MEIGS v. CARE PROVIDERS INSURANCE SERVICES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHERINE MEIGS,

Plaintiff,

CIVIL ACTION

v. NO. 21-867

CARE PROVIDERS INSURANCE

SERVICES, LLC,

Defendant.

OPINION

Slomsky, J. January 13, 2023

I. INTRODUCTION

Plaintiff Katherine Meigs (“Plaintiff”) brings this suit against her former employer,

Defendant Care Providers Insurance Services d/b/a NSM Insurance Group (“NSM”), alleging sex

and/or pregnancy discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq. (Count I), and the Pennsylvania Human Relations Act (“PHRA”), 42 Pa. C.S. §

951, et seq. (Count III). (Doc. No. 1.) Plaintiff also alleges that Defendant interfered with her

rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and retaliated

against her for invoking her FMLA rights (Count II). (Id.) In Counts I and III, Plaintiff claims

that Defendant terminated her and denied her a promotion because of her sex and pregnancy. For

the alleged violations of Title VII and the PHRA, respectively, she seeks back pay, front pay, and

punitive damages.1 (Id. at 13-15.) For the Count II FMLA violations, Plaintiff seeks back pay,

front pay, and liquidated damages.2 (Id. at 14.)

1 Back pay are damages available to successful Title VII plaintiffs and are “designed to make

victims of unlawful discrimination whole by restoring them to the position they would have

been absent the discrimination.” Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 84 (3d

Cir. 2009) (citing Loeffler v. Frank, 486 U.S. 549, 558 (1988)). It “is not an automatic or

mandatory remedy, but ‘one which the courts may invoke’ at their equitable discretion.” Id.

(internal quotation marks omitted) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 415

(1975)).

Under Title VII, front pay is appropriate where the plaintiff did not find better or substantially

equivalent employment. “‘Substantially equivalent’ employment affords ‘virtually identical

promotional opportunities, compensation, job responsibilities, and status as the position from

which the Title VII claimant has been discriminatorily terminated.” Id. at 85 (quoting Booker

v. Taylor Milk Co., 64 F.3d 860, 866 (3d Cir. 1995)). Whether Plaintiff’s subsequent

employment after her termination from NSM qualifies as “substantially equivalent” is a genuine

dispute of material fact appropriate for determination by a jury. “[C]ourts may award front pay

where a victim of employment discrimination will experience a loss of future earnings because

she cannot be placed in the position she was unlawfully denied.” Donlin, 581 F.3d at 86. Front

pay is an award of future earnings and an alternative to reinstatement of the plaintiff at his or

her previous place of employment when reinstatement “would be inappropriate [such as] where

there is a likelihood of continuing disharmony between the parties or unavailable because no

comparable position exists.” Id. The decision to grant a Title VII claimant an award of front

pay is discretionary. See id. at 86.

Punitive damages are available under Title VII only “if the complaining party demonstrates that

the respondent engaged in a discriminatory practice or discriminatory practices with malice or

with reckless indifference.” 42 U.S.C. § 1981a(b)(1). An employer acts with “malice” or

“reckless indifference” where it knows “that it may be acting in violation of federal law”

regardless of whether it is aware “that it is engaging in discrimination.” Kolstad v. Am. Dental

Ass’n, 527 U.S. 526, 535 (1999). Accordingly, punitive damages in Title VII cases are reserved

for “cases in which the defendant’s conduct amounts to something more than a bare violation

justifying compensatory damages.” Cochetti v. Desmond, 527 F.2d 102, 106 (3d Cir. 1975).

2 A successful plaintiff on a FMLA cause of action is entitled to back pay, front pay,

reinstatement, if appropriate, and liquidated damages. 29 U.S.C. § 2617 provides that any

employer who violates the FMLA is liable to damages to the affected employee in:

(i) the amount of—

(I) any wages, salary, employment benefits, or other compensation denied

or lost to such employee by reason of the violation; . . .

(ii) the interest on the amount described in clause (i) at the prevailing rate; and

(iii) an additional amount as liquidated damages equal to the sum of the amount

described in clause (i) and the interest described in clause (ii), except that if an

On November 14, 2022, Defendant NSM filed a Motion for Summary Judgment. (Doc.

No. 67.) Plaintiff filed a Memorandum of Law in Opposition to Defendant’s Motion for Summary

Judgment (Doc. No. 69) and an accompanying Response to Defendant’s Statement of Undisputed

Material Facts in which she disputes several of NSM’s claims of undisputed facts and provided a

recitation of the facts in the light most favorable to her (Doc. No. 70). NSM then filed a Reply.

(Doc. No. 71.) NSM’s Motion for Summary Judgment (Doc. No. 67) is now ripe for disposition.

For reasons that follow, the Motion for Summary Judgment (Doc. No. 67) will be denied.

In addition to the Summary Judgment Motion, Defendant has filed a Motion to Strike

Hearsay Messages, arguing that certain text messages upon which Plaintiff relies to support her

discrimination claims are inadmissible hearsay and therefore cannot be relied upon to deny

summary judgment. (Doc. No. 72.) Defendant also has filed a Motion to Strike Plaintiff’s

Affidavit, asserting that Plaintiff’s self-declaration should be stricken as a “sham affidavit” and

not considered at the summary judgment stage. (Doc. No. 73.) Plaintiff filed an Omnibus

Opposition to Defendant’s Motions to Strike. (Doc. No. 76.) Defendant filed a Reply. (Doc. No.

77.) For reasons that follow, the Motions to Strike (Doc. Nos. 72, 73) will be denied.

employer who has violated section 105 proves to the satisfaction of the court that

the act or omission which violated section 105 was in good faith and that the

employer had reasonable grounds for believing that the act or omission was not a

violation of section 105, such court may, in the discretion of the court, reduce the

amount of the liability to the amount and interest determined under clauses (i) and

(ii) . . . .

29 U.S.C. § 2617(a)(1)(A).

Where an employer has not met its burden of good faith compliance with the FMLA under

§ 2617(a)(1)(A)(iii), any damages assessed against it for lost wages, salary, employment

benefits, or other compensation plus interest is doubled.

II. BACKGROUND

Plaintiff Katherine Meigs is a female and former employee of NSM. (Doc. No. 70 at 1.)

NSM has over twenty-five (25) different programs and over 1,000 employees. (Id. at 3.) On

August 15, 2016, three months after Plaintiff graduated from college with a bachelor’s degree,

NSM hired her as a Business Intelligence Analyst (“BIA”) I in the Informational Technology

(“IT”) Department. (Id. at 2.) Her duties as a BIA I included performing various data

manipulations, about which she had limited experience prior to her employment with NSM. (Id.

at 22.) Throughout her employment at NSM, Plaintiff reported to Antonio Rosa3 (“Rosa”), who

headed the IT Department which later became the Strategy and Analytics Department. Rosa was

the director of this Department, even up until the time of the filing of this lawsuit. (Id. at 4.) The

IT Department was converted to the Strategy and Analytics Department after NSM hired in April

or May 2018 Marc Castellucci as Chief Operations Officer (“COO”). 4

Castellucci testified at his deposition that he observed Plaintiff’s job performance within

group meetings between five (5) and twenty (20) times. (Id. at 6.) In January 2019, a yearly

review of her performance for 2018 was conducted. (Id. at 25.) During the annual review—which

Plaintiff concedes is accurate—Rosa, who conducted and authored the review, informed her that

3 Plaintiff and Rosa would attend company-sponsored workout classes together. (Id. at 13.) They

did so until March or April 2019. (Id.) Additionally, in April 2017 and April 2018, Plaintiff

was asked to be a summer intern mentor for the summers of 2017 and 2018. (Id. at 7.) She was

not asked to be a summer intern mentor for the summer of 2019. (Id.)

4 Around this same time, NSM was acquired by a public company named White Mountain. (Id.

at 5.) As noted, under Castellucci’s leadership as NSM’s COO, the IT department was replaced

by the Strategy and Analytics Department. (Id. at 6.) At the time of its creation, the Strategy

and Analytics Department consisted only of Plaintiff and Rosa who continued to supervise

Plaintiff. (Id.)

she needed to improve both her soft skills5 and her relationships. (Id.) Plaintiff’s annual review

also emphasized the areas where Plaintiff excelled. (Id. at 26.) To help improve Plaintiff’s soft

skills, NSM paid for her to attend a two-day public speaking course. (Id. at 28.) Additionally,

Plaintiff completed a beginner-level course focused on the “R” coding language. (Id. at 29.)

Although Plaintiff alleges that Rosa told her that he wanted to promote her to Business

Intelligence Analyst (“BIA”) II, she does not recall Rosa ever telling her that he had discussed any

potential promotion with his superiors. Moreover, Rosa did not tell Plaintiff that it was a given

that she would be promoted to BIA II. (Id. at 36.) This position is not mentioned in the 2018

Annual Review nor does that review state there was a possibility of Plaintiff being promoted to

that position. (Id.)

As of April 2019, Plaintiff did not inform anyone at NSM that she was pregnant. (Id. at

13.) However, in mid-June of 2019, Plaintiff shared news of her pregnancy with two employees:

Natalie Miele and Michael Lucci. (Id. at 20.) Plaintiff describes them as “close friends.” (Id. at

21.) Miele and Lucci were not employees in the Strategy and Analytics Department or in the

Human Resources Department and were not executives at NSM. (Id. at 21.) As far as Plaintiff

knows, they followed her instructions not to tell anyone at NSM she was pregnant. (Id.)

On June 28, 2019, Plaintiff informed Rosa that she was pregnant with her first child, and

Rosa appeared to be “visibly shocked” upon hearing the news.6 (Id. at 14.) Rosa was the first

person in the Strategy and Analytics Department and the first executive at NSM with whom

5 Defendant describes “soft skills” as the ability to give effective presentations, speak in public,

and communicate effectively. (Doc. Nos. 67-8 at 101-02; 67-9 at 108; 67-30 at 31-33.)

6 Rosa allegedly told Plaintiff that she had “beaten [Rosa] and his wife to having children.” (Id.

at 39.) Rosa made no other comments about Plaintiff’s pregnancy. (Id.) Plaintiff never reported

this comment to Human Resources and never told Rosa that this comment was offensive to her.

(Id.)

Plaintiff shared news of her pregnancy. (Id. at 19.) Plaintiff did not inform anyone in Human

Resources, including Director Stefan Piocciocchi, about her pregnancy. (Id. at 19.) Piocciocchi

testified that he did not know Plaintiff was pregnant until after Rosa informed him on July 8 or

July 9, 2019. (Id.; Doc. No. 67-9 at 111.) Another individual who testified she was not aware of

Plaintiff’s pregnancy was Megan Noles, a senior account manager at NSM who was later promoted

to Account Executive in 2019.7 (Doc. No. 70 at 20.)

In February 2019, which was four months prior to Plaintiff’s pregnancy announcement to

Rosa, Michael Suder was hired as a BIA II in NSM’s Strategy and Analytics Department.8 (Id. at

8.) On July 1, 2019, NSM posted an opening for a BIA I. (Id. at 10.) Within a year of Plaintiff’s

termination, NSM hired John McKendry, a former NSM intern, for this position. (Id. at 11-12.)

On July 2, 2019, NSM posted another opening for the position for a BIA II and hired William

Smith in late October 2019.9 (Id. at 10.)

Plaintiff received a Midyear Performance Review, dated July 15, 2019, that she claims she

did not receive during any other year of her employment at NSM. (Id. at 26-27.) She further

7 Noles worked for NSM for eighteen (18) years and had two pregnancies during her

employment, taking maternity leave for each pregnancy. (Id. at 42.) She took four months of

maternity leave for her first child and was permitted to work on a part-time basis for about a

year after she had her second child. (Id. at 43.) She testified that NSM was “nothing but good”

to her during each of her pregnancies and corresponding maternity leaves. (Id.) Noles had

joined Plaintiff in her lunchtime workout classes. (Id. at 20.)

8 In May of 2014, Suder received a bachelor’s degree in psychology. (Id. at 37.) Suder’s prior

work experience included employment as a BIA for Temple University, an Institutional

Research Analyst for the University of Valley Forge, and a Statistical Analyst for the

Philadelphia 76ers. (Id.) He also was proficient in “R.” (Id.)

9 Smith received his Master of Science Degree in, and later was an adjunct professor of, Business

Intelligence and Analytics from Saint Joseph’s University. (Id. at 38.) He was competent in

“R,” Python, and SQL. (Id.) Smith was terminated less than a year after Plaintiff was

terminated. (Id.) Rosa testified that Smith was placed on a performance improvement plan

(“PIP”) and ultimately was terminated for poor performance. (Doc. No. 69-6 at 53.) “He was

the first employee that was put on a PIP within the department.” (Doc. No. 70 at 38.)

claims that “[n]o NSM employee aside from [her] received a mid-year review in 2019 because the

company did not administer mid-year reviews until 2020 at the earliest.” (Id.) The Midyear

Performance Review stated that the overall ratings regarding her performance was “Below

Expectations.” (Doc. No. 67-32 at 2.) It also indicated that Plaintiff was late in completing several

projects for which she was responsible. (Id. at 3-4.) Rosa also provided comments at the end of

the review stating that Plaintiff:

[w]orks well with team, and completes support tasks given. However, would like

to see better execution with projects, where not all to do items are laid out. Must

be able to exhibit more proactive behavior to get in front of potential road blocks

or future [t]asks [sic]. Has become better with on-time arrival during second

quarter.

(Id. at 6.) At her deposition, Plaintiff testified that she did not receive any other Midyear

Performance Review during her employment at NSM. (Doc. No. 69-4 at 44.)

On July 29, 2019, Rosa and Picciocchi, the Human Resources Director, met with Plaintiff

and informed her that her employment with NSM was terminated. (Doc. No. 70 at 30.) Rosa

testified that the July 29 meeting was delayed because NSM had a board hearing in the first or

second week of July and because Rosa had hernia surgery in early July, which caused him to miss

at least one week of work that month. (Id. at 30-31.) They informed Plaintiff that she was not

terminated based on her performance. (Id. at 31.) Rather, she was being terminated due to strategic

organizational restructuring at NSM. (Id.)

After the meeting, Rosa and Picciocchi prepared a written Summary of the Termination

Meeting. (Id.) Rosa “indicated that it was decided to eliminate the level 1 position [of Business

Intelligence Analyst], and hire level 2 position with R and/or Python technical abilities now in

order to align with company corporate goals of predictive analytics in 2020.” (Doc. No. 67-19.)

Plaintiff did not have Python skills when she was terminated. (Doc. No. 70 at 32.)

Plaintiff also was informed that NSM provides letters of recommendation to terminated

employees and Rosa “would be happy to be a reference in finding [Plaintiff’s] next job.” (Id. at

33; Doc. No. 67-19 at 2.) Rosa did write a letter of recommendation for Plaintiff. (See Doc. No.

67-32 at 2.) The letter of recommendation favorably noted Plaintiff’s ‘[E]xcel skills” and her

ability to “create[e] robust reports that are visually appealing, allowing users to digest more data

than they could otherwise.” (Id.) Rosa also stated that Plaintiff “was very customer service

oriented, allowing her to build relationships with business users” and that she “also played a pivotal

role in NSM Insurance Group’s internship program . . . [and] was selected two years in a row to

be an intern mentor . . . .” (Id.) The letter did not specifically mention any “R” or Python skills.

(Doc. No. 70 at 35.)

Plaintiff alleges that NSMs’ FMLA policy was not family-friendly and claims “that NSM

acted inappropriately toward three other, former female employees once they became pregnant.”

(Id. at 40.) Cathy Hunt, NSM’s Chief Administrative Officer,10 oversaw NSM’s FMLA

scheduling process until 2019, when Human Resources Director Picchiocchi took over the FMLA

scheduling process. (Id. at 17-18.) Hunt testified that during her twenty-five years with the

company, no employee had ever complained to her about NSM’s FMLA leave policy, which she

described as generous.11 (Id. at 42-43.) Plaintiff did not ask Hunt, Picciocchi, or anyone else

working in Human Resources about NSM’s maternity leave or FMLA policies. (Id. at 18.)

Additionally, Rosa testified that he had two employees under his supervision take pregnancy-

related FMLA leave. (Id.) As of the date of Rosa’ deposition, one was on FMLA leave and the

10 Hunt served in different positions at NSM from 1994 to 2020. (Id.)

11 Hunt also testified that NSM would allow employees to take “an extra week or two” of unpaid

leave following an FMLA leave. (Id. at 42.)

other had returned to work after taking three or four months of FMLA leave. (Id.) Both women

scheduled and coordinated their FMLA leave with Human Resources. (Id. at 19.)

Plaintiff identifies three women who were treated inappropriately at NSM. (Id. at 40.) The

first woman was Ciara Kwiatkowski, the Director of Marketing. (Id.) Kwiatkowski purportedly

told Plaintiff that Geof McKernan, NSM’s founder and Chief Executive Officer,12 assumed she

would only be taking two weeks of maternity leave when she told him she was expecting. (Id. at

3, 41.) She also purportedly told Plaintiff that Geof McKernan embarrassed her by asking her

during a team meeting whether the last book she read was related to childcare. (Id.) Kwiatkowski

also allegedly told Plaintiff that “it was really hard to work [at NSM].” (Id.) Hunt, the Chief

Administrative Officer, testified that she was happy and excited for Kwiatkowski when she

publicized her pregnancy. (Id. at 41.) Hunt likely went over NSM’s FMLA policy with her. (Id.

at 42.)

The second employee Plaintiff allegedly spoke to was Jennifer Nolen, an account manager

at NSM. (Id. at 43.) Nolen apparently texted Plaintiff that she was trying to move to a different

team within NSM.13 (Id.) According to the text messages, Nolen’s manager, who allegedly was

Megan Noles, asked her whether her team knew she was trying to get pregnant and purportedly

stated that “NSM tries not to hire girls [her] age for that reason.” (Id.) Nolen allegedly told

Plaintiff that she was going to report Noles’s comments to Picciocchi. (Id. at 44.) Plaintiff

remembers seeing Noles in Piocchiocchi’s office, but she did not hear what they said inside the

12 Plaintiff testified that her friend’s father is “good friends” with Geof’s brother, Bill McKernan.

(Id. at 3.) Bill McKernan is NSM’s President. (Id.)

13 Defendant filed a motion to strike these text messages as inadmissible hearsay. (Doc. No. 72-

1 at 5-7.)

office. (Id.) Noles testified, however, that she “would never have said that because I don’t believe

that.” (Doc. No. 67-13 at 42.)

The third employee Plaintiff allegedly spoke to was Jackie Moke, an underwriter at NSM.

(Doc. No. 70 at 45.) Plaintiff never worked with Moke. (Id.) But around August 2, 2019, Plaintiff

reached out to Moke to ask her about her pregnancy and maternity leave during her employment

with NSM. (Id.) Moke allegedly told Plaintiff that she felt that “NSM was not a family friendly

environment.” (Id.) She also said that either Hunt or another member of Human Resources

purportedly told Moke that NSM did not “want to give her an increase in her salary because she

was taking her [maternity] leave coming up and they [did not] want her to take the money and

run[.]” (Id.)

On October 7, 2019, Plaintiff, who had been terminated at NSM on July 29, 2019, started

a new job as a Business Intelligence Analyst with a company named Visiting Angels. (Id. at 47,

49-50.) Her starting salary at Visiting Angels was $65,000, and her current salary is “just under

$73,000.” (Id. at 47.) While employed with NSM, Plaintiff’s salary was $62,720.63. (Id.)

Plaintiff maintains that her salary would have exceeded $73,000 had she remained at NSM and

been promoted to BIA II. (Id. at 47-48.) At NSM, Plaintiff had to pay for part of her health

insurance coverage, whereas at Visiting Angels, she receives fully paid health insurance. (Id. at

48.) Additionally, unlike NSM, Visiting Angels matches 4% of her contributions to her 401(k)-

retirement plan. (Id.) Plaintiff also has at Visiting Angels fifteen days of paid time off, three

personal days, and two sick days. (Id. at 48-49.) She did not have personal or sick days at NSM.

(Id.) Plaintiff also works from 9 a.m. until 5 p.m. at Visiting Angels. (Id. at 49.) At NSM, she

worked from 8 a.m. until 5 p.m. (Id.)

III. STANDARD OF REVIEW

Granting summary judgment is an extraordinary remedy. 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 reaching this decision,

the court must determine whether “the pleadings, depositions, answers to interrogatories,

admissions, and affidavits show there is no genuine issue of material fact and that the moving party

is entitled to judgment as a matter of law.” Hart v. Elec. Arts, Inc., 717 F.3d 141, 148 (3d Cir.

2013) (quoting Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010)). “A

dispute ‘is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could

find for the non-moving party.’” Moody v. Atl. City Bd. of Educ. 870 F.3d 206, 213 (3d Cir. 2017)

(citing Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). A disputed fact “is material

only if it might affect the outcome of the suit under governing law.” Id. Once the proponent of

summary judgment “points to evidence demonstrating no issue of material fact exists, the non-

moving party has the duty to set forth specific facts showing that a genuine issue of material fact

exists and that a reasonable factfinder could rule in its favor.” Meditz v. City of Newark, 658 F.3d

364, 369 (3d Cir. 2011) (quoting Azur, 601 F.3d at 216).

In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Id. (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)). The Court’s task is not to resolve disputed issues of fact,

but to determine whether there exist any factual issues to be tried. Anderson, 477 U.S. at 247–

249. Whenever a factual issue arises which cannot be resolved without a credibility determination,

at this stage the Court must credit the nonmoving party’s evidence over that presented by the

moving party. Id. at 255. If there is no factual issue, and if only one reasonable conclusion could

arise from the record regarding the potential outcome under the governing law, summary judgment

must be awarded in favor of the moving party. Id. at 250.

IV. ANALYSIS

Counts I and III of the Complaint allege that Defendant NSM discriminated against

Plaintiff because of her gender and/or pregnancy under Title VII and the PHRA respectively.14

(Doc. No. 1 at 13-15.) In Count II, Plaintiff alleges that NSM both interfered with and retaliated

against her for exercising her rights under the FMLA. (Id. at 14.) In particular, she claims that

NSM failed to promote her and terminated her shortly after she shared news of her pregnancy with

her supervisor, Antonio Rosa. She also alleges that NSM terminated her after providing NSM

with sufficient notice of her intent to exercise her FMLA rights after the birth of her child. (Id. at

8, 11.) Furthermore, Plaintiff claims Defendant’s behavior was part of a “pattern and practice of

discriminating against female employees, pregnant employees, and/or employees who take

maternity leave.” (Id. at 11-12.) Defendant asserts to the contrary that it made the decision to

terminate Plaintiff before it knew of her pregnancy and terminated her because the company was

restructuring. (Doc. No. 67-2 at 10-11.)

When viewing Plaintiff’s evidence in the light most favorable to her, however, she has

raised genuine disputes of material fact. Thus, NSM’s Motion for Summary Judgment will be

denied. But because Plaintiff relies in opposing the Motion for Summary Judgment on several text

messages and an email between Plaintiff and NSM employees and on her own affidavit, which

14 Although Plaintiff’s claims in Counts I and III arise under both federal and state law, it is

appropriate to analyze them together because “the PHRA is interpreted as identical to federal

antidiscrimination laws except where there is something specifically different in its language

requiring that it be treated differently[.]” Jones v. SEPTA, 796 F.3d 323, 327 (3d Cir. 2015)

(quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)).

evidence Defendant contends should be stricken, Defendant’s Motions to Strike will be considered

first.

A. Defendant’s Motions to Strike Will Be Denied

Defendant filed two Motions to Strike. In the first Motion, Defendant argues that several

text messages purported to be between Plaintiff and NSM employees are inadmissible hearsay and

for this reason should be stricken from the summary judgment record. (Doc. No. 72 at 4.) In the

second Motion, Defendant asserts that this Court should strike Plaintiff’s Declaration (Doc. No.

69-10) from the summary judgment record as a “sham affidavit,” i.e., one that purports to add facts

not supported by the preexisting record in order to defeat a motion for summary judgment. (Doc.

No. 73-1 at 4); see Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (holding that a litigant cannot

“create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or

her own sworn testimony without demonstrating a plausible explanation for the conflict”) (citation

omitted). For reasons that follow, both Motions will be denied.

1. Defendant’s Motion to Strike the Text Messages Will Be Denied

Because They Fall Under an Exception to the Hearsay Rule

Defendant argues that text messages that purport to be between Plaintiff and Jennifer Nolen

and an email exchange that purports to be between Plaintiff and Andy Hitz are inadmissible

hearsay that do not fall under a hearsay exception and should be excluded from the summary

judgment record.15 (Doc. No. 72 at 4-7.) In response, Plaintiff maintains that the text messages

and email fall under an exception to the rule against hearsay and properly constitute part of the

record. (Doc. No. 76 at 3-4.)

15 Plaintiff also included text messages purporting to be between her and Jackie Moke, but Plaintiff

agreed “to withdraw this document from the record . . . .” (Doc. No. 76 at 2.)

Hearsay is a statement that: “(1) the declarant does not make while testifying at the current

trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the

statement.” Fed. R. Evid. 801(c). Unless provided otherwise by federal statute, the Federal Rules

of Evidence, or “other rules prescribed by the Supreme Court,” “[h]earsay is not admissible . . . .”

Id. 802. “Hearsay statements that would be inadmissible at trial may not be considered for

purposes of summary judgment.” Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009).

However, the Third Circuit in F.O.P. v. City of Camden noted as follows:

“[T]he rule in this circuit is that hearsay statements can be considered on a motion

for summary judgment if they are capable of being admissible at trial.” In ruling

on a motion for summary judgment, the court need only determine if the nonmoving

party can produce admissible evidence regarding a disputed issue of material fact

at trial. The proponent need only “explain the admissible form that is anticipated.”

. . .

Here, Plaintiffs identified the third-party declarants, and nothing suggests that those

declarants would be unavailable to testify at trial. That is all that was required to

survive that aspect of Defendant’s motion for summary judgment.

842 F.3d 231, 238-39 (3d Cir. 2016) (footnotes omitted).

Plaintiff’s text messages with Nolen and email from Hitz are hearsay; they are out-of-court

statements from someone not subject to cross-examination offered to prove the truth of the matter

asserted: (1) as to the text messages between Plaintiff and Nolen, that NSM does not have a family

friendly policy and has a practice of discriminating against pregnant employees; and (2) as to the

email between Plaintiff and Hitz, that the job descriptions for the BIA I and II positions are

similar.16 However, in her Pretrial Memorandum, Plaintiff indicates that Nolen and Hitz will

testify at trial. (Doc. No. 75 at 7.) Additionally, Plaintiff also may have Noles testify. (Id.) She

reportedly told Nolen that NSM does not hire women Nolen’s age because of the prospect of them

16 The BIA I and II job descriptions are in the record and on their own are admissible. The Court

has reviewed them and notes their similarity.

becoming pregnant. (Id.) Therefore, the Court is satisfied that Plaintiff has “identified the out-of-

court declarants . . . and noted their availability to testify.” FOP, 842 F.3d at 238-39. These

persons will testify at trial to the content of the text messages and email. While the text messages

and email themselves may be inadmissible hearsay, their authors will testify at trial about their

content. Therefore, the text messages and email can be considered at the summary judgment stage.

But as the Third Circuit cautioned, this Court does not “intend this ruling to control whether these

out-of-court statements will actually be admitted at trial.” Id. at 239. Accordingly, Defendant’s

Motion to Strike Hearsay Messages (Doc. No. 72) will be denied.

2. Defendant’s Motion to Strike Plaintiff’s Declaration Will Be Denied

Because Defendant Failed to Elicit Testimony Regarding the Subject

Matters Discussed in the Declaration

In the Motion to Strike Plaintiff’s Affidavit, Defendant argues that Plaintiff has submitted

a “sham affidavit” that either contradict her deposition testimony and other record evidence or

furthers “Plaintiff’s own, self-serving beliefs about her qualifications and her position at NSM.”

(Doc. No. 73 at 4-5.) Plaintiff counters that Defendant is foreclosed from seeking exclusion of her

Declaration because (1) they failed to pursue a line of questioning that would elicit testimony

regarding her job description and (2) she was permitted to resolve ambiguities in the record due to

Defendant’s failure to explore this area.17 (Doc. No. 76 at 4-7.)

In Daubert v. NRA Grp., LLC, the Third Circuit explained the sham affidavit doctrine:

When a nonmovant’s affidavit contradicts earlier deposition testimony without a

satisfactory or plausible explanation, a district court may disregard it at summary

judgment in deciding if a genuine, material factual dispute exists. See Hackman v.

Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991); Jimenez v. All Am. Rathskeller, Inc.,

17 Plaintiff further argues that Defendants incorrectly rely on the sham affidavit doctrine because

sham affidavits only apply to exclude affidavits that clearly contradict that affiant’s own

testimony. (See Doc. No. 76 at 5 (citing Ramirez v. Lora, No. 18-11230, 2022 WL 1539176,

at *8 (D.N.J. May 16, 2022)).)

503 F.3d 247, 253 (3d Cir. 2007). This is the sham-affidavit doctrine. In applying

it we adhere to a “flexible approach,” Jimenez, 503 F.3d at 254, giving due regard

to the “surrounding circumstances,” Baer v. Chase, 392 F.3d 609, 624 (3d Cir.

2004).

If, for example, the witness shows she was “confused at the earlier deposition or

for some other reason misspoke, the subsequent correcting or clarifying affidavit

may be sufficient to create a material dispute of fact.” Martin v. Merrell Dow

Pharm., Inc., 851 F.2d 703, 705 (3d Cir. 1988); see Jimenez, 503 F.3d at 254. Same

result if there’s “independent evidence in the record to bolster an otherwise

questionable affidavit.” Baer, 392 F.3d at 625.

The court may, on the other hand, disregard an affidavit when the “affiant was

carefully questioned on the issue, had access to the relevant information at the time,

and provided no satisfactory explanation for the later contradiction.” Martin, 851

F.2d at 706; see Jimenez, 503 F.3d at 254. It may similarly disregard an affidavit

“entirely unsupported by the record and directly contrary to [other relevant]

testimony,” Jimenez, 503 F.3d at 254, or if it’s “clear” the affidavit was offered

“solely” to defeat summary judgment, id. at 253; see In re CitX Corp., Inc., 448

F.3d 672, 679 (3d Cir. 2006); Martin, 851 F.2d at 705.

861 F.3d 382, 391-92 (3d Cir. 2017). Thus, under the sham affidavit doctrine, to exclude the

affidavit two requirements must be met: (1) “the later statement contradicts the witness’s

deposition testimony, and [(2)] the discrepancy between the two statements is neither supported

by record evidence nor otherwise satisfactorily explained.” SodexoMAGIC, LLC v. Drexel Univ.,

24 F.4th 183, 209 (3d Cir. 2022) (citing Daubert, 861 F.3d at 391-92; Jimenez, 503 F.3d at 254).

“But the sham affidavit rule does not reject later statements solely because they conflict with prior

deposition testimony” as long as the later statements are “supported by independent record

evidence.” Id. at 210 (citing Baer, 392 F.3d at 625).

Defendant points to five separate portions of Plaintiff’s Declaration it contends contradicts

Plaintiff’s deposition testimony: (1) Plaintiff’s declaration that she “developed a good

understanding of NSM data and all systems utilized by the Company”; (2) various descriptions of

her job duties18; (3) Plaintiff’s assertion that she had around three “years of experience using SQL

[and] using the Power BI data visualization tool”; (4) her statement that she “had an intermediate

understanding of Data Warehousing concepts[,] . . . had advanced Excel skills[,] . . . was capable

of telling a story using data[,] . . . [and] had an advanced knowledge of DAX”; and (5) her

declaration that she “led Excel workshops and training exercises for other NSM employees,

including members of the Strategy and Analytics team.” (Doc. No. 73-1 at 5-6 (quoting Doc. No.

69-10 at 2-3.).) However, for reasons noted below, these statements from Plaintiff’s Declaration

do not contradict her prior deposition testimony clearly enough to permit this Court to disregard

them.

18 Plaintiff’s Declaration describes a number of functions she performed as a BIA I:

1. In my performance of the Business Intelligence Analyst I (“BIA I”)

role, I analyzed internal/external data sets using SQL Management Studio and

visualization tools.

2. In my performance of the BIA I role, I compiled and verified data

utilized for periodic scheduled reporting.

. . .

4. In my performance of the BIA I role, I translated business

requirements into technical requirements for enhancements and new custom

reports.

5. In my performance of the BIA I role, I developed data extract,

transfer and load (ETL) processes via Power Query and SSIS.

6. In my performance of the BIA I role, I performed ad-hoc analysis to

find solutions to business inquiries.

7. In my performance of the BIA I role, I performed regular data

analysis monitoring to provide prescriptive recommendations based on data.

(Doc. No. 69-10 at 1.)

Defendant’s first, third, and fourth objections regarding Plaintiff’s skills and experience

lacks merit because her Declaration does not clearly contradict her deposition testimony.

Regarding the first objection, Defendant argues that because “she only took a beginner-level ‘R’

course and did not know the Python coding system at the time she was terminated[,]” Plaintiff’s

Declaration that she “developed a good understanding of NSM data and all systems utilized by the

Company” clearly contradicts her earlier testimony. (Doc. No. 73-1 at 5.) The Court disagrees.

While “Plaintiff did not have Python skills when she was terminated[,]” she testified that she had

completed the beginner “R” course and was in the process of completing the intermediate level of

that course. (Doc. No. 69-4 at 42.) So although she did not possess skills in every data analysis

system in use at NSM, there is still sufficient independent record evidence that she had a “good

knowledge” of NSM data and its systems.

Furthermore, regarding the third objection, nothing in Plaintiff’s deposition indicates that

she did not have had “three years of experience using SQL [and] using the Power BI data

visualization tool” solely because she “began her career in NSM’s IT Department.” (Doc. Nos.

69-10 ¶¶ 9-10; 67-3 ¶ 35.) However, although the Strategy and Analytics Department was not yet

created when Plaintiff joined NSM, the IT Department was “charged with analytics” and likely

used the above-referenced SQL and Power BI data visualization tool. (Doc. No. 67-30 at 28-30.)

And, regarding the fourth objection, Plaintiff’s assertions regarding her Excel skills, Data

Warehousing conceptual understanding, verbal and communication skills, and ability to work

independently are not contradicted by her earlier deposition testimony. Defendant instead relies

on other witness depositions but does not identify how Plaintiff’s Declaration contradicts her own

testimony, a necessary requirement under the sham affidavit doctrine. Thus, Defendant’s first,

third, and fourth objections are without merit and Plaintiff’s Declaration as to her knowledge of

NSM data will not be disregarded.19

Defendant’s second objection regarding Plaintiff’s Declaration refers to several of the

duties she performed as a BIA I for NSM. (See Doc. No. 69-10 at 2.) While Defendant correctly

notes that Plaintiff did not testify about these matters during her deposition, the omissions stem

from the fact that Defendant did not ask her questions that would have elicited in more detail her

job duties. Cf. Unzicker v. A.W. Chesterton Co., No. 11-66288, 2015 WL 12941900, at *1 n.1

(E.D. Pa. Feb. 23, 2015).20 Rather, as to Defendant’s objection to that portion of Plaintiff’s

Declaration that described her duties, Defendant only cites to Antonio Rosa’s deposition

testimony, which also is not directly contradicted by Plaintiff’s Declaration. Rosa testified that

“the majority of Plaintiff’s job duties consisted of ‘ad hoc requests[.]’” (Doc. No. 73-1 at 5 (citing

Doc. No. 67-8 at 139).) Nowhere does Rosa testify that ad hoc requests made up the entirety of

Plaintiff’s job descriptions; thus, the two statements—the one made by Plaintiff in her Declaration

and the one made by Rosa—are not mutually exclusive or contradictory. Moreover, as noted,

Defendant did not question Plaintiff extensively at her deposition on her job duties.

Defendant’s fifth objection challenges Plaintiff’s assertion that she “led Excel workshops

and training exercises for other NSM employees, including members of the Strategy and Analytics

19 “[G]aps or minor discrepancies in Plaintiff’s testimony [] bear on her credibility and are matters

properly reserved for cross-examination.” SodexoMAGIC, LLC v. Drexel Univ., 333 F. Supp.

3d 426, 443 (E.D. Pa. 2018) (quoting Heasley v. Echostar Satellite L.L.C., No. 08-261, 2009

WL 1457733, at *1 (W.D. Pa. May 22, 2009)). Thus, if this case proceeds to trial, Defendant

may cross-examine Plaintiff on her knowledge and familiarity with NSM’s data systems.

20 In Unzicker, the court declined to strike an affidavit under the sham affidavit doctrine where

the defendants “had the opportunity to question Plaintiff about this issue at deposition and, as

the deposition testimony reflects, failed to probe enough on this issue to elicit the information

that Defendant contends should have been affirmatively disclosed.” Id. Accordingly, the court

there concluded that Plaintiff’s affidavit on the issue not implicated in his deposition testimony

“merely supplement[ed] (rather than contradict[ed]) Plaintiff’s deposition testimony.” Id.

team” as being contradictory to and unsupported by her deposition testimony. (Doc. No. 73-1

(quoting Doc. No. 60-10 ¶ 14).) In support of its claim, Defendant relies on Plaintiff’s testimony

that she cannot recall making a formal presentation. But Plaintiff’s Declaration does not address

making formal presentations. Rather, it supports her deposition testimony that she would lead

meetings biweekly. Because her Declaration does not contradict her deposition testimony, the

Court will not disregard her affidavit. Defendant’s Motion to Strike Plaintiff’s Affidavit (Doc.

No. 73) therefore will be denied and Plaintiff’s Declaration (Doc. No. 69-10) will be considered

on summary judgment.

B. A Reasonable Factfinder Could Find That Plaintiff Meigs Has Established

a Prima Facie Case of Employment Discrimination Based on Her Sex and

Pregnancy

Title VII prohibits employment discrimination based on race, color, religion, sex, sexual

orientation, national origin, age, and disability. See EEOC v. Allstate Ins. Co., 778 F.3d 444, 448-

49 (3d Cir. 2015) (citing 42 U.S.C. § 2000e-2(a); 29 U.S.C. § 623; 42 U.S.C.§ 12112). Title VII’s

prohibitions against sex discrimination “is breached ‘wherever an employee’s pregnancy [or

related medical condition] is a motivating factor for the employer’s adverse employment action.’”

Doe, 527 F.3d at 364 (alteration in original) (quoting In re Carnegie Ctr. Assoc., 129 F.3d 290,

294 (3d Cir. 1997)). The Pregnancy Discrimination Act “mandates that employers treat pregnant

employees the same as non-pregnant employees who are similarly situated with respect to their

ability to work.” Id. (citing Carnegie, 129 F.3d at 297). When, as here, there is no direct evidence

of discrimination, a court analyzes a Title VII disparate treatment claim under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Doe v.

C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008).

Under this framework, to establish a prima facie case of employment discrimination under

Title VII, a plaintiff must show that: (1) she 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) the adverse

action occurred under circumstances giving rise to an inference of discrimination. See Ali v.

Woodbridge Twp. Sch. Dist., 957 F.3d 174, 180 (3d Cir. 2020) (citation omitted). For pregnancy

discrimination, the Third Circuit has modified the first element of a prima facie case to “adduce

evidence that she was pregnant, and, that the employer knew it.” Doe, 527 F.3d at 365 (citation

omitted). The second and third elements are self-explanatory, and “[t]he fourth element requires

that a plaintiff show some nexus between her pregnancy and the adverse employment action.” Id.

At the summary judgment stage, Plaintiff must submit evidence “sufficient to convince a

reasonable factfinder to find all of the elements of [the] prima facie case.” Burton v. Teleflex Inc.,

707 F.3d 417, 426 (3d Cir. 2013) (citation omitted). The Supreme Court has articulated that “[t]he

burden in establishing a prima facie case of disparate treatment is not onerous.” Anderson v.

Wachovia Mortg., 621 F.3d 261, 270-71 (3d Cir. 2010) (citing Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). Indeed, the goal at this stage is to “eliminate [] the most

common nondiscriminatory reasons” for the defendant’s actions. Id.

Here, viewing the facts in the light most favorable to Plaintiff, a reasonable factfinder could

find that she has established a prima facie case of sex and/or pregnancy discrimination under Title

VII. Specifically, she can show that: (1) she is a female who was pregnant at the time of her

termination21; (2) she was qualified for her position at NSM and consistently performed

21 The parties do not dispute that Plaintiff was pregnant when Defendants terminated her.

satisfactorily; (3) NSM terminated her22; and (4) NSM’s actions give rise to an inference of

intentional discrimination.

NSM first contends that Plaintiff fails to establish a prima facie case for sex and/or

pregnancy discrimination. (Doc. No. 67-2 at 24.) Specifically, regarding the first element of

Plaintiff’s prima facie case, NSM asserts that “no one at NSM with any decision-making authority

knew that she was pregnant before they decided to terminate her.” (Id.) Further, as to the third

element, NSM argues that “Plaintiff was no longer qualified for even the Business Intelligence

Analyst I position, let alone the Business Intelligence Analyst II position for which she claims to

have been in line for a promotion.” (Id. at 28.) Lastly, NSM argues that Plaintiff fails to establish

the fourth prong of her prima facie case because she was not treated worse than similarly situated

individuals who were not pregnant. (Id. at 29-31.) Rather, NSM avers that Plaintiff was terminated

because of structural reorganization and that Plaintiff’s skill levels did not satisfy the

reorganization of her position. (Id. at 31.)

For her part, Plaintiff has produced evidence to the contrary from which a reasonable

factfinder could find that NSM discriminated against her because of her sex and pregnancy.

Specifically, Plaintiff informed her supervisor that she was pregnant on June 28, 2019. For this

reason, she claims that Defendant was aware of her pregnancy when it terminated her one month

later, on July 29, 2019. (Doc. No. 69 at 18-19.) Although Defendant cites text messages that show

consideration on an earlier date that Plaintiff would be terminated, a reasonable factfinder

nonetheless could find that the official date of termination is relevant to whether Defendant was

aware of Plaintiff’s pregnancy when it terminated her. Additionally, Plaintiff submits evidence

22 It is undisputed that NSM terminated Plaintiff and the termination is an adverse employment

action.

she believes casts doubt on Defendant’s assertion that it was not aware of Plaintiff’s pregnancy

when it terminated her. In support, she cites Chief Executive Officer McKernan’s testimony that

he was not involved in her termination and that he thought that Rosa was considering to “try to do

something . . . to see if she’s going to perform or, you know, move up.” (Doc. No. 69-5 at 7.)

As for Plaintiff’s qualifications under the second prong of her prima facie case, there is

sufficient evidence to allow a reasonable factfinder to find that Plaintiff was qualified for both the

BIA I and II positions. In its Motion, Defendant argues that Plaintiff was not qualified for those

positions because she did not have enough experience compared to the males who eventually were

hired as BIA II’s. (Doc. No. 67-2 at 28-29.) However, Defendant only provides conclusory

assertions that “Plaintiff was no longer qualified for even the Business Intelligence Analyst I

position, let alone the Business Intelligence Analyst II position for which she claims to have been

in line for a promotion.” (Id. at 28.)

Regardless of whether other candidates had more experience, this argument does not mean

that Plaintiff was not qualified for the positions. Plaintiff’s objective qualifications control at the

first step of the McDonnell Douglas burden-shifting framework and Defendant’s arguments

relating to other candidates’ qualifications and even restructuring at NSM do not control whether

Plaintiff has established a prima facie case of discrimination. See Goosby v. Johnson & Johnson

Med., Inc., 228 F.3d 313, 320 (3d Cir. 2000) (“We have held that while objective job qualifications

should be considered in evaluating a plaintiff’s prima facie case, the question of whether an

employee possesses a subjective quality, such as leadership or management skill, is better left to

the later stage of the McDonnell Douglas analysis.”) (quoting Weldon v. Kraft, Inc., 896 F.2d 793,

798 (3d Cir. 1990)).

Moreover, Plaintiff submitted evidence that her termination occurred under circumstances

suggesting an inference of discrimination. Specifically, within several days after Plaintiff

informed Rosa of her pregnancy and intent to take maternity leave upon the birth of her child,

NSM twice posted an opening for a BIA I. (See Doc. Nos. 69-11, 69-13.) As noted above, Plaintiff

avers that she had the skill sets for these jobs based on her prior annual performance reviews and

identifies evidence that shows the BIA I and II positions had the same requirements and are almost

identical.23

Additionally, as further evidence of circumstances giving rise to an inference of

discrimination, Plaintiff testified that the 2019 Midyear Review upon which Defendant relied in

terminating her was made two weeks after her pregnancy announcement to Rosa. (Doc. No. 67-4

at 44.) She had never received a midyear performance review before 2019. (Id.) And Rosa

provides no explanation why Plaintiff’s 2019 Midyear Review is the only review that exists for

his team members. (Id. at 50.)

Furthermore, Plaintiff argues that three other factors weigh in favor of a finding of

circumstances that give rise to an inference of pregnancy discrimination: (1) “the one (1) month

temporal proximity between Plaintiff’s pregnancy announcement and her termination/failure to be

promoted”24; (2) following Plaintiff’s termination, two non-pregnant employees were hired to fill

23 The only difference between the postings for the BIA I and II positions is an apostrophe.

(Compare Doc. No. 69-11 (“The NSM Insurance Group Business Intelligence (BI) Team’s goal

. . . .”, with Doc. No. 69-12 (“The NSM Insurance Group Business Intelligence (BI) Teams goal

. . . .”).)

24 As Plaintiff points out, several courts in this District have found that termination of employees

who announce their pregnancy to their supervisors approximately one month before their

termination is unusually suggestive. See Dinger v. Bryn Mawr Tr. Co., 2022 WL 6746260, at

*10 (E.D. Pa. Oct. 11, 2022) (finding less than one month between employer receiving

paperwork indicating plaintiff’s absence was due to a pregnancy-related medical condition and

employer’s termination established sufficient temporal proximity for fourth element of prima

the same Business Intelligence Analyst I position she was hired as; and (3) “Defendant has a

demonstrated history of discriminating against pregnant and recently pregnant employees.” (Doc.

No. 69 at 21-23.)

In consideration of the above, the Court is persuaded that, upon review of the summary

judgment record, a reasonable factfinder could find that Plaintiff has established a prima facie case

of disparate treatment based on sex and/or pregnancy.

C. Genuine Issues of Material Fact Exist as to Whether Defendant NSM’s

Proffered Legitimate Nondiscriminatory Reason for Terminating Meigs Was

Mere Pretext

Under the McDonnell Douglas burden-shifting framework, once a plaintiff has pled a

prima facie case, the burden of production shifts to the defendant to articulate some legitimate

nondiscriminatory reason for the challenged employment action. See Burton, 707 F.3d at 427.

Here, NSM has provided a legitimate nondiscriminatory reason for Plaintiff’s termination in

response to her claims of sex and/or pregnancy discrimination. Specifically, NSM argues that,

even if Plaintiff sufficiently pleads a prima facie case, she cannot succeed on her ultimate burden:

In contrast to Plaintiff, who was only proficient in SQL, Michael Suder, who had

already been working as a Business Intelligence Analyst II since February 2019,

was proficient in PL/SQL, R. Microsoft Access, IBM Cognos, and R, in addition

to SQL. . . .

Meanwhile, William Smith, who was eventually hired as the other Business

Intelligence Analyst II, possessed a master’s degree in Business Intelligence and

Analytics and had nearly a decade of experience in the field, taught Business

Intelligence and Analytics at the college level, and was proficient in SQL, Python,

and R. . . . John McKendry, who was eventually hired to the newly-upgraded

Business Intelligence Analyst I position over eight months after Plaintiff’s

termination, also knew the “R” and Python coding languages.

. . .

Plaintiff was terminated (and could not be promoted) because NSM was undergoing

a strategic organizational restructuring due to NSM’s recent hiring of Castellucci

facie discrimination case); see also C.A.R.S. Prot. Plus, Inc. 527 F.3d at 369 (“We have held

temporal proximity sufficient to create an inference of causality to defeat summary judgment.”).

as its COO and its acquisition by White Mountain. . . . As a result—and despite

NSM’s efforts to help Plaintiff improve her soft skills, her technical skills, and her

relationships with NSM’s Directors—Plaintiff was no longer qualified for her

recently upskilled Business Intelligence Analyst I position, let alone the higher-

level Business Intelligence Analyst II position.

(Doc. No. 67-2 at 28-29, 34.) Thus, NSM has met its burden of production under step two of the

burden-shifting framework.

Finally, if the defendant meets its burden of production, under the last step of the

McDonnell Douglas framework, a plaintiff must show that the legitimate reason offered by the

defendant is mere pretext for discrimination. Burton, 707 F.3d at 427 (citing Feuntes v. Chrysler

Fin. Corp., 32 F.3d 759, 763 (3d Cir. 1994)). To survive summary judgment, a plaintiff must

prove that the employer’s reasons for his termination were pretextual. [Sh]e may

do so by “point[ing] 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.”

In re Tribune Media Co., 902 F.3d 384, 402 (3d Cir. 2018) (citing Feuntes, 32 F.3d at 764). When

proceeding under the first method for casting doubt on the employer’s asserted reasons for

termination, a plaintiff need not provide evidence that the employer acted with discriminatory

intent, but rather only that a genuine dispute of material fact exists on the credibility of the

defendant’s rationale. Burton, 707 F.3d at 430. If the plaintiff’s evidence relates to the credibility

of the employer’s proffered justification, it “must indicate ‘such weaknesses, implausibilities,

inconsistences, incoherencies, or contradictions in the employer’s proffered legitimate reasons’ to

satisfy the factfinder that the employer’s actions could not have been for nondiscriminatory

reasons.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015)

(quoting Fuentes, 32 F.3d at 765). The Court of Appeals has explained that if the plaintiff produces

sufficient evidence to discredit the employer’s proffered justification, she need not present

additional evidence of discrimination beyond that submitted to support her prima facie case to

survive summary judgment. Burton, 707 F.3d at 427 (citing Fuentes, 32 F.3d at 764).

Plaintiff seeks to prove that Defendant’s proffered legitimate nondiscriminatory reason for

terminating her was pretextual under each of the above methods. Because the record is replete

with inconsistent and contradictory reasons for terminating Plaintiff, she has met her burden in

showing that a factfinder could reasonably disbelieve Defendant’s proffered justification to

support a nondiscriminatory termination. Because this evidence, when viewed in the light most

favorable to Plaintiff, undermines Defendant’s articulated legitimate reasons for firing her, the

second method by which to survive summary judgment at the pretext stage of the McDonnell

Douglas framework—showing that a discriminatory reason was more likely than not a motivating

factor for Plaintiff’s termination—need not be addressed.

As Plaintiff points out, there are significant inconsistencies surrounding her termination

such that a reasonable juror could determine that NSM’s stated nondiscriminatory reason was

pretext for pregnancy discrimination. For instance, Defendant has not adequately explained whose

decision it was to terminate Plaintiff. In its Answers to Plaintiff’s First Set of Interrogatories,

Defendant states that McKernan, Harris, Picciocchi, and Rosa were involved in Plaintiff’s

termination. (Doc. No. 69-18 at 5-6.) However, Harris was not employed with NSM at the time

Plaintiff was terminated and Picciocchi stated that only McKernan and Rosa made the termination

decision. (Doc. Nos. 69-8 at 9; 69-36 at 32.) Interestingly, McKernan attributes the decision to

terminate Plaintiff to Rosa since McKernan testified that he is only involved in the termination of

NSM’s executives, while Rosa testified that it was McKernan’s decision to terminate Plaintiff.

(Doc. Nos. 69-5 at 6, 12; 69-6 at 23, 31, 33.) Castellucci, on the other hand, testified that it was

either his or Rosa’s decision to terminate Plaintiff. (Doc. No. 69-7 at 15.) Thus, at this point, there

remain substantial disputes of material facts even on the issue of who terminated Plaintiff.

There are also triable issues of fact as to when the decision to terminate Plaintiff was made.

In Defendants’ Answer to an interrogatory request, Plaintiff is referred to her 2019 Midyear

Review in response to requests to identify “each and every individual involved in the decision to

terminate Plaintiff and [d]escribe that individual’s role and input into the decision” and to describe

how Plaintiff’s performance or conduct was “less than satisfactory.” (Doc. No. 69-18 at 5-6, 8-9

(emphasis in original).) Defendant’s answer indicates that the 2019 Midyear Review played a role

in its decision to terminate Plaintiff which necessarily implies that the decision to terminate

Plaintiff was not made until after that Review was completed on July 15, 2019, which is over two

weeks after Plaintiff informed Rosa of her pregnancy. While Castellucci testified that he or Rosa

decided to terminate Plaintiff as early as April of 2019, both Rosa and Picciocchi testified that the

termination decision was made on June 23, 2019. These inconsistencies sufficiently raise disputed

issues of material fact on the timing of the decision to fire Plaintiff.

Moreover, Defendant also does not appear to present a unified theory of the reason for

Plaintiff’s termination. NSM’s internal spreadsheets showing current and past employees states

“Performance” as the reason for Plaintiff’s termination. (Doc. No. 69-35 at 3.) In Defendant’s

Answer to the Complaint before the Pennsylvania Human Rights Commission, Defendant states

that the reason for Plaintiff’s termination was “restructuring.” (Doc. No. 69-34.) Moreover,

NSM’s responses to Plaintiff’s discovery requests state that “Plaintiff was terminated due to an

organizational restructuring and because she was underperforming in her role as a Business

Intelligence Analyst.” (Doc. No. 69-18 at 5.) However, Rosa, Picciocchi, and Castellucci all

testified that Plaintiff was not fired for performance-related reasons.25

In addition, Plaintiff also produces evidence that shows that she received positive reviews

for her performance prior to her pregnancy announcement and that she was soon expected to

assume greater job responsibilities. In the 2018 annual review, Rosa stated that Plaintiff has:

begun to take on more responsibility and continues to show professionalism while

working with Directors and Underwriters. She continued to learn additional

technical skills which will help with the overall development of the Analytics team.

I look forward to 2019, where Kate will be tasked with becoming an owner of

important projects, develop soft skills, and responsible for becoming the liaison for

the Program Directors.

(Doc. No. 69-20 at 5.) Moreover, Plaintiff received a merit pay increase of 25%, which Defendant

agrees it would not provide to an underperforming employee. In sum, there are sufficient genuine

issues of material fact that are suitable for a jury on Plaintiff’s Title VII and PHRA sex and/or

pregnancy discrimination claims. Therefore, summary judgment on Counts I and III will be

denied.

D. A Reasonable Factfinder Could Find That Defendant Interfered with

Plaintiff’s FMLA Rights and Retaliated against Her for Exercising Those

Rights

Under the Family Medical Leave Act, employers are prohibited “from retaliating against

employees who exercise their rights, refusing to authorize leave, manipulating positions to avoid

application of the Act, or discriminatorily applying policies to discourage employees from taking

leave.” Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005) (citing 29 C.F.R. § 825.220).

In other words, “when employees invoke rights granted under the FMLA, employers may not

25 Notably, Defendant’s proffered justifications about NSM’s restructuring and elimination of the

BIA I position to which Plaintiff was hired is contradicted by Defendant’s posting for the BIA

I position just three days after Plaintiff announced her pregnancy to Rosa. (Doc. No. 67-9 at

133.)

‘interfere with, restrain, or deny the exercise of or attempt to exercise’ these rights. Nor may

employers ‘discharge or in any manner discriminate against any individual for opposing any

practice made unlawful.’” Capps v. Mondelez Global, LLC, 847 F.3d 144, 151 (3d Cir. 2017)

(quoting Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014)) (citations and footnotes omitted)).

Thus, there are two separate causes of action under the FMLA: (1) interference and (2) retaliation.

In order to establish a claim of FMLA interference, a plaintiff must establish:

(1) . . . 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 . . .

her intention to take FMLA leave; and (5) the plaintiff was denied benefits

to which . . . she was entitled under the FMLA.

Capps, 847 F.3d at 155 (quoting Ross, 755 F.3d at 191-92 (citation omitted)).

To establish a FMLA retaliation claim, which is assessed under the McDonnell Douglas

framework at the summary judgment stage, “the plaintiff must prove that (1) she invoked her right

to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse

action was causally related to her invocation of rights.” Lichtenstein, 691 F.3d at 301-02 (citing

Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009)).26

In Count II, Plaintiff alleges that Defendant both interfered with her FMLA rights and

retaliated against her for invoking her right to exercise FMLA leave. (See Doc. No. 1 at 14.) In

response to both claims, Defendant contends that neither claim defeats summary judgment because

26 There is some overlap between FMLA interference and FMLA retaliation claims. In Erdman,

the Third Circuit held that “firing an employee for a valid request for FMLA leave may

constitute interference with the employee’s FMLA rights as well as retaliation against the

employee.” Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149, 159 (3d Cir. 2015)

(quoting Erdman, 582 F.3d at 509). And in Hansler, the Third Circuit reversed the district

court’s grant of summary judgment where the plaintiff, who “attempted to invoke her right to

leave . . . and . . . was fired a few weeks later . . . might be able to show that [the defendant] has

a retaliatory motive and that the stated reason for termination was pretextual.” Id.

Plaintiff failed to provide adequate notice that she was seeking medical leave before the decision

to terminate her was made. (See Doc. No. 67 at 39-44.) But for reasons stated below, there are

genuine disputes of material fact that preclude summary judgment on Plaintiff’s FMLA

interference and retaliation claims. Thus, summary judgment on Count II will be denied.

1. FMLA Interference

Regarding Plaintiff’s FMLA interference claim, Defendant argues only that her claim fails

because she did not satisfy the fourth and fifth elements—notice and entitlement to FMLA benefits.

As to the fourth element of a FMLA interference claim—notice—in Lichtenstein v.

University of Pittsburgh Medical Center, the Third Circuit detailed a plaintiff’s burden at the

summary judgment stage:

To invoke rights under the FMLA, employees must provide adequate notice to their

employer about their need to take leave. 29 U.S.C. § 2612(e)(2). In doing so, the

employee “need not expressly assert rights under the FMLA or even mention the

FMLA.” 29 C.F.R. § 825.303(b). When the leave is unforeseeable, the employee’s

obligation is to “provide sufficient information for an employer to reasonably

determine whether the FMLA may apply to the leave request.” Id. (emphasis

added). As we have previously noted, this is not a formalistic or stringent standard.

See Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) . .

. .

While the FMLA “does not require an employer to be clairvoyant,” Brenneman v.

MedCentral Health Sys., 366 F.3d 412, 428 (6th Cir. 2004), this does not mean that

employees need to provide every detail necessary for the employer to verify if the

FMLA applies. . . . This conclusion is dictated by the language of 29 C.F.R. §

825.303(a), which provides that “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” (emphasis added). The regulations thus clearly envision situations

where an employee can satisfy her notice obligation without providing enough

detailed information for the employer to know if FMLA actually applies.

Accordingly, the “critical test” is not whether the employee gave every necessary

detail to determine if the FMLA applies, but “how the information conveyed to the

employer is reasonably interpreted.” Sarnowski, 510 F.3d at 402. How the

employee’s notice is reasonably interpreted is generally a question of fact, not law.

691 F.3d 294, 303 (3d Cir. 2012).

Plaintiff testified that she told Rosa that she was pregnant and that she “planned to take a

leave after the baby was born.”27 (Doc. No. 69-4 at 41.) From this testimony, a reasonable jury

could find that Plaintiff gave sufficient notice to Defendant prior to her termination that she would

take FMLA leave.

Defendant has another argument in support of summary judgment on Plaintiff’s FMLA

interference claim. Defendant argues that it more closely resembles a claim for FMLA retaliation,

which Defendant contends Plaintiff fails to establish. Specifically, Defendant avers that Plaintiff

cannot state a FMLA interference claim because it did not “refuse[] to authorize FMLA leave,

den[y] other benefits to which she was entitled, or discourage[] her from taking FMLA leave by

either questioning the timing of her leave, proposing that she work from home instead of taking

FMLA leave, or by criticizing her for taking too much leave.” (Doc. No. 67-2 at 40 (citing Hilborn

v. Cordaro, No. 03-06-0223, 2007 WL 2903453, at *7 (E.D. Pa. Sept. 28, 2007).) In essence,

Defendant argues that terminating Plaintiff does not constitute FMLA interference because it did

not pertain to any official employment decision on the request for FMLA leave. But the Third

Circuit has held otherwise.

“[F]iring an employee for a valid request for FMLA leave may constitute interference with

the employee’s FMLA rights as well as retaliation against the employee.” Hansler v. Lehigh

Valley Hosp. Network, 798 F.3d 149, 159 (3d Cir. 2015) (quoting Erdman v. Nationwide Ins. Co.,

27 As noted above, under 29 C.F.R. § 825.303(b), it is not mandated that Plaintiff specifically

mention “FMLA” to Rosa. (Doc. No. 69-4 at 41.) Moreover, Picchiocchi agreed that if an

employee came to HR to request medical leave stating she was pregnant and give an

approximate indication of when they would give birth, then that would initiate the process to

scheduling leave pursuant to the FMLA. (Doc. No. 67-9 at 58.) Although Plaintiff informed

Rosa directly and Rosa did not work in the HR Department, he was sufficiently aware that the

FMLA leave process initiated once an employee informed him that she was pregnant, what her

due date was, and when she “would likely be on leave.” (Doc. No. 67-8 at 78.)

582 F.3d 500, 509 (3d Cir. 2009)). Several courts have held that termination satisfies the fifth

element of FMLA interference claims—denial of FMLA benefits. See Zelesnick v. Temple Univ.

Health Sys., No. 19-5820, 2021 WL 201300, at *10 (E.D. Pa. Jan. 19, 2021) (rejecting the

defendants’ argument that “where a plaintiff claims that FMLA leave was a reason for termination,

the claim must be considered as a claim for retaliation, not interference”); May v. PNC Bank, 434

F. Supp. 3d 284, 303 (E.D. Pa. 2020) (stating that plaintiff’s FMLA interference claim that “but-

for her termination, she would have been entitled to and would have taken FMLA leave after the

birth of her child” was distinct from her FMLA retaliation claim); DeCicco v. Mid-Atl. Healthcare,

LLC, 275 F. Supp. 3d 546, 564 (E.D. Pa. 2017) (“The Third Circuit’s decision in Erdman instructs

that a plaintiff’s termination for making a valid request for FMLA leave may constitute

interference with his FMLA rights, and Kohler [v. TE Wire & Cable LLC, No. , 2016 WL 885045

(D.N.J. Mar. 8, 2016)] persuasively cautions that summary judgment should be denied where a

plaintiff’s termination allegedly resulted in benefits being withheld.”).

Accordingly, because Plaintiff has demonstrated sufficient evidence that would permit a

reasonable jury to find that Defendant interfered with her entitled-to benefits under the FMLA by

terminating her before she was able to take FMLA leave, summary judgment on her FMLA

interference claim will be denied.

2. FMLA Retaliation

At the summary judgment stage, a FMLA retaliation claim based on circumstantial

evidence is assessed under the burden-shifting framework of McDonnell Douglas. In other words,

“[t]o prevail on a retaliation claim under the FMLA, the plaintiff must [initially] prove that (1) she

invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision,

and (3) the adverse action was causally related to her invocation of rights.” Lichtenstein, 691 F.3d

at 301-02 (citing Erdman, 582 F.3d at 508-09). It is undisputed that the second element of

Plaintiff’s FMLA retaliation claim is met here—she was terminated. And, as noted above, there

is sufficient evidence that would permit a reasonable jury to find that Plaintiff had provided

adequate notice to Defendant of her intent to exercise FMLA leave. Thus, only the third element

of her FMLA retaliation claim—causation—is at issue here.

As to the causation prong of FMLA retaliation claims, the Third Circuit has held that:

To demonstrate a prima facie case of causation, Lichtenstein must point to evidence

sufficient to create an inference that a causative link exists between her FMLA

leave and her termination. See Farrell v. Planters Lifesavers Co., 206 F.3d 271,

279-81 (3d Cir. 2000). When the “temporal proximity” between the protected

activity and adverse action is “unduly suggestive,” this “is sufficient standing alone

to create an inference of causality and defeat summary judgment.” LeBoon v.

Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007).

Lichtenstein, 691 F.3d at 307.

The Third Circuit has not provided a bright-line rule as to what constitutes unduly

suggestive temporal proximity, but it has upheld as unduly suggestive adverse employment actions

undertaken within one week, and has conclusively held that “a gap of three months between the

protected activity and the adverse action, without more, cannot create an inference of causation

and defeat summary judgment.” LeBoon, 503 F.3d at 232-33. And where temporal proximity is

not unduly suggestive, courts consider the timing alongside “the proffered evidence, as a whole”

and ask whether the evidence “may suffice to raise the inference [of retaliation].” Id. at 232.28

28 The evidence a court may consider on temporal proximity for FMLA retaliation claims is

similar to the evidence that may be considered for purposes of assessing whether a defendant’s

proffered reasons for terminating an employee are a pretext for discrimination in violation of

Title VII: “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 (citing Farrell, 206

F.3 at 279-81).

While it is unclear whether one month between Plaintiff’s asserted invocation of her FMLA

rights and her termination by Defendant is an unduly suggestive temporal proximity, for reasons

stated supra, there is sufficient evidence upon which a reasonable jury could find that Defendant’s

proffered justifications are inconsistent.29 Plaintiff therefore has pled a prima facie claim of FMLA

retaliation.

Since Plaintiff met her burden in establishing a prima facie FMLA retaliation claim, the

burden shifts to Defendant to offer a legitimate, non-discriminatory reason for terminating

Plaintiff. As noted supra in Section III.C., Defendant have met their burden and claim to have

terminated Plaintiff because of restructuring at NSM and because she was no longer qualified for

either the BIA I or II positions.

And finally, the burden then shifts back to Plaintiff to show that Defendants’ proffered

non-discriminatory reason for terminating her was mere pretext and that the real reason for her

termination was that she had provided notice to Defendants she would be exercising her FMLA

rights. Again, as discussed at length at Section III.C., supra, Plaintiff has offered sufficient

evidence that would allow a reasonable jury to disbelieve Defendants’ stated reasons for

terminating Plaintiff. First, as noted previously, there are inconsistent and contradictory reasons

29 A discussed in Section IV.C., supra, there are several key inconsistencies pertaining to

Plaintiff’s termination that, when considered with the one month proximity between Plaintiff’s

invocation of her FMLA rights and her termination, give rise to an inference of retaliation

sufficient to defeat summary judgment. Notably, there are inconsistencies as to Defendant’s

reasons for firing Plaintiff, when the decision was made, and who made the decision.

Furthermore, a reasonable factfinder could find that after Plaintiff’s pregnancy announcement,

the introduction of a new midyear performance review after Plaintiff’s pregnancy

announcement that Defendant relied upon in terminating her was pretext for retaliation.

from multiples sources as to why Plaintiff was terminated,30 when she was terminated,31 and by

whom she was terminated.32 Second, she consistently received positive ratings in her annual

performance reviews. Lastly, Plaintiff received a 25% pay increase which would not have been

offered to an underperforming employee. Thus, since summary judgment also will be denied on

Plaintiff’s FMLA retaliation claim, the Motion will be denied as to Count II.

E. The Court Will Refrain at this Point from Ruling on Plaintiff’s Entitlement

to Front Pay, Back Pay, and Punitive Damages under Title VII, and

Liquidated Damages under the FMLA

In their Motion for Summary Judgment, Defendants also argue that Plaintiff should be

limited in how much time for which she should be awarded front pay and back pay.33 (See Doc.

No. 67-2 at 46-47.) In addition, Defendants correctly note that liquidated damages are not

available under Title VII and that punitive damages are not available under the PHRA or for FMLA

interference and FMLA retaliation claims. (Id. at 47-48.) The Court will not issue a ruling,

however, on whether Plaintiff is entitled to front pay and back pay until after it considers the

evidence produced at trial. Moreover, the Court will allow the jury to decide if punitive damages

30 Various reasons were provided for Plaintiff’s termination: (1) elimination of the BIA I position;

(2) elimination of the BIA I position and performance; (3) performance; (4) restructuring and

performance; and (5) restructuring and not performance.

31 Rosa and Picciocchi testified that the decision to terminate Plaintiff was made on June 23, 2019.

Castellucci believed the decision was made earlier in April 2019. And NSM’s response to an

interrogatory request referred to Plaintiff’s 2019 Midyear Review which was completed on July

15, 2019, which suggests the decision to terminate was made on or after July 15, 2019.

32 Different individuals and groups of individuals were attributed with the decision to terminate

Plaintiff including: (1) McKernan, Harris, Picciocchi, and Rosa; (2) just Rosa; (3) just

McKernan; and (4) either Rosa or Castellucci.

33 Specifically, Defendants claim that Plaintiff is only entitled to seek “back pay damages

representing her average weekly wage at NSM during the 9-week period in which she was

unemployed.” (Id. at 47.) Defendants further argue that Plaintiff should be precluded from

seeking front pay in any amount because “she was earning a higher salary and receiving more

attractive benefits at her new position at Visiting Angels.” (Id.)

are warranted only if the evidence introduced at trial supports it. And since a liquidated damages

award under the FMLA depends upon a determination of the “wages, salary, employment benefits,

or other compensation denied or lost to such employee by reason of the violation”—i.e. back pay

damages—the Court will also refrain from determining at this time Plaintiff’s entitlement to

liquidated damages.

V. CONCLUSION

For the foregoing reasons, Defendant NSM’s Motion for Summary Judgment (Doc. No.

67), Motion to Stay Trial and Trial Deadlines (Doc. No. 68), Motion to Strike Hearsay Messages

(Doc. No. 72), and Motion to Strike Plaintiff’s Affidavit (Doc. No. 73) will be denied. An

appropriate Order follows.