Opinion
Civil Action 19-1639
05-05-2022
RONDABAY LIGGINS-MCCOY, Plaintiff, v. DEMOCRATIC CAUCUS OF THE SENATE OF PENNSYLVANIA, et al., Defendants.
MEMORANDUM
Tucker, J.
Before the Court is a series of summary judgment and discovery-related motions filed by all three parties in this suit: (1) Plaintiff Rondabay Liggins-McCoy (“Plaintiff”); (2) Defendant Pennsylvania State Senator Anthony H. Williams, sued in his individual capacity (“Senator Williams”); and (3) Defendant Democratic Caucus of the Senate of Pennsylvania (“Democratic Caucus”). For the reasons set forth below, the motions are resolved as follows:
1. Defendant Democratic Caucus' Motion for Summary Judgment (ECF No. 43) is GRANTED and Defendant Democratic Caucus is DISMISSED from this suit;
2. Defendant Senator Williams' Motion for Summary Judgment (ECF No. 46) is GRANTED IN PART AND DENIED IN PART;
3. Plaintiff's Motion to Strike the Democratic Caucus' Newly Disclosed Witness (ECF No. 64) is DENIED AS MOOT;
4. Defendants' Joint Motion for Protective Order (ECF No. 67) is DENIED and the Clerk of Court shall UNSEAL Exhibits 11 and 12 at ECF No. 58. Exhibits 14 and 15 shall remain under seal; and
5. Plaintiff's Motion to Strike Defendant Senator Williams' Newly Disclosed Witness (ECF No. 70) is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This section primarily draws from Plaintiff's Response in Opposition to Defendants' Motions for Summary Judgment and Defendants' Joint Statement of Undisputed Material Facts. ECF Nos. 57 and 45, respectively. The Court will expressly note where factual discrepancies are present.
Plaintiff brings this action for employment discrimination and violation of the Family and Medical Leave Act (“FMLA”) against her former employers, Pennsylvania State Senator Anthony H. Williams and the Democratic Caucus of the Senate of Pennsylvania. More specifically, Plaintiff sues Senator Williams in his individual capacity for: (1) age discrimination, in violation of the Pennsylvania Human Relations Act (“PHRA”); and (2) interference with her FMLA leave. See ECF Nos. 18 and 36. Plaintiff sues the Democratic Caucus for disability discrimination, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.
A. Plaintiff's Role in Senator Williams' Office and Initial FMLA Request
The factual basis for this suit stems from Plaintiff's termination from Senator Williams' staff in late 2018. Plaintiff is a 63-year-old woman who began working for Defendants in May 2008. Pl.'s Resp. in Opp. 3, ECF No. 57. She was originally hired as a Constituent Services Liaison and was later promoted to Director of Constituent Services. Id. Also, she was stationed in Senator Williams' Yeadon, Pennsylvania office. Id. Plaintiff was responsible for “meeting with community leaders in Delaware County, serving as Williams' liaison with community leaders, screening constituent appointments for Williams, planning events in Williams' legislative district within Delaware County and Philadelphia, and performing constituent services work.” Id.
In early 2017, Plaintiff was diagnosed with cancer and her request for FMLA leave was approved. Id. She began radiation therapy in or about summer 2017, which occasionally left her unable to work. Id. at 4. Plaintiff alleges that into 2018, she learned that the lack of coverage at the Yeadon office “was a problem” for Senator Williams, as in several meetings he “expressed displeasure that the Yeadon office was understaffed and employees were out.” Id.
B. Adam Nagel's Vision for Staffing in Senator Williams' Office
During this same period, Adam Nagel worked contemporaneously as a political consultant for Chavous Consulting and a part-time Communications Specialist in the Senator's office. Defs.' Statement of Undisputed Material Facts ¶¶ 64, 66, ECF No. 45. On May 18, 2018, Nagel wrote an email to Dawn Chavous-head of Chavous Consulting-regarding his observations of Senator Williams' office. Given that this information is filed under seal as of the time of this writing, the Court broadly notes that the email contains Nagel's personal impressions of the strengths and weaknesses among specific members of the Senator's staff at the time, as well as his perspective on how office staffing and operations could be improved. Id. at ¶ 74. In addition, Nagel discussed “years of malaise” in the office and stated that another employee should be discharged “if the position can be filled quickly with someone younger, cheaper, and possessed [with] a greater degree of political savvy and awareness.” Id. at ¶¶ 74, 88. Of note, the Parties dispute the precise moment that Senator Williams became aware of this email. Id. at ¶¶ 75, 77; Pl.'s Resp. to Defs.' Statement of Undisputed Material Facts, ¶¶ 75, 77, ECF No. 57-1.
On September 6, 2018, Senator Williams met with Nagel and Chavous to discuss Nagel's impressions of his office. Id. at ¶ 82. The following day, Nagel sent himself an email at his Chavous Consulting email address, with the subject line: “Thoughts on Senate office[sic] Transition.” Id. at ¶ 85. With respect to Plaintiff's status at the Senator's office, the email states the following:
[XXXXX] Id. at Ex. O, ECF No. 45-2.
On October 30, 2018, Nagel emailed himself an agenda that he prepared for his upcoming meeting with Senator Williams on November 7, 2018; this time, Nagel used his Senate email address. Id. at ¶ 100; Ex. P. The subject of the agenda was “Confirming way forward for layoffs” and regarding Plaintiff, the email stated: [XXXXX] Id. at ¶ 101; Ex. P.
Ultimately, Senator Williams hired Nagel as his new Chief of Staff, effective November 13, 2018. Id. at ¶ 49.
C. Plaintiff's Additional Request for FMLA Leave and Termination
Plaintiff continued to experience cancer-related symptoms-as a result, she submitted an additional request for FMLA leave in November 2018. Pl.'s Resp. in Opp. 4, ECF, No. 57. She alleges that when she called Senator Williams to discuss this matter, he, in an annoyed tone, asked: “is this related to the same thing?” Id. at 4-5. Plaintiff's FMLA request was approved, effective November 12, 2018. Id. However, on December 5, 2018, she was advised by Nagel that her position was being terminated due to the Senator's efforts to reorganize his office. Id. Six days earlier, Senator Williams' outgoing Chief of Staff forwarded Nagel an email, wherein she stated: “Adam - I will forward to you any emails regarding Ronda's prior absences. Here is the most current one.” Id. at Ex. 19. Plaintiff's official last day in the office was January 4, 2019. Id. at Ex. 6.
D. The Instant Suit and Discovery Issues
Plaintiff commenced the instant suit on April 16, 2019. Pl.'s Compl. ECF No. 1. Count One alleges disability discrimination in violation of the Rehabilitation Act (against the Democratic Caucus). Pl.'s Am. Compl. 5-6, ECF No. 18. Count Two alleges violations of the FMLA (against Senator Williams). Id. at 7-8. Count Three alleges age discrimination in violation of the PHRA (against Senator Williams). Pl's. Am. Count Three 8-12, ECF No. 36. On September 2, 2021, both Defendants filed summary judgment motions.
Beyond summary judgment, the Parties have engaged in various discovery disputes throughout 2021. First, the Parties previously executed a Confidentiality Agreement that permitted them to designate as “Confidential” any information “that contains private or confidential personal information, including, but not limited to personnel information.” Defs.' Mot. for Protective Order 2, ECF No. 67-2. Further, the Confidentiality Agreement provides that a Party seeking to challenge a confidentiality designation “must begin the process by meeting and conferring directly with counsel for the designating Party no less than five (5) business days prior to the date of any intended filing of such Confidential Information.” Id. Pursuant to this agreement, the Democratic Caucus designated as “Confidential” certain documents that reveal Nagel's personal impressions about the competencies of certain members among Senator Williams' staff, as well as his thoughts on the staffers' futures (or lack thereof) with the Senator's office. Plaintiff disputed the confidentiality designation, albeit in an untimely fashion.
Following an unsuccessful meet and confer regarding this issue, Defendants filed a Motion for Protective Order to preserve the confidentiality designation of this information.
Second, on December 22, 2021, Senator Williams supplemented his initial disclosures and added three witnesses. Plaintiff moves to strike one of these witnesses-Joy Norman-on the grounds that, “[a]lthough Norman's name was referenced a few times in the exchanged documents and depositions, there was no indication from either Defendant that Norman possessed discoverable information relevant to their defenses.” Pl.'s Mot. to Strike 2, ECF No. 70.
The Court first addresses the Defendants' Motions for Summary Judgment before turning to the discovery motions.
II. DISCUSSION
A. Summary Judgment Motions
Summary judgment can only be awarded when “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Liberty Mut. Ins. Co. v. Sweeney, 689 F.3d 288, 292 (3d Cir. 2012). To defeat a motion for summary judgment, there must be a factual dispute that is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, (1986); Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). A material fact is one that “might affect the outcome of the suit under the governing law[.]” Anderson, 477 U.S. at 248. A dispute over a material fact is “genuine” if, based on the evidence, “a reasonable jury could return a verdict for the nonmoving party.” Id.
The movant bears the initial burden of demonstrating the absence of a genuine dispute of a material fact. Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). When the movant is the defendant, she has the burden of demonstrating that the plaintiff “has failed to establish one or more essential elements of her case.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). If the movant sustains her initial burden, “the burden shifts to the nonmoving party to go beyond the pleadings and come forward with specific facts showing that there is a genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986)).
At the summary judgment stage, the court's role is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue of fact for trial. See Anderson, 477 U.S. at 249 (citations omitted); Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Horsehead Indus., Inc. v. Paramount Commc'ns, Inc., 258 F.3d 132, 140 (3d Cir. 2001). Nonetheless, the Court must be mindful that “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
With respect to the Democratic Caucus' Motion for Summary Judgment, the Court grants the motion as a matter of law and dismisses the Caucus from this suit accordingly. Regarding Senator Williams' Motion for Summary Judgment, the Court grants the motion as to Plaintiff's PHRA claim and denies it as to Plaintiff's FMLA interference claim.
1. The Caucus' Motion for Summary Judgment
The Democratic Caucus asserts that Plaintiff's Rehabilitation Act claim must be dismissed because it is a part of the Commonwealth of Pennsylvania, and thus is entitled to sovereign immunity pursuant to the Eleventh Amendment. The Court agrees. Moreover, the Court finds no support for Plaintiff's contention that the Democratic Caucus waived sovereign immunity when it accepted and distributed $1 billion in federal funds related to Covid-19 aid. Accordingly, Plaintiff does not have an actionable claim against the Democratic Caucus under the Rehabilitation Act.
a. The Democratic Caucus is a State Entity
Under the doctrine of sovereign immunity, a state may not be sued without its consent.For sovereign immunity to apply, “[t] he most important consideration is whether the action is, in fact, one against the state. In other words, the state must be the real party in interest.” Precision Mktg., Inc. v. Com., Republican Caucus of the Senate of PA/AKA Senate of PA Republican Caucus, 78 A.3d 667, 671 (Pa. Commw. Ct. 2013). In Precision Marketing, the Pennsylvania Commonwealth Court held that the Republican Caucus of the Senate of Pennsylvania is “the Commonwealth, ” such that it is permitted to claim sovereign immunity. Precision Marketing, 78 A.3d at 670. It follows that-as the Republican Caucus' counterpart in the state senate-the Democratic Caucus is also a part of the Commonwealth. Accordingly, the Democratic Caucus is entitled to claim sovereign immunity.
1 PA. CONS. STAT. § 2310 provides: “the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.”
b. The Democratic Caucus has not Waived Sovereign Immunity
Under the Eleventh Amendment, a state's sovereign immunity is subject to three exceptions: (1) Congress may limit a state's sovereign immunity by exercising its enforcement powers under the Fourteenth Amendment; (2) a state may waive its sovereign immunity by consenting to suit; and (3) under Ex parte Young, 209 U.S. 123 (1908), state officials may be sued in their official capacity for prospective injunctive relief. See Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). Of particular relevance to the case at bar is whether the Democratic Caucus waived sovereign immunity pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq.
Section 504 of the Rehabilitation Act prohibits disability discrimination in federally funded programs or activities. “For the purposes of this section, the term ‘program or activity' means all the operations of
(1)(A) a department, agency, special purpose district, or other instrumentality of a State or local government; or
(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government agency) to which the assistance is extended, in the case of assistance to a State or local government; ... any part of which is extended Federal financial assistance.Koslow, 302 F.3d at 168 (citing 29 U.S.C. § 794(b)). Further, Section 504 applies “only during the periods during which the funds are accepted.” Id. at 166 n. 3. Therefore, if the Democratic Caucus constitutes a “program or activity” that accepted federal funds during the period in which Plaintiff alleges that she was discriminated against based on her disability, then Plaintiff's Rehabilitation Act claim is not barred by sovereign immunity.
Here, the Parties dispute whether the Democratic Caucus falls under the definition of “program or activity” under Section 504. Plaintiff asserts that, as part of the Pennsylvania General Assembly, the Democratic Caucus accepted and distributed $1 billion in federal funds providing Covid-19 relief to the state in June 2021. Pl.'s Resp. in Opp. 20-21, ECF No. 57. She cites two articles to support her argument that as a distributor of the federal funds, the Democratic Caucus can be considered a “program or activity” that is subject to liability.However, in Koslow, the Third Circuit Court Appeals explained that “if a state accepts federal funds for a specific department or agency, it voluntarily waives sovereign immunity for Rehabilitation Act claims against the department or agency-but only against that department or agency.” Koslow, 302 F.3d at 171 (emphasis added). In that case, the Commonwealth of Pennsylvania accepted federal funds under the State Criminal Alien Assistance Program and disseminated those funds to the Department of Corrections. Id. at 172. As a result, the Third Circuit determined that the state waived its immunity, but specifically for Section 504 claims against the Department of Corrections. Id. To the extent that the Democratic Caucus was involved with the federal Covid-relief funds, there is no indication that such funds were for the Caucus itself. In fact, the very articles that Plaintiff cites explain that, as part of the state budget for Fiscal Year 2021-22, the funds were allocated towards other programs and agencies directly serving the state's needs. Therefore, in this context, the Democratic Caucus does not fall under Section 504's definition of “program or activity.”
Ron Southwick, Pa. received $7.3 billion in federal COVID-19 rescue aid. The new state budget spends $1 billion of that money, PennLive (Jun. 25, 2021), https://www.pennlive.com/news/2021/06/pa-received-73-billion-in-federal-covid-19-rescue-aid-the-new-state-budget-uses-1-billion-of-that-money.html; Senate Democratic Leader Jay Costa Votes for PA Budget, Highlights Timeliness and Major Education Investments, PA Senate Democrats (Jun. 25, 2021), https://pasenate.com/senate-democratic-leader-jay-costa-votes-for-pa-budget-highlights-timeliness-and-major-education-investments/.
See, e.g., Id. (noting that “[t]he spending plan offers more aid to schools and human services programs.”).
Nonetheless, assuming arguendo that the Democratic Caucus' acceptance and distribution of federal funds does make it a “program or activity, ” the Caucus is still not liable under Section 504 because the funds in question were not accepted at the same time that Plaintiff's alleged disability discrimination occurred. “[C]ourts have generally found that discrimination is not actionable under § 504 if it did not occur within the period that an entity received federal financial assistance.” Taibi v. Borough of Slatington, No. 18-00385, 2018 WL 6173366, at *5 (E.D. Pa. Nov. 26, 2018). Plaintiff's tenure in the Senator's office ended on January 4, 2019-over two years before the Pennsylvania General Assembly (of which the Democratic Caucus is a part) accepted and spent the federal Covid-relief funds. Pl.'s Resp. in Opp. Ex. 6, ECF, No. 57.
On these grounds, the Democratic Caucus has not waived its sovereign immunity, and Plaintiff's Rehabilitation Act claim is barred by the Eleventh Amendment. The Court dismisses the Democratic Caucus from this suit accordingly. Relatedly, Plaintiff's Motion to Strike the Democratic Caucus' Newly Disclosed Witness (ECF No. 64) is denied as moot.
2. Senator Williams' Motion for Summary Judgment
Senator Williams argues that Plaintiff has failed to present an actionable claim under the FMLA and PHRA. The Court only partially agrees. For the reasons discussed below, the Senator's Motion is denied as to Plaintiff's FMLA claim and granted as to Plaintiff's PHRA claim.
a. Plaintiff's FMLA Claim
i. Personal Staff Exemption
First, Senator Williams contends that Plaintiff's FMLA claim must be dismissed because she is not a covered “employee” under the FMLA. The ability to sue under the FMLA is limited to individuals who are considered eligible employees under the statute. See 29 U.S.C. § 2617(a)(1). It should be noted that the FMLA adopts the Fair Labor Standards Act (“FLSA”)'s definition of “employee.” More specifically, the FLSA provides, in relevant part:
“The terms “employ”, “employee”, and “State” have the same meanings given such terms in subsections (c), (e), and (g) of section 203 of this title.” 29 U.S.C. § 2611(3).
(1) Except as provided in paragraphs (2), (3), and (4), the term “employee” means any individual employed by an employer.
(2) In the case of an individual employed by a public agency, such term means--
(C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual--
(i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and (ii) who--
(I) holds a public elective office of that State, political subdivision, or agency,
(II) is selected by the holder of such an office to be a member of his personal staff.29 U.S.C. § 203(e) (emphasis added). Senator Williams claims that Plaintiff was a member of his “personal staff, ” and thus should be exempted from coverage under the FMLA. Williams Mot. for Summ. J. 3-4. To counter, Plaintiff asserts that he waived this argument because it was not included in his affirmative defenses. Pl.'s Resp. in Opp. 24-25, ECF No. 57.
Third Circuit precedent dictates that “affirmative defenses may be raised at any time, even after trial, so long as the plaintiff suffers no prejudice.” Clews v. Cty. of Schuylkill, 12 F.4th 353, 358 (3d Cir. 2021) (quoting Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012)) (emphasis added). To establish prejudice, Plaintiff must demonstrate that the Senator's failure to raise the specific defense “deprived [her] of an opportunity to rebut that defense or to alter [her] litigation strategy accordingly.” In re Sterten, 546 F.3d 278, 285 (3d Cir. 2008). FLSA (and by extension, FMLA) exemptions are considered affirmative defenses. See Rood v. R&R Express, Inc., No. 171223, 2022 WL 1082481, at *7 (W.D. Pa. Apr. 11, 2022); see also Walsh v. Fusion Japanese Steakhouse, Inc., No. 19-00496, 2022 WL 395253, at *10 (W.D. Pa. Feb. 9, 2022). Upon a close review of the record, the Court finds that Plaintiff has in fact suffered prejudice.
Senator Williams did not include his argument regarding Plaintiff's alleged ineligibility under the FMLA in the affirmative defenses contained in his original and first amended Answers. See Williams Answer, ECF No. 9; Williams First Am. Answer, ECF No. 22. Rather, a reference to Plaintiff's alleged ineligibility is only included in the Senator's second amended Answer to Plaintiff's Amended Count Three; this amended Answer was filed on August 3, 2021. See Williams Second Am. Answer 8, ECF No. 39. By this point-over two years since this suit commenced-significant discovery had already occurred.
As well, Senator Williams claims that in his Answers, he denied Plaintiff's allegations regarding her FMLA eligibility. Williams Reply 24, ECF No. 61. However, Plaintiff's Complaint indicates that this allegation has no connection to the personal staff exemption, but instead is about the FMLA's general definition of an “eligible employee.” Plaintiff simply alleged that she met the durational requirements of this provision.
29 U.S.C. § 2611(2)(A) provides: “The term “eligible employee” means an employee who has been employed-- (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least 1, 250 hours of service with such employer during the previous 12-month period.”
Plaintiff averred that she was an ‘“eligible employee' within the meaning of FMLA (29 U.S.C. § 2611(2)(A)) as she had been employed by the Democratic Caucus for at least 12 months and for at least 1, 250 hours during the previous 12-month period.” Pl.'s Am. Compl. ¶ 30, ECF No. 18.
Finally, the Senator points to the “reservation of rights” language in his Answers to support his assertion that Plaintiff was provided with sufficient notice of this affirmative defense. Id. However, a “general reservation” clause like this one “does not actually assert a defense. Instead, it merely indicates a defendant's possible intention to assert a defense in the future. As such, it injects only ambiguity into the pleadings and therefore violates [Federal Rule of Civil Procedure 8's] notice requirement.” Vazquez v. Triad Media Sols., Inc., No. 15-07220, 2016 WL 6092066, at *3 (D.N.J. Oct. 18, 2016) (quoting United States v. Sensient Colors, Inc., 580 F.Supp.2d 369, 389 (D.N.J. 2008)).
This clause states: “Defendant asserts all defenses, affirmative or otherwise, available to him under the Family and Medical Leave Act and the Pennsylvania Human Relations Act, and reserves the right to amend or add additional defenses which may become later known during the course of discovery or revealed during pretrial procedures.” Williams First Am. Answer, ECF No. 22; Williams Second Am. Answer, ECF No. 39.
In her Response, Plaintiff explains that she did not depose the Senator on this particular issue, nor did she depose other staffers on this issue in an effort to develop comparisons between their respective proximities to the Senator. Pl.'s Resp. in Opp. 24-25, ECF No. 57. This is material, as in Clews, the Third Circuit determined that the Plaintiffs failed to show that they were prejudiced because they did not “explain what could have been developed in discovery with more explicit notice of the exception.” Clews, 12 F.4th at 358. In contrast, here, Plaintiff states exactly what information she would have sought to obtain with proper notice of this affirmative defense. Further, though Plaintiff did not formally request to reopen discovery, she repeatedly notes in her briefings that to do so would be costly. At this late stage of the litigation, Plaintiff has effectively been deprived of the opportunity to develop a response to this defense. As such, the Court declines to consider Senator Williams' personal staff exemption argument.
See, e.g., Pl.'s Resp. in Opp. 25, ECF No. 57 (“[Plaintiff] would be prejudiced by the re-opening of discovery because it would add another layer of deposition and discovery costs.”).
ii. FMLA Interference Claim
Count Two of Plaintiff's Amended Complaint is for “Violations of the Family and Medical Leave Act of 1993.” Pl.'s Am. Compl. 7, ECF No. 18. The Senator argues that Plaintiff fails to establish a prima facie case of FMLA retaliation, stating: “Count Two of the Amended Complaint purports to bring a claim for FMLA retaliation, as opposed to FMLA interference. Plaintiff's deposition testimony further clarifies that her FMLA claim sounds in retaliation and not interference...” Williams Mot. for Summ. J. 12, n. 6, ECF No. 47. However, Plaintiff states in her response that she is pursuing an FMLA interference claim. The Court agrees.
To make out an FMLA interference claim, a Plaintiff must show that: “(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 v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). Here, Count Two of Plaintiff's amended Complaint directly addresses four out of the five prongs of the FMLA interference test. Plaintiff pleads that: (1) she was an “eligible employee”; (2) the Senator is considered an employer under the statute; (3) she was entitled to take FMLA leave; and (4) the Senator terminated her for taking the leave. See Pl.'s Am. Compl. ¶¶ 29-33, ECF No. 18. On these grounds, the Court concludes that Plaintiff's claim is indeed for FMLA interference and addresses Plaintiff's arguments under applicable FMLA interference standards accordingly.
“[F]or an interference claim to be viable, the plaintiff must show that FMLA benefits were actually withheld.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 598 Fed.Appx. 109, 113 (3d Cir. 2015). FMLA interference claims do not require that an employee show that “he was treated differently than others[, and] the employer cannot justify its actions by establishing a legitimate business purpose for its decision.” Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). Therefore, because FMLA interference claims are not about discrimination, the familiar burden shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is not required. Ross, 755 F.3d at 192.
To be sure, an FMLA interference claim is not a protection against termination for a reason other than interference. See Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007). Indeed, “[t]he FMLA simply does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave.” Davis v. Temple Univ. Hosp., Inc., No. 14-5981, 2015 WL 7180505, at *4 (E.D. Pa. Nov. 16, 2015). Finally, an employee cannot prevail on an FMLA interference claim when the decision to terminate the employee was made before he requests FMLA leave. Atchison v. Sears, 666 F.Supp.2d 477, 489-90 (E.D. Pa. 2009).
Here, the Parties do not dispute that Plaintiff's position was terminated while she was out on FMLA leave. However, Senator Williams contends that Plaintiff was terminated not for reasons related to her additional FMLA request, but because of his office's Reorganization and Transition Plan. Williams Mot. for Summ. J. 1, ECF No. 47. Upon a close review of the record, the Court finds that a genuine issue of material fact exists regarding precisely when the Senator decided to terminate Plaintiff. In light of this ambiguity, it must be left to the fact-finder to determine whether Plaintiff was let go because of her FMLA leave, or because of the office's reorganization efforts.
As discussed above, Plaintiff called the Senator to advise that she needed additional FMLA leave in November 2018. Pl.'s Resp. in Opp. 4-5, ECF, No. 57. Her request was approved, effective November 12, 2018. Id. Senator Williams stresses that the decision to terminate Plaintiff was made before she requested additional FMLA leave, pointing to: (1) the content in the email Adam Nagel sent to himself on October 30, 2018; and (2) his (and Nagel's) deposition testimony. Defs.' Statement of Undisputed Material Facts ¶¶ 100-02, ECF No. 45.
The email contained an agenda titled “Confirming way forward for layoffs, ” which stated: [XXXXX] See Defs.' Statement of Undisputed Material Facts, Ex. P, ECF No. 45-2.
First, it is unclear whether the agenda is a representation of Senator Williams' final decision on Plaintiff's status as of October 30, 2018. On one hand, [XXXXX] [XXXXX]. On the other hand, the Court cannot ignore that-just six days before informing her that she was being terminated-Nagel received an email appearing to indicate that he was interested in reviewing Plaintiff's prior requests for FMLA leave.
Senator Williams' outgoing Chief of Staff forwarded Nagel an email which read: “Adam - I will forward to you any emails regarding Ronda's prior absences. Here is the most current one.” Pl.'s Resp. in Opp. Ex. 19, ECF, No. 57. This is particularly notable as the Third Circuit has held that “temporal proximity between a plaintiff's FMLA leave and his termination may be sufficient to create an inference that a causal link exists between these two events...” Quick v. Playtex Mfg., Inc., No. 12-581, 2014 WL 1285821, at *16, n. 21 (D. Del. Mar. 28, 2014) (citing Lichtenstein, 691 F.3d at 307).
Second, although both Senator Williams and Nagel expressed in their deposition testimonies that the Senator decided to terminate Plaintiff prior to her FMLA leave, this information may be reiterated at trial. See, e.g., Exter v. Wilkes-Barre Hosp. Co., LLC, No. 111365, 2014 WL 4384363, at *6 (M.D. Pa. Sept. 3, 2014) (determining that summary judgment could not be granted on an FMLA interference claim based on deposition testimony alone). Mindful of its role at the summary judgment stage, the Court views the aforementioned facts in the light most favorable to the non-movant. See Horsehead Indus., Inc., 258 F.3d at 140. Given that the timing of the Senator's decision to terminate presents a triable issue of fact, dismissal of Plaintiff's FMLA interference claim is precluded.
b. Plaintiff's PHRA Claim
Plaintiff's PHRA claim against Senator Williams must be dismissed because she did not pursue this claim against the Democratic Caucus as well. Supervisory employees who aid and abet an employer's discriminatory practices may be held liable under Section 955(e) of the PHRA. ‘“For liability to be imposed on an aiding and abetting theory, however, there must be a cognizable predicate offense, i.e., a violation by [the employer] of the PHRA's primary antidiscrimination provision directed toward employers.” Dickinson v. Millersville Univ. of Pa., No. 13-5022, 2014 WL 1327610, at *5 (E.D. Pa. 2014).
On these grounds alone, Senator Williams is entitled to judgment as a matter of law. Plaintiff's PHRA cause of action does not address any primary violation by the Democratic Caucus. See Pl.'s Am. Count Three, ECF No. 36. This is material because “[i]ndividual defendants cannot violate PHRA section 955(e) when there is no corresponding section 955(a) violation by an employer to aid and abet.” Burgess-Walls v. Brown, No. 11-275, 2011 WL 3702458, at *6 (E.D. Pa. Aug. 22, 2011). Thus, the Court declines to address Plaintiff's PHRA claim on the merits and grants Senator Williams' Motion for Summary Judgment on this issue.
B. Discovery-Related Motions
1. Defendants' Motion for Protective Order
The Court acknowledges that Plaintiff did not adhere to the Confidentiality Agreement in making an untimely challenge to the confidentiality designation of certain information. Defendants note-and Plaintiff does not dispute-that Plaintiff requested a meet and confer regarding the contested designation two days prior to filing the documents under seal. Defs.' Mot. for Protective Order 6-7, ECF No. 67-2. The terms of the Parties' executed Confidentiality agreement require them to meet and confer regarding a confidentiality challenge at least five days before filing such documents. Id. However, the Court finds no support for the position that these documents should remain confidential and sealed.
Under Federal Rule of Civil Procedure 26(c)(1), a court may, for good cause, issue a protective order “to shield a party from annoyance, embarrassment, oppression, or undue burden or expense” during discovery. “A protective order is intended to offer litigants a measure of privacy, while balancing against this privacy interest the public's right to obtain information concerning judicial proceedings.” In re Avandia Mktg. Sales Pracs. & Prods. Liab. Litig., 924 F.3d 662, 671 (3d Cir. 2019). A party seeking entry of a protective order must demonstrate that “good cause” exists for the Order. Id. “Good cause means that disclosure will work a clearly defined and serious injury to the party seeking closure, ” and the potential injury “must be shown with specificity.” Id. In Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-88 (3d Cir. 1994), the Third Circuit set forth a list of “neither mandatory nor exhaustive” factors that courts should consider when determining whether good cause exists, such as whether: (1) the disclosure will violate any private interests; (2) disclosure of the information will cause a party embarrassment; (3) the information is being sought for a legitimate purpose or for an improper purpose; (4) the sharing of information among the litigants will promote fairness and efficiency; (5) confidentiality is being sought over information important to public health and safety; (6) a party benefitting from the order of confidentiality is a public entity or official; and (7) the case involves issues important to the public. In balancing the relevant Pansy factors, the Court finds that Defendants cannot establish good cause for the issuance of a protective order.
First, while Defendants contend that public disclosure would violate the privacy interests of the third-party individuals mentioned in the emails, a close review of the emails indicate that they contain no sensitive information about such individuals. That is, no dates of birth, residential addresses, social security numbers, etc. are mentioned. The emails simply capture Nagel's perspective on which staffers should stay/be promoted or be terminated as part of Senator Williams' prospective office reorganization. Defendants present no support indicating that there is a recognized privacy interest pertaining to another colleague's opinions/recommendations for the workplace. Moreover, even if the Court were to find a cognizable privacy interest, such interests are “diminished when the party seeking protection is a public person subject to legitimate public scrutiny.” Pansy, 23 F.3d at 787.
Second, Defendants also assert that public disclosure would be embarrassing to the third parties named in the emails, as it would “expose to the public unproven and often negative claims about their work performance.” Defs.' Mot. for Protective Order 8, ECF No. 67-2. While this may be the case, parts of the email that may be considered embarrassing have already been quoted elsewhere in the Defendants' briefings. See, e.g., Defs.' Statement of Undisputed Material Facts ¶ 74, ECF No. 45. In addition, “generalized allegations of injury to reputation” are insufficient to make out a good cause showing. See Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 484 (3d Cir. 1995).
Third, the Court emphasizes that the presence of a public official in this suit significantly favors public disclosure. See Shingara v. Skiles, 420 F.3d 301, 308 (3d Cir. 2005) (declining to enter a protective order where the Parties seeking the protective order were public officials). This matter involves issues that may be important to the public, namely, whether a public official terminated an employee for reasons related to her FMLA leave, or simply as part of his ongoing plan to reorganize his office. Because of this, Plaintiff does have a legitimate purpose in seeking public disclosure. The Court need not address fairness and efficiency and public health and safety considerations, as these Pansy factors are not at issue in this case.
Given that the Pansy factors heavily weigh against the issuance of a protective order, Defendants' Motion is denied. Further, Exhibits 11 and 12 at ECF No. 58 shall be unsealed. The remainder of ECF No. 58 shall remain under seal.
2. Plaintiff's Motion to Strike Defendant Senator Williams' Newly Disclosed Witness
Pursuant to Federal Rule of Civil Procedure 26(e), a party should supplement disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process” (emphasis added). The Advisory Committee Note to Rule 26(e) further clarifies that “[t]here is . . . no obligation to provide supplemental or corrective information that has been otherwise made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition.” (emphasis added).
Here, the record reveals that Norman-another employee in the Senator's office-was identified several times throughout the Parties' depositions. Moreover, Norman was not just mentioned in passing; rather, substantive discussions were had regarding the nature of her role in the Senator's office. Plaintiff's counsel questioned various witnesses regarding: (1) the scope of Norman's geographical coverage; (2) which individuals headed daily operations before and after Plaintiff's termination (implicating Norman's name); and (3) the nature of Norman's daily responsibilities. Williams Resp. in Opp. 2-5, ECF No. 71.
Given that a central issue in this matter is whether Plaintiff was fired as part of the Senator's Reorganization and Transition Plan, Plaintiff can hardly claim surprise that Norman may possess discoverable information of interest to the Parties. Deposition testimony unequivocally indicated that Norman was put in charge of the Yeadon (and eventually Landsdowne) office. As such, Plaintiff was sufficiently put on notice that, for example, comparisons may be drawn between Plaintiff's and Norman's roles over the course of this litigation. Further, any possible prejudice can be cured by allowing Plaintiff to depose Norman. See In re Jacoby Airplane Crash, No. 99-6073, 2007 WL 559801, at *10 (D.N.J. Feb. 14, 2007).
In the absence of any evidence indicating that the Senator's failure to list Norman in his initial disclosures was in bad faith, the Court denies Plaintiff's motion to strike Norman as a witness. However, the Parties are advised that Plaintiff is permitted to depose Norman, if she wishes to do so.
III. CONCLUSION
For the foregoing reasons:
1. Defendant Democratic Caucus' Motion for Summary Judgment (ECF No. 43) is GRANTED and Defendant Democratic Caucus is DISMISSED from this suit;
2. Defendant Senator Williams' Motion for Summary Judgment (ECF No. 46) is GRANTED IN PART AND DENIED IN PART;
3. Plaintiff's Motion to Strike the Democratic Caucus' Newly Disclosed Witness (ECF No. 64) is DENIED AS MOOT;
4. Defendants' Joint Motion for Protective Order (ECF No. 67) is DENIED and the Clerk of Court shall UNSEAL Exhibits 11 and 12 at ECF No. 58. Exhibits 14 and 15 shall remain under seal; and
5. Plaintiff's Motion to Strike Defendant Senator Williams' Newly Disclosed Witness (ECF No. 70) is DENIED.