Morgenfruh v. Larson Design Group, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARK MORGENFRUH, No. 4:18-CV-00021

Plaintiff, (Judge Brann)

v.

LARSON DESIGN GROUP, INC.,

Defendant.

MEMORANDUM OPINION

SEPTEMBER 19, 2019

This is an employment discrimination case brought under Title VII, the

Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act

(PHRA), and the Family and Medical Leave Act (FMLA).1 Defendant Larson

Design Group, Inc. (“Larson”), moved for summary judgment on all counts. That

motion is granted.

I. BACKGROUND2

Mark Morgenfruh, the plaintiff, was employed by Larson as its Vice President

of Human Resources from 2013 to 2017.3 During his term of employment,

Morgenfruh coped with a variety of medical conditions. The conditions Morgenfruh

1 Plaintiff withdrew a claim of genetic discrimination. See Pl. Mem. of Law in Opp’n to Def. Mot.

for Summ. J. 3, ECF No. 44. I therefore grant summary judgment to Defendant on that claim.

2 The facts described below are either undisputed or, where disputed, found in the nonmovant’s

favor as is appropriate on a motion for summary judgment.

claims4 as protected disabilities under the ADA are listed in Table 1 alongside the

approximate date he informed Larson of the claimed disability.

TABLE 1

Irritable bowel syndrome (IBS) Early 20135

High blood pressure 20146

Degenerative disc disease 20157

Chronic obstructive pulmonary disease 2015 or early 20168

(COPD)

April or May 20179

Type II diabetes

Sleep apnea April or May 201710

Morgenfruh attended a total of twenty-five appointments between March 18, 2013

(his start date), and March 28, 2017.11 He continued attending doctor’s appointments

in 2017.12

4 See Pl. Mem. 6–7.

5 Pl. Dep. 61:21–22.

6 Id. 115:8–15.

7 Id. 96:3–5.

8 Id. 102:17–103:8.

9 Id. 68:5–69:25.

10 Id. 89:7–24.

11 Morgenfruh’s Medical Records, ECF No. 36 #12.

Generally, Larson had an accrued leave policy.13 As of January 1, 2017,

Morgenfruh had accrued 120 hours of vacation time, 81.74 hours of sick time, and

8 hours for a personal day.14 In addition to his standard accrued leave, Morgenfruh

had a flexible schedule that permitted him to leave work early or arrive late to attend

doctor’s appointments.15 In fact, Morgenfruh was never denied authorization to

leave work for a medical appointment.16 Keith Kuzio, Larson’s CEO and

Morgenfruh’s supervisor, also approved Morgenfruh for a half day of vacation on

May 30, 2017, and a full day of vacation on May 31, 2017, to give Morgenfruh a

longer Memorial Day weekend.17

Two years prior, Larson contracted with TalentKeepers, a firm specializing in

assessing employee engagement and retention, to evaluate engagement within the

company.18 The first evaluation was conducted in February 2015.19 The second

evaluation was conducted in November 2016, and the scores were published around

13 Id. 37:13–19.

14 Rogers Aff., ECF No. 36 #23.

15 Pl. Dep. 48:16–24.

16 Id. 47:8–15.

17 Timesheet, ECF No. 36 #18; Kuzio Dep. 22:1–4, ECF No. 36 #6.

18 Kuzio Dep. 75:22–76:6.

January 2017.20 The employee engagement scores from the second survey were

generally lower than the February 2015 scores.21

Kuzio fired Morgenfruh on June 30, 2017.22 Kuzio was responsible for the

decision.23 Kuzio then made the decision to hire Terry Krezmer, a nondisabled

woman, to replace Morgenfruh.24 Krezmer had over twenty years of experience

working in human resources and had previously worked as the global head of human

resources for Lonza, a chemical manufacturer.25

Larson employed significantly more men than women in middle management

roles during Morgenfruh’s tenure.26 Larson had an affirmative action plan that

complied with relevant state and federal laws,27 and the company also had a

women’s career-development group called “Women of LDG.”28 Brenda Nichols,

one coworker of Morgenfruh’s, expressed a desire to see more women work at

Larson.29

20 Id. 80:3–9.

21 Id. 80:25–81:4.

22 Pl. Dep. 398:21–399:3.

23 Nichols Dep. 90:6–8, ECF No. 36 #3.

24 Id. 107:20–108:2.

25 Krezmer Dep. 7:5–11, 8:1–4, ECF No. 36 #4.

26 Pl. Dep. 213:7–12; Affirmative Action Plan 5, ECF No. 36 #9.

27 Pl. Dep. 214:20–24.

28 Nichols Dep. 110:13–17.

II. DISCUSSION

A. Standard of Review

Summary judgment is granted when “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.”30 A dispute is “genuine if a reasonable trier-of-fact could find in

favor of the non-movant,” and “material if it could affect the outcome of the case.”31

When deciding whether to grant summary judgment, a court should draw all

reasonable inferences in favor of the nonmoving party.32

To defeat a motion for summary judgment, the nonmoving party must point

to evidence in the record that would allow a reasonable jury to rule in that party’s

favor.33 “When opposing summary judgment, the non-movant may not rest upon

mere allegations, but rather must ‘identify those facts of record which would

contradict the facts identified by the movant.’”34 Moreover, “if a party fails to

properly support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the fact

undisputed for purposes of the motion.”35 On a motion for summary judgment, “the

30 Fed. R. Civ. P. 56(a).

31 Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012) (citing Anderson

v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986)).

32 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

33 Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 249.

34 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002).

court need consider only the cited materials, but it may consider other materials in

the record.”36

B. Discrimination37

Discrimination claims under Title VII and the ADA apply the McDonnell

Douglas burden-shifting framework.38 In a McDonnell Douglas analysis, the

plaintiff must first establish a prima facie case; second, the defendant must articulate

some legitimate, nondiscriminatory reason for the employment action; and, third,

the plaintiff must then prove that the defendant’s proffered reason was a pretext for

discrimination.39

In order to establish a prima facie case of discrimination, a plaintiff must show

that “(1) she is a member of a protected class; (2) she was qualified for the position

36 Fed. R. Civ. P. 56(e)(3).

37 In this memorandum opinion I refer only to Title VII and the ADA and not the PHRA. “It is

well-settled that [gender discrimination] ‘claims under the PHRA are interpreted coextensively

with Title VII claims.’” Rorke v. Toyota, Civ. No. 16-219, 2019 WL 3002973, at *11 (M.D. Pa.

July 10, 2019) (quoting Atkinson v. LaFayette Coll., 460 F.3d 447, 454 (3d Cir. 2006)). The

ADA and the PHRA were interpreted coextensively for disability discrimination claims prior

to the enactment of the ADA Amendments Act (ADAAA) in 2008, see Kelly v. Drexel Univ.,

94 F.3d 102, 106 (3d Cir. 1996), but neither the Pennsylvania Supreme Court nor the Third

Circuit has provided guidance on whether the PHRA continues to be coextensive following the

ADAAA’s expansion of qualifying disabilities. For further discussion, see Myatt v. Village,

Civ. A. No. 19-130, 2019 WL 2288116, at *1 n.5 (E.D. Pa. May 29, 2019); Rocco v. Gordon

Food Serv., 998 F. Supp. 2d 422, 428 (W.D. Pa. 2014). At least one Pennsylvania court has

determined that they do. See Lazer Spot, Inc. v. Pa. Human Relations Comm’n, No. 459 C.D.

2017, 2018 WL 670621, at *4–5 (Pa. Commw. Ct. Feb. 2, 2018). For purposes of this motion,

I assume that they remain coextensive. To the extent they are not, I find there are issues of

material fact as to whether the disabilities qualify, but I nonetheless grant summary judgment

to Larson on the same grounds as the ADA claims.

38 See Rorke, 2019 WL 3002973 at *12 (Title VII); Capps v. Mondelez Glob., LLC, 847 F.3d 144,

156 n.12 (3d Cir. 2017) (ADA).

she sought to attain or retain; (3) she suffered an adverse employment action; and

(4) the action occurred under circumstances that could give rise to an inference of

intentional discrimination.”40 For Title VII cases, a protected plaintiff who is

qualified for his job may establish a prima facie case by showing that he was fired

and replaced by a person who is a member of the opposite gender.41 In ADA cases,

a plaintiff who is qualified for his job and meets the statutory definition of disabled

under the ADA can also establish his prima facie case by showing that he was fired

and replaced by someone who is not a member of his protected class—namely,

someone who does not meet the statutory definition of disabled under the ADA.42

Morgenfruh establishes a prima facie case under Title VII. The fact that he

was replaced by a woman is sufficient at this stage to satisfy the fourth element,

which is the only one disputed by Larson.43

On his ADA claim, Larson contests both the first and fourth elements.

Morgenfruh may show that he is disabled within the meaning of the ADA in three

ways: (1) he actually has a “physical or mental impairment that substantially limits

one or more of the major life activities of such individual”; (2) he has a “record of

40 Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

41 See Tenthoff v. McGraw-Hill, Inc., 808 F. Supp. 403, 406 (E.D. Pa. 1992); Sampath v.

Concurrent Techs. Corp., No. 3-264, 2008 WL 868215, at *34 n.32 (W.D. Pa. Mar. 31, 2008).

42 See Latch v. Se. Pa. Transp. Auth., 984 F. Supp. 317, 320 (E.D. Pa. 1997).

such impairment”; or (3) he is “regarded as having such an impairment.”44 Although

Morgenfruh claims that he qualifies under all three in his complaint, he has

abandoned the latter two in his summary judgment papers. I address only the first.

Larson does not argue that Morgenfruh’s claimed disabilities are not the type of

disabilities protected by the ADA45 nor that he does not actually have them. Rather,

it argues that Morgenfruh did not notify Larson of his sleep apnea and type II

diabetes diagnoses. But at his deposition, Morgenfruh stated that he told Larson that

his doctors suspected he had those conditions.46 For purposes of summary judgment,

I find that this creates an issue of material fact.

For the fourth element, as with his Title VII claim, Morgenfruh’s

demonstration that Krezmer is not disabled is sufficient, and I find he has stated a

prima facie claim of disability discrimination under the ADA.

Morgenfruh advances two additional theories of liability under the ADA:

failure to accommodate and retaliation. To establish a prima facie case for failure to

accommodate, “a disabled employee must demonstrate that: (1) the employer knew

about the employee’s disability; (2) the employee requested accommodations or

assistance for her disability; (3) the employer did not make a good faith effort to

44 29 C.F.R. § 1630.2(g)(1).

45 Larson does dispute whether his disabilities qualify under the PHRA’s definition. As discussed

in note 37, supra, I assume that the PHRA’s definition is coextensive with the ADA’s, and to

the extent it differs, there is an issue of material fact.

assist the employee in seeking accommodations; and (4) the employee could have

been reasonably accommodated but for the employer’s lack of good faith.”47 For a

prima facie case of retaliation, a plaintiff must show: “(1) protected employee

activity; (2) adverse action by the employer either after or contemporaneous with the

employee’s protected activity; and (3) a causal connection between the employee’s

protected activity and the employer’s adverse action.”48

Morgenfruh posits that Larson’s failure to provide him with a flexible

schedule to attend his medical appointments was a failure to accommodate and that

his firing after requesting one was retaliation. However, the evidence in the record

all suggests that Morgenfruh already had the flexible schedule he needed. Larson

allowed him to leave work early or arrive late as necessary. He had unused flexible

leave time. And, whenever he requested time off to attend to a medical issue, he was

never denied it. Morgenfruh has not identified evidence showing that Larson failed

to provide a reasonable accommodation or that his requests had any causal

connection to his termination, and thus he has not established prima facie cases on

these two theories.49

I now move to the second step of the McDonnell Douglas analysis. Larson

responds that Morgenfruh was fired as a result of his poor performance on the

47 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319–20 (3d Cir. 1999).

48 Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567–68 (3d Cir. 2002).

49 See Strausser v. Gertrude Hawk Chocolate, Inc., No. 15-2458, 2018 WL 1470796, at *7 (M.D.

TalentKeepers employee-engagement and people-development metrics.50 This is a

valid nondiscriminatory reason for termination of employment, and the burden shifts

back to Morgenfruh to demonstrate that it is pretext for either gender or disability

discrimination.

To do so, Morgenfruh must either discredit the proffered reason or adduce

evidence, circumstantially or directly, that discrimination was more likely than not

a motivating factor or the determinative cause of his termination.51

Morgenfruh attempts to undermine Larson’s credibility by pointing out that it

provides more reasons for his dismissal in its answers to interrogatories than

Morgenfruh was provided with on the day he was fired.52 But providing additional

reasons is not the same as providing inconsistent reasons. Morgenfruh does not

dispute his underperformance on the TalentKeepers metrics, and he does not provide

any other evidence to discredit Larson’s proffered reasons.

Morgenfruh’s attempts to demonstrate discrimination are also unpersuasive.

His Title VII claim is based on his allegations that Larson fired him to advance an

agenda of increasing the number of women employed there.53 In support, he cites

four pieces of evidence: (1) Larson had a women’s career-development group;

50 See Def. Br. in Supp. of Its Mot. for Summ. J. 1, ECF No. 34.

51 See Fasold v. Justice, 409 F.3d 178, 185 (3d Cir. 2005).

52 See Pl. Mem. at 12.

(2) Brenda Nichols expressed her desire to have more women employed at Larson;

(3) Larson fired more men than women in 2015; and (4) Morgenfruh’s replacement

was female.54 Morgenfruh presents no evidence suggesting that the “Women of

LDG” group was anything other than a run-of-the-mill career-support group, and

certainly does not demonstrate that it was part of a larger scheme to replace men in

the company. Nichols’s comments are not relevant because Keith Kuzio, not

Nichols, made the decision to fire Morgenfruh.55 Putting aside the general

slipperiness of statistical evidence in cases alleging individual discrimination,56 the

fact that Larson fired more men than women is neither surprising nor illuminating57

given that Morgenfruh concedes that Larson employed significantly more men than

women during that time period. The only remaining evidence Morgenfruh offers is

that he was replaced by a woman. In other words, he has offered nothing more than

54 See id. at 24–25.

55 See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359 (3d Cir. 1999) (“Stray remarks by non-

decisionmakers . . . are rarely given great weight, particularly if they were made temporally

remote from the date of decision.”).

56 See Summy-Long v. Pa. State Univ., 226 F. Supp. 3d 371, 396 (M.D. Pa. 2016).

57 I pause to reflect on the unhelpful nature of the cited figures. Morgenfruh’s brief states that

“Defendant’s termination ratio of males to females was 87% to 13%.” Pl. Mem. at 25. These

numbers appear nowhere in the exhibit cited to support it, which itself draws data only from

2015—no years before or after, notably including the year Morgenfruh was fired. The brief

includes no explanation of how the numbers were calculated and provides no follow-up

analysis. For instance, what termination ratio would we expect from a nondiscriminating

company with Larson’s gender composition? How far of a departure could be attributed to

random variation? The cursory inclusion of these numbers does little to advance Morgenfruh’s

his prima facie case. Summary judgment is therefore proper on his gender

discrimination claims.58

Morgenfruh’s ADA claim has little more persuasive force. Morgenfruh

attended medical appointments for years without issue. As described above, Larson

permitted him to leave early or arrive late as necessary, and he had plenty of unused

flexible leave time at the moment of his termination. Morgenfruh continued

attending doctor’s appointments in 2017 and was never denied time off. He was even

approved for vacation days to extend his Memorial Day weekend a month before he

was terminated. The evidence in the record simply does not support the conclusion

that Larson’s decision was based on Morgenfruh’s medical leave.

Morgenfruh makes a last-ditch effort to show discrimination by arguing that

two nondisabled employees, Rob Gehr and Doug Smith, were treated differently.59

However, Gehr and Smith were not similarly situated to Morgenfruh because they

answered to a different supervisor,60 worked in different departments,61 and

possessed different qualifications and duties.62 Further, the gap between Larson’s

58 See Stahlnecker, 2009 WL 661927 at *7.

59 See Pl. Mem. at 13.

60 Kuzio Aff. ¶¶ 6–7, ECF No. 48 #1.

61 Id. ¶¶ 3, 6–7.

62 Id. ¶ 8. See Burton v. Pa. State Police, 990 F. Supp. 2d 478, 503 (M.D. Pa. 2014) (“Similarly

situated employees are those who have ‘dealt with the same supervisor, were subject to the same

standards, and had engaged in similar conduct without such differentiating or mitigating

circumstances as would distinguish their conduct or the employer’s treatment of them.’”

treatment of Morgenfruh and Gehr was not as wide as Morgenfruh suggests. While

he was permitted to keep his job, Gehr was also subject to harsh penalties for

lackluster performance, including a title demotion and financial penalties.63 And to

the extent there was a difference in treatment between Morgenfruh and Smith,

Morgenfruh himself explained it—Smith was the “golden child” referral of an

influential board member.64 Whatever the wisdom of such favorable treatment, it is

not indicative of disability discrimination. Summary judgment is therefore proper on

Morgenfruh’s disability discrimination claims.

C. FMLA

The FMLA provides that an eligible employee “shall be entitled to a total of

12 workweeks of leave during any 12-month period . . . because of a serious health

condition that makes the employee unable to perform the functions of his position.”65

It is illegal for an employer to “interfere with, restrain, or deny the exercise of or the

attempt to exercise, any right” under the FMLA.66 An employer’s failure to advise

an employee of his rights under the FMLA may constitute interference with the

employee’s rights.67 To establish a failure-to-advise claim, the employee must show

63 Pl. Dep. 175:19–176:12.

64 Id. 188:10–12.

65 29 U.S.C. § 2612(a)(1)(D); see also Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.

2005).

66 29 U.S.C. § 2615(a)(1); see also Callison, 430 F.3d at 119.

that he was entitled to FMLA benefits, the employer interfered with them, and the

employee was prejudiced by the failure to advise.68 Prejudice must be shown by

“establishing that this failure to advise rendered him unable to exercise that right in

a meaningful way, thereby causing injury.”69

Here, Morgenfruh has not demonstrated prejudice. According to his own

testimony, he would have used FMLA leave not to recover from any of his claimed

ailments, but for “mental health time.”70 There is no evidence in the record that any

additional time off was medically necessary—as discussed above, Morgenfruh

already had a flexible work schedule that allowed him to attend all of his

appointments. This alone is dispositive.71 But, furthermore, he was familiar with the

FMLA through his position as the head of Larson’s human resources department.72

While he may not have dealt with it on a daily basis, he was fully capable of

68 See Reifer v. Colonial Intermediate Unit 20, 462 F. Supp. 2d 621, 637–38 (M.D. Pa. 2006).

69 Id. at 638.

70 Pl. Dep. 315:24–316:5.

71 See Matthews v. N.J. Inst. of Tech., 772 F. Supp. 2d 647, 658 (D.N.J. 2011) (granting summary

judgment due to lack of prejudice where the “evidence demonstrate[d] that Plaintiff took paid

leave for occasional doctor’s visits” and there was “no evidence to support an inference that

Plaintiff sought . . . any leave in addition to what he took or that any additional leave was

medically necessary”); Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp. 3d 744,

758–59 (W.D. Pa. 2016) (finding employee was not prejudiced by taking paid time off instead

of FMLA leave where her termination was not causally connected to her time off).

72 See, e.g., Rogers Aff. ¶ 2 (stating that Morgenfruh assisted with a complex FMLA matter in

exercising his rights with or without notice from Larson.73 Accordingly, I grant

summary judgment to Larson on Morgenfruh’s FMLA claim.

III. CONCLUSION

Summary judgment is hereby GRANTED to Defendant on all counts.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

73 See Johnson v. Dollar General, 880 F. Supp. 2d 967, 986 (N.D. Iowa 2012) (granting summary

judgment on failure-to-advise claim where employee had received employee handbook,

received training, and seen posters addressing company’s FMLA policies); Crain v.

Schlumberger Tech. Co., 187 F. Supp. 3d 732, 740–41 (E.D. La. 2016) (granting summary