Shenk v. The Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole et al
MEMORANDUM AND ORDER: 1. The R and R 46 of MJ Methvin is ADOPTED in part and REJECTED in part to the following extent:a. REJECTED to the extent that it recommends that summary judgment be denied as to Pltfs FMLA claim.b. ADOPTED in all other respe cts.2. Dfts Motion for Summary Judgment 31 is GRANTED in part and DENIED in part to the following extent:a. GRANTED to the extent it relates to the Pltfs USERRA, FMLA, and Associational discrimination claims. Judgment is ENTERED in favor of the Df ts on Count V (USERRA), Count VI (FMLA) and Count VII (ADA associational discrimination).b. DENIED in all other respects.3. Within (14) days of the date of this Order, the parties shall file a joint stipulation on the docket placing this matter on a trial term consistent with the Courts calendar, as attached hereto.Signed by Honorable John E. Jones, III on 05/13/13 (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELIZABETH ZEISLOFT SHENK,
PENNSYLVANIA, et al.,
Hon. John E. Jones III
MEMORANDUM & ORDER
May 13, 2013
This employment discrimination action comes before the Court on the
Report and Recommendation (“R&R”) (doc. 46) of Magistrate Judge Mildred E.
Methvin, filed March 12, 2013. Said R&R recommends that we grant in part and
deny in part the pending motion for summary judgment (doc. 31). The Defendants
filed objections (doc. 52) and a supporting brief (doc. 51) and the Plaintiff filed a
brief opposing the Defendants’ objections (doc. 53). For the reasons that follow,
we shall adopt in part and reject in part Judge Methvin’s recommended disposition
as more fully outlined herein.
STANDARDS OF REVIEW
Review of Magistrate Judge’s Report and Recommendation
When objections are filed to the report of a magistrate judge, the district
court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Summary judgment is appropriate if the record establishes “that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by
pointing to an absence of evidence supporting an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at 325. Once the
moving party meets its burden, the burden then shifts to the non-moving party to
show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is
“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find
for the non-moving party, and a factual dispute is “material” only if it might affect
the outcome of the action under the governing law. Anderson v. Liberty Lobby,
Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party “may not rely merely
on allegations of denials in its own pleadings; rather, its response must ... set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The
non-moving party “cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs “are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences drawn therefrom must be viewed
in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still,
“the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; there must
be a genuine issue of material fact to preclude summary judgment.” Anderson,
477 U.S. at 247-48.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Elizabeth Zeisloft Shenk (“Plaintiff”or “Shenk”) was a senior
management level employee with the Defendant Pennsylvania Board of Probation
and Parole (“Board”). Shenk began her employment with the Board in June of
2007 when she was hired as the Director of the Office of Administrative Services
(“OAS”). Defendant Catherine McVey (“McVey”), as Chairman of the Board, was
the agency’s chief executive and was responsible for the overall administration of
Board activities and services. Shenk reported directly to McVey throughout her
tenure with the Board, and the parties do not dispute that McVey was Shenk’s
Magistrate Judge Methvin undertook an excellent review of the undisputed facts within
her R&R at pages 2 through 12. For the sake of judicial economy, we shall summarize only the
most pertinent facts herein, but direct the reader to the R&R for a full factual exposition.
supervisor. Defendant John Tuttle, the Director of the Office of Probation and
Parole Services, oversaw the operations side of the agency. McVey appointed
Tuttle as deputy executive director, and when McVey was unavailable, which
Shenk contends was often, Shenk was to report to Tuttle.
In early 2007, when Shenk’s predecessor retired following an investigation
into sexual harassment allegations, the Board began interviewing candidates for
the OAS Director position. Shenk interviewed with McVey and Tuttle, at which
point McVey stressed that the selected candidate would assume responsibility for
developing the budget. Shenk had previous budgeting experience with both the
Department of Public Works and the Governor’s Budget Office, and following her
interview, she was offered the OAS Director job and assumed the position in June
of 2007. Shenk’s responsibilities included overseeing the agency’s administrative
and management services and assisting McVey with staff development, training,
equal employment opportunity services, organizational analysis, and budget
analysis, among other administrative functions.
Throughout her short-lived tenure with the Board, Shenk contends that she
opposed unlawful discrimination, retaliation, and sexual harassment, including
discrimination against veterans. For example, when Shenk learned that several
employees felt that they were being retaliated against for their involvement in the
investigation of Shenk’s predecessor, she reported the perceived retaliation to
McVey. When she learned of a report that showed that the Board had been hiring
too few females and non-white males, the Plaintiff met with Defendant Tuttle to
voice her concerns with those hiring practices. The Plaintiff was also involved in a
sexual harassment investigation involving two supervisors, Craig Williams and
James Commins, and as part of that investigation, recommended that Williams and
Commins be instructed regarding retaliation. However, that recommendation was
rejected and the Plaintiff was directed to shred her report.
According to McVey, the Williams/Commins incident was the “breaking
point” for her with regard to the Plaintiff, and on April 1, 2008, McVey met with
Shenk and advised her that she had thirty (30) days to seek other employment. At
that time, McVey mentioned the Williams/Commins investigation and showed
Shenk a negative performance evaluation. McVey stated that she had prepared the
evaluation but did not sign it, mail it, or place it in the her file because she did not
want to damage Shenk’s reputation. Shenk testified that she received a copy of the
review in the mail in the summer of 2008.
On April 16, 2008, Shenk applied for and was granted FMLA leave from
May 1, 2008 to July 31, 2008 in order to care for her mother. On June 12, 2008,
Shenk sent an email to McVey, informing McVey of her mother’s health and her
job search. McVey sent a letter to Shenk on July 2, 2008, reminding Shenk of the
April 1, 2008 directive that she seek new employment and informing Shenk that
she was expected to comply with that directive upon return from FMLA leave.
McVey concluded the letter by stating: “Please be advised that your failure to
comply with my directive by [your return from leave] will result in appropriate
administrative action being taken.” (Doc. 32-13, p. 1). McVey did not have to take
further “administrative action” because Shenk found another position. Shenk’s
position with the Board was ultimately filled by a male coworker.
On August 25, 2008, Shenk cross filed a complaint with both the Equal
Employment Opportunity Commission and the Pennsylvania Human Relations
Commission, alleging gender discrimination, association discrimination, and
retaliation. Thereafter, Shenk initiated this action by filing a Complaint (doc. 1) on
June 30, 2011, which asserted seven causes of action as follows: retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Count I)
and the Pennsylvania Human Relations Act (“PHRA”), 43 PA. STAT. § 951, et seq.
(Count II); gender-based discrimination in violation of Title VII (Count III) and
the PHRA (Count IV); retaliation in violation of the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et
seq. (Count V); retaliation in violation of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601, et seq. (Count VI); and associational discrimination
on the basis of relation to an individual with disabilities (Count VII).
The Defendants filed a motion to dismiss on September 12, 2011. On
February 2, 2012, we entered an order which granted in part and denied in part
said motion, holding that the Plaintiff’s PHRA and USERRA claims against the
Board and the Commonwealth were barred by sovereign immunity but otherwise
allowing the Plaintiff’s discrimination and retaliation claims to proceed. Following
a period of discovery, the Defendants filed a motion for summary judgment (doc.
31) on July 31, 2012, and we referred the motion to Magistrate Judge Methvin for
a report and recommendation.
Report and Recommendation
On March 12, 2013, Magistrate Judge Methvin issued a report and
recommendation (“R&R”) which recommends that we grant the Defendants’
motion for summary judgment to the extent it seeks dismissal of the Plaintiff’s
USERRA and associational discrimination claims, finding that the record contains
insufficient evidence to support either. Specifically, Judge Methvin concludes that
the Plaintiff had not presented any evidence from which a reasonable jury could
find that she was terminated either for her advocacy of veterans or as a result of
her mother’s disability. Judge Methvin recommends that summary judgment be
denied with regard to the Plaintiff’s Title VII, PHRA, and FMLA claims, opining
that the Plaintiff has presented sufficient evidence in support thereof to create
genuine issues of material fact for trial.
On April 15, 2013, the Defendants filed specific objections (doc. 52) to the
R&R contending as follows: (1) the R&R erred by finding an issue of fact as to
whether Defendant Tuttle was the Plaintiff’s supervisor for the purpose of finding
individual liability; (2) the R&R erred by finding that the Plaintiff had sufficiently
established pretext in her gender discrimination claim; (3) the R&R erred by
determining that the Plaintiff had established the requisite elements of her Title
VII and PHRA retaliation claims; and (4) the R&R erred by finding that the
Plaintiff had established the requisite elements of her FMLA retaliation claim. The
Defendants filed a supporting brief (doc. 51) on April 15, 2013, and on April 29,
2013, the Plaintiff filed opposition papers (doc. 53) responding to each of the
Defendants’ specific objections. This matter is thus ripe for our review.
As we have noted, the Defendants object to four specific findings in the
R&R. We will address each of these objections seriatim.
Does the R&R err by concluding that genuine issues of material
fact remain with regard to whether Defendant Tuttle was the
The Defendants first contend that the R&R erred by concluding that genuine
issues of material fact remain with regard to whether Defendant Tuttle was the
Plaintiff’s supervisor and is thus subject to individual liability under the PHRA.2
The PHRA provides that “an individual supervisory employee can be held liable
under an aiding and abetting/ accomplice theory pursuant to Section 955(e) for his
own direct acts of discrimination or for his failure to take action to prevent further
discrimination by an employee under supervision.” Davis v. Levy, Angstreich,
Finney, Baldante, Rubinstein & Coren, 20 F. Supp. 2d 885, 887 (E.D. Pa. Oct. 14,
1998). In their motion, the Defendants contend that Defendant Tuttle was not the
Plaintiff’s supervisor and is thus not subject to individual liability.
In the R&R, Judge Methvin compares Plaintiff’s testimony to the evidence
presented by the Defendants and concludes that there exists a genuine issue of
material fact as to whether Defendant Tuttle was in fact the Plaintiff’s supervisor.
Specifically, Judge Methvin notes that the Plaintiff testified that she was to report
to Tuttle in McVey’s absence, which was apparently often, and that McVey
While similar in many respects, Title VII and the PHRA are distinct in that only the
latter provides for any form of individual supervisory liability.
testified that she likely discussed the Plaintiff’s dismissal with Tuttle. On this
basis, Judge Methvin concludes that sufficient record evidence existed to support
a jury finding that Tuttle was the Plaintiff’s supervisor, precluding summary
judgment in his favor on the PHRA claim.
In their objections, the Defendants contend that the Magistrate Judge erred
in giving weight to the Plaintiff’s affidavit over the evidence presented by the
Defendants, to wit, an organizational chart corroborating McVey’s and Tuttle’s
testimony as to the organizational hierarchy. It is true that reliance solely on an
unsupported affidavit has generally been discouraged. See, e.g., Evans v. PP&L
Co., 98 F. App’x 151 (3d Cir. 2004). However, this argument ignores the plain
fact that the record contains other documentary evidence and testimony to support
the affidavit. Specifically, record evidence tends to establish that Tuttle, along
with McVey, interviewed Plaintiff for her position; that Tuttle, according to
McVey’s testimony, may have been consulted regarding McVey’s decision to
dismiss the Plaintiff; and that the Plaintiff reported to Tuttle in McVey’s absence
and considered him to be her supervisor. This evidence, when viewed in the light
most favorable to the Plaintiff, creates a genuine issue of fact on the issue of
whether Tuttle served as a supervisor to the Plaintiff, precluding summary
judgment in his favor. We will thus adopt the R&R as it relates to this issue.
Does the R&R err by finding pretext on the Plaintiff’s Title VII
and PHRA gender discrimination claims?3
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme
Court set forth the basic allocation of burdens and order of presentation of proof in
a Title VII case and held that a three-step burden-shifting paradigm governs these
claims. The plaintiff must first prove a prima facie case of discrimination by a
preponderance of the evidence. If the plaintiff succeeds in establishing a prima
facie case, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment decision. Finally, if the
defendant carries its burden, the plaintiff must then prove by a preponderance of
the evidence that those proffered reasons were not the employer’s true reasons but
were instead pretext for discrimination. Id. at 802-04.
For purposes of their motion and objections, the Defendants concede that
the Plaintiff has established a prima facie case of gender-based discrimination
pursuant to Title VII and the PHRA. Further, the R&R acknowledges, and we
must agree, that the Board has offered legitimate non-discriminatory reasons for
With the exception of the individual liability issue addressed supra, the Third Circuit
has long recognized that “Pennsylvania courts assess PHRA claims in accord with their federal
counterparts” and thus applied federal standards of review in addressing PHRA claims. See
Burgess-Walls v. Brown, 2011 U.S. Dist. LEXIS 94087, *7 (E.D. Pa. Aug. 22, 2011) (quoting
Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)); Goosby v. Johnson & Johnson Med. Inc.,
228 F.3d 313, 317 n.3 (3d Cir. 2000)). Accordingly, because the standards governing both of
these claims are identical, we address them together.
its employment decision, to include violation of civil service rules, poor work
performance with regard to the budget process and pay differential proposals, and
improper handling of the investigation of Commins and Williams. Thus, the only
issue before the Court with respect to the Plaintiff’s gender discrimination claims
is the Defendants’ argument that the Plaintiff has failed to satisfy the third prong
of the McDonnell Douglas4 analysis by failing to submit sufficient evidence from
which a trier of fact could conclude that the Defendants’ offered reasons are
pretextual or untruthful.
The Plaintiff’s burden at this point was articulated by the Third Circuit in
Fuentes v. Peskie, 32 F.3d 759 (3d Cir. 1994):
A plaintiff who has made out a prima facie case may
defeat a motion for summary judgment by either (i)
discrediting the proffered reasons, either circumstantially
or directly, or (ii) adducing evidence, whether
circumstantial or direct, that discrimination was more
likely than not a motivating or determinative cause of the
adverse employment action.
Id. at 764. This burden requires the Plaintiff to produce sufficient evidence from
which a reasonable juror might conclude that “the employer’s proffered reasons
were not its true reasons for the challenged employment action.” Sheridan v. E.I.
DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996). The Plaintiff
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
argues, and the Magistrate Judge agreed, that there is sufficient record evidence to
call into question the credibility of each of the Defendants proffered reasons. After
our own review of the record, we agree with the Plaintiff and the Magistrate Judge
that genuine issues of fact preclude summary judgment as to this claim.
As Magistrate Judge Methvin notes, the Plaintiff has pointed to ample
evidence which counters, contradicts, or otherwise exposes inconsistencies in the
Defendants’ proffered nondiscriminatory reasons for their decision to terminate
her. For example, with regard to the Defendants’ contention that violation of civil
service rules prompted the Plaintiff’s termination, the Plaintiff has pointed out that
McVey did not recall these purported rule violations, thus casting serious doubt on
whether they formed the basis of her decision to terminate the Plaintiff, then an
upper-level management employee. The Plaintiff has presented evidence which, if
believed, tends to contradict or disprove each of the Defendants’ proffered reasons
for her termination. Because many of these determinations rest on the credibility
of the witnesses, most of whom have some interest in this litigation, we cannot but
conclude that genuine issues of material fact preclude summary judgment as to the
third McDonnell-Douglas prong. Further, we reject the Defendants’ contention
that the Plaintiff’s efforts at discrediting their offered rationales are insufficient to
carry her burden at this stage and that she must prove discriminatory animus. The
Third Circuit has rejected this argument, holding that “if the plaintiff has pointed
to evidence sufficient to discredit the defendant’s proffered reasons, to survive
summary judgment the plaintiff need not also come forward with additional
evidence of discrimination beyond his or her prima facie case.” Waldron v. SL
Indus., Inc., 56 F.3d 491, 495 (3d Cir. 1995). Thus, we are in agreement with
Magistrate Judge Methvin’s analysis on this issue and will adopt the R&R in full
as it pertains to the Plaintiff’s gender-based discrimination claims.
Does the R&R err by finding that the Plaintiff had established the
requisite elements of her Title VII and PHRA retaliation claims?
The Defendants next object to the Magistrate Judge’s recommendation that
summary judgment be denied as to the Plaintiff’s Title VII retaliation claims. As
Magistrate Judge Methvin correctly notes, in order to prove a Title VII retaliation
claim, a plaintiff must establish: (1) that she engaged in activity protected by or
opposed activity made unlawful by Title VII; (2) that the defendant took adverse
employment against her; and (3) that there was a causal connection between the
plaintiff’s protected activity and the adverse employment action. Moore v. City of
Phila., 461 F.3d 331, 341 (3d Cir. 2006). The Plaintiff here brings an opposition
claim, asserting that she opposed unlawfully discriminatory activities and was
retaliated against as a result. For purposes of their motion and these objections, the
Defendants concede that the second element has been satisfied, however, they
object to Magistrate Judge Methvin’s finding that the Plaintiff has established the
first and third elements. We review each of these contentions in turn.
In her R&R, Judge Methvin found that the Plaintiff had engaged in three
distinct opposition activities: first, she reported unlawful retaliation to McVey
when coworkers who were involved in the sexual harassment investigation of
Gary Schiccitano, the Plaintiff’s predecessor, indicated that they were being
retaliated against in the wake of that scandal; second, that she met with Defendant
Tuttle to voice her concerns about a report which indicated that too few women
and minority males were receiving job offers; and third, that she recommended
that Commins and Williams receive instruction about retaliation following her
finding that they had engaged in sexual harassment.
The Defendants object to the R&R’s characterization of each of these
instances as protected opposition activity, contending that the Plaintiff was merely
reporting up the chain of command information that she was required to report as
part of her job description and relaying the complaints of subordinates rather than
actually opposing any activity made unlawful by Title VII. The Third Circuit has
explained that “‘[o]pposition’ to discrimination can take the form of ‘informal
protests of discriminatory employment practices, including making complaints to
management.”’ Moore, 461 F.3d at 343. “To determine if retaliation plaintiffs
sufficiently ‘opposed’ discrimination, ‘we look to the message being conveyed
rather than the means of conveyance.’” Id. A plaintiff engaged in opposition
activity need not demonstrate that the opposed conduct was actually a violation of
the law; instead, she must show that she possessed an objectively reasonable, good
faith belief that she was opposing unlawful conduct. Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996).
A reasonable reading of the record supports the Plaintiff’s assertion that she
was opposing retaliatory conduct against her subordinates when she reported the
same to the Defendants; it also supports a finding that the Plaintiff was protesting
the underutilization of female and minority male employees in the workplace
when she spoke to Defendant Tuttle about that issue. Further, given her testimony
and other supporting evidence, we cannot find, as the Defendants would have us,
that Plaintiff’s belief that she was opposing illegal activities was objectively
unreasonable. We thus cannot agree with the Defendants that summary judgment
is appropriate for failure of this first element.
The analysis does not end there, however, because the Plaintiff also must
establish that her termination was causally connected to her protected activities.
See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). The Third
Circuit has recognized two primary methods for an employee to substantiate a
causal connection: (1) showing that the temporal proximity between the two is
“unusually suggestive,” or (2) demonstrating an “ongoing antagonism” between
the plaintiff and her employer. Farrell v. Planters Lifesavers Co., 206 F.3d 271,
280-81 (3d Cir. 2000). While the passage of mere hours or days has been deemed
unusually suggestive, courts have held that the passage of weeks, months, and
years removes any suggestion of retaliatory motive. Compare Williams v. Phila.
Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) (two month gap
insufficient); Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)
(three week gap insufficient) with Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989) (two day gap unusually suggestive); Reinhart v. Mineral Techs., Inc., 2006
U.S. Dist. LEXIS 89279, *35 (E.D. Pa. Nov. 27, 2006) (twenty-four hour
turnaround unusually suggestive). In the absence of suggestive timing, the courts
look for other evidence of retaliatory animus. See Farrell, 206 F.3d at 281 (court
should review record for “an evidentiary basis from which an inference can be
drawn” that adverse action was retaliatory).
Magistrate Judge Methvin concluded that both of the aforestated factors
support a denial of summary judgment at this stage. First, with regard to the
temporal proximity inquiry, Judge Methvin noted that while the first two protected
acts were too remote to be considered suggestively proximal, the Plaintiff’s
recommendation with regard to the Commins and Williams investigation, while
made in January 28, 2008, was not resolved until March, approximately one month
prior to McVey’s April 1 directive that the Plaintiff seek a new job. Judge Methvin
concluded that this temporal proximity satisfied the first prong. The Magistrate
Judge went on to further conclude that this proximity coupled with evidence of
ongoing antagonism sufficiently supported the Plaintiff’s claim, precluding
summary judgment. In their objections, the Defendants assert that Judge Methvin
erred in determining the date of the Plaintiff’s protected activity for purposes of
calculating temporal proximity and further erred by finding that the Plaintiff had
proven ongoing antagonism. We disagree with the Defendants on both of these
points and ultimately will adopt the Magistrate Judge’s findings on this claim.
First, with regard to temporal proximity, the record reflects that in January
of 2008, the Plaintiff made a recommendation to McVey which apparently insisted
that Commins and Williams, both perpetrators of sexual harassment, be warned
regarding retaliation. The Defendants are correct that the nearly four-month period
between that January recommendation and the April directive that the Plaintiff
find new employment would likely be too remote to be considered unusually
suggestive. See Williams, 380 F.3d at 760; Thomas, 351 F.3d at 114; Jalil, 873
F.2d at 708; Reinhart, 2006 U.S. Dist. LEXIS 89279 at *35. However, the record
also reflects that the investigation into that matter did not conclude until March of
2008, approximately one month before McVey informed the Plaintiff that she was
to find new employment. Thus, like Judge Methvin, we find that the timing of this
threat could certainly be considered suggestive by reasonably-minded jurors.
Further, we must also review the record to determine whether there exists
“an evidentiary basis from which an inference can be drawn” that adverse action
was retaliatory. See Farrell, 206 F.3d at 281. The Plaintiff points to several pieces
of evidence in support of this factor, including that the Defendants referred to the
Plaintiff as a “getcha” person and directed her to shred her recommendation in the
Commins/Williams matter. At this juncture, viewing the record in the light most
favorable to the Plaintiff, we conclude that this evidence is sufficiently indicative
of retaliatory animus such that a reasonable juror could conclude that the adverse
employment decision was causally connected to the Plaintiff’s protected activities.
For these reasons, we agree with Magistrate Judge Methvin and adopt her analysis,
concluding that the record precludes judgment in the Defendants’ favor.5
The Defendants spill much ink arguing that the employment decision was the result of
the Plaintiff’s misunderstanding of her responsibilities in the Williams/Commins investigation
and not as a result of the specific relief for which she advocated. These points, however, are
largely based on credibility determinations and inferences drawn in the Defendants’ favor. We
decline the Defendants’ invitation to construe the record against the Plaintiff, which would be to
contravene the well-established standard of review for summary judgment motions. Applying the
Does the R&R err by finding that the Plaintiff had established the
requisite elements of her FMLA retaliation claim?
As with the Plaintiff’s Title VII retaliation claims, her FMLA retaliation
claim also requires her to establish that she invoked a protected right, that she
suffered an adverse employment action, and that the adverse action was causally
linked to her exercise of the protected FMLA right. See Sarnowski v. Air Brooke
Limousine, 510 F.3d 398, 401 (3d Cir. 2007). In determining whether a causal
connection exists, we again are tasked with considering two factors: timing and
evidence of ongoing antagonism. Abramson v. William Paterson Coll. of N.J., 260
F.3d 265, 288 (3d Cir. 2001). In the R&R, Judge Methvin concluded that the
negative performance evaluation allegedly mailed to the Plaintiff on June 12, 2008
constituted an adverse employment action and that its temporal proximity to
Plaintiff commencing FMLA leave on May 1, 2008 is suggestive of retaliation.
(Doc. 46, pp. 48-50). On the record before us, we must disagree.
Adverse employment action in the context of the FMLA means a change in
employment that is “significant, . . . such as hiring, firing, failing to promote,
reassignment, or a decision causing a significant change in benefits.” Weston v.
appropriate summary judgment standard, which tasks us to construe the evidence and all
reasonable inferences in the Plaintiff’s favor, we cannot conclude that a reasonable juror could
not find for the Plaintiff.
Pennsylvania, 251 F.3d 420 (3d Cir. 2001). Although negative performance
evaluations in and of themselves are generally not considered to be adverse
employment actions, they can constitute an adverse employment action when
accompanied by threatening statements or other tangible job consequences. See
Boandle v. Geithner, 752 F. Supp. 2d 540, 565 (E.D. Pa. Nov. 2, 2010). Logically,
where the adverse employment action occurs prior to the plaintiff’s protected
activity, there exists “no evidence whatsoever of causality,” and the retaliation
claim must be dismissed. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272
(2001) (“[P]roceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of retaliatory causality.”).
The record unequivocally establishes that Defendant McVey informed
Plaintiff that she was to find a new job and showed her the negative performance
evaluation on April 1, 2008, several weeks before the Plaintiff applied for and was
granted FMLA leave. As in Breeden, the record demonstrates that Defendant
McVey, in her subsequent communication to the Plaintiff, was simply proceeding
with the course that she had outlined weeks earlier. Thus, there being “no evidence
whatever of retaliatory causality,” we will reject the Magistrate Judge’s R&R to
the extent that it recommends denial of the Defendants’ summary judgment motion
as to this claim.
Remainder of the R&R
As we have noted, neither party filed objections to the remainder of the
R&R, wherein Magistrate Judge Methvin recommends that the Defendants’
motion be granted to the extent it seeks dismissal of the Plaintiff’s USERRA claim
and her associational discrimination claims, finding that the record contains
insufficient evidence to support either. Upon review of the submissions and the
record, we agree with the sound reasoning that led Judge Methvin to the
conclusions reached with regard to each of these claims. With a mind toward
conserving judicial resources, we will not rehash the reasoning of the Magistrate
Judge; rather, we will attach a copy of the R&R to this memorandum, as it
accurately reflects our consideration of the case sub judice.
For all of the reasons stated herein, we will adopt in part and reject in part
the Magistrate Judge’s Report and Recommendation (doc. 46) and grant in part
and deny in part the Defendants’ motion for summary judgment (doc. 31).
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
The Report and Recommendation (doc. 46) of Magistrate Judge
Methvin is ADOPTED in part and REJECTED in part to the
The Report and Recommendation is REJECTED to the extent
that it recommends that summary judgment be denied as to
Plaintiff’s FMLA claim.
The Report and Recommendation is ADOPTED in all other
The Defendants’ Motion for Summary Judgment (doc. 31) is
GRANTED in part and DENIED in part to the following extent:
The Motion is GRANTED to the extent it relates to the
Plaintiff’s USERRA, FMLA, and associational discrimination
claims. Judgment is ENTERED in favor of the Defendants on
Count V (USERRA), Count VI (FMLA) and Count VII (ADA
The Motion is DENIED in all other respects.
Within fourteen (14) days of the date of this Order, the parties shall
file a joint stipulation on the docket placing this matter on a trial term
consistent with the Court’s calendar, as attached hereto.
s/ John E. Jones III
John E. Jones III
United States District Judge
2013 Court Calendar
2014 Court Calendar
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