The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
REINALDO KURI : CIVIL ACTION
:
V. :
:
MERIDIAN BANK et al. : NO. 21-4694
MEMORANDUM
Bartle, J. January 19, 2023
Plaintiff Reinaldo Kuri has sued defendants Meridian
Bank and Meridian Bank Corporation. Kuri claims that defendants
discriminated against him in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et
seq., when they terminated him from his sales representative
position at the bank.1 Defendants counter that they terminated
Kuri for repeatedly violating the bank’s dress code. Before the
court is the motion of defendants for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
1. Kuri initially also asserted claims of gender
discrimination and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., but the parties
have stipulated to dismiss those claims.
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A factual dispute is genuine if the evidence is such
that a reasonable factfinder could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). A factual dispute is material if it might affect
the outcome of the suit under governing law. Id. at 248.
The court views the facts and draws all inferences in
favor of Kuri, the nonmoving party. See In re Flat Glass
Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). “The mere
existence of a scintilla of evidence in support of the
[nonmoving party]’s position will be insufficient; there must be
evidence on which the jury could reasonably find for [that
party].” See Anderson, 477 U.S. at 252. “The plaintiff must
present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Id. at 257.
II
The following facts are undisputed unless otherwise
noted. Kuri began working as a sales representative with
Meridian Bank in September 2019. At all relevant times, he has
suffered from a chronic condition involving necrosis in his
hips. He has undergone medical procedures such as hip surgery
and nerve ablations for this condition.
In February 2020 Kuri advised his supervisor, Aliese
Rosado, that he needed to undergo hip surgery. He took medical
leave in March 2020 for this procedure and returned to work that
April.
Later in 2020, Rosado began corresponding about Kuri’s
leave use with Tracy Panati, the bank’s Senior Vice President of
Human Resources. Panati is responsible for reviewing and
approving all bank employees’ requests for leave. Rosado and
Panati had conversations in which they expressed concern at the
amount of leave Kuri was taking. In addition, Rosado emailed
Panati on September 28, 2020 with a list of dates on which Kuri
had missed a shift or left work early despite having no
available paid time off or vacation time. In the email, Rosado
included Kuri’s asserted reason for missing work on that
particular day. Sometimes it was due to a “family emergency.”
Rosado noted that Kuri was absent on other dates “when he came
back from disability” or when he had a doctor’s note. Panati
suggested in response that Rosado “have a conversation with him
about his time” and “encourage him to work as much as he can the
day of [his] doctor’s appt.”
On November 24, 2020, Kuri emailed Rosado to request
another medical leave so that he could undergo surgery on
December 24. Rosado requested that Kuri reschedule his surgery
to an earlier date that month because the bank branch to which
Kuri was scheduled to report would be short-staffed that day.
Rosado also forwarded Kuri’s request to Panati, who in turn
suggested that Rosado ask Kuri to “push [his procedure] to the
new year when he has time available.”
Rosado admits she referred to Kuri as “old man.”
According to Kuri, Rosado made these comments while also
discussing his hip condition and his prior hip replacement
procedures. Rosado testifies that she made these comments when
she would “joke around with” Kuri and would do so after Kuri
made self-deprecating comments about his ailments. Kuri
testifies that he aired complaints about discrimination to
Rosado and Panati at least twice about perceived discrimination
as to both his gender and disability status, but it is unclear
whether he complained specifically about Rosado’s “old man”
comments.
On June 4, 2021, Kuri emailed Rosado to request FMLA
paperwork ahead of a planned doctor’s appointment. She
forwarded the request to Panati. Panati emailed Kuri with the
required forms and informed him that he was required to complete
and return them to her by June 25. Kuri responded by
questioning why he had to return the forms by that date. Panati
called and explained that the June 25 deadline was required by
the company’s policies and the FMLA. Kuri replied that because
of the challenges of visiting his doctor’s office during the
COVID-19 pandemic, he would not be able to visit his doctor’s
office to get the paperwork filled out until June 29. Panati
requested that he coordinate the paperwork with his doctor
virtually. Kuri believed that Panati was giving him “a hard
time.” He complained to Panati that he felt other employees had
been given more flexibility to work remotely and accused her of
discriminating against him on the basis of his gender, sexual
orientation, and disability status. Panati acknowledged that
Kuri complained about discrimination as well as the way his FMLA
request was being treated. However, she said his complaints
focused primarily on why he was not hired through an internal
process for a human resources position.
Nonetheless, Kuri returned the paperwork on June 29,
and Panati approved his request. Kuri took FMLA leave on July 1
and 6 to receive neuro-injections and ablations. Two weeks
later, on July 20, 2021, Panati and Rosado met with Kuri and
informed him that he was being terminated.
Panati and Rosado informed Kuri that he was being
terminated for his repeated failure to follow the bank’s
“professional image” policy. The bank’s employee handbook
states as follows:
Acceptable personal appearance is an ongoing
requirement of employment with Meridian Bank
. . . . Employees who have regular contact
with the public are expected to dress in a
manner that is normally acceptable in the
business community. Employees should not
wear suggestive attire, jeans, athletic
clothing, shorts, sandals, T-shirts,
baseball hats, and similar items of casual
attire.
Defendants cite four instances in which Kuri violated
this policy. Sometime prior to October 2020, Rosado observed
Kuri walking around a bank branch without shoes. Rosado was
notified by a member of the bank’s senior management that on
another day in October or November 2020, Kuri was again observed
not wearing shoes in the bank. Rosado relayed this complaint to
Kuri and admonished him that his conduct violated the above-
mentioned policy. In response to this email, Kuri informed
Rosado that he believed his not wearing shoes was not a concern
because he did so only outside of the presence of customers. He
also stated that “several retail associates” do the same. In
response, Rosado emailed all bank employees to remind them of
their professional dress obligation. Kuri was not disciplined
for either incident.
On June 24, 2021, Kuri appeared in the bank lobby
during banking hours and attempted to assist a customer while
wearing an undershirt. Kuri’s colleague, Beth Bauer, chided him
for wearing his undershirt and told him to go back to the bank
vault so that she could assist the customer instead. Bauer
relayed the details of this incident to Rosado. Surveillance
video and several photographs taken of Kuri on June 24 reflect
that he was wearing a T-shirt while walking around the public
area of the bank branch that day. A surveillance video
screenshot also shows Kuri with his T-shirt pulled above his arm
and his bare flank exposed during business hours while he was
sitting at a desk that was visible to customers.
Finally, on July 20, 2021, the date of Kuri’s
termination, he again wore a T-shirt in the bank lobby when the
bank was open for business. Several of his colleagues noticed
and informed Rosado. Two of his colleagues photographed him
wearing the T-shirt, and one sent a photo to Rosado at Rosado’s
request. A third employee emailed Rosado to complain about
Kuri’s attire. Rosado consulted with Panati, and they agreed to
recommend that Kuri be terminated. Later that morning, Panati
sent one of the photos of Kuri to Christopher Annas, the CEO of
Meridian Bank. She included in the text, “Can you call me as
soon as possible regarding Reinaldo [Kuri]. This is how he
showed up today. Would like to go up and term[inate] him now
but wanted to talk with you as we know that there may be some
issues that stem from this.” Annas simply responded, “Fire
him.”
Kuri is the only bank employee to have ever been
disciplined for violating defendants’ professional image policy.
Nonetheless, Kuri cites instances in which his colleagues
allegedly violated the dress code and were not disciplined.
First, Barbara Jackson sometimes wore jeans to work and did so
on days other than “casual” Fridays, a day when the dress code
was relaxed to permit employees to wear jeans. Rosado had told
her that in light of the pandemic, employees were permitted to
wear jeans every day.
Second, Kuri witnessed Beth Bauer walking around the
bank branch in socks, without shoes. He says this happened on
“several” occasions and at times in which customers were present
in the bank branch. Bauer denies that she took her shoes off
except while sitting at her desk, which is in a nonpublic area
within the branch.
Third, Benjamin Peek wore sunglasses in the branch in
front of customers on instances in which he arrived to work
late. Peek corroborated that he did this occasionally when he
arrived and his hands were full with his travel mug and
briefcase. He testified he would remove his sunglasses once he
reached his desk. The dress code does not address sunglasses.
Fourth, Kuri witnessed Jennifer McMenamin on occasion
wearing flip-flop sandals as well as what he characterized as
“not a professional shirt.” Kuri conceded that McMenamin would
change into regular shoes, although “[n]ot immediately.”
However, he could not recall her ever interacting with customers
while wearing flip-flops. As for McMenamin’s allegedly
unprofessional shirt, Kuri testified that it had “cut-off
sleeves” but was not a T-shirt.
There is no evidence that Rosado, Panati, or Annas
were ever aware of the alleged violations of the dress code by
Bauer, Peek, or McMenamin.
III
Defendants first move for summary judgment on Kuri’s
claims under the ADA. Defendants contend that Kuri has failed
to establish a prima facie case for an ADA violation because he
has not adduced evidence to establish that his hip condition is
a disability recognized under the ADA.
A disability is “a physical or mental impairment that
substantially limits one or more . . . major life activities.”
42 U.S.C. § 12102(A).2 The court “must first identify the
specific life activities that the plaintiff claims are affected
and determine whether those activities are ‘major life
activities’ under the ADA, and then must evaluate whether the
plaintiff’s impairment substantially limits those major life
activities.” Larkin v. Methacton Sch. Dist., 773 F. Supp. 2d
508, 523 (E.D. Pa. 2011) (quoting Taylor v. Phoenixville Sch.
2. A “disability” may also include “a record of such an
impairment” or an individual’s “being regarded as having such an
impairment.” 42 U.S.C. § 12102(B), (C). However, Kuri argues
only that he suffers from a physical impairment and does not
argue that he is a qualified individual with a disability based
on either of these definitions.
Dist., 184 F.3d 296, 308 (3d Cir. 1999)). Whether an impairment
substantially limits a major life activity is discerned on a
“case-by-case basis.” Id. (quoting Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555, 566 (1999)). Likewise, whether an
impairment qualifies as a disability is assessed “from the point
at which the alleged discriminatory decision was made.” Bowers
v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535–36 (3d
Cir.), amended on reh’g (Mar. 8, 2007) (citation omitted).
To survive summary judgment, Kuri must produce
evidence from which a reasonable juror could conclude that his
hip condition substantially impaired a major life function in
July 2021, when he was terminated. Kuri avers that his hip
condition substantially impaired his ability to “walk, lift,
sit, move and work.” Nonetheless, he offers no medical records
or testimony from a treating physician. Rather, he seeks to
rely almost exclusively on his own deposition testimony and his
assertions, made in emails he sent to his supervisors and
pleadings filed in this matter, in which he asserts that he is
disabled. The court cannot consider Kuri’s allegations from his
complaint or his conclusory allegations elsewhere that are not
otherwise supported by evidence in the record.
Kuri’s deposition testimony is likewise unavailing.
Much of his testimony on the status of his hip condition relates
to various times in 2020, well before his July 2021 termination.
Kuri testified that he was still receiving treatment for his hip
condition at the time of his deposition in April 2022. However,
testimony on the state of his condition in April 2022 is not
close enough in time to be probative of the state of his
condition back in July 2021. In addition, although Kuri
describes the pain that his hip condition caused, his testimony
is almost entirely devoid of how his condition affected any of
his life activities.
Kuri’s only evidence regarding the impact of his hip
condition in 2021 comes from an email exchange from June 2021 in
which Kuri requests and returns the necessary paperwork to take
FMLA leave. Included in this exhibit is a “Certification of
Health Care Provider for Employee’s Serious Health Condition
Under the Family and Medical Leave Act,” which had been filled
out by Kuri’s doctor. In the form, Kuri’s doctor states that he
would need to receive injections every three months and
ablations every six months, along with ongoing pain management
treatments. She further notes that Kuri’s hip condition would
cause him periods of incapacity lasting one day every six to
eight weeks. This form simply does not shed light on whether or
how his hip condition impaired any major life activities.
Significantly, the doctor wrote that Kuri was “capable of
performing essential job functions.”
Kuri cites several cases for the proposition that hip
conditions constitute disabilities. That may be so in some
cases, but not on a blanket basis. As explained above, whether
a specific condition is a disability must be decided on a “case-
by-case basis.” E.g., Larkin, 773 F. Supp. 2d at 523.
Moreover, in each of the cases that Kuri cites, the plaintiffs
produced declarations, medical records, and statements from
treating physicians that detailed the extent to which the
conditions impacted the plaintiffs during the relevant time
period.3 Kuri has presented no such evidence here.
Kuri cannot establish that his hip condition
substantially impaired a major life function at the time he was
terminated. Thus, the court will grant summary judgment in
favor of defendants on Kuri’s claims under the ADA.
IV
Defendants next move for summary judgment on Kuri’s
claims under the FMLA. Kuri asserts that defendants violated
3. See Berkowitz v. Oppenheimer Precision Prod., Inc., Civ. A.
No. 13-4917, 2014 WL 5461515, at *4 (E.D. Pa. Oct. 28, 2014)
(contemporaneous statement from treating physician); Rosa v.
City of Chicago, Civ. A. No. 12-9648, 2014 WL 1715484, at *5
(N.D. Ill. May 1, 2014) (medical records and testimony from
treating physician); Sigl v. Travel Tags, Inc., Civ. A. No.
12-1810, 2013 WL 5223681, at *4 (D. Or. Sept. 16, 2013)
(detailed declaration from plaintiff regarding condition’s
impact).
the FMLA by interfering with his ability to take FMLA leave and
by retaliating against him for taking FMLA leave.
Kuri’s FMLA interference claim fails. There is no
dispute that Kuri was approved for and took FMLA leave on July 1
and 6, 2021. As Kuri was not denied a benefit under the FMLA,
his claim for interference cannot survive. Capps v. Mondelez
Glob., LLC, 847 F.3d 144, 156 & n.11 (3d Cir. 2017).
Kuri’s claim for FMLA retaliation is assessed under
the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973):
a plaintiff must first establish a prima
facie case of discrimination. If the
plaintiff succeeds, the defendant must
articulate a legitimate, nondiscriminatory
reason for the adverse employment action.
The burden then shifts back to the plaintiff
to prove, by a preponderance of the
evidence, that the articulated reason was a
mere pretext for discrimination.
Capps, 847 F.3d at 151-52 (quoting Ross v. Gilhuly, 755 F.3d
185, 193 (3d Cir. 2014)).
Defendants contend that Kuri was terminated for
repeatedly violating the professional dress policy and that Kuri
has failed to offer sufficient evidence to show that this
legitimate, nondiscriminatory rationale was mere pretext.
It is Kuri’s burden to identify “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.” Branch v. Temple Univ., 554 F. Supp. 3d
642, 664 (E.D. Pa. 2021); see also Fuentes v. Perskie, 32 F.3d
759, 764–65 (3d Cir. 1994). The evidence must reflect “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.’” Burton v. Teleflex Inc., 707
F.3d 417, 427 (3d Cir. 2013) (quoting Fuentes, 32 F.3d at 765).
Kuri’s evidence of pretext is a mile wide and not an
iota deep. He asserts that the two weeks that passed between
his taking FMLA leave and his termination is suggestive of
discrimination. He contends that Rosado and Panati expressed
“disdain” toward his use of FMLA leave. He further contends
that the bank selectively enforced the dress code against him
and violated its own disciplinary policy by terminating him
rather than taking some lesser disciplinary action. Even taken
together and viewed in the light most favorable to Kuri, the
evidence is insufficient to show that defendants’ reason for
terminating him is “unworthy of credence.” Id.
That Kuri was terminated two weeks after his final
FMLA leave is insufficient on its own to demonstrate pretext,
“especially where, as here, the employer’s proffered legitimate
reason for termination fits neatly into this timeframe.”
Brennan v. City of Philadelphia, 856 F. App’x 385, 387
(3d Cir. 2021) (citing Thomas v. Town of Hammonton, 351 F.3d
108, 114 (3d Cir. 2003)).
Kuri’s characterization of Rosado and Panati’s
“disdain” toward his use of FMLA leave is unsupported by the
evidence. It is true that Rosado and Panati tracked and
discussed the amount of leave Kuri was taking. But no inference
of discrimination can be drawn from this act as keeping a record
of an employee’s leave use was simply part of their job
responsibilities. There is no evidence that Rosado and Panati
singled Kuri out in this regard. It is true that Rosado once
asked Kuri to reschedule a medical procedure and otherwise
referred to Kuri as an “old man.” However, there is no evidence
that Rosado made either of these comments in close proximity to
Kuri’s termination. None of these comments is anything more
than a “stray remark,” temporally remote from Kuri’s
termination, that is not sufficient to raise a genuine dispute
of material fact. E.g., Calero v. Cardone Indus., Inc., Civ. A.
No. 11-3192, 2012 WL 2547356, at *8 (E.D. Pa. June 29, 2012).
Kuri’s claim that Panati “harassed” him in connection
with his June 2021 FMLA request is totally unsupported in the
record. Panati merely informed Kuri of the deadline by which he
would need to return the FMLA paperwork. Kuri’s deposition
testimony is not evidence that Panati treated any other employee
differently in regard to an FMLA leave request. After Kuri
informed Panati that he would have trouble returning the
paperwork by the deadline, Panati still accepted his paperwork
four days late. The two corresponded by email and phone
regarding his request, but Kuri can point to no statement by
Panati that could be considered even remotely hostile or
antagonistic.
There is no evidence that defendants selectively
enforced the bank’s dress policy. It is true that Kuri is the
only individual to be disciplined for violating the dress code.
But he cannot show that the policy was selectively applied
without showing that defendants knowingly ignored other
employees’ transgressions. Here, there is no evidence that any
of the bank’s management personnel were aware of any of the
incidents he cites in which Bauer, Peek, or McMenamin allegedly
violated the policy. It is true that Barbara Jackson wore jeans
on days other than Fridays. However, Rosado, her supervisor,
gave her and other bank employees permission to “wear jeans
[everyday] during the height of the pandemic.” Thus, the bank’s
decision not to discipline her does not show that it has applied
its dress code unevenly. Wearing jeans with permission is far
different from wearing a T-shirt without permission and raising
the T-shirt to expose part of one’s flank during business hours.
Although Kuri informed Rosado in an October 2020 email
that his peers also violated the policy by not wearing shoes, he
did not identify any specific employees who did so, and Rosado
informed him that she would remind staff of their obligations
under the dress code policy at an upcoming staff meeting. Kuri
also claims that the dress code was selectively enforced against
him because he frequently wore a T-shirt at the beginning of
shifts and changed into his Meridian Bank sweatshirt “within 30
minutes” of the branch opening. The surveillance video and the
photos of Kuri were taken after the bank had opened. The
important point is that management personnel reprimanded or
disciplined him in each of the four instances in which they were
aware that he violated the dress code.
Likewise, defendants cannot be said to have violated
the bank’s progressive discipline policy since the policy
clearly allowed for his termination. The policy states that
although discipline is “typically” meted out with growing
severity, “depending on the situation, any [disciplinary action]
may be repeated, omitted, or taken out of sequence, including,
depending on the situation, immediate job termination.”
Finally, although the court’s inquiry focuses on the
evidence that Kuri has adduced, defendants have established that
Kuri’s repeated violations of the dress code were, in fact, the
reason why he was terminated. On the date of his termination,
at least three employees voiced concern about Kuri’s wearing a
T-shirt. Clearly, Kuri’s attire was disruptive to the bank’s
functioning. Moreover, the record reflects that Annas, the
bank’s CEO, gave the final approval to terminate Kuri. Annas
was unaware of Kuri’s use of FMLA leave. Annas decided to
approve of Kuri’s termination because of Kuri’s repeated
violation of the dress code policy. His testimony is
unrebutted. Kuri has no evidence to show pretext.
V
For the aforementioned reasons, the court will grant
the motion of defendants for summary judgment.