Gravel v. Costco Wholesale Corp.

Citation230 F.Supp.3d 430
Decision Date31 January 2017
Docket NumberCiv. No. 16–1463
Parties Matthew GRAVEL, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant.
CourtU.S. District Court — Eastern District of Pennsylvania

Christine E. Burke, Ari Risson Karpf, Karpf, Karpf & Cerutti, P.C., Bensalem, PA, for Plaintiff.

Courtney S. Stieber, Ephraim J. Pierre, Jacob Oslick, Seyfarth Shaw LLP, New York, NY, Eric J. Janson, Seyfarth Shaw LLP, Washington, DC, Lynn A. Kappelman, Seyfarth Shaw LLP, Boston, MA, for Defendant.


Paul S. Diamond, District Judge.

Plaintiff Matthew Gravel alleges that his former employer, Defendant Costco, violated the Family Medical Leave Act's anti-retaliation and anti-interference provisions. (See Compl., Doc. No. 1.) Defendant has moved for summary judgment, and the Parties have extensively briefed the matter. (See Doc. Nos. 19, 24, 29, 42, 43.) The undisputed facts show that Plaintiff explicitly stated his desire not to take FMLA leave, and that he never invoked FMLA rights as required to sustain his claims. Alternatively, Plaintiff has failed to demonstrate pretext to overcome Defendant's legitimate basis for taking adverse actions against Plaintiff. Accordingly, I will grant summary judgment in favor of Defendant.


I have resolved all material factual disputes in Plaintiff's favor and considered the evidence in the light most favorable to him.

Defendant employed Plaintiff as a payroll clerk in its Concordville facility. (Gravel Dep. 68:20–69:4.) Payroll clerks used Workforce, Defendant's intranet payroll system, to set and adjust employee work schedules and timecards. (Id. at 100:14–102:24; Gerig Dep. 18:22–22:16.) The payroll clerk must enter his username—typically the user's employee ID number—and a unique, self-created password to access Workforce. (Gravel Dep. 112:23–113:16.) Workforce blocks a user's ability to alter his own schedules and timecards. (Id. at 109:18–110:16; Randolph Decl. ¶ 17; Sturgill Dep. 18:23–19:2.) Accordingly, a user must have a manager approve any change and enter it into Workforce. (Gravel Dep. 109:18–110:16; Randolph Decl. ¶ 17.) Plaintiff understood that this process created a "checks and balances" system to eliminate "potential fabrications" of employee time. (Gravel Dep. 110:24–111:14.) Moreover, Plaintiff processed employee requests for FMLA–designated leave, tracked the amount of FMLA leave used by employees, and served as the "point person" for information respecting FMLA procedures and practices. (Id. at 82:15–83:10, 99:1–8.)

In February 2015, Plaintiff initiated the process of fostering Gabriel, a six-year-old child. (Id. at 201:18–21.) Because Gabriel suffered from PTSD, Plaintiff had to participate in Gabriel's psychological treatment sessions before the child was placed in his home on April 15, 2015. (Pl.'s Resp. at 6–7; Gravel Dep. 225:7–14; Tifone Dep. 26:15–27:17; Caprara Cert. ¶¶ 6, 8.)

Defendant knew that Plaintiff was fostering a child. (See, e.g. , Randolph Dep. 28:19–29:1; Gerig Dep. 72:18–74:18.) Assistant General Manager Jim Burr asked Plaintiff if he planned to take bonding leave. (Pl.'s Supp. Br. at 3; Gravel Dep. 205:1–25; Randolph Dep. 28:19–29:1; Gerig Dep. 72:18–73:18.) Plaintiff replied that if management was "flexible with [his] schedule," he could "stay." (Gravel Dep. 207:16–25.) This conversation prompted Plaintiff to consult with management about reconciling his work schedule with the demands of Gabriel's care. (Id. at 171:4–24, 205:1–21, 212:18–23.) Plaintiff proposed a mutually agreeable, flexible schedule in lieu of taking FMLA–designated leave. (Id. at 204:12–208:15, 209:2–16, 211:16–212:2, 215:8–216:7, 228:2–18; Letter from Gravel to Jelinek, Ex. 24, Doc. No. 20. But see Pl.'s Supp. Br. at 4 ("Thereafter, [Plaintiff] assumed that [management] would honor the agreement they proposed: i.e. just giving him flexibility in his schedule to work and still bond with Gabriel." (emphasis in original)).) Management agreed, telling Plaintiff "you're very valuable, we can't lose you, [and] we need you to stay." (Gravel Dep. 171:14–24.) Management never asked or instructed Plaintiff not to apply for FMLA leave. (Id. at 227:10–228:1.) Plaintiff later explained that he believed that taking bonding leave would be unnecessary because management would give him the flexible schedule he needed. (Id. at 205:12–21.)

The Parties then "proceeded with the proposed flexibly [sic] in [Plaintiff's] schedule for Gabriel." (Pl.'s Supp. Br. at 4.) Defendant adjusted Plaintiff's schedule to accommodate weekly meetings with Gabriel's therapist and at least one family court proceeding, and permitted him to leave his scheduled shift to pick up Gabriel from school when he was sick. (Id. ; Gravel Dep. 213:12–214:14, 228:2–23; Curnoles Dep. 23:13–24:13.) Plaintiff concedes that Defendant never denied him permission to leave work or otherwise adjust his schedule to care for Gabriel. (Gravel Dep. 151:11–20, 172:25–173:7, 204:8–11, 228:2–23, 244:18–245:2.)

Plaintiff's employment difficulties began very shortly after Defendant learned that Plaintiff had falsified his time records in Workforce innumerable times. On April 27, 2015, Plaintiff left work at 1:34 p.m. to go shopping, but the next day he logged in to Workforce using Administrative Manager Jeane Curnoles's username and password and adjusted his time out from "1:34 p.m." to "2:22 p.m." (Id. at 118:12–119:1, 120:1–9.) At the time, Curnoles was on a leave of absence. (Curnoles Dep. 5:10–13.) Although Plaintiff knew that adjusting his own schedule and timecard violated Defendant's policy, Plaintiff testified that he nonetheless believed he could properly use Curnoles' Workforce credentials because she had given him permission to do so on each of several prior occasions. (Gravel Dep. 110:24–111:14, 122:4–17, 124:8–14, 127:15–21; Unempl. Hr'g Tr. at 27, Ex. 10, Doc No. 20.)

On April 30, 2015, Assistant General Manager Tammy Sturgill reported Plaintiff's conduct to General Manager Randy Randolph. (Sturgill Dep. 32:1–18, 40:9–17; 4/30/16 Email from Sturgill to Randolph, Ex. 15, Doc. No. 20.) On May 5, 2015, Sturgill and Randolph informed Plaintiff that they were investigating him for falsifying timecard entries. (Gravel Dep. 114:16–116:8, 122:22–123:9.) Immediately after this meeting, Plaintiff for the first time began executing FMLA paperwork. (Id. at 163:1–8.) Plaintiff testified that he was "pretty certain" Randolph saw him filling out the paperwork because of "the way his eyes looked and he looked at me." (Id. at 163:9–164:20, 240:1–241:22.) On May 9, 2015, Plaintiff received a three-day suspension pending possible termination while management continued to investigate. (Id. at 153:6–154:12, 155:1–13; Notice of Suspension, Ex. CC, Doc. No. 24.)

The investigation revealed that between March 2, 2015 and May 11, 2015—the seventy days during which Curnoles was on leave—Plaintiff made 105 timecard adjustments and 52 schedule adjustments using Curnoles' username and password. (Gravel Dep. 139:16–140:2, 176:11–179:15, 180:4–14; Gravel Statement, Ex. 12, Doc. No. 20; 5/11/15 Email from Randolph to Fontana, Ex. 20, id. ; Randolph Decl. ¶ 20.) When asked, Curnoles denied giving Plaintiff permission to use her Workforce account while on leave. (Unempl. Hr'g Tr. at 45–46.)

Although Plaintiff's "adjustments" are too numerous to review in detail, the following are typical. On April 28, 2015, Plaintiff arrived an hour and twenty-five minutes late to his scheduled shift; that afternoon, he altered his schedule so that it appeared he had arrived to his "scheduled" shift five minutes early. (5/11/15 Email from Randolph to Fontana.) On April 29, 2015, Plaintiff arrived forty minutes late to his shift, but altered his schedule to seem as though he arrived five minutes early. (Id. ) On April 30, 2015, Plaintiff arrived two hours and ten minutes late to his shift, but altered his schedule to appear as though he arrived five minutes early. (Id. ) Plaintiff cannot identify which, if any, of his 157 adjustments were related to Gabriel's care. (Gravel Dep. 229:18–230:9.)

On May 11, 2015, after completing its investigation, management decided to fire Plaintiff. (5/11/15 Email from Fontana to Randolph.) On May 19, 2015, Defendant terminated Plaintiff's employment via telephone. (Gravel Dep. 166:4–167:7; Notice of Termination, Ex. G, Doc. No. 21.) The same day, Plaintiff submitted FMLA paperwork requesting continuous leave beginning May 18, 2015. (See FMLA Paperwork, Ex. 23, Doc. No. 20.)

On June 26, 2015, Plaintiff authored and mailed a letter to Defendant's CEO "to correct [his] wrongful termination." (Letter from Gravel to Jelinek.) Describing the circumstances surrounding his termination, Plaintiff wrote:

I'd also been in the middle of an adoption process. I was asked several times if I was going to take bonding leave when the child was placed. Given the fact that no one in the warehouse is qualified to do my job, and management never fully trained a backup payroll clerk, I let them know that I would not use bonding leave, but would need a lot of flexibility in my schedule to make sure I was there for my new child and also fulfill the needs of the job. This again was me taking ownership for the position and trying to do what was best for Costco, since management did not follow through on training a backup payroll clerk. Some of this requested flexibility necessitated occasionally changing my work schedule.

(Id. (emphasis added).)

A.Summary Judgment

Upon motion of any party, "summary judgment is appropriate where the moving party has established that there is no genuine dispute of material fact and ‘the moving party is entitled to judgment as a matter of law.’ " Fed. R. Civ. P. 56(c) ; Hugh v. Butler Cty. Family YMCA , 418 F.3d 265, 266 (3d Cir. 2005) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A fact is material if it could affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc. , 477...

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