Sowell v. Kelly Servs., Inc.

• Decision Date: 13 October 2015
• Docket Number: CIVIL ACTION No. 14-cv-3039
• Citation: 139 F.Supp.3d 684
• Parties: Tanika Sowell, Plaintiff, v. Kelly Services, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

139 F.Supp.3d 684

Tanika Sowell, Plaintiff,

v.Kelly Services, Inc., Defendant.

CIVIL ACTION No. 14-cv-3039

United States District Court, E.D. Pennsylvania.

Signed October 13, 2015

Filed October 14, 2015

Zachary J. Zahner, Ari Risson Karpf, Karpf Karpf & Cerutti PC, Bensalem, PA, for Plaintiff.

Michael S. Takacs, Maria-Louise G. Perri, Wilson Elser Moskowitz Edelman & Dicker LLP, Philadelphia, PA, Rick J. Patterson, Steven M. Potter, Potter Deagostino O'Dea & Patterson, Auburn Hills, MI, for Defendant.

MEMORANDUM

JOYNER

, District Judge.

Before the Court are Defendant's Motion for Summary Judgment (Doc. No. 29), Plaintiff's Response in Opposition thereto (Doc. No. 31), and Defendant's Reply in Further Support thereof (Doc. No. 35). For the reasons given below, the Motion is Granted in part and Denied in part. An Order follows.

I. BACKGROUND

Plaintiff Tanika Sowell is a 32-year-old female who was employed by Defendant Kelly Services from 2010-2013 as an "educational recruiter" in its King of Prussia, PA office. Sowell Dep. (Doc. No. 29-4) at 19:12-13; Doc. No. 30 at ¶¶ 2,4; Doc. No. 29-2 at 13. The circumstances surrounding her termination in the summer of 2013 and her requests for time off in the months preceding her termination are the central concern of this action. Plaintiff alleges that her termination was in response to her requests for medical leave, and thus violated the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Pennsylvania Human Relations Act (PHRA). Doc. No. 27 at ¶ 1. Plaintiff also alleges that Defendant discouraged her from taking time off for medical procedures, in violation of the FMLA. Defendant denies that Plaintiff's medical conditions had anything to do with her termination or treatment at work, and has asked this Court to grant summary judgment on all counts.

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a)

. In making this determination, "inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (alteration in original) (quotation marks omitted). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

. The party opposing summary judgment "may not rest upon the mere allegations or denials of the ... pleading; its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp. , 260 F.3d 228, 232 (3d Cir.2001) (alteration in original) (quotation marks omitted).

In employment discrimination cases, the summary judgment standard "is applied with added rigor ... [because] intent and credibility are crucial issues." Stewart v. Rutgers, The State Univ. , 120 F.3d 426, 431 (3d Cir.1997)

(internal quotation marks omitted). The Third Circuit has stated that "summary judgment is... rarely appropriate in this type of case." Marzano v. Computer Sci. Corp. Inc. , 91 F.3d 497, 509 (3d Cir.1996). "Simply by pointing to evidence which calls into question the defendant's intent, the plaintiff raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment." Id. at 509–10 (internal quotation marks omitted).

III. DISCUSSION

As noted above, Plaintiff has brought claims under three statutes against Kelly; we will address each in turn.

A. Family and Medical Leave Act

"The FMLA provides, in relevant part, that eligible employees are entitled to 12 workweeks of leave during any 12-month period due to an employee's own serious health condition." Ross v. Gilhuly , 755 F.3d 185, 191 (3d Cir.2014)

(citing 29 U.S.C. § 2612(a)(1) ). "When an employee returns from FMLA leave, the employer must restore the employee to the same or equivalent position he held, with equivalent benefits and with conditions of employment comparable to those he had when he left." Id. (citing 29 U.S.C. § 2614(a) ).

"When employees invoke rights granted under the FMLA, employers may not ‘interfere with, restrain, or deny the exercise of or attempt to exercise’ these rights." Lichtenstein v. Univ. of Pittsburgh Med. Ctr. , 691 F.3d 294, 301 (3d Cir.2012)

(quoting 29 U.S.C. § 2615(a)(1) ). Similarly, employers may not " ‘discharge or in any other manner discriminate against any individual for opposing any practice made unlawful.’ " Id. (quoting 29 U.S.C. § 2615(a)(2) ). These provisions form the basis for what are known respectively as FMLA "interference" and "retaliation" claims. Id. Plaintiff has asserted claims under both theories.

In determining whether Ms. Sowell's claims are viable, it is helpful to first outline the various medical leaves that she took (or attempted to take) during her employment with Kelly. First, in March 2013, Ms. Sowell was hospitalized for an emergency blood transfusion

and was absent from work for four days. See Doc. No. 27 at ¶¶ 17-18; Doc. No. 30 at ¶¶ 17-18. Second, she underwent surgery in April 2013 and required approximately one week of leave. See Doc. No. 27 at ¶ 21; Doc. No. 30 at ¶¶ 19-20. Third, in the time between her March 2013 hospitalization and her termination in July 2013, Ms. Sowell took several full and partial days off for medical appointments or to "care for her conditions." Doc. No. 30 at ¶ 21. Finally, Ms. Sowell had a second surgery in September 2013, after her termination from Kelly. See id. at ¶ 62. A central allegation is that Ms. Sowell attempted to schedule this second surgery during her time at Kelly but was unable to do so because of Kelly's interference.

1. Interference

To make an FMLA interference claim a Plaintiff must establish:

(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.

Ross , 755 F.3d at 191–92

(citing Johnson v. Cmty. Coll. of Allegheny Cnty. , 566 F.Supp.2d 405, 446 (W.D.Pa.2008) ) (internal quotation omitted); see generally

Parker v. Hahnemann Univ. Hosp. , 234 F.Supp.2d 478, 483 (D.N.J.2002). By failing to address them Defendant appears to concede the first three factors: (1) that Ms. Sowell was an eligible employee, (2) that Kelly is subject to the FMLA, and (3) that Ms. Sowell was entitled to FMLA leave. See Doc. No. 29-2 at 19-23. Defendant instead argues that Ms. Sowell (1) failed to give notice of her intent to take FMLA leave and (2) ultimately did not suffer any prejudice, because she was not denied leave. Id.

a. Employee Notice

"To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave." Lichtenstein , 691 F.3d at 303

(citing 29 U.S.C. § 2612(e)(2) ). However, "[i]n doing so, the employee ‘need not expressly assert rights under the FMLA or even mention the FMLA.’ " Id. (quoting 29 C.F.R. § 825.303(b) ). The employee need only provide " ‘sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.’ " Id. (quoting 29 C.F.R. § 825.303(b) ) (emphasis in original). Further, " ‘where the employer does not have sufficient information about the reason for an employee's use of leave, the employer should inquire further of the employee ...to ascertain whether leave is potentially FMLA-qualifying.’ " Id. (quoting 29 C.F.R. § 825.303(a) ) (emphasis and alteration in original). The key consideration for determining whether the employee's notice was adequate "is how the information conveyed to the employer is reasonably interpreted." Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398, 402 (3d Cir.2007). This is "generally a question of fact, not law." Lichtenstein , 691 F.3d 294 at 303.

Defendant argues that Plaintiff cannot maintain her interference claim because the Defendant was "never made aware that Plaintiff was taking FMLA qualifying leave." Doc. No. 29-2 at 21. Ms. Sowell's supervisor, Michelle Bussetti, however, was aware that Ms. Sowell had several serious medical issues, knew that at least a portion of her time off in 2013 was due to these medical issues, and knew that she would need a second surgery. See Bussetti Dep. (Doc. No. 29-11) at 29:16-36:11. Plaintiff also testified that she kept Kelly management apprised of the reasons for her absences. See Sowell Dep. (Doc. No. 29-4) at 52:4-8. In addition, Ms. Bussetti informed other members of management that Ms. Sowell would likely need time off in the summer of 2013 for her second surgery. Bussetti Dep. at 43:22-45-1. Defendant also concedes that Ms. Sowell requested FMLA information from Kelly's Human Resources department in July 2013 in relation to her anticipated second surgery. Doc. No. 29-2 at 22.

Thus it is clear that Defendant had at least some indication that Ms. Sowell had medical issues and required time off from work to address them. A reasonable juror could determine that Kelly was on notice of the reasons for Ms. Sowell's absences and her need for future medical leave. See Sarnowski , 510 F.3d at 403

(holding that an employer had sufficient notice for purposes of the FMLA where the plaintiff had chronic medical issues, had missed work to address those issues, and informed management of his possible need for future surgery). Summary judgment on the issue of Ms. Sowell providing notice to Kelly is denied.

b. Denial of Benefits

Plaintiff cannot maintain an interference claim unless she was actually denied FMLA benefits. See Callison...