668 (3d Cir. 2007).
Calero v. Cardone Indus., Inc., No. 11-3192, 2012 WL 2547356, at *6 (E.D. Pa. June 29,
See EEOC v. L.B. Foster Co., 123 F.3d 746, 753 (3d Cir. 1997) (finding a causal connection of
retaliation based on temporal proximity, inconsistencies in defendant's testimony, certain
conduct towards others, and refusals to provide a reference for the plaintiff), Waddell v. Small
Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986) (taking inconsistencies in defendant's
explanations into account to find the causation necessary to satisfy a prima facie case);
Weiler, 255 F. App'x at 669.
Calero, 2012 WL 2547356, at *7.
Burlington v. News Corp., 55 F. Supp. 3d 723, 738-39 (E.D. Pa. 2014).
(A. at 178, 52:1-55-2).
Fuentes, 32 F.3d at 763.
(Pl. Resp. to Defs. Mot. 9).
While Checa advances a routine practice argument, Checa admitted to taking FMLA leave
from Drexel 2012 with apparently no negative response from Drexel. See A at 228, 34: 1637:7); (Pl. Resp. to Defs. Mot. 10)).
Lichtenstein, 691 F.3d at 310.
But see Innella v. Lenape Valley Found., No. 14-2862, 2015 WL 9450861, at *12 (E.D. Pa.
Dec. 23, 2015) (holding plaintiff did not demonstrate the proffered reason for termination was
pretextual because the 'contradicting evidence' was vague, superficial at best, and a factual
misrepresentation of the underlying testimony).
(A. at 194, 39: 4-10.)
(A. at 194, 39: 11-16.)
(A. at 84.)
(A. at 100, 61: 4-17.)
(A. at 178, 52:1-55-2.)
Fed. R. Civ. P. 56(c)(l)(A); see also Willis v. UPMC Children's Hosp., 808 F.3d 638, 649 (3d
Cir. 2015) (finding "rumored, unspecified, and uncorroborated evidence" does not establish
See Wilcher v. Postmaster Gen., 441 F. App'x 879, 881-82 (3d Cir. 2011) (finding a similarly
situated individual must be similar in "all relevant respects"), cert. denied, - U.S.-, 132 S. Ct.
Lally's FMLA liability could only arise as an imputed "employer". We make no findings as to
whether Lally could be considered an employer under the FMLA. As we find Checa did not
meet its burdens to show a FMLA retaliatory claim against Drexel, we also grant summary
judgment to Lally.
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