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holding that the plaintiff's medical and emotional conditions insufficient to warrant equitable tolling
Summary of this case from Boyce v. Ancora State Hosp.Opinion
Civil Action No. 02-CV-8023.
August 18, 2004
MEMORANDUM AND ORDER
This employment discrimination case is now before us for disposition of the defendants' motion for summary judgment on all counts. For the reasons which follow, the motion shall be granted in part.
Factual Background
According to the allegations set forth in her complaint, Plaintiff, Charlotte Sistrun is an African-American woman who was employed as the Community and Government Relations Manager by Time-Warner Cable and Urban Cableworks from 1995 until her termination on July 13, 2001. Plaintiff describes the duties which she had in this position as including "franchise renewal negotiations, cultivating relations between Time-Warner Cable and the City Council and community relations outreach." (Complaint, ¶ 14).
Plaintiff had initially been hired to the Community Relations Manager position by Wade Cable, which was subsequently purchased by Time-Warner Cable in 1998. In January, 2001, Time-Warner sold 60% of the shares in its Philadelphia operation to Inner City Broadcasting and began doing business as Urban Cableworks in partnership with AOL/Time-Warner Cable. (Plaintiff's Complaint, ¶ s 13, 24).
In January, 2000, Defendant Linda Whisman was appointed the General Manager of Time-Warner's Philadelphia operations. In September, 2000, Larry Jarrett was hired by Urban Cableworks as the Vice President of Community and Government Relations and Defendant Karen Ledger was hired as the Marketing Director in October, 2000. Plaintiff avers that prior to Ms. Ledger's hiring, she was not told that she would be a subordinate to Ms. Ledger and was not given the opportunity to compete for her position. Instead, Plaintiff was led to believe that Ms. Ledger was being considered for the job of marketing manager, which was a lateral position to the one held by Plaintiff.
Plaintiff further alleges that in the months that followed, she was treated with hostility and her work was constantly criticized by Defendants Whisman and Ledger, who also told her not to associate with Larry Jarrett because, Plaintiff believes, he too was African-American. Plaintiff further complains that she was excluded from the planning of a major event party and from being photographed at the party, directed to begin planning projects and then told to drop them without explanation and precluded from attending counseling appointments during the work day. By March 12, 2001, the tensions which Plaintiff was experiencing on the job became so severe that she began experiencing physical symptoms, including a severe pain in her left side. When she took a few days off on the advice of her doctor, Defendant Ledger left a message for Plaintiff informing her that she needed to know the exact specifications of her illness by 9 a.m. on the following Monday.
Plaintiff's physical condition continued to deteriorate, she was treated several times in a hospital emergency room in April and May, 2001 and her physician certified her as disabled. She also apparently applied for short-term disability benefits at this time but her application was initially rejected because Time-Warner's disability insurance carrier noted that Plaintiff's doctor had made a notation that he expected her condition to improve by May, 2001. On July 3, 2001, Defendant Whisman contacted Plaintiff and advised her that the disability insurance carrier had sent her a copy of a letter from her doctor releasing her to return to work in May. On July 10, 2001, Whisman sent Plaintiff a letter giving her until July 13, 2001 to clarify her medical status or she would be considered to have resigned her employment. Although Plaintiff contacted her doctor's office and they had agreed to send Whisman a letter certifying Ms. Sistrun's ongoing disability, that letter was not received until July 16, 2001. On July 13, 2001, Whisman sent Plaintiff a letter advising that because she had not met the July 13th deadline, she had been deemed to have voluntarily resigned from Time-Warner.
As Ms. Sistrun believed that she had a "superior educational background, more marketing experience and more experience in marketing to the targeted African-American community than Karen Ledger," she submits that Defendants Time-Warner and Linda Whisman intentionally discriminated against her, and that all of the defendants subjected her to a hostile work environment and constructively discharged her because of her race in violation of 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e, et seq. (See, e.g., Complaint, ¶ s 20-22). In addition, Plaintiff claims she was discriminated against because of her gender in that despite the fact that her position and Larry Jarrett's were very similar, Mr. Jarrett was paid approximately five times more than she was and that her rights under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. and the Family and Medical Leave Act, 29 U.S.C. § 2601, et. seq. were violated in that she was terminated because of her disability and that the defendants never notified her that they had designated her leave as FMLA leave. Discovery has now closed and the defendants move for the entry of judgment in their favor as a matter of law on all of the counts in the complaint.
Summary Judgment Standards
It is recognized that the underlying purpose of summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Under Fed.R.Civ.P. 56(c), summary judgment is properly rendered:
". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
Stated more succinctly, summary judgment is appropriate only when it is demonstrated that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-32, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In deciding a motion for summary judgment, all facts must be viewed and all reasonable inferences must be drawn in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Oritani Savings Loan Association v. Fidelity Deposit Company of Maryland, 989 F.2d 635, 638 (3rd Cir. 1993);Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 125-126 (3rd Cir. 1994); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 700 F. Supp. 838, 840 (W.D. Pa. 1988). An issue of material fact is said to be 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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In Celotex Corp. v. Catrett, supra, the Supreme Court articulated the allocation of burdens between a moving and nonmoving party in a motion for summary judgment. Specifically the Court in that case held that the movant had the initial burden of showing the court the absence of a genuine issue of material fact, but that this did not require the movant to support the motion with affidavits or other materials that negated the opponent's claim. Celotex, 477 U.S. at 323. The Court also held that Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions, on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). This does not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose its own witnesses. Rather, Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the required showing that a genuine issue of material fact exists. Id. See Also, Morgan v. Havir Manufacturing Co., 887 F. Supp. 759 (E.D.Pa. 1994); McGrath v. City of Philadelphia, 864 F. Supp. 466, 472-473 (E.D.Pa. 1994).
Discussion
In Counts I, II and III of her complaint, Plaintiff contends that Defendants violated 42 U.S.C. § 1981 by not affording her the opportunity to compete for Karen Ledger's position, subjecting her to a hostile and racially discriminatory work environment and constructively discharging her. In Counts IV and V, she asserts claims for race and sex discrimination pursuant to Title VII and in Counts VI and VII, she seeks relief under the Americans with Disabilities Act and the Family and Medical Leave Act.
1. Plaintiff's Discrimination Claims Under Section 1981
As noted, in the first three counts of her complaint Plaintiff seeks damages under 42 U.S.C. § 1981 for the defendants' alleged racial discrimination against her by failing to give her the opportunity to apply for the Marketing Director position, creating a hostile work environment and ultimately constructively discharging her. Specifically, Section 1981 provides that:
(a) Statement of equal rights
(b) "Make and enforce contracts" defined
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Section 1981 is thus a means of vindicating rights protected under the Constitution or laws of the United States that have been abridged as a result of racial discrimination. Brown v. Biester, 1986 U.S. Dist. LEXIS 23171 at *6 (E.D.Pa. July 7, 1986). Generally, to make out a claim under § 1981, the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination utilizing the framework set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).Stewart v. Rutgers, the State University, 120 F.3d 426, 432 (3d Cir. 1997). The plaintiff can establish a prima facie case by showing that she is a member of a protected class, that she was qualified for and rejected for the position and that non-members of the protected class were treated more favorably. McDonell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 252-253.
After the plaintiff has established a prima facie case, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the employee's rejection. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection, which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action. Stewart, supra., citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) and Burdine, 450 U.S. at 255. Then, if the defendant's evidence creates a genuine issue of fact, the presumption of discrimination drops from the case.Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 522-23 (3d Cir. 1992), citing Burdine, 450 U.S. at 252-255. If the employer is able to proffer a legitimate, nondiscriminatory reason for its actions, the plaintiff, since she retains the ultimate burden of persuasion, must demonstrate that the proffered reason was merely a pretext for discrimination. Goosby v. Johnson Johnson Medical, Inc., 228 F.3d 313, 318 (3d Cir. 2000), citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To demonstrate pretext, the plaintiff must convince the fact finder both that the employer's reason was false and that the discrimination was real. Miller v. State of Delaware, No. 01-4001, 41 Fed. Appx. 581, 583, 2002 U.S. App. LEXIS 15310 at *4 (3d Cir. July 29, 2002), citing Jones v. School District of Philadelphia, 198 F.3d 403, 412-13 (3d Cir. 1999). To do so, a plaintiff may introduce evidence from which a fact finder could (1) disbelieve the employer's articulated legitimate reason or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Sherrod v. Philadelphia Gas Works, No. 02-2153, 57 Fed. Appx. 68, 74, 2003 U.S. App. LEXIS 1428 at *15 (3d Cir. Jan. 29, 2003), quoting Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 283 (3d Cir. 2001) and Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To disbelieve the employer's proffered reason, the question is not whether the action was prudent, but whether appellant has shown "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Id. See Also, Berry v. Jacobs, No. 03-3776, 2004 U.S. App. LEXIS 10508 at *7-8 (3d Cir. May 27, 2004).
By this motion, Defendants first assert that they are entitled to summary judgment because the plaintiff never applied for the position ultimately given to Karen Ledger. Indeed, the record here reflects that as of November, 1999 when Time-Warner's then-marketing manager resigned, Defendants began looking for an individual to fill that position. Having no success in finding a suitable candidate after nearly one year, Defendants decided to restructure their organization and at that point interviewed Karen Ledger for the Marketing Director position. However, there is conflicting evidence as to whether Defendants ever announced that they had decided to search for a Marketing Director in lieu of a Marketing Manager and Linda Whisman acknowledged that Plaintiff was therefore never given the opportunity to apply for the Marketing Director job. Plaintiff contends that at the time she interviewed Ms. Ledger, she believed it was for the Marketing Manager position and it was only after Ms. Ledger was hired that she learned that she would be the Marketing Director and her supervisor. Plaintiff admits that while she wasn't particularly interested in the functional part of marketing and that she did not apply for the Marketing Manager position because it was a lateral position to the one which she already held, she nevertheless submits that she would have applied for the Marketing Director job because it was a promotion. In so far as the record here contains conflicting evidence on whether the plaintiff was ever given the opportunity to apply for the job in question, we decline to grant summary judgment to the defendants on the basis of this argument.
There is, however, evidence that after Time-Warner approved the organizational re-structure to create the Marketing Director position, Philadelphia's Human Resources Manager Frederick Harvey changed the job vacancy posting to reflect the change in title and re-advertised the position. Mr. Harvey also sent an e-mail out to the management team that was scheduled to interview Karen Ledger that the position for which she was interviewing was Marketing Director. Plaintiff was included on the e-mail's distribution list.
Turning then to the prima facie case, we find that the plaintiff has established that she is a member of a protected class in that she is an African-American female and that she has sufficiently shown that a member of a non-protected class was treated more favorably since the position in question was given to a white female.
Not having the benefit of a job description, we also find that Plaintiff has established that she was sufficiently qualified to have been considered for the position in question. As is apparent from a review of Ms. Sistrun's resume, she had a Master of Science degree in Community Economic Development and had taken one course in marketing strategies. Prior to taking the Community and Government Relations Manager position with AOL/Time-Warner/Urban Cableworks in 1995, Plaintiff worked for one year as the Director of Marketing for the Philadelphia New Observer Newspaper, had ten years of experience as the Founder/Publisher/Media Consultant for a monthly community newspaper known as the Wynnefield West Digest and two years of experience as the Development Director for the Philadelphia Dance Company. We therefore conclude that the plaintiff here has successfully made out a prima facie case of discrimination.
The burden then shifts to the defendants to show a legitimate, non-discriminatory reason for their employment decision. We find that the defendants, too, have met their burden as the record reflects that Ms. Ledger was well qualified for the position ultimately given to her. As Ms. Ledger's resume and deposition testimony reflects, she received a Bachelor of Arts degree in Communications from Temple University in 1984. At the time she was interviewed by Time-Warner, she had some fourteen years' experience in marketing, management, product promotion and public/media relations, ten years of which had been spent in the cable industry with both Comcast and Suburban Cable/TCI Communications. Additionally, in her prior positions at Comcast, Suburban and TCI, Ms. Ledger had experience working in community relations and in marketing to diverse, multicultural markets such as Philadelphia's. She had grown up in Philadelphia and was therefore also familiar with the area. There is thus ample evidence in the record that the reason Karen Ledger was offered the job was primarily because of her years of prior marketing experience with the cable industry in the Philadelphia region.
It is thus now incumbent upon the plaintiff to show that the reason advanced by the defendants for their employment decision is false and is a mere pretext for discrimination. On this point, Plaintiff relies upon the resume of one Jacqueline Thomas, an African American woman who was employed as a Time-Warner marketing manager in Philadelphia whom she believes should have been considered for the Marketing Director position and the Declaration of Alycia Holton, also an African-American woman who had been employed by Time-Warner as a Production Manager. Ms. Holton's Declaration avers that she too, was asked to interview Ms. Ledger and that, like Plaintiff, she also believed that she would be a good marketing manager but had concerns that Ms. Ledger didn't have enough experience in working in a diverse market. Plaintiff also points to Ms. Holton's Declaration that in a manager's meeting, Defendant Whisman had referred to the largely African-American Time-Warner franchise area's population as "drug dealers" who "have to wait until they do their drug deals before they can pay their bills," as "they don't have bank accounts . . ." Plaintiff further submits that the fact that Whisman and Ledger had warned she and Ms. Holton to not communicate with one another or with Larry Jarrett, the African-American vice president of the Philadelphia franchise, is additional evidence of the defendants' racial bias.
Taking all of this evidence as true and viewing it in the light most favorable to the plaintiff, we cannot find that it is such as would cause a fact finder to either disbelieve the employer's articulated legitimate reason or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. For one, even assuming arguendo that Linda Whisman is racially biased against African-Americans, there is no evidence that Defendant Whisman was the sole decisionmaker or that her racial bias can be interpreted to vicariously extend to Time-Warner Cable. Second, there is no evidence that Jacqueline Thomas ever applied for or expressed an interest in being considered for the Marketing Director position such that the plaintiff's not having been hired for that position can be deemed to be the result of racial discrimination. While Plaintiff and Ms. Holton may believe that Karen Ledger was not as well qualified as either Plaintiff or Ms. Thomas, the issue is not whether the employment action taken was prudent, but whether there has been a showing of "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." As we cannot find that such a showing has been made here, we conclude that summary judgment is appropriately entered in favor of the defendants as to Count I of the Complaint.
In fact there is significant evidence to the contrary. It appears from Ms. Whisman's deposition and the Declarations of Larry Jarrett and Frederick Harvey that the decision to hire a Marketing Director in lieu of a Marketing Manager was made by individuals in Time-Warner's home office in Denver and that the decision to hire Karen Ledger was made not by Ms. Whisman alone, but also by the Division Vice President of Operations for the Philadelphia System, Leslie Grayson, the Division Vice President of Human Resources, Linda Williams, Time-Warner/Philadelphia's Human Resources Manager Frederick Harvey and Mary Millar, National Division Marketing Director. Ms. Grayson, Mr. Harvey and Ms. Williams are all African-American. In addition to promoting Mr. Harvey into his present position during her tenure in the Philadelphia office, Ms. Whisman hired and/or promoted a total of 14 other employees, eight of whom are African-American, one of whom is Hispanic, one of whom is Afghani, and four of whom are white.
To establish a prima facie case of hostile work environment as is alleged in Count II, a plaintiff must show that (1) she suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability. Sherrod, 57 Fed. Appx. at 75; West v. Philadelphia Electric Co., 45 F.3d 744, 753 (3d Cir. 1995). Factors which may indicate a hostile work environment include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Sherrod, at 75, quotingHarris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The advent of more sophisticated and subtle forms of discrimination requires the courts to analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim. Cardenas v. Massey, 269 F.3d 251, 262 (3d Cir. 2001). To establish a hostile work environment, a plaintiff must show harassing behavior "sufficiently severe or pervasive to alter the conditions of her employment." Pennsylvania State Police v. Suders, ___ U.S. ___, 124 S.Ct. 2342, 2347, 159 L.Ed.2d 204 (2004).
Here, the record includes medical records and reports from Plaintiff's doctor that she was suffering from severe hypertension, cerebral vascular disease, migraine headaches, depression and panic attacks as the result of stress that she experienced in the course of her employment at Time Warner Cable. We therefore first find that Plaintiff has shown that the alleged discrimination detrimentally affected her. Likewise, as Defendants Whisman and Ledger were Plaintiff's supervisors, we find that Plaintiff has also sufficiently demonstrated the existence of respondeat superior liability. See, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998).
Specifically, Plaintiff bases her hostile environment claim upon the following incidents: (1) Defendant Whisman directing that she should remain cordial but detached from Larry Jarrett, (2) Ms. Ledger asking her why she was in Mr. Jarrett's office, (3) Ms. Ledger reprimanding her for designing an invitation for Mr. Jarrett's launch party at his request, (4) Ms. Whisman accusing her of having problems working with Ms. Ledger because she was white, (5) Ms. Ledger insisting that she incorporate Ms. Ledger's ideas into an event and then reprimanding her when those ideas didn't work, (6) Ms. Whisman prohibiting her from being photographed at a system launch party, (7) Ms. Grayson advising Plaintiff that she had been left out of the planning of the launch party because Plaintiff believed that "everything revolved around her," and complaining that Plaintiff's body language had been totally negative, (8) Ms. Whisman and Ms. Ledger frequently instructing her to begin planning a project and then telling her to drop it and frequently criticizing her work, and (9) Ms. Ledger directing her to schedule her doctor's appointments outside of work hours.
Defendants do not dispute that these incidents took place but dispute the plaintiff's interpretation of them as racially discriminatory. Although the defendants assert a rational, nondiscriminatory explanation for each such incident, viewing the facts and all reasonable inferences in favor of the non-moving party, we must conclude that it is up to a jury to decide whether or not these incidents constituted intentional discrimination against Plaintiff because of her race, whether they were pervasive and regular and sufficiently severe to have altered the conditions of her employment and whether they would have detrimentally affected a reasonable person in the same position. For these reasons, we deny the defendants' summary judgment motion with regard to Count II of Plaintiff's complaint.
In Count III of the complaint, Plaintiff seeks relief under Section 1981 for her alleged constructive discharge in retaliation for her opposition to the defendants' racially discriminatory practices.
Constructive discharge occurs if the "conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Sherrod, 57 Fed. Appx. at 73-74, quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992). To make out a prima facie case of retaliation, a plaintiff must show (1) that she engaged in a protected activity; (2) that the employer took an adverse action against her; and (3) that there is a causal link between the activity and the adverse action. Sherrod, at 76; Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Protected activity may include formal charges of discrimination, as well as informal protests of discriminatory employment practices, such as making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general and expressing support of co-workers who have filed formal charges. Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 287-288 (3d Cir. 2001). If an employee establishes a prima facie case of retaliation, the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its adverse employment action. Miller v. Delaware, 41 Fed. Appx. at 584, citing Krouse, supra. "The employer's burden at this stage is relatively light: it is satisfied if the defendant articulates any legitimate reason for the adverse employment action; the defendant need not prove that the articulated reason actually motivated the action. Then, if the employer satisfies its burden, the plaintiff must be able to convince the fact finder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action." Id., citing Krouse, 126 F.3d at 500-501. The amount of time between the protected activity and the alleged retaliation is a circumstance to be considered by a fact-finder in determining if the plaintiff has established the required causation. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003). Thus, "[t]o obtain summary judgment, the employer must show that the trier of fact could not conclude, as a matter of law, that retaliatory animus played a role in the employer's decisionmaking process," and "[t]his may be accomplished by establishing the plaintiff's inability to raise a genuine issue of material fact as to either: (1) one or more elements of the plaintiff's prima facie case or, (2) if the employer offers a legitimate non-retaliatory reason for the adverse employment action, whether the employer's proffered explanation was a pretext for retaliation." Miller, supra.
In this case, while there is evidence that Alycia Holton may have engaged in protected activity by complaining to both Larry Jarrett about racial discrimination and to the Defendant's Human Resources Department in New York about an arguably racial comment made by Defendant Whisman, there is nothing in the record which suggests that the plaintiff ever made any similar complaints or otherwise engaged in any protected activity. Likewise there is no evidence that the plaintiff was deemed to have resigned because she had engaged in protected activity. Accordingly, we grant the defendants' motion for summary judgment as to Count III of the Complaint.
2. Plaintiff's Discrimination Claims Under Title VII
In Counts IV and V of her complaint, Ms. Sistrun contends that her rights under Title VII of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e, et. seq. were also violated by Karen Ledger's hiring and by the disparity in pay between herself and Larry Jarrett.
42 U.S.C. § 2000e-2 states, relevant part:
(a) Employer practices
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
The legal elements and proof required for a plaintiff to prevail under Title VII is identical to that under § 1981. Anderson v. Douglas Lomason Co., Inc., 26 F.3d 1277, 1284, n. 7 (5th Cir. 1994); Robinson v. Drexel University, 852 F.2d 715, 726 (3d Cir. 1987); Jones v. School District of Philadelphia, 19 F. Supp.2d 414, 421 (E.D.Pa. 1998); Cook v. Transit America, Inc., 1986 U.S. Dist. LEXIS 20234 at *9 (E.D.Pa. Sept. 19, 1986). However unlike § 1981, the scheme of redress for employment discrimination under Title VII requires a complainant to file a "charge" with the Equal Employment Opportunity Commission within a certain time after the conduct alleged and to affirm or swear the allegations are true. Edelman v. Lynchburg College, 535 U.S. 106, 108-109, 122 S.Ct. 1145, 1147, 151 L.Ed.2d 592 (2002). A person claiming to be aggrieved by a violation of Title VII may not maintain a suit for redress in federal district court until he has first unsuccessfully pursued the available avenues of potential administrative relief. Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679, 682 (1972); Johnson v. Gober, Civ. A. No. 03-1423, 83 Fed. Appx. 455, 460, 2003 U.S. App. LEXIS 25732 (Dec. 18, 2003); Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
In this regard, 42 U.S.C. § 2000e-5(e)(1) provides:
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
As a general rule, a claim accrues in a federal cause of action as soon as a potential claimant either is aware or should have been aware of the existence of and source of an injury. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). Where, however, (1) the defendant has actively misled the plaintiff respecting the plaintiff's cause of action, (2) the plaintiff in some extraordinary way has been prevented from asserting his or her rights, or (3) the plaintiff has timely asserted his or her rights mistakenly in the wrong forum, the statute of limitations may be equitably tolled from running when the claim's accrual date has already passed. Parker v. Royal Oak Enterprises, Inc., Civ. A. No. 03-1494, 85 Fed. Appx. 292, 295, 2003 U.S. App. LEXIS 26471 (Dec. 29, 2003); Oshiver, 38 F.3d at 1387.
In this case, it appears from the face of Ms. Sistrun's Charge of Discrimination that she cross-filed her complaint with the Pennsylvania Human Relations Commission (PHRC). Accordingly, she was required to file her discrimination claim within 300 days of the allegedly unlawful employment practice. Ms. Ledger was hired on October 24, 2000, and the announcement that she was to be Plaintiff's supervisor was made in December, 2000, effective January 1, 2001. Mr. Jarrett was given the position of Time-Warner's Vice President of Community Government Affairs on August 1, 2000. The record reflects that Ms. Sistrun filed her charge with the EEOC on April 8, 2002 — nearly twenty months after Mr. Jarrett's hiring and some sixteen months from the date that Ms. Ledger began supervising her. Although Plaintiff contends that she had an appointment with someone at the EEOC on September 12, 2001 but that the people that she needed to meet were not in that day due to the preceding day's terrorist attacks and that she thereafter was unable to make another appointment with the EEOC until April, 2002 because of her medical and emotional condition, we do not find these excuses sufficient to equitably toll the limitations period. Indeed, the Supreme Court has held that the doctrine of equitable tolling is to be used sparingly.National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002). We thus conclude that Plaintiff's claims under Title VII are clearly time-barred and we therefore grant summary judgment to the defendants with respect to Counts IV and V of the plaintiff's complaint.
3. Plaintiff's Claim Under the ADA
Plaintiff also avers that her rights under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. were violated in that she was denied medical leave and terminated on the pretext that she had constructively resigned. In addition, Plaintiff submits that Defendant Ledger's requiring her to produce a letter from her doctor identifying her illness violated the medical confidentiality provisions of the ADA set forth at 42 U.S.C. § 12112(d)(4)(c).
Title I of the ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). The term "covered entity" means an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). An "employer" means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 12111(5)(A). "Disability" is defined as meaning, with respect to an individual, "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Finally, a "qualified individual with a disability" is defined to mean "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires . . ." 42 U.S.C. § 12111(8).
However, Title I of the ADA likewise empowers the EEOC to investigate, conciliate, etc. complaints made under the ADA and incorporates the "powers, remedies and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8 and 2000e-9 . . ." 42 U.S.C. § 12117(a). Thus a plaintiff alleging a violation of the ADA must first exhaust administrative remedies available through the EEOC before filing a court action. Saylor v. Ridge, 989 F. Supp. 680, 685 (E.D.Pa. 1998); Bracciale v. City of Philadelphia, Civ. A. No. 97-2464, 1997 U.S. Dist. LEXIS 16757, 7 Am. Disabilities Cas. (BNA) 939 (E.D.Pa. October 29, 2997); Benedum v. Franklin Township Recycling Center, Civ. A. No. 95-1343, 1996 U.S. Dist. LEXIS 21929 (W.D.Pa. Sept. 12, 1996);Bishop v. Okidata, Inc., 864 F. Supp. 416, 424-425 (D.N.J. 1994).
In this case, the plaintiff complains of two incidents of discrimination which are allegedly violative of the ADA. The first incident, the defendants' demand, via Karen Ledger, that she provide the exact specifications of her illness occurred on or about March 14, 2001. The other incident, Plaintiff's termination, occurred on July 16, 2001. As discussed above, Plaintiff did not file her charge of discrimination with the EEOC until April 8, 2002 — more than 390 days after the first incident and 265 days after the second. As it appears from the face of the plaintiff's Charge of Discrimination that it was also filed with the Pennsylvania Human Relations Commission, she was required under § 2000e-5(e) to file her complaint with the EEOC within 300 days of the discriminatory action. We therefore find that the plaintiff's claim with respect to Karen Ledger's demand under the ADA is also out of time.
We turn then to the issue of whether the plaintiff was unlawfully terminated on the basis of her disability under the ADA. In order to establish a prima facie case of disability discrimination under the ADA, a plaintiff must prove that she (1) has a "disability," (2) is a "qualified individual," and (3) has suffered an adverse employment action because of that disability. Polini v. Lucent Technologies, No. 03-2285, 2004 U.S. App. LEXIS 11420 (3d Cir. June 10, 2004), citing Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3d Cir. 1998).
As noted above, a "disability" is a physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment or being regarded as having such an impairment. 42 U.S.C. § 12102(2)(A)-(C). In the EEOC's regulations, "substantially limited" is defined as "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. 1630.2(j). The regulations list several factors for evaluating whether someone is "substantially limited:" (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 569 (3d Cir. 2002) citing 29 C.F.R. § 1630.2(j)(2). "Major life activities" refers to those activities that are of central importance to daily life and includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002); 29 C.F.R. § 1630.2(i). It should be noted that a temporary, non-chronic impairment of short duration is not a disability covered by the ADA and that it is insufficient for individuals attempting to prove disability status to merely submit evidence of a medical diagnosis of an impairment. Id;Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002). Instead, the ADA requires those "claiming the Act's protection to prove a disability by offering evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial." Toyota, 534 U.S. at 198, 122 S.Ct. At 691-692, quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Thus, whether a person has a disability under the ADA is an individualized inquiry. Sutton v. United Airlines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 2147, 144 L.Ed.2d. 450 (1999). To make that individualized assessment, the courts must determine the specific life activity(ies) that the plaintiff's disability affects and evaluate whether his/her condition "substantially limits" those life activities. Taylor v. Phoenixville Hospital, 184 F.3d 296, 306-307 (3d Cir. 1999).
In order to establish that a plaintiff is "qualified" under the ADA, the employee must show that she satisfies the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires.Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 326 (3d Cir. 2003), citing Skersky v. Time Warner Cable, 257 F.3d 273, 278 (3d Cir. 2001). If the employee is able to make that showing, she must then establish that "with or without reasonable accommodation, she can perform the essential functions of the position held or sought. Id. Under the ADA itself, a "reasonable accommodation" includes "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B).
Similarly, the relevant regulations define reasonable accommodations as including "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(ii). On the issue of reasonable accommodation, the plaintiff bears the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits. Skersky v. Time Warner Cable, 257 F.3d 273, 284 (3d Cir. 2001), citing, Walton v. Mental Health Ass'n. Of Southeastern Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999). If the plaintiff satisfies his or her burden, the defendant then has the burden to demonstrate that the proposed accommodation creates an undue hardship for it. Id. Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.Taylor, 184 F.3d at 311.
Applying all of the preceding principles to the case at hand, we find that while the plaintiff may have been qualified to perform her job, we cannot find her to be a "qualified individual with a disability" in that the evidence indicates that Plaintiff's condition does not substantially limit her in a major life activity. Indeed, the record reflects that in March, 2001, the plaintiff began suffering from dizziness, faintness, and numbness on one side of her body which caused her to take sick leave. She was diagnosed as suffering from severe hypertension, cerebral vascular disease, migraine headaches, depression, and panic attacks as the result of stress from her employment at Time Warner. Although Plaintiff testified at her deposition that she still experiences feelings of vertigo, sometimes as often as once a week, which results in her having to rest and stay in bed and that these health problems have affected her ability to socialize, to focus, build relationships and interact with others, she also stated that she is able to do chores around the house, take care of herself, cook and clean. Although the plaintiff avers that she is disabled from working because her job at Time Warner was largely relationship-building, there is no evidence that she is disabled from performing any other job. Moreover, Plaintiff is no longer treating with any doctors as a result of her condition and there is no evidence that her condition is permanent. For these reasons and given that there is also no evidence that the plaintiff ever requested an accommodation from her employer or that she was terminated because of her medical condition, we shall grant Defendants' motion for summary judgment with respect to Count VI of the Complaint.
4. Plaintiff's Claim Under the FMLA
Finally, Plaintiff seeks relief under the Family and Medical Leave Act, 29 U.S.C. § 2601, et. seq. (FMLA) because the defendants failed to notify her that it was designating her medical leave as leave under the FMLA. Thus, according to Plaintiff, at the time of her discharge she was still entitled to FMLA leave.
It is true that under 29 C.F.R. § 825.208, Time Warner had the responsibility, as Plaintiff's employer, to designate her leave as FMLA-qualifying and to so notify her of its designation. It is also true, however, that an employer's failure to so designate leave as FMLA-qualified, does not mean that the leave taken does not count against an employee's FMLA entitlement.See: Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) (invalidating that part of regulation which provided that failure to notify employee of FMLA-designated leave was penalized by not counting leave taken against FMLA entitlement as contrary to FMLA and beyond authority of Secretary of Labor). However, the FMLA does prohibit an employer from, inter alia, interfering with, restraining, or denying the exercise or attempts to exercise any FMLA-provided rights, from discharging or in any other way discriminating against any person for opposing or complaining about any unlawful practice under the Act and from discriminating against employees who have used FMLA leave. 29 C.F.R. § 825.22(a)-(c). An action for interference with the right to leave under the FMLA will therefore lie under § 2615 of the Act if a plaintiff is able to establish that the failure to advise rendered her unable to exercise that right in a meaningful way thereby causing injury.Conoshenti v. Public Service Electric Gas Co., 364 F.3d 135, 143 (3d Cir. 2004). The law is also clear that to be successful on a claim that she was unlawfully discharged for exercise of her FMLA rights, the plaintiff must show that (1) she took an FMLA leave, (2) she suffered an adverse employment decision, and (3) the adverse decision was causally related to that leave.Conoshenti, 364 F.3d at 146.
In this case, there is no evidence that the defendant employer notified the plaintiff before July 10, 2001 that it considered her leave to have been FMLA leave, which expired on June 23, 2001. Defendants' employment policy provided for a medical leave of absence in conjunction with the FMLA for an employee's own medical disability. Under this policy, "disabled employees will be eligible for medical leave of absence as long as they are receiving short term disability, long term disability, worker's compensation, state disability benefits or social security benefits" starting "on the first work day that the employee is absent in a non-pay status." However, "when the employee is not eligible for FMLA, there is no job guarantee."
Defendants here take the position that Plaintiff's leave was FMLA leave which expired on June 23, 2001. Although the defendants assert that Plaintiff effectively resigned by failing to provide them with a note from her doctor by the close of business on July 13, 2001, it is clear that she suffered an adverse employment decision on that date. Accordingly, the first two elements to sustaining an unlawful termination claim under the FMLA have been satisfied and the issue for decision is whether the record reflects a material dispute of fact as to whether there was a causal connection between the plaintiff's leave and the adverse employment action.
On this point, Plaintiff contends only that the failure to notify her that her leave was FMLA leave "was contributory to her inability to avert the termination which followed from her not being able to comply in time with the deadline set by Linda Whisman." However, Plaintiff offers no evidence or argument as to how the failure to notify her contributed to her inability to meet the deadline and the record is confusing at best. There are numerous e-mails and letters commencing on July 2, 2001 between the plaintiff and Defendant Whisman regarding Plaintiff's doctor having allegedly indicated to Time Warner's disability insurance carrier that she was released to return to work in May. Although Plaintiff's application for short term disability benefits was originally denied on the basis of the doctor's notation, it appears from the record that this denial was based only on a single, isolated notation that, as of April 13, 2001, the "probable duration of the condition" was "6 weeks." The record reflects that the carrier eventually reconsidered its position and granted benefits to the plaintiff, although the date on which that occurred is not apparent. It further appears that despite the fact that Plaintiff herself and Time Warner were ostensibly notified on May 17, 2001 that Plaintiff had been released to return to work by her doctor and that disability benefits had been denied for this reason, Defendant did not contact Plaintiff regarding this issue until July 2, 2001. Thereafter, it appears that Plaintiff and Defendant Whisman communicated almost exclusively via voice mail and e-mail messages with Ms. Whisman advising that she required unspecified additional documentation from Plaintiff's doctor and Plaintiff advising that a letter would be forthcoming. This exchange finally ended on July 16, 2001 when Whisman sent a letter to Plaintiff telling her that she had "voluntarily resigned" by failing to provide her doctor's documentation by 5 p.m. on July 13th. In light of the conflicting nature of this evidence and given that it is possible that had Plaintiff known earlier that she had exhausted her FMLA leave as of June 23rd and was not in compliance with the company policy governing medical disability leave she may have sought to structure her leave differently, we find that it is possible that a jury could conclude that the defendant's failure to advise rendered her unable to exercise her FMLA rights in a meaningful way thereby causing injury. Consequently summary judgment is denied on Plaintiff's FMLA cause of action.
For all of the above-stated reasons, the motion for summary judgment is granted in part and denied in part. An order follows.