Grosso v. Federal Exp. Corp.

• Decision Date: 19 December 2006
• Docket Number: Civil Action No. 05-6128.
• Citation: 467 F.Supp.2d 449
• Parties: Max GROSSO, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

467 F.Supp.2d 449

Max GROSSO, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

Civil Action No. 05-6128.

United States District Court, E.D. Pennsylvania.

December 19, 2006.

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Andrew M. Calvelli, Law Firm of Andrew M. Calvelli, Wayne, PA, for Plaintiff.

John W. Campbell, Federal Express Litigation Department, Memphis, TN, Dara Penn Newman, Susan M. O'Neill, Simon Moran, PC, Philadelphia, PA, for Defendant.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

Plaintiff Max Grosso filed this action against his employer, Federal Express Corporation ("FedEx"), alleging retaliation under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a) (2); interference with his rights under the FMLA, 29 U.S.C. § 2615(a)(1); and retaliation under Section 510 of the Employee Retirement Income Security Program ("ERISA"), 29 U.S.C. § 1140. Presently before the Court is defendant's Motion for Summary Judgment. For the reasons set forth below, defendant's Motion for Summary Judgment is granted in part and denied in part.

II. FACTS

The following facts are presented in the light most favorable to plaintiff, the nonmoving party. Plaintiff began working for FedEx as a courier on September 12, 1997. Compl. ¶ 6; Answer ¶ 6. From 2001 through 2004, plaintiff took periodic FMLA leave to care for his father, who suffered from a heart condition and Alzheimer's disease. Compl. ¶ 10; Dep. Grosso at 69-70; Decl. Short ¶ 3; Decl. Lima ¶ 11. Plaintiffs father died on December 23, 2004. Compl. ¶ 29.

A. Alleged Retaliation

Plaintiff does not allege that he was denied any FMLA leave to which he was entitled. Rather, plaintiff avers that he "receive[d] unequal treatment in the workplace" after he requested FMLA leave to care for his father. Compl. ¶ 11. Plaintiffs Complaint alleges four separate incidents of retaliation.

The first alleged incident of retaliation occurred in August of 2002. Dep. Grosso at 139. At that time, defendant reassigned plaintiffs truck to a more senior courier. Id. at 79-80; Compl. ¶ 15. Plaintiffs first truck had working air conditioning. Dep. Grosso at 81. In its place, plaintiff received a truck with broken air conditioning, which defendant repaired within a "couple of weeks." Id. at 85. Plaintiff alleges that he was "singl[ed] out" as the only courier whose truck was reassigned. Id. at 86-87.

The second alleged incident of retaliation occurred in August of 2003 when defendant assigned plaintiff to a new day route, "route 202." Dep. Grosso at 143. Plaintiffs previous route had many stops and was appropriate for "experienced couriers." Decl. Lima ¶ 17; Dep. Grosso at 205. In contrast, route 202 was a "bulk route," which had few stops, each with a large number of packages. Dep. Grosso at 98; Decl. Simmons ¶ 6. Plaintiff describes route 202 as a "back buster" because the route required plaintiff to overload his truck with 40 or 50 pound boxes. Dep. Grosso at 92-93, 148. Moreover, when defendant reassigned plaintiff to route 202, plaintiff received a truck that plaintiff alleges was "the worst truck in the station" because of its poor transmission, lap-belt seat belts and lack of shelving. Dep. Grosso at 97. This truck was assigned to route 202 before plaintiff received the assignment. Dep. Grosso at 99; Decl. Lima ¶ 19; Decl. Simmons ¶ 9.

The third alleged incident of retaliation occurred in 2004, when defendant granted plaintiff an extended personal leave. On August 23, 2004 plaintiffs FMLA leave was exhausted. Decl. Lima Ex. F. Consequently, plaintiff requested a personal leave of absence to care for his father, who was then terminally ill. Dep. Grosso at 77; Decl. Lima Ex. F. Defendant granted plaintiffs request, and authorized plaintiff to take a ninety-day personal leave, scheduled to end on November 28, 2004. Dep. Grosso at 77, Ex. 22; Deel. Lima Ex. F. On November 22; 2004, plaintiff requested an extension. Dep. Grosso Ex. 23. Defendant denied plaintiffs request one day later, on November 23, 2004. Dep. Grosso at 168; Decl. Short ¶¶ 17-18. Plaintiff argues that defendant denied his request for an extension in retaliation for his previous FMLA leave. Compl, ¶ 30.

On November 26, 2004, plaintiff submitted a written request to become a "casual worker." Dep. Grosso at 79, Decl. Lima ¶ 32, Ex. G. "A `casual worker' is one who works when there is work available, and who works without accruing any seniority or benefits." Compl. ¶ 33. Defendant formally granted plaintiffs request on December 17, 2004, shortly before plaintiffs father died. Dep. Grosso Ex. 25; Decl. Lima ¶ 32.

The fourth alleged incident of retaliation occurred after plaintiff returned to work as a casual worker. Compl. ¶ 29; Dep. Grosso at 17. According to plaintiff, the first route plaintiff received as a casual worker was "the worst pickup route in the station." Dep. Grosso at 17, 171. Plaintiff believes that defendant assigned plaintiff to this route in order to harass plaintiff, either to make him quit or to create a justification for firing him. Id. at 261-62.

Plaintiff continues to work for defendant as a casual worker. Id. at 10-12.¹ The parties dispute when the last alleged incident of retaliation occurred. Plaintiff argues that defendant treated him unfavorably between March of 2005 and March of 2006. Pl.'s Ans. Def.'s Mot. Summ. J. at 10; Pl.Ex. B. Defendant alleges that plaintiff does not complain of any adverse treatment after February of 2005. Dep. Grosso at 179, 19; Def. Mot. Summ. J. at 15.

B. Alleged Interference with Plaintiffs FMLA Leave

In addition to the alleged retaliation described above, plaintiff presents evidence that defendant discouraged plaintiff from taking FMLA leave. Compl. ¶¶ 12, 13, 22-24.

First, plaintiff alleges that Senior Manager Suzanne Martin Short, pressured plaintiff not to take FMLA leave. Defendant acknowledges that Short encouraged plaintiff to transfer care-taking responsibilities for his father to a nurse. Decl. Short ¶ 8; see also Decl. Lima ¶ 27. According to plaintiff, Short also told plaintiff that he was taking too much FMLA leave and that he needed to return to work. Dep. Grosso at 75-76. Plaintiff further alleges that on August 16, 2004, Short stated that plaintiff took FMLA leave whenever he had leave available and that this was unfair to plaintiffs co-workers. Id. at 160.

Second, plaintiff alleges that his supervisor, Michael Lima, discouraged him from taking FMLA leave by repeatedly advising plaintiff that he had FMLA leave available when plaintiff did not. Dep. Grosso at 103, 107, 188; Compl. ¶¶ 24-26. Plaintiff explains: "So I would start taking time off, and then I would have another conversation with Mike [Lima] and Mike would basically say, Well, Max, sorry, I made a mistake. You didn't have that much time. Now you're five days in the hole. You have to wait another month before you can take any FMLA." Dep. Grosso at 103, 107. Lima confirms that "[a]t certain times" he mistakenly overstated the number of FMLA leave days available to plaintiff. Decl. Lima ¶ 25. However, Lima states that

[i]f Mr. Grosso was absent on those days, and I later determined that I had been mistaken and that Mr. Grosso had not had any FMLA protected leave days remaining, I did not count those days against Mr. Grosso's attendance. Instead, they were counted as FMLA protected leave days. As a result, Mr. Grosso was allowed to' be absent more days than" he otherwise would without being [sic] receiving discipline.

Id. ¶ 25. Plaintiff responds that Lima's errors "backed [him] into a corner" by preventing him from rationing his available leave. Dep. Grosso at 188.

Finally, plaintiff alleges that defendant discouraged plaintiff from taking FMLA leave by sending plaintiff a "decision day letter" on May 6, 2004. Dep. Grosso Ex. 20. This letter, entitled "Performance Reminder with Decision Day," stated that plaintiff had not only exhausted his FMLA leave, but had exceeded it by 8.5 days. Id. In addition, the letter stated that plaintiff's attendance was below the FedEx standard of 96.9%. Id.² The decision day letter directed plaintiff to draft an agreement, detailing "specific actions and timetables for correcting the performance problem." Id.

In response to the decision day letter, plaintiff and Lima signed an agreement on May 19, 2004. Dep. Grosso Ex. 19. The, May 19, 2004 agreement stated that plaintiff "will make arrangements as soon as I can to accommodate the needs of my father. I am transferring more responsibilities to the nurse who cares for my father . . . I will work to get home care nursing to cover me so that I don't have to take time off whenever possible." Dep. Grosso Ex. 20. Plaintiff believes that the agreement "basically said put your dad in a [nursing] home and come back to work." Dep. Grosso at 196.

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Fed.R.Civ.P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Courts hold that "a material fact is `genuine,' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. A "material" factual dispute is one which might affect the outcome of the case under governing law. Id. Moreover, "a party resisting a [Rule 56(c) ] motion cannot expect to rely merely upon bare assertions, conclusory...