PELLEGRINO v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, CLC, No. 2:2010cv00098 - Document 39 (W.D. Pa. 2011)

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