Summary
finding that decision-maker's statement "with women like me around, men like you will never make it in corporate America" could be evidence of gender-based discrimination where statement allegedly made immediately before employer's decision to terminate plaintiff
Summary of this case from Conine v. Southeastern Pennsylvania Transportation AuthorityOpinion
CIVIL ACTION NO. 02-CV-1349.
June 25, 2003.
MEMORANDUM
Presently before the Court are Defendant's Motion for Summary Judgment, Plaintiff's Response, and Defendant's Reply thereto. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. BACKGROUND
Allentown Business School (hereinafter referred to as "ABS," the "Company," the "School," or "Defendant") emphasizes teaching technical and professional skills to students in Pennsylvania's Lehigh Valley. Founded in 1869, the School offers programs in a variety of fields, from business administration to computer programming, and graphic design to medical office administration. Defendant Career Education Corporation (hereinafter referred to as "CEC" or, along with ABS, "Defendant") is the parent company of ABS.
Plaintiff Anthony P. Campetti (hereinafter referred to as "Campetti" or "Plaintiff") was hired by ABS on April 27, 1992 as a Representative in the School's Admissions Department. The Admissions Department is responsible for marketing the School, following up on leads for prospective students, and enrolling them in the School's programs. Plaintiff was promoted to the position of Assistant Dean of Admissions on December 28, 1996, and to Director of Admissions on August 14, 1998. In this position, he supervised approximately ten to fifteen Admissions Representatives.
ABS has a policy against sexual harassment in the workplace and communicates the policy and reporting procedures to its employees. Specifically, the Company's policy against sexual harassment provides:
The Company forbids all forms of sexual harassment. Accordingly, sexual harassment by anyone, including fellow employees, students and visitors will not be tolerated.
In furtherance of the Company policy to provide each of you with a work environment free from sexual harassment, we will not tolerate employees, students, vendors, contractors, anyone else associated with our business, or any Company guest engaging in any action or conduct which could be viewed as sexual harassment, including:
a. Unwelcome sexual advances;
b. Requests for sexual acts or favors;
c. Any statement or implication that submission to or rejection of sexual conduct could affect an individual's employment with the Company; and
d. Sexually oriented jokes and comments;
e. Sexually graphic pictures, images or recordings;
f. Comments about an individual[']s body;
g. Other verbal or physical conduct of a sexual nature.
Activities of this nature are against the law, serve no legitimate purpose, and have a disruptive effect on your ability to perform the job properly.
The company takes allegations of sexual harassment very seriously and will actively investigate all sexual harassment claims. If it is determined that sexual harassment has occurred, management will take appropriate action.See Def.'s Mot. Summ. J.-Ex. A (Tab 5), Excerpts from ABS Employee Handbook at 3. In March 2000, Plaintiff received sexual harassment training and signed a form indicating that he had done so and understood that ABS did not tolerate such conduct.See id.-Ex. A (Tab 7), Campetti Mar. 2000 Acknowledgment.
Despite the existence of a sexual harassment policy, the record reveals that some of ABS's female employees made jokes with sexual references and spoke about their sex lives with others in the workplace. For example, Mary Sensinger Fronheiser (hereinafter referred to as "Fronheiser"), the Executive Vice President at ABS, testified that she, Virginia Carpenter (hereinafter referred to as "Carpenter"), the President of ABS, Laura Teter (hereinafter referred to as "Teter"), the former Director of Operations at ABS, and Campetti engaged in conversations concerning sex. Pl's Resp.-Ex. I, Fronheiser Dep. at 11 (hereinafter referred to as "Fronheiser Dep."). Fronheiser also looked at pornography with Campetti on his computer, and she would laugh at the images with him. Id. at 14. She also discussed her personal sex life with Carpenter and Campetti.Id. at 17-18.
Carpenter, who was named President of ABS in 1995, also noticed, and participated in, the sexual banter at ABS. For example, Carpenter testified that she observed Campetti opening pornographic websites on his computer, but stated that no one complained about this behavior. Pl.'s Resp-Ex. J, Carpenter Dep. at 19 (hereinafter referred to as "Carpenter Dep."). Additionally, in the front of an inspirational book that she distributed to all of her managers at a team-building conference, Carpenter wrote the following message to Plaintiff:
Tony, It's tough to be our only male manager!!! We women are ruthless and you are often the brunt of all our frustrations. Thanks for being secure enough to handle all us crazy broads!! You are a dream to work with and you have accomplished great things while at ABS. Thanks for working with the Team! . . . Love, Ginny
Def.'s Mot. Summ. J.-Ex. I, Carpenter Message (hereinafter referred to as "Carpenter Message"). Despite this atmosphere, Carpenter testified that she did not believe that there was sexual harassment occurring at ABS. Carpenter Dep. at 36. Furthermore, even though Carpenter was the President of ABS, there is no evidence that she ever disciplined any employees for inappropriate conduct in the workplace, including Campetti.
Campetti was involved in a series of incidents between July and November of 2000, all of which were formally investigated by Jan Newman (hereinafter referred to as "Newman"), Director of Human Resources for CEC. The first incident occurred on or around July 27, 2000 when Kathleen Devine (hereinafter referred to as "Devine"), a female Director of Admissions from one of ABS's sister schools, asserted that Plaintiff had engaged in inappropriate conduct during a business trip to Las Vegas, Nevada. Specifically, Devine believed that Campetti had become sexually aggressive with her and may have put some type of drug in her drink while at the Bellagio Hotel in Las Vegas.
Though Newman's investigation into the incident yielded inconclusive results, the Company outlined the following performance expectations for Campetti:
• The Company expects that you [Campetti] will exercise discipline and self-control at all times while attending Company events.
• It is expected that you will demonstrate a professional demeanor at all times.
• Further, you will not have conversations with any other Company employees, for any reason, about matters of a sexual or very personal nature.
Def.'s Mot. Summ. J.-Ex. A (Tab 1), Oct. 2, 2000 Letter to Campetti. Defendant warned Campetti that "[f]ailure to strictly adhere to these performance expectations will subject you to disciplinary action, which may include termination." Id. Defendant issued Devine an identical warning. Def.'s Mot. Summ. J.-Ex. A (Tab 2), Oct. 2, 2000 Letter to Devine.
After this warning was issued, two more complaints were filed against Campetti, one by Kimberly Mosier (hereinafter referred to as "Mosier") and the other by Erin Jacobs (hereinafter referred to as "Jacobs"). On October 16, 2000, Mosier, an Admissions Representative who reported to Plaintiff, told Franciel Schomburg (hereinafter referred to as "Schomburg"), the Human Resources Manager at ABS, during her exit interview that the working environment had made her feel uncomfortable due to off color jokes and sexual comments from Plaintiff. Defendant terminated Mosier's employment on October 16, 2000, citing poor performance. But Mosier has since filed an EEOC Charge of Discrimination against the Company, alleging that she was sexually harassed and subjected to a hostile work environment by her supervisor, Campetti. Def.'s Mot. Summ. J.-Ex. A (Tab 13), Mosier's EEOC Charge. Mosier believes that as a result of her rejecting his sexual advances, she received fewer leads from Campetti regarding prospective students, which, in turn, affected her performance, leading to her termination. Id.
The third and final incident occurred on November 6, 2000, when Jacobs, another Admissions Representative who reported to Plaintiff, complained to Schomburg that Plaintiff's conduct was fostering an unprofessional work environment. Jacobs reported that Plaintiff had suggested that the Admissions Representatives "solicit themselves" to get enrollments and had made other inappropriate comments.
Jacobs's complaint prompted a full-scale investigation by Newman, who only recently had completed her investigation of the Las Vegas hotel incident. Newman interviewed Schomburg, Mosier, and Jacobs, along with two other female employees in Campetti's Department, Christine Lombardo (hereinafter referred to as "Lombardo") and Christen Beaver (hereinafter referred to as "Beaver"). Lombardo informed Newman that she complained about Campetti's conduct in December 1997. Specifically, Lombardo stated that she was offended that Campetti had covered her office nameplate with a sign that read "juggies." Pl.'s Resp.-Ex. K, Christine Lombardo Dep. at 11 (hereinafter referred to as "Lombardo Dep."). Additionally, Beaver confirmed that Campetti had made inappropriate comments in the workplace and confirmed that Mosier's account was truthful. Def.'s Mot. Summ. J.-Ex. A, Newman Decl. at ¶ 19 (hereinafter referred to as "Newman Decl.").
As part of the investigation, Newman also reviewed Campetti's personnel file, which indicated that he had been disciplined in the past for inappropriate workplace conduct. Id. at ¶ 14. Additionally, Newman obtained the contents of Plaintiff's computer files in order to follow-up on the reports about his displays of pornography. Plaintiff's computer contained a variety of graphic files.
Plaintiff concedes that he accessed sexually explicit material on his computer, stating that his office became a congregation point for viewing such material. Pl.'s Resp.-Ex. G, Campetti Dep. at 161-62 (hereinafter referred to as "Campetti Dep."). He testified that Fronheiser, Teter, Carpenter, and others would come to his office to view sexually explicit images. Id.
On November 17, 2000, after Newman's investigation was underway, Plaintiff presented a doctor's note, stating that he had been seen for "acute illness" and "stress/anxiety," and that he needed a "leave of absence 11/17-1/1/01." Def.'s Mot. Summ. J.-Ex. A (Tab 9), Nov. 17, 2000 Physician's Note. Plaintiff also claims he suffers from (a) mitral valve prolapse, which involves a defect with a valve in his heart; and (b) depression. Campetti Dep. at 18-21. Plaintiff testified that the only impact that these conditions have on any of his daily life activities is: (a) he feels he cannot perform certain high pressure jobs; and (b) he "gets winded" when he plays basketball. Id. at 23-24.
On November 22, 2000, Schomburg sent Plaintiff the School's standard medical leave package, which his physician completed and returned to Schomburg. Def.'s Mot. Summ. J.-Ex. A (Tab 10), Nov. 22, 2000 Letter from Schomburg to Campetti. Plaintiff requested leave until January 1, 2001.
On or around December 12, 2000, Plaintiff submitted notes from two of his medical providers indicating that he was able to return to work on December 18, 2000, earlier than the original return date of January 1, 2001. Campetti Dep. at 138-40; see also Def.'s Mot. Summ. J.-Ex. A (Tab 11), Dec. 11, 2000 Letter from Dr. Toni J. Barnett to Carpenter; Def s Mot. Summ. J.-Ex. A (Tab 12), Dr. Susan Kostenblatt's Notes.
On December 19, 2000, Plaintiff met with Newman and Jacob Gruver (hereinafter referred to as "Gruver"), Executive Vice President of Operations, at CEC's headquarters in Chicago. Campetti Dep. at 142. Campetti testified that he asked Newman for Gruver to be present at this meeting because he wanted a man present, and Newman complied with his request. Id. at 147. At this meeting, Plaintiff was confronted with many allegations that had been made against him, and Plaintiff was given a full opportunity to explain himself over the course of the nearly three hour meeting. Newman Decl. at ¶ 23-24. Additionally, at a moment when Gruver was not present, Campetti testified that Newman said to him, "With women like me around, men like you will never make it in corporate America." Campetti Dep. at 144.
At the conclusion of the meeting, Plaintiff was told that he would be on paid suspension until the investigation was completed. Pl.'s Resp. at 48. This never happened, however, as Gruver opted to immediately terminate Campetti. Id. Plaintiff testified that he did not believe that Gruver discriminated against him, see Campetti Dep. at 196, but Plaintiff does believe that Newman discriminated against him based on her statement to him at the December 19, 2000 meeting. Id. at 195.
The record reveals that during the investigation into Campetti's behavior, there was some discussion that Campetti was to be promoted to Vice President of Marketing and Admissions. For example, Carpenter testified that, in November 2000, the Company was discussing the possibility of promoting Campetti. Carpenter Dep. at 26-27. Additionally, Teter testified that Campetti's promotion was in the "conversation stage" but that she did not believe that his promotion was "imminent." Pl.'s Resp.-Ex. M, Laura Teter Dep. at 6. Campetti believes that many of the women in the office felt threatened by Campetti's possible promotion, and, thus, trumped-up charges against him to prevent his rise in the Company. Campetti Dep. 91-99.
Finally, after Campetti was terminated, Carpenter and Lombardo revealed that they had engaged in consensual, sexual relationships with Campetti while he was an employee at ABS. The record indicates that Newman, when conducting her investigation into Campetti's conduct, knew nothing of his relationship with Carpenter or Lombardo. See Carpenter's Dep. a 44-45 (stating that the first time she revealed that she was sexually involved with Campetti was April 2001, four months after Campetti was terminated); Lombardo Dep. at 19 (stating that she never told anyone at ABS that she had a sexual relationship with Campetti); Newman Dep. at 12, 22-23 (testifying that she knew nothing about Plaintiff's relationship with Carpenter until after his termination, and did not learn about his relationship with Lombardo until after she heard Plaintiff testify about it at his deposition in this case).
Campetti filed the instant action alleging violations of Title VII of the Federal Civil Rights Act of 1991, 42 U.S.C. § 2000e to 2000e-17, the American With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Defendant Career Education Corporation filed a motion for summary judgment, to which Campetti responds.
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about 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, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
III. DISCUSSION
A. Title VII
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A Title VII case may be advanced on either a pretext or a "mixed motive" theory. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n. 4 (3d Cir. 1995).
A pretext case is one in which the plaintiff shows that the proferred reason for the employment decision is not the real reason. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny address those instances in which the plaintiff alleges through indirect evidence, i.e., actions or statements from which unlawful discrimination may be inferred, that the defendant's basis for the employment decision "was in fact pretext." Id. at 804. Under the McDonnell Douglas framework, the plaintiff/employee must show, by a preponderance of the evidence, a prima facie case of discrimination. Id. at 802. If the employee is able to do this, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions against the employee. Id. If the employer can meet this burden, then the burden shifts back to the employee to prove, by a preponderance of the evidence, that the reasons articulated by the defendant were actually pretext for discriminatory practices. Id. at 804. The defendant is not entitled to summary judgment if there remains a genuine issue of material fact on any level of this framework. See e.g., Watson v. Wyeth-Ayerst Lab., No. 99-3075, 2001 U.S. Dist. LEXIS 24142, at *18 (E.D. Pa. Oct. 5, 2001) (applying the McDonnell Douglas framework to plaintiff's FMLA claim and noting that defendant is not entitled to summary judgment if genuine issues of material fact remain on any level of the McDonnell Douglas framework).
A "mixed motive" case is one in which the plaintiff shows that the adverse decision is the result of mixed motives-where both legitimate reasons and illegitimate, discriminatory reasons were involved. See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir. 2000). In mixed motive cases, a plaintiff must demonstrate that the unlawful motive was a motivating factor in the adverse employment action. Id. at 214. Traditionally, under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the employee had the obligation to produce direct evidence of discrimination, i.e., more direct evidence than is required for the McDonnell Douglas prima facie case. Starceski, 54 F.3d at 1096 n. 4. InDesert Palace, Inc. v. Costa, however, the Supreme Court recently held that "[d]irect evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII." No. 02-679, 2003 U.S. LEXIS 4422, at *4 (June 9, 2003). The Supreme Court focused on the language of the Civil Rights Act of 1991 and concluded that "[o]n its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence."Id. at *16. Therefore, presentation of circumstantial evidence is sufficient to obtain a mixed motive jury charge. Id. at *18 (noting that the conventional rule of civil litigation, which requires a plaintiff to prove his case by a preponderance of the evidence using either direct or circumstantial evidence, generally applies in Title VII cases).
In the present case, Campetti argues that he has evidence sufficient under either a mixed motive or a pretext theory. The Court will address each argument in turn.
1. Mixed Motive Case
It is generally to an employee's benefit to show evidence of discrimination under a mixed motive theory rather than relying on the inferential model set forth in McDonnell Douglas. Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (1st Cir. 2002). "[A] plaintiff [who] is able to produce direct evidence of discrimination . . . may prevail without proving all the elements of a [ McDonnell Douglas] prima facie case."Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). Though it is advantageous for a plaintiff to proceed on a mixed motive theory, the plaintiff has a high initial hurdle to clear. To obtain the benefits under a mixed motive theory, the employee must "offer stronger evidence . . . than that needed to establish a prima facie case under" McDonnell Douglas. Weston-Smith, 282 F.3d at 65 (quoting I.B. Lindemann P. Grossman, Employment Discrimination Law 43 (3d ed. 1996)). Therefore, in a mixed motive case, the evidence produced by the plaintiff must be "so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production." Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994).
Specifically, in a mixed motive case, a plaintiff must show that the unlawful motive was a motivating factor in the adverse employment action. Watson, 207 F.3d at 214. Traditionally, under Price Waterhouse, a plaintiff would satisfy this burden by presenting "direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision." Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring). "Direct evidence is overt or explicit evidence which directly reflects a discriminatory bias by a decision maker." Bulluck v. Children's Hosp. of Philadelphia, 71 F. Supp.2d 482, 485 (E.D. Pa. 1999). In order for evidence to be "direct evidence," it must prove the existence of the fact in issue without inference or presumption.Torre v. Casio. Inc., 42 F.3d 825, 829 (3d Cir. 1994). Assuming that the employee is capable of producing direct evidence of discriminatory animus, the burden then rests on the employer to demonstrate that it would have made the same decision in the absence of illegal bias. Price Waterhouse, 490 U.S. at 244-45.
The Supreme Court recently addressed the type of evidence required in a mixed motive case. Specifically, the Supreme Court addressed the issue of "whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991." Desert Palace, 2003 U.S. LEXIS 4422, at *5. The Supreme Court held that presentation of direct evidence is not required to secure a mixed motive jury instruction. Id. at *6. Instead, a "plaintiff . . . may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played a `motivating factor.'" Id. at * 14 (citations omitted). The Court applies this standard to the present motion for summary judgment.
Campetti refers to two different situations in support of his argument that a mixed motive theory applies to the present case. Plaintiff contends that the mixed motive standard is justified based on comments by Newman and a handwritten note from Carpenter. Specifically, at his December 19, 2000 meeting with Newman and Gruver, Plaintiff claims that Newman stated that "with women like me around, men like you will never make it in corporate America." Additionally, in the front of an inspirational book that she distributed to all of her managers at a team-building conference, Carpenter wrote a message to Plaintiff thanking him for his service to the company, but also making reference to "ruthless women," "crazy broads," and to Campetti as being "the only male manager." See Carpenter Message (bottom p. 3 of this Opinion).
Viewing the evidence in the light most favorable to the Plaintiff and in light of the Supreme Court's holding in Desert Palace, the Court finds that the case may be analyzed under a mixed motive standard based on Newman's comments to Campetti at the December 19, 2000 meeting and the Carpenter message (pp. 3, 4 of this Opinion). Specifically, the Court finds that there are genuine issues of material fact as to whether Newman's statement constitutes evidence of an unlawful motive. First, Newman denies saying to Campetti that "with women like [her] around, men like [him] will never make it in corporate America." Newman Dep. at 58. Because this statement is challenged by the purported speaker, it is necessary for the factfinder to resolve whether the alleged expression was made. If the factfinder determines that the words were spoken, then the "mixed motive" model of proof may apply. Assuming this statement was made, a reasonable jury may conclude that the statement suggests that "sex . . . was a motivating factor for [the] employment practice." Desert Palace, 2003 U.S. LEXIS 4422, at *21. As such, the burden would then lie with the Defendant to prove that the same decision would have been made for an entirely legitimate reason. Price Waterhouse, 490 U.S. at 250.
With regard to the Carpenter message, it cannot be held as a matter of law whether it implies a discriminatory animus. A jury will have to make that decision.
2. Pretext Case
Plaintiff also argues that Defendant's preferred reasons for terminating his employment are a pretext for discrimination. As such, the Court will also analyze Campetti's claims under the McDonnell Douglas burden-shifting framework.
Under the McDonnell Douglas framework, Plaintiff must first show, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination, Campetti must show that he: (1) is in a protected class, (2) is qualified for the position, (3) suffered an adverse employment action, and (4) was discharged under circumstances that give rise to an inference of unlawful discrimination. Morris v. G.E. Financial Assurance Holdings, No. 00-3849, 2001 U.S. Dist. LEXIS 20159, at *14 (E.D. Pa. Dec. 5, 2001). A plaintiff may satisfy the fourth prong of the prima facie case by presenting evidence that similarly situated individuals were treated more favorably.See id. at *15 (stating that "[c]ommon circumstances giving rise to an inference of unlawful discrimination include . . . the more favorable treatment of similarly situated colleagues outside of the relevant class.").
In the present case, the first three prongs of the prima facie case are undisputed. Even though Campetti is a white male, the Third Circuit has held that Title VII suits by white plaintiffs asserting "reverse discrimination" are viable even though the plaintiff is not a member of a racial minority. Kondrat v. Ashcroft, 167 F. Supp.2d 831, 835 (E.D. Pa. 2001). Additionally, there is no dispute that Campetti was qualified for his position, and he suffered an adverse employment action when his employment was terminated. The issue before the Court is whether Campetti can establish that similarly situated individuals were treated more favorably.
Similarly situated employees are ones who "have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Morris, 2001 U.S. Dist. LEXIS 20159, at *20 (quoting Waterhouse v. District of Columbia, 124 F. Supp.2d 1, 13-14 (D.C. 2000)). In order to show that similarly situated individuals were treated more favorably, Campetti identifies three main categories of "comparators": (1) Carpenter's failure to address the complaints lodged against Plaintiff; (2) Carpenter's and Lombardo's alleged violation of the no-fratemization "policy;" and (3) sexual banter among the School's senior female managers. See Pl.'s Resp. at 5, 43.
Campetti first argues that Carpenter was clearly treated differently "when she was not fired for allowing Campetti to make sexually provocative comments at the ABS workplace." Id. at 5. Plaintiff further alleges that "as Campetti's direct supervisor for many years, Carpenter should have been equally culpable for tolerating his workplace indiscretions." Id. Aside from being an interesting commentary on his own misconduct, Plaintiff's views of Carpenter's management deficiencies do not render her "similarly situated" to Campetti. Poor management and supervision are not in the same category as Plaintiff's harassing conduct.
Additionally, Campetti argues that Carpenter and Lombardo are relevant comparators because they allegedly violated the anti-fraternization policy by having an intimate relationship with Plaintiff. Plaintiff contends that Carpenter and Lombardo were treated more favorably because they violated the anti-fraternization policy but were not disciplined. This argument fails because there is no evidence that Plaintiff s involvement in these relationships played any role in his termination or that he was disciplined in any way for them. The record indicates that Newman, when conducting her investigation into Campetti's conduct, knew nothing of his relationship with Carpenter or Lombardo, as neither woman admitted that she had been sexually involved with Campetti until after he was terminated. See Carpenter's Dep. at 4445 (stating that the first time she revealed that she was sexually involved with Campetti was April 2001, four months after Campetti was terminated); Lombardo Dep. at 19 (stating that she never told anyone at ABS that she had a sexual relationship with Campetti); Newman Dep. at 12, 22-23 (testifying that she knew nothing about Plaintiff's relationship with Carpenter until after his termination, and did not learn about his relationship with Lombardo until she heard Plaintiff testify about it at his deposition in this case). Accordingly, even if Defendant turned a blind eye to the fraternization by Carpenter and Lombardo, it also did so with respect to Plaintiff, thus making any inference of disparate treatment impossible.
Plaintiff, however, has established genuine issues of material fact in his prima facie case by pointing to evidence that the School's "female senior managers" engaged in sexually explicit discussions but were not disciplined for doing so. Even though the Plaintiff points to no evidence that formal complaints were lodged against his female co-workers for their behavior, he does point to ample evidence that these indiscretions did in fact occur. Defendant attempts to distinguish the women's behavior from Plaintiff s, suggesting that "the sexual banter among the School's senior management is not comparable to the unwelcome, harassing conduct that led to Plaintiff's termination." Def.'s Reply at 8. The Court, however, cannot determine as a matter of law whether Plaintiff's conduct was in fact worse than that of his female counterparts. This determination is best reserved to a jury.
Assuming, arguendo, that Campetti satisfies his prima facie case, the Court is instructed to proceed to the second part of the McDonnell Douglas framework which shifts the burden of production to Defendant. McDonnell Douglas, 411 U.S. at 802. The Court finds that Defendant articulated a legitimate, nondiscriminatory reason for terminating Plaintiff's employment. Defendant terminated Campetti's employment based on inappropriate conduct in the workplace. In support of summary judgment on this ground, ABS points to record evidence that shows multiples indiscretions on the part of Campetti.
Thus, the burden shifts back to the Plaintiff to show that the preferred reason is a pretext for discrimination. A plaintiff in a Title VII "pretext" case may avoid summary judgment by adducing evidence that "(1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759 762 (3d Cir. 1994). It is incumbent upon Campetti to point to evidence which demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in ABS's reasons that one could reasonably conclude that the reasons are untrue. Id. at 765.
The Court finds that there are genuine issues of material fact as to whether Defendant's legitimate, non-discriminatory basis for termination is actually a pretext for discrimination. Campetti argues that he was subjected to a standard of discipline that was not imposed in like fashion upon his female co-workers, and that this "double-standard is evidence of pretext." Pl.'s Resp. at 37. As previously discussed, the Court reserves to a jury the issue of whether the senior female managers, who engaged in sexually explicit discussions at work, were treated more favorably and if such a "double-standard" was present.
Additionally, if Newman said to Campetti that "with women like me around, men like you will never make it in corporate America," then this also may be evidence that Defendant's preferred reason "did not actually motivate the employment action." Fuentes, 32 F.3d at 764. (See also discussion of Carpenter message, pp. 13, 14).
The Court, while noting that Campetti's case as it currently stands is far from strong, finds that the Plaintiff has raised genuine issues of material fact at both the prima facie and pretext stages of the McDonnell Douglas framework. As such, a grant of summary judgment is not appropriate. See Watson, 2001 U.S. Dist. LEXIS 24142, at *18 (stating that defendant "is not entitled to summary judgment if there remains a genuine issue of material fact on any level of [the McDonnell Douglas] framework.").
Additionally, the Court notes that Plaintiff may present his case to a jury under both the mixed motive and pretext theories.Armbruster, 32 F.3d at 781 n. 17 (noting that "an employee may present his case under both theories and the district court must then decide whether one or both theories properly apply at some point in the proceedings prior to instructing the jury.").
B. ADA
The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). Employers are prohibited from discriminating against such individuals with regard to "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."Id.
The Court follows the burden-shifting framework first set forth by the Supreme Court in McDonnell Douglas when analyzing claims under the ADA. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). As previously discussed, under this framework, the plaintiff/employee must show, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the employee is able to do this, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions against the employee.Id. If the employer can meet this burden, then the burden shifts back to the employee to prove, by a preponderance of the evidence, that the reasons articulated by the defendant were actually pretext for discriminatory practices. Id. at 804. Although "the burden of production may shift, `the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Shaner, 204 F.3d at 500-01 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an adverse employment action because of that disability. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998). Defendant argues that Plaintiff cannot make out a prima facie case of disability discrimination because he is not "disabled" within the meaning of the ADA and, even if he were, he cannot show that the reasons for his discharge were a pretext for intentional disability discrimination. Def.'s Mot. Summ. J. at 19.
To qualify as disabled under the ADA, a claimant must initially prove that he has a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194-95 (2002). Major life activities include significant tasks such as walking, seeing, hearing, speaking, breathing, working, or caring for oneself. Lanni v. City of Philadelphia, No. 01-4726, 2002 U.S. Dist. LEXIS 9664, at *4 (E.D. Pa. May 30, 2002). The alleged disability must be a significant impediment upon one's lifestyle and not merely an inconvenience he may encounter in performing daily functions. In a motion for summary judgment, the court need only decide whether, taking all the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that the plaintiff is disabled.E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000).
Plaintiff claims he suffers from (a) mitral valve prolapse, which involves a defect with a valve in his heart; and (b) depression. See Campetti Dep. at 18-21. Plaintiff testified that the only impact that these conditions have on any of his daily life activities is: (a) he feels he cannot perform certain high pressure jobs; and (b) he "gets winded" when he plays basketball. Id. at 23-24.
The Court finds that the Plaintiff s conditions do not limit one or more of his major life activities. Playing basketball is not a major life activity, and, therefore, the fact that Plaintiff gets "winded" does not support an ADA claim. Additionally, Plaintiff's inability to perform certain high pressure jobs does not constitute a substantial limitation on a major life activity. The Supreme Court has made clear that even if "working" is a major life activity, "a [plaintiff] would be required to show an inability to work in a `broad range of jobs,' rather than a specific job" in order to demonstrate a substantial limitation. Toyota Motor. 534 U.S. at 200 (citingSutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999)). Plaintiff cannot show an inability to work a broad range of jobs. Because Plaintiff's conditions do not substantially limit any major life activities, he is not disabled under the ADA and therefore cannot sustain a claim based on this statute. Accordingly, the Court grants Defendant's motion for summary judgment as to Plaintiff's ADA claim.
C. FMLA
The Family and Medical Leave Act ("FMLA") entitles "employees to take reasonable leave for medical reasons. . . ." 29 U.S.C. § 2601(b)(2). The FMLA contains two distinct types of rights.See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998). The first type, labeled as prescriptive or substantive rights, relates to the ability to take twelve weeks of unpaid leave. Id. The second type, called proscriptive rights, includes protection in the event that an employee is discriminated against for exercising the prescriptive rights as set forth in the statute. Id. at 159-60.
Plaintiff contends that Defendant violated what amounts to his substantive and proscriptive rights under the FMLA. The Court will address each argument in turn.
1. Prescriptive/Substantive Rights
The FMLA entitles "eligible employees" "to a total of 12 workweeks of leave during any 12-month period" for certain, specified reasons set forth in the act. 29 U.S.C. § 2612(a). The term "eligible employee" means an employee who has been employed "(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A). It is undisputed that Campetti qualifies as an "eligible employee" entitled to FMLA leave.
The FMLA makes it unlawful for any employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). Plaintiff contends that Defendant violated the FMLA by interfering with his right to take up to a total of twelve weeks of FMLA leave. Pl.'s Resp. at 53.
Plaintiff cannot sustain a FMLA "interference" claim because he was never denied any FMLA leave. Plaintiff's leave was approved without question after he presented a doctor's note on November 17, 2000, stating that he had been seen for "acute illness" and "stress/anxiety," and that he needed a "leave of absence 11/17 — 1/1/01." Def.'s Mot. Summ. J.-Ex. A (Tab 9), Nov. 17, 2000 Physician's Note. On or around December 12, 2000, Plaintiff submitted notes from two of his medical providers indicating that he was able to return to work on December 18, 2000, earlier than the original return date of January 1, 2001. Campetti Dep. at 138-40; see also Def.'s Mot. Summ. J.-Ex. A (Tab 11), Dec. 11, 2000 Letter from Dr. Toni J. Barnett to Carpenter; Def.'s Mot. Summ. J.-Ex. A (Tab 12), Dr. Susan Kostenblatt's Notes. Additionally, Plaintiff testified that he voluntarily ended the leave himself, as he felt the School could not survive without him. Campetti Dep. at 140. Therefore, it was Campetti's decision to take only four weeks of FMLA leave, and Defendant did not deprive Campetti of any FMLA leave by accepting his own request to return to work prior to January 1, 2001.
2. Proscriptive Rights
The FMLA also makes it unlawful "for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). This portion of the FMLA prohibits retaliation by an employer for the employee's exercise of rights under the FMLA. As with other retaliation claims, the Court utilizes the burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas in analyzing such a claim under the FMLA. See Sherrod v. Philadelphia Gas Works, 209 F. Supp.2d 443, 451 (E.D. Pa. 2002).
To establish a prima facie case of retaliation under the FMLA, Plaintiff must show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) a causal connection exists between the adverse action and Plaintiff's exercise of his FMLA rights. Alifano v. Merck Co., Inc., 175 F. Supp.2d 792, 795 (E.D. Pa. 2001). Assuming for summary judgment purposes only that Plaintiff could establish the first two elements of his prima facie case, Defendant argues that there is absolutely no evidence to suggest that his discharge was causally connected to his leave of absence. Def.'s Mot. Summ. J. at 23.
The Court agrees with Defendant. The allegations of harassment were made against Plaintiff before he took his leave of absence, and Newman began her investigation before he took his leave of absence. Moreover, the leave was approved by CEC, and Plaintiff was not questioned about the allegations during his leave, but rather after two of his medical providers had provided full clearance for his return to work. Plaintiff concedes that no one ever expressed disapproval of his leave of absence. Though there may be genuine issues of material fact as to whether Campetti's gender played a role in his dismissal, there is no evidence to link Plaintiff s discharge to his taking FMLA-approved leave.
Accordingly, the Court grants Defendant's motion for summary judgment as to Plaintiff's FMLA claim.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted in part and denied in part. An appropriate Order follows.
ORDER
AND NOW, this 25th day of June, 2003, upon consideration of Defendant Career Education Corporation's Motion for Summary Judgment (Docket No. 12), Plaintiff Anthony P. Campetti's Response (Docket No. 15), and Defendant's Reply thereto (Docket No. 17), it is hereby ORDERED the Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. More specifically:
(1) Defendant's Motion for Summary Judgment as to Plaintiff's ADA claim (Count I) is GRANTED;
(2) Defendant's Motion for Summary Judgment as to Plaintiff's Title VII claim (Count II) is DENIED;
(3) Defendant's Motion for Summary Judgment as to Plaintiff's FMLA claim (Count III) is GRANTED.
Pre-trial memoranda are due within ten (10) days of the date of this Order. Counsel are to contact the Courtroom Deputy, Matthew Higgins, for trial scheduling.