WINDER v. TRICOUNTY MEDICAL EQUIPMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAELIA WINDER : CIVIL ACTION

: NO. 18-cv-04016

Plaintiff, :

:

v. :

:

TRICOUNTY MEDICAL EQUIPMENT and :

QMES, LLC, :

:

Defendants. :

M E M O R A N D U M

Eduardo C. Robreno, J. July 23, 2020

I. Introduction

Presently before the Court is the motion for summary

judgment of Defendants TriCounty Medical Equipment and

Adapthealth, LLC, f/k/a QMES, LLC, (collectively, “Defendant”).

For the reasons set forth below, the Court will grant in part

and deny in part Defendant’s motion.

II. Factual Background and Procedural History1

Plaintiff Michaelia Winder (“Plaintiff”) is an African-

American female and former employee of Defendant. She resides in

Pennsylvania.

In March of 2017, Defendant hired Plaintiff as a customer

service representative. At the time of her hiring, Plaintiff was

1 At the summary judgment stage, the evidence produced by Plaintiff is

viewed in the light most favorable to Plaintiff, drawing all reasonable

inferences in her favor.

five months pregnant. She disclosed her pregnancy to Defendant

during her employee orientation. Plaintiff began her 8-week

maternity leave in late July of 2017 before giving birth on

August 1, 2017.

Upon her return to work on September 25, 2017, Plaintiff

informed her supervisors, Bonnie Moatz, Amanda Dero, and Dorothy

Exline, that she needed a private room to pump breast milk for

her newborn child. Plaintiff testified that she biologically

needed to pump for about 30-45 minutes approximately four times

per day. Winder Dep. at 23:3-24, 24:1-7. At that time, another

employee, a Caucasian woman named Shallyn Lacey, also needed to

pump. Ms. Lacey only biologically needed to pump once per day,

for approximately 45 minutes. Exline Dep. at 42:4-14.; see also

Brown Dep. at 31:19-24, 32:1-5.

Defendant initially provided Plaintiff access to a private

CPAP2 fitting room in order to pump as much as she biologically

needed to. At some point thereafter, the designated pumping room

was moved to a private meeting room. Employees, including

Plaintiff and Ms. Lacey, could reserve the meeting room through

an electronic scheduling program. Ms. Moatz informed Plaintiff

that nursing mothers would have priority access to the room.

2 Continuous Positive Airway Pressure. The CPAP fitting room was

originally used to fit customers with CPAP machines.

On a number of occasions, Plaintiff was unable to reserve

the room through the electronic system because it was already

reserved for a block of time.3 In such instances, Plaintiff

complained to her supervisors, including Ms. Exline and Ms.

Moatz, that she was unable to reserve the room because it had

already been booked. According to Plaintiff, she was told

“[u]ltimately, that [she] should use the closet or bathroom” to

pump. Winder Dep. at 31:19-20. As a result of the room being

unavailable to Plaintiff, she had to pump in Ms. Lacey’s car on

one occasion. On another occasion, Plaintiff’s lack of access to

the room resulted in her leaking breast milk through her shirt

and soiling it.

Some time later, Plaintiff was told by Ms. Exline that she

could not pump as often as biologically necessary without it

affecting her pay. Ms. Exline informed Plaintiff that if she

needed to pump for more than the standard break time afforded to

all employees (a thirty-minute lunch and two fifteen-minute

breaks), she would need to clock out and would not be paid. See

Pl.’s Opp. at 7, ECF No. 46. Plaintiff was only allowed to pump

during the scheduled lunch time and scheduled morning and

afternoon break times. See Winder Dep. at 71-72. By contrast,

3 Plaintiff testified that there were “at least seven times; at most,

maybe ten” when the meeting room was already scheduled when Plaintiff

attempted to reserve the room in advance. Winder Dep. at 39:11-12.

Ms. Exline blocked off a continuous hour around lunchtime for

Ms. Lacey to pump. Id.

Defendant’s employee handbook allowed employees to take

five days of unpaid time off. See Exline Dep. at 61; Ex. Winder-

1, ECf No. 45-3 at 98. Upon the sixth day of unpaid time off, an

employee could be subject to discipline up to and including

termination. See id. In January 2018, Ms. Exline informed all of

her employees that Defendant would begin “cracking down” on

enforcement of the unpaid-time-off policy. See id. at 60:9-11;

63:11-16.

In early January of 2018, Plaintiff received a staff-wide

email stating that, “after five days [of unpaid time off],

[employees] would get a warning; [after] six, [employees] were

terminated automatically.” Winder Dep. at 60:20-24, 61:1-5. Two

days prior to her termination, on February 7, 2018, Plaintiff

told Ms. Exline that she would not be available to work on

February 8, 2020. Id. at 52:16-22. At that point, Ms. Exline

told Plaintiff that she could not take February 8 off work

because Plaintiff was “up to [her] limit” of unpaid time off.

Id. Plaintiff did not attend work on February 8. On February 9,

2020, Ms. Exline and Ms. Dero provided Plaintiff with a

Corrective Action Form notifying Plaintiff of her termination

effective that day.

After her termination, Plaintiff initiated the current

action, alleging pregnancy-based and race-based discrimination,

retaliation, and a hostile work environment.

Following the close of discovery, Defendant filed the

motion for summary judgment presently before the Court,

Plaintiff filed a response in opposition, and Defendant was

granted leave to file a reply. The motion for summary judgment

is now ripe for disposition.

III. Legal Standard

Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion

for summary judgment will not be defeated by ‘the mere

existence’ of some disputed facts, but will be denied when there

is a genuine issue of material fact.” Am. Eagle Outfitters v.

Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986)). A fact is “material” if proof of its existence or non-

existence might affect the outcome of the litigation, and a

dispute is “genuine” if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the Court must

consider the evidence in a light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). While the moving party bears the initial

burden of showing the absence of a genuine issue of material

fact, meeting this obligation shifts the burden to the nonmoving

party who must “set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 250.

IV. Discussion

Plaintiff claims pregnancy-based and race-based

discrimination, retaliation, and a hostile work environment, in

violation of Title VII, the Pregnancy Discrimination Act, and

the Pennsylvania Human Rights Act.4

A. Discrimination

Title VII of the Civil Rights Act of 1964 forbids a covered

employer to “discriminate against any individual with respect to

. . . terms, conditions, or privileges of employment, because of

such individual’s race, color, sex, or national origin.” 42

U.S.C. § 2000e-2. The Pregnancy Discrimination Act

“specifies that Title VII’s ‘ter[m] “because of sex” . . .

include[s] . . . because of or on the basis of pregnancy,

childbirth, or related medical conditions.’” Young v. United

4 Because claims under Title VII and the Pennsylvania Human Rights Act

are largely analyzed under the same framework, subject to a few exceptions

that do not apply here, the Court will analyze Plaintiff’s claims

coextensively. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir.

1999); Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 852 (3d Cir. 2016)

(nonprecedential).

Parcel Serv., Inc., 575 U.S. 206, 135 S. Ct. 1338, 1345 (2015)

(alterations in original) (quoting 42 U.S.C. § 2000e(k)). “[T]he

Third Circuit has not expressly resolved whether ‘a complaint

based [solely] on the need to express breast milk is cognizable

under Title VII.’” Mercado v. Sugarhouse HSP Gaming, L.P., No.

18-3641, 2019 WL 3318355, at *5 (E.D. Pa. July 23, 2019) (second

alteration in original) (quoting Page v. Trs. of Univ. of Pa.,

222 F. App'x 144, 145 (3d Cir. 2007) (nonprecedential)).

However, other courts have found that the need to express breast

milk is covered by Title VII because “‘lactation is a normal

aspect of female physiology that is initiated by pregnancy and

concludes sometime thereafter,’ and thus is a ‘medical

condition[ ]’ ‘related’ to pregnancy within the meaning of the

[Pregnancy Discrimination Act].” Id. (quoting E.E.O.C. v.

Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013)).

Plaintiff concedes that her case presents only

circumstantial evidence; therefore, to establish her prima facie

case of discrimination she must show that: (1) Plaintiff is a

member of a protected class; (2) she was qualified for the

position in question; (3) she suffered an “adverse employment

action”; and (4) that she suffered the adverse employment action

under circumstances that give rise to an inference of unlawful

discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403,

410-11 (3d Cir. 1999); see also Tourtellotte v. Eli Lilly & Co.,

636 F. App’x 831, 842 (3d Cir. 2016) (nonprecedential).

Additionally, to establish a prima facie case of pregnancy-based

discrimination, Plaintiff must show (5) that “she is or was

pregnant and that her employer knew she was pregnant.” Doe v.

C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 365 (3d Cir.

2008). A plaintiff may show an inference of unlawful

discrimination through comparator evidence—that is, “by showing

that similarly situated individuals outside the plaintiff’s

class were treated more favorably [than the plaintiff].”

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 273–74 (3d Cir.

2010).

If Plaintiff succeeds in making out a prima facie case,

then, under the familiar McDonnell-Douglas framework, the burden

of production shifts to the Defendant “to articulate some

legitimate, nondiscriminatory reason” for the adverse employment

action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). If Defendant states such a reason, the presumption of

discrimination raised by the prima facie case is rebutted, and

the Plaintiff must “prove by a preponderance of the evidence

that the legitimate reasons offered by the defendant were not

its true reasons, but were a pretext for discrimination.” Jones,

198 F.3d at 410.

To show pretext, “the plaintiff must point to some

evidence, direct or circumstantial, from which a factfinder

could reasonably either (1) disbelieve the employer’s

articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Burton v.

Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (quoting Fuentes

v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

i. Prima Facie Case

At this stage of the proceedings, Plaintiff has shown that

she is a member of a protected class (as an African-American

female), that her employer knew of her pregnancy, that she is

qualified for the position (she had received positive

recognition for her job performance), and that she suffered an

adverse employment action (termination). Therefore, whether

Plaintiff has established a prima facie case turns on whether

her termination gives rise to an inference of unlawful

discrimination.

Plaintiff points to several instances which she alleges

show that Ms. Exline’s decision to terminate her gives rise to

an inference of both racial and pregnancy discrimination.

As to pregnancy-based discrimination, Plaintiff alleges

that Ms. Exline suggested that she would not have hired

Plaintiff had she known Plaintiff was pregnant. In support of

this, Plaintiff points to the deposition of her coworker, Ms.

Brown, regarding a conversation between Ms. Brown and Ms. Exline

shortly after Plaintiff was hired. According to Ms. Brown, after

Plaintiff showed up for employee orientation visibly pregnant,

Ms. Brown asked Ms. Exline, “[W]hy would you hire a pregnant

person knowing that she’s going to have to leave within a

certain amount of time, and then we’re going to be short staffed

again for a few months.” Brown Dep. at 26:1-6. Ms. Exline

responded, “I didn’t know she was pregnant when I hired her.”

Id. at 26:6-7. In the light most favorable to Plaintiff, Ms.

Exline’s remark may be construed to mean that Ms. Exline held a

hostile attitude towards pregnant women.

Plaintiff also points to inconsistent statements by her

supervisor, Ms. Exline, and a senior official of Defendant, Neil

Halberstadt, Vice President of Customer Service, concerning

Defendant’s policy as to the availability of pumping rooms and

the time allowed for pumping breast milk.

Mr. Halberstadt testified that he would not have “approved”

Ms. Exline docking an employee’s pay if the employee needed to

pump breast milk for more than the standard breaktime.

Halberstadt Dep. at 68:8-18 (“I think just from a human

standpoint if the necessity to pump took longer than the

allotted 15 minutes, it’s not controllable.”); Id. at 67:15-16

(“They would not have to clock out, is what I gather.”).

To the contrary, Plaintiff testified that she repeatedly

did not receive access to a private room for pumping breast milk

and that when she reported the issue to Ms. Exline, she was

“informed that she should ‘use the closet or the bathroom.’”

Pl.’s Opp. at 5, ECF No. 46. According to Plaintiff, and

contrary to Mr. Halberstadt’s testimony, Ms. Exline informed her

that if Plaintiff needed to pump more than one hour a day,

Plaintiff’s pay would be docked. See Id. at 7.

As to racial discrimination, Plaintiff points to the

treatment of Ms. Lacey, who is Caucasian and also needed to pump

breast milk. Ms. Lacey also worked in customer service, was

supervised by Ms. Exline, and was subject to the same attendance

policy. See Winder Dep. at 20:15-17; Moatz Dep. at 36-37; Exline

Dep. at 67:16-19. Plaintiff contends that Ms. Lacey was

similarly situated to Plaintiff but was not terminated despite

Defendant acknowledging that Ms. Lacey’s performance suffered

from similar behavior to Plaintiff’s. Plaintiff points to

testimony of Mr. Halberstadt that Ms. Lacey had “attendance

issues, productivity issues, [and an] overall lack of work

ethic.” Halberstadt Dep. at 37:20-21.

Accordingly, the Court finds that, in the light most

favorable to Plaintiff, she has presented sufficient evidence to

permit an inference that Plaintiff’s termination was the result

of unlawful pregnancy and racial discrimination.5

5 Plaintiff’s brief in opposition also argues that “Ms. Exline even went

so far as to refer to the Plaintiff, and the other African-American women in

the building with the racially charged epithet as [sic] ‘sistahs’, with an

ii. Defendant’s Reasons for Termination

Plaintiff, having satisfied the elements of her prima facie

case, the burden of production shifts to Defendant to articulate

a legitimate, nondiscriminatory reason for Plaintiff’s

termination. Defendant points to Plaintiff’s excessive absences

as a legitimate, nondiscriminatory reason for Plaintiff’s

termination. These absences violated company policy and

therefore constituted a valid reason for termination. Therefore,

Defendant has satisfied the burden of production.

iii. Pretext

Plaintiff does not challenge the number of days of work she

was absent. Therefore, Plaintiff’s pretext argument requires

that she show an invidious discriminatory reason was more likely

than not a motivating or determinative cause of her termination.

See Fuentes, 32 F.3d at 764.

“In order to avoid summary judgment, Fuentes requires a

plaintiff to put forward ‘such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of

credence.’” Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir.

emphasis on the ‘a-h’.” Pl.’s Opp. at 7, ECF No. 46. However, the record

shows that a woman named Carolyn [or perhaps Carol], not Ms. Exline, used the

term. See Winder Dep. at 45-47; see also Brown Dep. at 77:17-24, 78:1-14. Nor

is there any evidence that Carolyn held any supervisory role in respect to

Plaintiff.

2005) (quoting Fuentes, 32 F.3d at 765); see also Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir.

1998) (comparator evidence may show pretext); Wilcher v.

Postmaster Gen., 441 F. App’x 879, 881 (3d Cir. 2011)

(nonprecedential) (“To establish a pretext for discrimination,

Wilcher may ‘show that the [USPS] has previously discriminated

against [him], that the [USPS] has discriminated against other

persons within [his] protected class or within another protected

class, or that the [USPS] has treated more favorably similarly

situated persons not within the protected class.’”(alterations

in original) (quoting Simpson, 142 F.3d at 645)).

Plaintiff argues that there are three bases upon which a

reasonable jury could find Defendant’s proffered reason for

terminating Plaintiff (number of absences) unworthy of credence.

To wit:

One, a reasonable jury could find that Ms. Exline’s stated

reason set out in the Corrective Action Form dated February 9,

2018, which Ms. Exline prepared and gave to Plaintiff as

official notice of Plaintiff’s termination following her absence

from work on February 8, 2018, see Ex. Winder-1, ECF No. 45-3 at

98, was inconsistent with Ms. Exline’s prior representations

concerning the application of the company’s unpaid-time-off

policy’s five-day limit.

Pursuant to Defendant’s written “Companywide – Unpaid Time

Off” policy, employees were “allowed a maximum of 5 unpaid days

off in an anniversary work year.” Ex. Winder-3, ECF No. 45-3 at

102. The policy defines an anniversary work year as “the yearly

time period from [an employee’s] initial hire date, and each

recurring year thereafter).” Id. According to this unpaid-time-

off policy, after an employee’s fifth unpaid day off within an

anniversary work year, “additional time off . . . w[ould] be

handled through disciplinary action. Continued abuse of unpaid

time off may lead to further disciplinary action up to and

including termination.” Id.

Prior to 2018, Defendants were not enforcing the written

unpaid-time-off policy’s five-day limit. See Exline Dep. at

63:14-16. In January of 2018, Ms. Exline told employees,

including Plaintiff, that she would start enforcing the policy,

but that she would exclude any unpaid time off accrued in 2017.

See id. at 67:12-24 (Ms. Exline informed by her director to

“start adhering” to the policy); id. at 62:15 (Ms. Exline

informs employees that, starting January 2018, she would begin

“cracking down” on enforcing the policy); id. at 62:14-17 (Ms.

Exline would not count time off accrued in 2017). Contrary to

this representation, Ms. Exline in fact considered, in the

Corrective Action Form, the 196 hours of unpaid time off accrued

by Plaintiff in 2017. See Ex. Winder-1, ECF No. 45-3 at 98.6

Two, a reasonable jury could find that Ms. Exline’s second

stated justification in the Corrective Action Form for

terminating Plaintiff—that the February 8, 2018, absence

constituted a “no call no show”—is inconsistent with Ms.

Exline’s later testimony as to both the justification for

Plaintiff’s ultimate termination as well as to the

characterization of Plaintiff’s February 8 absence.

In the Corrective Action Form, Ms. Exline justified

Plaintiff’s termination, at least in part, because Plaintiff’s

February 8 absence was a “no call no show.” Id. Later, Ms.

Exline testified that, to the contrary, it was the quantity of

Plaintiff’s absences for which Ms. Exline terminated Plaintiff.

See Exline Dep. at 68:3-23.

6 According to Ms. Exline’s testimony, the 196 hours mentioned in the

Corrective Action Form represents the amount of unpaid time off Plaintiff had

accrued from March 2017, when she was hired, through December 2017. See

Exline Dep. at 62:16-19; see also Ex. Winder-1, ECF No. 45-3 at 98

(mentioning both “196 hours” of unpaid time off and characterizing

Plaintiff’s request to take off February 9, 2018, as her “6th [day] since

January and 30th altogether”).

In addition to the inconsistency between Ms. Exline’s reliance on the

196 hours and her earlier representation that 2017 absences would not be

counted, a reasonable jury could find that Ms. Exline’s statement that she

“could not give [Plaintiff] any” more time off because Plaintiff had accrued

196 hours, id., was inconsistent with Ms. Exline’s discretionary authority in

enforcing the unpaid-time-off policy. That is, in light of Ms. Exline’s

authority to forgive 2017 absences notwithstanding the written policy, a

reasonable jury could find that Ms. Exline’s statement that she “could not

approve,” Plaintiff’s request, id., lacked credibility. See Exline Dep. 70:7-

14.

Further, when asked during deposition if Plaintiff “failed to

give any advance warning or notice that she couldn’t come in” on

February 8, Ms. Exline responded that she “had [a] discussion

with [Plaintiff] on the 6th” about Plaintiff’s request to take

off February 8. Id. at 65:18-24, 65:1-8. A reasonable jury could

therefore find Ms. Exline’s initial characterization of the

February 8 absence as a “no call no show” to be inconsistent

with her later testimony that she discussed the absence with

Plaintiff beforehand, on February 6.7

Three, specifically as far as racial discrimination is

concerned, Plaintiff’s pretext argument is further supported by

evidence that at least one other similarly situated employee was

not terminated despite time off violations. Plaintiff points to

Mr. Halberstadt’s testimony that Ms. Lacey was not terminated

despite “attendance issues, productivity issues, [and an]

overall lack of work ethic.” Halberstadt Dep. at 37:20-21.

Although Plaintiff does not allege exactly how many hours of

unpaid time off Ms. Lacey had accumulated without termination,

Ms. Lacey, who was similarly situated to Plaintiff, was subject

to the same time-off policy, was supervised by Ms. Exline, and,

according to Mr. Halberstadt’s testimony, caused similar

7 Additionally, the characterization of Plaintiff’s February 8, 2020,

absence as a “no call no show” contradicts Plaintiff’s own testimony that she

did inform Ms. Exline in advance that she would not be at work that day due

to an inability to secure childcare. See Winder Dep. at 55:12-20. This

contradiction raises an issue of fact for the jury.

attendance problems. See Wilcher, 441 F. App’x at 881-82

(“Although this court has not explicitly stated what constitutes

a similarly situated employee, . . . . [a] determination of

whether employees are similarly situated takes into account

factors such as the employees' job responsibilities, the

supervisors and decision-makers, and the nature of the

misconduct engaged in.” (citations omitted)).8

The Court finds that, in regard to both pregnancy

discrimination and racial discrimination, in light of Ms.

Exline’s inconsistencies in describing the reasons for

terminating Plaintiff, a reasonable jury could find Defendant’s

proffered reasons for Plaintiff’s termination unworthy of

credence.9

Therefore, the Court will deny Defendant’s motion for

summary judgment as to both pregnancy and racial discrimination.

B. Retaliation

Title VII prohibits an employer from “discriminat[ing]

against any of his employees or applicants for employment ...

because he has opposed any practice made an unlawful employment

practice by [Title VII], or because he has made a charge,

8 Although Plaintiff points to two other employees as being similarly

situated, her brief did not identify who they are, or how, if at all, they

are similarly situated. See Pl.’s Opp., ECF No. 46.

9 As to the third reason, the Court notes that the evidence of Ms. Lacey

as an employee similarly situated to Plaintiff adds further, but unnecessary,

support for Plaintiff’s pretext argument.

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [Title VII].” 42

U.S.C. § 2000e–3.

To establish a prima facie case of retaliation, a plaintiff

must show: (1) that she engaged in protected activity; (2)

retaliatory action that a reasonable employee would find

“materially adverse” in that they “might well have dissuaded a

reasonable worker from making or supporting a charge of

discrimination”; and (3) a “causal connection” between her

participation in the protected activity and the retaliatory act.

Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006)

(citations omitted). “With respect to ‘protected activity,’ the

anti-retaliation provision of Title VII protects those who

participate in certain Title VII proceedings (the ‘participation

clause’) and those who oppose discrimination made unlawful by

Title VII (the ‘opposition clause’).” Id. at 341 (quoting Slagle

v. Cty. of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)). An

“employee must have an ‘objectively reasonable’ belief that the

activity s/he opposes constitutes unlawful discrimination under

Title VII.” Wilkerson v. New Media Tech. Charter Sch., 522 F.3d

315, 322 (3d Cir. 2008).

In this case, Plaintiff’s brief cites to no complaints she

made regarding sex, pregnancy, or racial discrimination. The

brief claims that “Plaintiff was terminated as she continually

asked for accommodations, but was provided none.” Pl.’s Opp. at

24, ECF No. 46. Plaintiff argues that she complained to Ms.

Exline on a number of occasions that the designated pumping room

was either already booked or was occupied by another unnamed

employee despite Plaintiff having booked the room. But Plaintiff

made no mention of discrimination, nor did she otherwise alert

Ms. Exline that she believed her lack of access to the room was

due to her status as a nursing mother or as an African-American

female. Therefore, her retaliation argument fails for lack of

any protected activity.

The Third Circuit has held that these types of “general

complaint[s] of unfair treatment [are] insufficient to establish

protected activity under Title VII” and that “opposition to an

illegal employment practice must identify the employer and the

practice—if not specifically, at least by context.” Curay–Cramer

v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135

(3d Cir. 2006); see Daniels v. Sch. Dist. of Phila., 776 F.3d

181, 195 (3d Cir. 2016) (“[P]laintiff's ‘vague allegations of

“civil rights” violations,’ without reference to discrimination

based on any protected category, did not constitute protected

conduct under Title VII.” (quoting Slagle, 435 F.3d at 268));

Sanchez v. SunGard Availability Servs. LP, 362 F. App’x 283, 288

(3d Cir. 2010) (nonprecedential) (“[C]omplaints must be specific

enough to notify management of the particular type of

discrimination at issue in order to constitute ‘protected

activity.’” (citing Barber v. CSX Distrib. Servs., 68 F.3d 694,

702 (3d Cir. 1995))).

Moreover, even assuming that Plaintiff’s complaints

constituted protected activity, Plaintiff fails to establish a

causal connection between her complaints of the unavailability

of the pumping room and her ultimate termination. Plaintiff’s

brief does not identify a timeline as to when the generalized

complaints were made nor does the proffered evidence raise an

inference of retaliatory animus. See LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (“Where the

temporal proximity is not ‘unusually suggestive,’ we ask whether

‘the proffered evidence, looked at as a whole, may suffice to

raise the inference.’” (quoting Farrell v. Planters Lifesavers

Co., 106 F.3d 271, 280 (3d Cir. 2007)).

What Plaintiff does allege is that “approximately one (1)

month prior to her termination, Plaintiff was even given a

performance[-]based raise by the Defendant[], for her good work

with the Defendant[], however, she was still terminated.” Pl.’s

Opp. at 9, ECF No. 46 (citing Winder Dep. at 11:14-24)). When,

as here, “temporal proximity between protected activity and

allegedly retaliatory conduct is missing, courts may look to the

intervening period for other evidence of retaliatory animus.”

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir.

1997). And, although the Court considers “‘a broad array of

evidence’ in determining whether a sufficient causal link exists

to survive a motion for summary judgment,” including

“intervening antagonism or retaliatory animus, inconsistencies

in the employer's articulated reasons for terminating the

employee, or any other evidence in the record sufficient to

support the inference of retaliatory animus,” LeBoon, 503 F.3d

at 232-33 (quoting Farrell, 106 F.3d at 279-81, 284), “[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.” Id. at 233 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)). Here, Plaintiff fails to proffer a

causal connection between any protected activity and her

ultimate termination.

Because Plaintiff has failed to show either protected

activity or a causal connection between her generalized

complaints and her termination, the Court will grant Defendant’s

motion for summary judgment as to the retaliation claim.

C. Hostile Work Environment

To prevail on a claim of hostile work environment, a plaintiff

must show: (1) she “suffered intentional discrimination” because

of her membership in a protected class; (2) “the discrimination

was severe or pervasive”; (3) the “discrimination detrimentally

affected the plaintiff”; (4) “the discrimination would

detrimentally affect a reasonable person in like circumstances”;

and (5) the “existence of respondeat superior liability.” Mandel

v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)

(citations omitted). Here, Defendant challenges the first four

elements.

As to the first element, as discussed above, Plaintiff has

stated a prima facie case of intentional pregnancy- and race-

based discrimination. As to the second element, courts look to

the totality of the circumstances in deciding whether the

complained-of discrimination was “severe or pervasive,” by

looking at “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.” Id. at 168

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

“When the workplace is permeated with ‘discriminatory

intimidation, ridicule, and insult,’ that is ‘sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’ Title VII

is violated.” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).

Plaintiff alleges that on one occasion, when she attempted to

use the designated pumping room “two (2) men were in the room,

and when Plaintiff informed them that she needed the room ‘to

pump’, one of them asked her ‘to pump what’, and then looked at

the Plaintiff’s breasts, and said ‘oh, okay.’” Pl.’s Opp. at 21,

ECF No. 46 (quoting Winder Dep. at 38:11-19)). On another

occasion, when Plaintiff complained to her supervisors that she

was unable to pump in the designated room because the room was

already reserved in the electronic scheduling system, Plaintiff

was told that she should “use the closet or bathroom.” Winder

Dep. at 31:9-20.

As a result of being denied access to the designated pumping

room (despite Ms. Lacey being consistently allowed to use the

room as needed and during the lunch hour), Plaintiff on one

occasion had to pump breast milk in a coworker’s car and on

another occasion visibly leaked a large amount of breast milk

through her shirt. See Pl.’s Opp. at 21, ECF No. 46. Ms. Moatz

observed that Plaintiff’s shirt was “completely soiled because

she could not get in to the room to pump. Her clothes were wet.”

Moatz Dep. at 39:1-4.

While undoubtedly embarrassing, a reasonable jury could not

find that these circumstances resulted in the type and scope of

humiliation which satisfies the severe or pervasive requirement

for a hostile work environment claim. Therefore, the Court will

grant Defendant’s motion for summary judgment on the hostile

work environment claim.

D. Punitive Damages

In a Title VII case, “[p]unitive damages are limited . . . to

cases in which the employer has engaged in intentional

discrimination and has done so ‘with malice or with reckless

indifference to the federally protected rights of an aggrieved

individual.’” Kolstad v. Am. Dental Assoc., 527 U.S. 526, 529–30

(1999). And, “in the punitive damages context, an employer may

not be vicariously liable for the discriminatory employment

decisions of managerial agents where these decisions are

contrary to the employer's ‘good-faith efforts to comply with

Title VII.’” Id. at 545 (citation omitted).

Plaintiff does not allege which individual’s actions she

believes constitute malice or reckless indifference. See Pl.’s

Opp. at 25, ECF No. 46. And, Plaintiff fails to make any

arguments that, even if Ms. Exline or another individual

employee acted with malice or reckless indifference, Defendant

did not make a good faith effort to comply with Title VII.

Defendant points to Ms. Moatz’s efforts to help Plaintiff when

she leaked through her shirt, and to QMES’ efforts to create an

electronic scheduling system to better allow all nursing mothers

to pump. See Def.’s Mot. for Summ. J. at 25, ECF No. 45.

Therefore, the Court will grant Defendant’s motion for summary

judgment on Plaintiff’s claims for punitive damages.

II. Conclusion

For the foregoing reasons, this Court will grant

Defendant’s motion for summary judgment on Plaintiff’s claim for

(1) retaliation, (2) hostile work environment, and (3) punitive

damages. The Court will deny Defendant’s motion for summary

judgment on Plaintiff’s claim for pregnancy and racial

discrimination.

An appropriate order follows.