PELLEGRINO v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, CLC
Filing
39
MEMORANDUM and ORDER granting 27 Motion for Summary Judgment. Signed by Chief Judge Gary L. Lancaster on 5/18/11. (map)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DENISE PELLEGRINO,
Plaintiff,
vs.
Civil Action No. 10-0098
COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO, CLC,
Defendant.
MEMORANDUM
Gary L. Lancaster
Chief Judge.
May 18, 2011
This is an employment action under the Family Medical
Leave Act,
("FMLA"),
Plaintiff
Denise
Communications
terminated
leave.
[Doc.
U.S.C.
§2601,
Pellegrino
Workers
et
claims
of
America,
she
Defendant CWA has
filed
a motion
maintaining
that
was
it
[ Do c .
her
("CWA") ,
while
27],
seq.
that
employment
No.
her
29
out
for
on
No.1].
employer,
wrongfully
approved
summary
terminated
FMLA
judgment
Pellegrino's
employment not because she was on FMLA leave, but because during
her
leave
she engaged
in unapproved travel
to Cancun,
Mexico.
CWA argues that this trip violated company policy.
For the reasons that follow,
for summary judgment.
we will grant the motion
I.
BACKGROUND
Unless otherwise noted, the following facts are not in
Other
dispute.
facts
will
be
discussed
elsewhere
in
this
memorandum in context, where necessary.
Pellegrino was
union.
She
clerical
was
a
employed by CWA,
member
employees
of
of
CWA
OPEIU,
and
collecti ve
bargaining agreement.
answering
the
was
phone,
typing
a
the
telecommunications
union
subject
representing
to
the
Pellegrino's duties
letters,
bookkeeping,
OPEIU
included
ordering
office supplies, and taking care of office machinery.
On August
Policy Manual
to
7,
all
2006,
CWA promulgated a
CWA employees,
including
new Employment
Pellegrino,
via
email. 1
The email noted that the manual included provisions that
applied
to
all
CWA
employees,
and
that
it
might
contain
new
policies not contained in the manual each employee received at
the
time
employee
agreement
of
is
The
hire.
subj ect
governs
to
if
a
email
further
instructs
that
if
collective bargaining agreement,
there
is
a
direct
conflict
an
the
between
a
provision in the collective bargaining agreement and a provision
in the manual.
The email directed employees to consult both the
1 Pellegrino disputes that she received this email.
However, record evidence
confirms that CWA included Pellegrino on the distribution list.
2
new
Employment
Practices,
as
agreement,
if
Policy
applicable
well
they
to
as
Manual
any
and
applicable
had questions
them,
and
CWA's
to
Uniform
collective
about
policies
discuss
any
Operating
bargaining
or procedures
questions
with
a
supervisor.
The Employment Policy Manual includes a Sickness and
Absenteeism
policy.
Section
replacement
for eligible employees on medical
certain restrictions.
I
of
this
policy
wage
leave subj ect to
These restrictions include CWA's right to
require that an employee submit to a medical
CWA-designated
provides
physician
at
any
time
and
examination by a
provide
additional
information related to the reason for leave in order to ensure
that the purposes of CWA's paid sick leave policy are being met.
Employees accepting wage replacement are also required to remain
in the immediate vicinity of their homes during
their sick leave.
the period of
There are several limited exceptions to this
requirement including if the employee needs medical treatment or
must
attend
to
ordinary
and
necessary
related to personal or family needs.
the
immediate
permission
terminate
vicinity
from
CWA
the wage
to
of
her
replacement
if
CWA
benefits
3
directly
An employee may also leave
home
travel.
activities
she
receives
reserves
if
it
the
written
right
determines
to
that
the
employee
benefit.
has
engaged
However,
such action
in
conduct
CWA agrees
and an
to
opportunity
inconsistent
provide
to
with
notice
employees
present
the
of
evidence
supporting
policy
explicitly
the use of the benefit.
CWA's
Sickness
and
Absenteeism
states that the
compa~y
the
of
the
FMLA
with
any
separate
provisions
concurrently
employee
might
receive.
employees
subject
refer
those
to
provides unpaid leave in accordance with
to
and
The
that
wage
agreements
to
FMLA
further
bargaining
determine
leave
runs
benefit
replacement
policy
collective
unpaid
the
notes
that
agreements
how
the
CWA
should
Sickness
and
Absenteeism policy will apply in their situations.
Pellegrino
bargaining
states
which
agreement
that
called
a
to
member
of
medical
agreement
Sick
Pay
ill
for
the
and
also
provisions
family
leave
to
FMLA,
eligible
wage
replacement
Under
this
policy,
least two
(2)
years
for
wages
seven
4
the
a
worked for the company for at
full
agreement
of
days
for
than
collective
This
(4)
replacement
more
OPEIU.
includes
Treatment.
specific
a
four
wage
is
subject
comply with
unpaid
The
employee who
as
CWA will
provides
employees.
policy
was
for
(7)
and
who
an
has
is eligible
weeks,
and
then
half
wages
for
thirteen
(13)
weeks.
An
employee
may
receive wage replacement for the first four
(4)
days of illness
if they have accrued Incidental Sick Leave.
Wage replacement is
voided under the Sick Pay Treatment policy if the employee fails
to furnish satisfactory evidence
for
the underlying
illness if
requested to do so by CWA.
On
Assistant
12,
August
Human
Resources
2008,
Pellegrino
Administrator,
informed
Marilyn
CWA's
Klinger,
that
she needed to undergo a hysterectomy.
CWA responded by sending
Pellegrino
rights
a
tter
describing
her
related to unpaid leave under the FMLA.
and
obligations
This letter noted that
the process of medical certification for FMLA leave was separate
from the process involved in being eligible for wage replacement
under CWA's sick leave policy,
but that Pellegrino was eligible
for
be
the
FMLA
leave
and
would
required
to
substitute
paid
leave under CWA's sick leave policy for the period of time she
qualified for those benefits.
CWA
approved
Pellegrino's
FMLA
leave.
scheduled her hysterectomy surgery for October 2,
Pellegrino
2008 and both
her unpaid FMLA leave and her sick leave pay began that day.
On
Mexico where
October
she
16,
2008,
stayed until
Pellegrino
October
5
23,
traveled
2008.
to
There
Cancun,
is
no
evidence that Pellegrino informed CWA that she would be out of
the
country for
a
week,
or that
Pellegrino
requested vacation
time for the trip or permission to travel.
CWA became aware
that
After her return,
Pellegrino traveled to Cancun and asked
her to come to a meeting on November 3, 2008.
Pellegrino attended that meeting along with her OPEIU
Representative, who participated by phone.
Administrative
Director in
Pi ttsburgh,
traveled while on FMLA leave,
had.
Krueger
notifying
her
sent
that
a
had
asked Pellegrino if she
and Pellegrino admitted that she
letter
CWA
Marge Krueger, CWA's
to
decided
Pellegrino
that
later
traveling
that
to
day
Cancun,
Mexico while out on FMLA and disability leave was a violation of
CWA's
leave
policies
and
work
rules
and
that
Pellegrino's
employment was terminated.
Almost two years later and well after Pellegrino filed
suit,
Pellegrino's treating physician submitted a letter stating
that due to her surgery,
Pellegrino was not physically able to
return to work until November
Cancun
was
not
inconsistent
13,
2008,
with
her
but
that
recovery
medical restrictions placed on her during that time.
6
her trip to
or
with
any
II.
LEGAL AUTHORITY
a. Summary Judgment Standard
Federal
Rule
of
summary judgment may be
Civil
Procedure
granted if,
favor of the non-moving party,
56 (al
drawing all
provides
that
inferences
in
"there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.
H
Fed.R.Civ.P. 56(a).
"[T]he mere existence of some factual dispute between
the
parties
will
not
defeat
an
motion for summary judgment[.]
477 U.S. 242, 247-248
Similarly,
(1986)
otherwise
properly
supported
Anderson v. Liberty Lobby,
Inc.,
(internal quotation marks omitted).
summary judgment is improper so long as the dispute
over the material facts is genuine.
whether the dispute is genuine,
Id. at 248.
In determining
the court's function is not to
weigh the evidence or to determine the truth of the matter, but
only to determine whether the evidence of record is such that a
reasonable jury could return a verdict for the nonmoving party.
Id. at 248-49.
To
defendant,
demonstrate
entitlement
as the moving party,
essential
elements
of
defendant
need only point
is not
plaintiff's
out
cause
to
judgment,
required to refute the
of
the absence
7
summary
action.
or
Instead,
insufficiency of
plaintiff's
evidence
elements.
(1986);
U.S.
offered
Celotex
574,
supports
entitled
586-87
must
each
plaintiff
support
Catrett,
essential
a
Co.
(1986).
identify
fails
to
I
to
Once
element
provide
trial,
v.
and
judgment as a matter of law.
of
such
those
U.S.
essential
317,
322-23
Zeni
that
affirmative
of
477
------------~.~--------~~~-
Matsushita Elec.
plaintiff
in
475
burden
her
cause
evidence,
defendant
is
been
met,
of
evidence
has
record
that
of
action.
If
then
she
entitled
to
is
not
summary
Anderson, 477 U.S. at 256-57.
It is on this standard that the court has reviewed the
motion for summary judgment and the response thereto.
b. FMLA
Congress promulgated the
"the
important
societal
interest
FMLA in
in
1993
assisting
to
families [
establishing a minimum labor standard for leave."
Star Enters., 183 F. 3d 184, 192
(3d Cir. 1999).
accommodate
by
Churchill v.
The FMLA grants
eligible employees the right to take up to twelve job-protected
workweeks of leave in any twelve-month period if,
"serious
perform
health
the
condition
functions
of
makes
the
position
8
the
of
inter
employee
such
unable
to
employee."
29
U.S.C.
2612 (a) (1) (0).
§
contains
two
To
distinct
430 F.3d 117,
it
for
deny
the
provided
under"
119
any employer
exercise
of
the
arising
under
claim.
Callison,
or
430
Callison
29
U.S.C.
is
to
First,
as
of
it makes
restrain,
any
2615 (a) (1).
§
FMLA
Cit
exercise,
known
F.3d at 119.
the
v.
interfere with,
attempt
provision
right,
(3d Cir. 2005).
to
the
FMLA.
that
that
provisions.
Philadelphia,
"unlawful
protect
or
right
A claim
an
the
Second,
"interference"
FMLA makes
it
"unlawful for any employer to discharge or in any other manner
discriminate
against
any
individual
made unlawful" by the
is
29 U.S.C.
FMLA.
under
that
provision
"discrimination
ll
claim.
for
referred
to
opposing
§
any
2615 (a) (2).
as
a
practice
A claim
"retaliation"
or
Callison, 430 F.3d at 119.
Plaintiff pled an interference claim in her complaint.
And in her brief in opposition to defendant's motion for summary
judgment,
she
under
the
inter
Third
Circuit
theories
of
explicitly
rence
has
Co.,
theory.
allowed
recovery
Nationwide Ins.
confirms
after
582
that
The
Court
plaintiffs
a
she
to
seeks
of
Appeals
proceed
termination.
F.3d 500,509
relief
(3d Cir.
See
for
under
Erdman
2009)
only
the
both
v.
(holding
that "firing an employee for a valid request for FMLA leave may
constitute interference with the employee's FMLA rights as well
9
as
retaliation
against
the
like
limit
to
employee").
herself
Here,
to
only
however,
one
if
plaintiff
would
theory
of
recovery,
then this court will not act to enlarge the scope of
her complaint.
To prove an interference claim,
(1)
that
that
her
she was
entitled to benefits
employer
illegitimately
those benefits."
Sarnowski v.
a plaintiff must show:
under the
prevented
her
FMLA;
from
and
(2)
obtaining
Air Brooke Lim0l.lsine,_lnc.,
510
F.3d 398, 401 (3d Cir. 2007).
III. DISCUSSION
Defendant
Pellegrino's
has
interference
entitlements did not
moved
claim
for
summary
contending
judgment
that
her
on
FMLA
include protection from termination for a
reason unrelated to her FMLA leave.
According to CWA,
the FMLA
does not shield Pellegrino from an employment action the company
would have
the FMLA,
taken
against
her
such as enforcing a
irrespective
of
her
status
under
restriction on unapproved travel
that would have applied whether Pellegrino had been out on FMLA
leave or non FMLA covered sick or disability leave.
10
Pellegrino
responds
summary judgment because a
that
her
reasonable
claim
should
survive
jury could find that the
travel restrictions in CWA's Sickness and Absenteeism policy did
not
apply to
Sick
Pay
her
because her
Treatment
bargaining
policy
agreement,
sick
leave
outlined
which
did
was
the
in
regulated
OPEIU
not
by the
collective
a
include
travel
restriction.
She
Absenteeism
also
policy
rights under the
policy existed;
the
policy
by
argues
did
that
apply
to
FMLA because:
(2)
even
her,
(1)
if
CWA
wrongly
assumed
improperly
source
and
regarding
(5)
the
consequences
her
that
relied
on
it
with
the
with
her
the
packet
the
(3)
recovery
from
she
abusing
was
information
fact
policy
of
interfered
and
CWA failed to ensure that she was aware of
including
with
Sickness
had no notice that
she
provided her outlining her FMLA rights;
inconsistent
the
did
traveling
that
it
on
and
CWA
leave;
(4)
CWA
her
received
inferences
in
FMLA
it
surgery,
from
traveled
explicitly
while
information
her travel was not
major
Pellegrino
not
of
state
leave
an
external
to
Cancuni
that
could
the
include
termination.
Drawing
party,
all
we find that
favor
of
the
non-moving
Pellegrino has not demonstrated that
11
there
is a genuine issue of material fact in dispute and we find that
no reasonable jury could return a verdict for Pellegrino on her
FMLA interference claim.
Therefore,
we grant CWA's motion for
summary judgment.
As
stated
above,
to
prove
an
interference
claim,
a
plaintiff must show both that she was entitled to benefits under
the FMLA and that her employer illegitimately prevented her from
obtaining those benefits.
Pellegrino's
Sarn_owski, 510 F.3d at 40l.
burden,
then,
is
to
prove
that
she was
entitled to FMLA rights and that her employer failed to provide
her
with
(" [a] n
those
entitlements.
interference
action
is
Callison,
not
about
430
F.3d
at
discrimination,
119-20
it
is
only about whether the employer provided the employee with the
entitlements guaranteed by the FMLA").
There is no dispute that
Pellegrino has proven that she was entitled to avail herself of
the
FMLA's
unpaid
leave
provisions.
She
was
scheduled
to
undergo maj or surgery and properly submitted her leave request
and
from
documentation
a
serious
supporting
medical
the
condition
fact
that
she
qualifying
was
her
suffering
for
There is also no dispute that CWA approved her FMLA leave.
12
leave.
What is in dispute is whether CWA illegally prevented
Pellegrino
from
terminating
her
However,
exercising
her
during
employment
Pellegrino
has
rights
the
course
of
to
submit
evidence
failed
demonstrates that CWA acted improperly.
under
the
FMLA
her
by
leave.
that
No employee is entitled
to a right, benefit, or position to which the employee would not
have been entitled had she not taken FMLA leave.
2614 (a) (3) (B) .
This
means
that
if
an
employee
29 U.S.C.
is
§
discharged
during or at the end of a protected leave for a reason unrelated
to
the
C.F.R.
leave,
§
then
there
825.216(a) (1);
Desha
877
2005);
(10th Cir.
no
right
Sarnowski,
Thronebe
(8th Cir.
is
510
to
reinstatement.
F.3d at
Count
Bones v
403.
403
11 Int'1.
Inc.,
--.--------~---~--~----~-------~.~----
2004); Arban v. West Publ'
29
See also
F.3d
972,
977
366 F.3d 869,
345 F.3d 390,
401 (6th Cir. 2003).
Further,
the
FMLA
does
not
shield
an
employee
from
termination if the employee was allegedly involved in misconduct
related to the use of the
Appeals
for
entitlements
the
in
Third
no
way
FMLA leave.
Circuit
has
prevent
an
In fact,
made
it
employer
policies to prevent the abuse of FMLA leave,
the Court of
clear
from
that
FMLA
instituting
so long as these
policies do not conflict with or diminish the rights provided by
13
the
FMLA.
Callison,
430
F.3d
at
120-121.
In
Callison,
Court upheld an employer's policy requiring that:
absent on sick leave stay at
they leave home for a
(1)
the
employees
home during working hours
unless
reason related to the cause of absence;
(2) employees call the employer upon leaving and returning home;
and (3) employees be subject to calls or visits by the employer.
Id.
at 118,
120-121.
In making this
ruling the court stated,
"(T]here is no right in the FMLA to be 'left alone.'
Nothing in
the FMLA prevents employers from ensuring that employees who are
on leave from work do not abuse their leave ... ".
Here,
Id.
CWA claims to have terminated Pellegrino because
she violated CWA's Sickness and Absenteeism policy.
policy employees
receive
their
out
on
wages.
FMLA or
But,
sick
such
leave would
employees
were
Under that
continue
to
required
to
remain in the immediate vicinity of their homes during the leave
unless the employee needed medical treatment,
to
ordinary
employee's
approval
and
necessary
personal
to
legitimate
replacement,
travel.
purposes.
or
acti vi ties
family
This
First,
needs,
policy
it
needed to attend
directly
or
had
appears
provides
the
related
received
to
to
written
serve
several
benefit
of wage
something not even contemplated by the FMLA,
14
the
which
affords CWA employees the opportunity to take sick leave or FMLA
leave without suffering a loss of pay.
It also serves to make
certain that the privilege of paid sick leave is not abused by
CWA employees.
This
policy
does
not
discourage,
employees from taking FMLA leave.
nor
prevent,
To the contrary,
CWA
providing a
wage supplement could encourage employees to avail themselves of
their
unpaid
argued,
leave
however,
and Absente
rights
that
under
she was
sm policy,
but
the
not
FMLA.
and
Absenteeism
only under
policy
has
covered by the CWA Sickness
the
the OPIED collective bargaining agreement.
Sickness
Pellegrino
did
policy outlined in
We find that the CWA
apply
to
Pellegrino,
and
that CWA's decision to terminate Pellegrino for her violation of
this policy was within CWA's discretion.
CWA provided
August 7,
subject
clear
guidance
to
its
this
in
its
2006 email which instructed employees that they were
to
both
the
CWA
Employment
Policy
respective collective bargaining agreements.
to
employees
rule
was
in
the
case
of
a
direct
Manual
and
their
The only exception
conflict
between
provisions in the Manual and a collective bargaining agreement.
In
that
case,
the
provision
agreement would govern.
in
the
collective
No such conflict is
15
bargaining
in evidence here.
The
OPIEU
bargaining
collective
Pellegrino
speaks
only
establishing
to
eligibility for sick leave pay.
what activities
leave.
As such,
bargaining
Sickness
applicable
and
to
maintaining
The agreement is silent as to
the employee mayor may not undertake while on
there can be no conflict between the collective
agreement,
and
agreement
which
Absenteeism
limitations
on
the
Accordingly,
CWA's
is
silent
policy,
which
employee's
Sickness
and
on
the
issue,
specifically
activities
Absenteeism
and
discusses
during
policy
the
leave.
applied
to
Pellegrino. 2
Pellegrino
the
Sickness
enforcement
of
and
the
further
argues
Absenteeism
policy
rights under the FMLA.
by
that
policy
even
applied
termination
if
to
we
find
her,
interfered
that
CWA's
with
her
We will examine Pellegrino's contentions
one-by-one.
Even if this court were to have decided that the policy did not
apply, Pellegrino's case would still not survive summary
judgment.
No reasonable jury could find that the absence of a
policy to the contrary indicates that an employee is free from
all restrictions while out on medical leave.
Further, no
reasonable jury could find that an employer acts illegitimately
or interferes with FMLA entitlements when that employer
terminates an employee for taking a week-long vacation to Mexico
without at least notifying the employer that her doctor had
approved the travel or that she would be out of the country.
16
2
First,
did not
no
reasonable
jury could find
have notice of the policy.
There
that
is
Pellegrino
record evidence
that CWA disseminated its policies to its employees, and that it
encouraged employees to make inquiry if there was any question
about if and how a policy might apply.
evidence
to
statement
the
that
contrary,
she
Absenteeism policy,
all employees.
did
and
pay
not
than
receive
her
the
own
CWA
conclusory
Sickness
and
despite the fact that it was distributed to
Moreover, no reasonable jury could find that CWA
had an obligation to
leave
other
Pellegrino cites to no
re-alert
policies
when
Although
notifications.
Pellegrino
it
issued
the
FMLA
to
its
separate sick
her
the
mandated
imposes
certain
FMLA
notice
requirements as part of the FMLA leave process, there is no rule
that
obligates
CWA
to
distribute
more
notifications at the time of leave.
Likewise,
no
reasonable
the
mandated
FMLA
See 29 C.F.R. §825.300(c).
jury
that
CWA
of
her
with
her
contention
that
recovery_
The issue here is whether CWA terminated Pellegrino
a
legitimate
travel
reason
was
not
rights
find
with
the
FMLA
could
interfered
for
Pellegrino's
than
not
related
because
inconsistent
to
Pellegrino's assertion would only be material
her
FMLA
leave.
to this analysis
if CWA had terminated her specifically and only because of her
17
abuse of
its
FMLA leave. 3
concern
taking a
that
But
CWA's
Pellegrino
termination decision
had violated a
treating physician,
submitted
she took the trip and only after
simply
separate policy by
trip while accepting sick leave pay.
Pellegrino's
not
germane
to
whether
included
The opinion of
several
years
after
she initiated litigation,
Pellegrino
broke
a
is
workplace
policy that forbid unapproved travel while receiving sick leave
pay.
Additionally,
no
reasonable
jury could find
that
CWA
interfered with Pellegrino's FMLA rights because it has not been
forthcoming
about
Pellegrino
had
the
original
traveled
to
information
regarding
immaterial.
When
confronted,
unapproved travel.
Therefore,
CWA
improperly
relied
source
its
The
Cancun.
Pellegrino's
on
of
information
source
unapproved
Pellegrino
was
of
that
CWA's
travel
honest
is
about
her
there can be no suggestion that
incorrect
information
enforce its Sickness and Absenteeism policy.
in
deciding
to
Further, absent
Although such a contention may have been material if CWA had terminated
Pellegrino solely because of her alleged abuse of her FMLA leave, this court
notes that some courts have held that that an employer need not prove abuse
of FMLA leave, but must merely have an honest suspicion of such abuse before
being entitled to terminate.
I
131
F.3d 672, 681 (7th Cir. 1997).
However, we need not address that issue here.
3
18
evidence that CWA terminated Pellegrino because she was on FMLA
leave,
no cause of action lies under the FMLA against CWA for
investigating potential abuse of its sick leave policies.
Stephenson v.
JLG
Industries,
1304625 at *4
(M.D. Pa. Mar.
Inc.,
No.
31, 2011)
1:09-CV-1643,
See
2011
WL
(denying summary judgment
on an interference claim where employer was tipped off by a co
worker
and
then
investigated
whether
employee
had
used
FMLA
that
CWA
grounds
that
leave to keep an appointment to have his car repaired).
Lastly,
interfered
with
no
reasonable
Pellegrino's
jury
FMLA
could
rights
on
find
the
CWA's response to her unapproved travel while on FMLA leave was
too
harsh,
or
not
expressly
provided
for
in
CWA
policy.
Pellegrino has failed to allege that she was anything other than
an
at-will
employee
or
to
point
collecti ve-bargaining agreement
right
to
employment
greater
to
any
which suggest
than an at-will
outside of any clear intent to the contrary,
provisions
that
in
her
she has
any
employee. 4
Thus,
or any indication
of a statutorily impermissible purpose, CWA was free to
"The court notes that plaintiff attached only portions of her OPIEU
collective bargaining agreement, as well as only portions of CWA's Employment
Manuel. However, as the non-movant at summary judgment, the burden is on
plaintiff to identify affirmative evidence of record which supports her cause
of action. Anderson ~Liberty Lobb~, 477 U.S. 242, 256-57 (1986).
19
terminate Pellegrino for any reason or no reason at all.
Erdman
v.
D.
Nationwide
2007);
1258
Ins.
Co.,
Violanti v.
510
F.Supp.2d
(M.D.Pa.1994)
of
proof
375-76
Emery Worldwide A-CF Co.,
847
(M.
F.Supp.
Pa.
1251,
(noting that in Pennsylvania "there is a very
strong presumption of at-will
level
363,
required
employment
to
overcome
relationships
this
arduous"); Rothrock v. Rothrock Motor Sales,
and the
presumption
Inc.,
is
883 A.2d 511,
512 n. 1 (Pa. 2005).
Ul timately,
Absenteeism
policy
prerogat
separate
Therefore,
terminate
no
CWA's
was
a
from
reasonable
choice to enforce
legitimate
its
exercise
Pellegrino's
use
of
Sickness and
of
FMLA
nd that CWA's
jury could
employer
leave.
choice to
Pellegrino under the Sickness and Absenteeism policy
constituted FMLA interference.
IV. CONCLUSION
For the foregoing reasons,
the defendant's motion
summary judgment [Doc. No. 27] will be granted.
An appropriate order follows.
20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DENISE PELLEGRINO,
Plaintiff,
vs.
Civil Action No. 10-0098
COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO, CLC,
Defendant.
~ORDER
AND NOW, this
~ "day
of May 2011, upon consideration
of defendant's Motion for Summary Judgment,
accompanying
briefs,
IT
IS
HEREBY
[Doc.
ORDERED
No.
that
motion is GRANTED.
THE COURT:
{2
Cc:
All counsel of Record
271,
and
defendant's
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