Peticca

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHALENE PETICCA, : Civil No. 1:23-CV-02158

:

Plaintiff, :

:

v. :

:

THE ROMAN CATHOLIC DIOCESE :

OF HARRISBURG, :

:

Defendant. : Judge Jennifer P. Wilson

MEMORANDUM

This matter is before the court on the Motion for Summary Judgment filed

by Defendant Roman Catholic Diocese of Harrisburg (“the Diocese”). (Doc. 24.)

Plaintiff Michalene Peticca managed one of the Diocese’s cemeteries from July

2020 until the Diocese terminated her employment in August 2023. (Doc. 25-1,

¶¶ 13, 57.) She alleges that the Diocese withheld overtime wages she earned,

retaliated against her for taking Family Medical Leave Act (“FMLA”) leave, and

unlawfully refused to pay her short-term disability benefits. (Doc. 1-2, pp. 10–14.)

The Diocese moved for summary judgment on all of Peticca’s claims. (Doc. 24,

p. 1.) For the reasons that follow, the court will grant in part and deny in part the

Diocese’s motion for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

Peticca worked for the Diocese from December 2017 until August 2023.

(Doc. 25-1, ¶¶ 3, 57.) Peticca started as a cemetery grounds and maintenance

worker. (Id. ¶ 3.) Tom Brlansky supervised Peticca when she worked as a

cemetery grounds and maintenance worker for the Diocese. (Id. ¶ 4.) In that role,

Peticca dug graves, ensured that graves were dug accurately and placed in the

correct location, placed headstones, cared for cemetery grounds, maintained

cemetery equipment, and tamped and seeded graves. (Id. ¶¶ 4–7.) The Diocese

avers that Tom Brlansky instructed Peticca on the “importance of ensuring

accurate internments” and taught her how to make grave spaces and place markers.

(Id. ¶¶ 8–9.) Peticca denies this and avers that “the training she received from Tom

Brlansky was insufficient and ineffective.” (Doc. 30, ¶¶ 8–9.)

In April 2019, the Diocese promoted Peticca to the position of trainee

cemetery manager. (Doc. 25-1, ¶ 10; Doc. 30, ¶ 10.) The Diocese alleges that it

attached the job description for the cemetery manager position to the letter offering

Peticca the promotion, which it sent in April 2019. (Doc. 25-1, ¶¶ 10–11.) Peticca

claims that she did not receive that job description until she requested it in March

1 Many of the facts in this case are not disputed. Where facts are not disputed, the court cites to

the Diocese’s statement of material facts, Doc. 25-1, with the implicit recognition that Peticca

admitted these facts in her response to the Diocese’s statement. (Doc. 30.) The court draws all

reasonable inferences in favor of the non-movant, Peticca. Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012).

2023. (Doc. 30, ¶ 11.) Tom Brlansky continued to supervise or work alongside

Peticca after her promotion to trainee cemetery manager. (Doc. 25-1, ¶ 12; Doc.

30, ¶ 12.) While the Diocese claims Tom Brlansky helped Peticca dig graves,

place headstones, and complete “the paperwork necessary to complete a person’s

internment file,” Peticca denies that Tom Brlansky worked with her on specific

tasks, and she claims that she received “limited training” from him. (Doc. 25-1, ¶

12; Doc. 30, ¶ 12.)

In July 2020, the Diocese promoted Peticca again, and she became the

cemetery manager for the Gates of Heaven Cemetery. (Doc. 25-1, ¶ 13.) Vickie

Kollar, the Diocesan Director of Catholic Cemeteries, served as Peticca’s direct

supervisor. (Doc. 30, ¶ 13; Doc. 30-2 pp. 8–9.) Peticca’s duties as cemetery

manager included, among other responsibilities:

1. Recruiting, hiring, and training employees;

2. Various cemetery administration tasks, such as “[assuring] full

compliance with legal and safety requirements, Diocesan

policies, and church directives related to cemetery operations,”

conducting regular staff meetings, analyzing “office and ground

activities” and revising “workflow and operational procedures as

appropriate,” ensuring the “accuracy of all interments,

disinterments, and reinterments,” and supervising “the

preparation of maintenance scheduling for all equipment;” and

3. Several financial duties, such as managing the annual cemetery

budget, supervising “procedures for approving bills for payment,

purchase orders, and the depositing of funds in bank accounts,”

and preparing monthly inventory reports for the Diocesan

Director of Cemeteries.

(Doc. 25-1, ¶ 20; Doc. 25-2, p. 32; Doc. 30-10, p. 3.) Peticca asserts that, as

cemetery manager, her primary duties were physical tasks, “particularly when [she

was] responsible for covering the duties of a Cemetery Maintenance Worker.”

(Doc. 30. ¶ 18.) These duties included “digging graves, installing headstones,

mowing the lawn, cleaning up trash, and maintaining the physical structure of the

cemetery.” (Id.) Moreover, Peticca notes that the cemetery manager job

description provides that cemetery managers must be able to “undertake the role of

maintenance & service as described in the subordinates job description as and

when required.” (Doc. 25-2, p. 32.)

Tyler Shanabrook and Joseph Brlansky are also Diocese cemetery managers.

(Doc. 25-1, ¶ 37.) Joseph Brlansky testified that undertaking the duties of

subordinates could involve physical labor, including digging graves and helping

with burials. (Doc. 30-5, pp. 9–10.) Shanabrook similarly testified that “filling in

for a grounds maintenance person” is a primarily physical duty. (Doc. 30-4, p. 9.)

Peticca and the other cemetery managers had weekly calls with Kollar. (Doc. 25-

1, ¶ 25.) Kollar also testified that she routinely visited the Diocese’s cemeteries,

and that she visited the Gates of Heaven Cemetery at least two to three times

between July 2020 and July 2023. (Doc. 30-2, pp. 9–10.)

Peticca received a salary as the cemetery manager. (Doc. 25-1, ¶ 15.) She

had to track her time and submit timesheets, and the Diocese claims that her

timesheets show she worked no more than 40 hours per week. (Id. ¶¶ 16–17.) But

Peticca avers that Tom Brlansky told her “to fill out her time sheet to reflect a 40-

hour work week regardless of the number of hours worked in a week.” (Doc. 30, ¶

16.)2

As cemetery manager, Peticca hired two employees. (Doc. 25-1, ¶ 21.) One

worked at the Gates of Heaven Cemetery from the fall of 2020 through the fall of

2021. (Id.) The other worked there from the fall of 2022 through March 2023.

(Id.) The Diocese requested on multiple occasions that Peticca “concentrate on

filling her open positions.” (Doc. 25-1, ¶ 23.) Peticca claims that she asked Kollar

and Janet Jackson, the Diocese’s human resources director, for assistance in hiring

more employees, but neither responded to her requests. (Doc. 30, ¶ 23.)3 Peticca

emphasizes that she “never received a single performance review in her role as

Cemetery Manager” even though the Diocese’s employee handbook calls for

annual performance reviews,4 nor did she receive formal discipline. (Doc. 30, ¶

2 Peticca offers an example of her underreporting of her work hours; she would “work Saturdays

for funeral services which would cause her to work over 40 hours in a work week, but this was

not reflected in Peticca’s time sheets, as she was trained to complete the time sheet to only reflect

a 40-hour work week.” (Doc. 30, ¶ 17.)

3 Emails between Kollar and Jackson suggest that they were aware of Peticca’s requests for help

with the hiring process. (Doc. 30-2, p. 21 (discussing, during Kollar’s deposition, an email in

which Kollar told Jackson “Michalene was having a fit just yesterday because she wanted this

job advertised asap and sent me email after email.”))

4 Kollar testified that performance appraisals were suspended for “two years plus” following the

COVID-19 pandemic. (Doc. 30-2, p. 25.)

27.) In a 2020 email thread, Kollar and Jackson discussed writing Peticca up for

her “consistent insubordination and disrespect.” (Doc. 30-2, p. 2.) Nonetheless,

although Kollar testified that Peticca received some performance reviews during

her introductory period as a cemetery manager, between July 2020 and June 2023,

Peticca received no performance reviews, performance improvement plans, written

discipline, or formal grievances. (Doc. 30-2, pp. 15, 25.) Moreover, Peticca

claims that the Diocese directed her not to hire more than one employee at a time.

(Doc. 30, ¶ 21.)

Both Shanabrook and Joseph Brlansky (Tom Brlansky’s son) covered for

Peticca at the Gates of Heaven Cemetery more than once before she took a leave of

absence in 2023, and Joseph Brlansky once served as Peticca’s cemetery manager

mentor. (Doc. 30-5, pp. 16–20.) While serving as Peticca’s mentor in 2020,5

Joseph Brlansky wrote a letter to Kollar outlining numerous issues with Peticca’s

performance, including flaws in her grave digging technique. (Doc. 30-5, pp. 15–

18; Doc. 30-6, pp. 2–4.) The letter noted that Peticca had been corrected for

5 Kollar, Jackson, and Joseph Brlansky gave conflicting accounts of when the events of the letter

occurred and when Joseph Brlansky sent the letter to Kollar (Doc. 30-2, p. 18 (displaying

Kollar’s testimony that Joseph Brlansky wrote the letter in August 2019) (Doc. 30-3, pp. 16–17

(displaying Jackson’s testimony that Joseph Brlansky wrote the letter in July of 2020 after

mentoring Peticca during her first 30 days as a cemetery manager); (Doc. 30-5, p. 30 (displaying

Joseph Brlansky’s testimony that he wrote the letter “within a month” of Peticca’s promotion to

cemetery manager). Considering each individual’s testimony and the fact that the Diocese

promoted Peticca to the position of cemetery manager in July 2020, Doc. 25-1, ¶ 13, the court

finds, for the purpose of resolving the Diocese’s motion, that the events described in the letter

occurred, and Joseph Brlansky sent the letter to Kollar, in the summer or early fall of 2020.

incorrectly digging graves at least six times in a year-long period, breaking a vault,

failed to use proper slings during a burial, yelling at Joseph Brlansky and calling

him incompetent, and failing to incorporate constructive feedback and advice into

her work as a cemetery manager. (Doc. 30-6, pp. 2–4.) Kollar testified that the

Diocese did not discipline Peticca for the mistakes and conduct Joseph Brlansky’s

letter described, and she suggested that was because Peticca was still in training as

a cemetery manager at the time. (Doc. 30-2, pp. 18, 38.) Joseph Brlansky testified

that, while covering for Peticca before she took leave on a different occasion, he

noticed one grave that “looked like a mess” at the Gates of Heaven Cemetery, but

did not tell Peticca, Kollar, or Jackson what he saw. (Doc. 30-5, pp. 21–22.)

On February 11, 2023, Peticca slipped and fell down steps at home. (Doc.

25-1, ¶ 29.) On April 28, 2023, she told the Diocese that she had an MRI due to

the fall. (Id. ¶ 28.) Jackson advised Peticca via email that “she was free to set her

own work restrictions” and that she should think about her “long term wellbeing.”

(Id. ¶ 31 (quoting Doc. 25-2, p. 50.)) Peticca requested FMLA leave on or about

June 12, 2023. (Id. ¶ 33.) Two days later, Jackson emailed Peticca FMLA

paperwork and information about short-term disability (STD) benefits offered by

the Diocese.6 (Id. ¶ 34.) Peticca claims that, although Jackson sent her “certain

6 The Diocese pays for the short-term disability plan it offers to its employees. (Doc. 25-1, ¶ 62.)

information regarding STD benefits,” she did not “provide any paperwork with

respect to [the Diocese’s] STD benefit application.” (Doc. 30, ¶ 34.) In contrast,

Peticca alleges that Jackson “immediately provided Tom Brlansky with STD

application paperwork” when he requested a medical leave of absence. (Id.)

Jackson advised Peticca that STD benefits were available to her. (Doc. 25-1, ¶ 35.)

Shanabrook and Joseph Brlansky covered for Peticca at the Gates of Heaven

Cemetery while she was absent due to her medical condition but before she

officially requested FMLA leave. (Doc. 30-4, p. 13 (noting that Shanabrook and

Brlansky covered for Peticca at the Gates of Heaven Cemetery for “maybe a week

or two” before informing Kollar of the issues they discovered there).) Peticca

testified that her last day of work at the Gates of Heaven Cemetery building was

June 9, 2023. (Doc. 30-1, p. 40.) On June 12, 2023, Peticca emailed Shanabrook

and Joseph Brlansky “thanking them for taking over for her at the Gate[s] of

Heaven Cemetery and advising them of outstanding items.” (Doc. 25-1, ¶ 36.)

The Diocese avers that, when Shanabrook and Brlansky arrived at the Gates of

Heaven Cemetery to cover for Peticca, they “started to notice various issues that

arose with locations of graves and paperwork being either absent or incorrectly

filled out.” (Id. ¶ 40.) Peticca agrees that Shanabrook testified that he first noticed

the issues at this time, but she avers that “Joe Brlansky had been aware of issues

with Peticca’s performance in the past, and these issues were reported to [Kollar]

via email” sometime before November 2020. (Doc. 30, ¶ 40.)

The Diocese claims that, while they covered for Peticca, Shanabrook and

Joseph Brlansky discovered “grave spaces ‘way out of whack,’” “gravesites that

didn’t align with paperwork,” “errors,” “mistakes,” and “damage to things.” (Doc.

25-1, ¶¶ 41–42 (quoting (Doc. 25-2, p. 80.)) The pair also discovered “damage to

the building, damage to the company truck, graves in the wrong spot, markers in

the wrong location, none of the graves were tamped properly, and invoices that

weren’t collected.” (Id. ¶ 47.) Peticca claims that she dug the grave spaces

properly and according to the training Tom Brlansky provided her. (Doc. 30,

¶ 41.) And she reiterates that Joseph Brlansky and the Diocese knew of her

performance issues long before he and Shanabrook covered for her. (Id. ¶ 42.)

The Diocese claims that Shanabrook and Joseph Brlansky told Kollar about

the concerning condition of the Gates of Heaven Cemetery because they did not

want to be “blamed for the situation.” (Doc. 25-1, ¶ 43.) After Shanabrook and

Joseph Brlansky told Kollar about what they discovered while covering for

Peticca, Kollar asked Shanabrook and Brlansky to give her “a list of issues they

discovered at the Gate of Heaven Cemetery.” (Id. ¶ 45.) Kollar specifically

requested this list after she, Shanabrook, and Joseph Brlansky “realized that there

were numerous issues with people being buried in the wrong graves, [so] the scope

of it could be bigger than what the Diocese realized.” (Id. ¶ 46.) Shanabrook and

Joseph Brlansky provided their lists, along with “photographic evidence,” to

Kollar. (Id. ¶ 48.)

Peticca disputes this version of events. She again denies that it was not until

Shanabrook and Joseph Brlansky covered for her that the Diocese learned of the

problems at the Gates of Heaven Cemetery, because Joseph Brlansky sent Kollar a

letter about those problems years before Peticca took FMLA leave. (Doc. 30,

¶¶ 40, 46.) Moreover, Peticca emphasizes that one day after she took FMLA leave,

“Kollar mentioned that she wanted to have a meeting to handle the ‘mess’ at the

[Gates of Heaven Cemetery.]” (Id. ¶ 45; Doc. 30-13 p. 3.) Three days after she

requested FMLA leave, Kollar requested that Shanabrook and Joseph Brlansky

make a list of issues they found at the Gates of Heaven Cemetery. (Doc. 30, ¶ 45;

Doc. 30-13, p. 2.) This, she claims, shows that the Diocese scrutinized

longstanding performance issues only after she took FMLA leave. (Doc. 30, ¶ 33.)

Peticca, Kollar, and Jackson met on June 29, 2023, while Peticca was on

FMLA leave. (Doc. 25-1, ¶ 49.) Jackson and Kollar raised the issues at the Gates

of Heaven Cemetery and concerns about Peticca’s performance at the meeting.

(Id. ¶ 50.) Peticca disputed the Diocese’s findings and “contends that she felt the

meeting was for nefarious reasons regarding her FMLA leave and disability

status.” (Id. ¶¶ 49–51; Doc. 30, ¶ 49.) The Diocese requested a second meeting

with Peticca to discuss its findings and “seek further explanation,” but Peticca

refused to meet with its representatives. (Id. ¶ 52.) Peticca claims she did not

attend a second meeting with the Diocese because, contrary to the Diocese’s stated

reason for requesting a second meeting, it truly sought to “terminate Peticca and

blame her for the issues at the cemetery that had been evident for years, but only

became an issue once it became likely that [she] would be requesting STD

benefits.” (Doc. 30, ¶ 52.)

On July 20, 2023, Kollar emailed Jackson and another Diocese employee.

(Doc. 30-14, p. 2.) She wrote:

After reading the new FMLA paperwork, I think your initial gut feeling

was correct—disability is her end game. Knowing [Peticca], she will

twist our dismissal to look like we are on a witch hunt just to avoid

paying her while she is injured. With that being said, the list is so

extensive that I feel she would have a very difficult time denying every

offence.

(Id.) The Diocese fired Peticca on August 11, 2023. (Doc. 25-1, ¶ 57.) In an

employee warning form attached to Peticca’s termination letter, the Diocese cited

the following reasons, among others, as justification for its decision: unreported

damage to a company vehicle7 and premises; failure to mark out and dig graves;

incorrect placement of markers; and failure to correctly and timely complete sales

7 Peticca asserts that the Diocese truck was “significantly damaged when Peticca started her

position as cemetery manager, making it difficult to tell if any new damage to the truck

occurred.” (Doc. 30, ¶ 53.)

contracts. (Doc. 25-1, ¶ 58; see Doc. 25-2, pp. 128–30 (listing additional reasons

for terminating Peticca’s employment, such as burying an individual in the wrong

grave space, incorrectly installing memorials, misaligning graves, incorrectly

tamping graves, incorrectly placing vaults in the ground, failing to recruit new

employees, exhibiting “a complete disregard of management structures and

authority,” and deviating from Diocese policy on multiple occasions).) Peticca

asserts that the Diocese failed to follow its employee handbook in terminating her

employment without implementing “progressive discipline” beforehand. (Doc. 30,

¶ 57.) Moreover, she notes that the Diocese offered Joseph Brlansky multiple

performance improvement plans instead of immediately terminating his

employment. (Id.)

After it fired her, the Diocese continued to pay Peticca’s salary through

October 6, 2023. (Doc. 25-1, ¶ 59.) It also extended her medical, dental, and

vision insurance through October 31, 2023. (Id.) But only active, full-time

employees may receive STD benefits under the Diocese’s plan, so Peticca lost

eligibility for those benefits when the Diocese fired her. (Id. ¶¶ 60–61.) Peticca

alleges that the Diocese terminated her employment specifically because it sought

to prevent her from receiving STD benefits. (Doc. 30, ¶ 60; Doc. 30-11, pp. 3–4

(containing an email from Jackson to Kollar in which Jackson states that she

intends to “finish off [Peticca’s] disciplinary documentation/report” and that doing

so would “prevent[] [Peticca] from applying for disability”).)

The STD plan contains a disclaimer in which the Diocese “reserves the right

to amend this plan from time to time,” but notes that “any changes will not change

the benefits already being received by any employee/claimant.” (Doc. 25-2, p.

139.) The Diocese’s employee handbook also notes that “the language in this

handbook is not intended to create, nor is it to be construed to constitute, a contract

between the Diocese of Harrisburg and any one or all of its employees.” (Id. at

142.)

The Social Security Administration declared Peticca permanently disabled

on June 9, 2023. (Doc. 25-1, ¶ 67.) Peticca notes that she did not learn of this

determination until the fall of 2024, when the Social Security Administration

notified her of her disability date. (Doc. 30, ¶ 67.) She also asserts that the

Diocese still has not filled the open cemetery manager position, and that Joseph

Brlansky has taken over as manager of the Gates of Heaven Cemetery. (Id. ¶ 57.)

Peticca sued the Diocese in the Court of Common Pleas of Dauphin County,

Pennsylvania, on December 5, 2023. (Doc. 1-4, pp. 12, 22.) The Diocese removed

the case to this court on December 29, 2023. (Doc. 1, p. 1.)

Peticca’s complaint contains five counts. (Doc. 1-2, pp. 10–14.) Count One

alleges that the Diocese violated the Fair Labor Standards Act, 29 U.S.C. §§ 201–

219 (“FLSA”), by intentionally and willfully denying her overtime compensation.

(Id. at 10.) Count Two alleges that the Diocese also violated the Pennsylvania

Minimum Wage Act (“PMWA”), 43 P.S. §§ 333.101–333.115, by denying her

overtime compensation. (Id. at 11.) Count Three alleges that the Diocese violated

the FMLA, 29 U.S.C. §§ 2601–2654, because it terminated her employment based

on “wholly pretextual reasons” and “similarly situated employees who had not

taken an FMLA leave of absence were treated more favorably than [Peticca].” (Id.

at 11–12.) Count Four raises a breach of contract claim against the Diocese; it

alleges that the Diocese breached the “unilateral contract” created by its STD

benefits plan by terminating her employment and denying her benefits. (Id. at 12–

13.) Finally, Count Five alleges that the Diocese violated the Pennsylvania Wage

Payment and Collection Law, (“WPCL”), 43 P.S. §§ 260.1–260.45, by denying her

STD benefits. (Id. at 13–14.)

The Diocese filed an answer to Peticca’s complaint on January 4, 2024.

(Doc. 2.) On June 13, 2025, the Diocese filed its motion for summary judgment,

an accompanying brief in support, and a statement of material facts. (Docs. 24, 25,

25-1.) Therein, it moves for summary judgment on all claims raised in Peticca’s

complaint. (Doc. 24, p. 1.) Peticca filed a brief in opposition, Doc. 26, and an

answer to the Diocese’s statement of material facts. (Doc. 30.) The Diocese filed

a reply. (Doc. 31.) Therefore, the Diocese’s motion for summary judgment is ripe

for disposition.

JURISDICTION AND VENUE

This court has jurisdiction under 28 U.S.C. § 1331 because Peticca brings

claims arising under federal statutes. The court also has supplemental jurisdiction

over Peticca’s state law claims pursuant to 28 U.S.C. § 1367(a) because they are

related to Peticca’s federal claims. Venue is appropriate under 28 U.S.C. § 1391

because all actions or omissions alleged in Peticca’s complaint occurred in the

Middle District of Pennsylvania.

STANDARD OF REVIEW

A court may grant a motion for summary judgment when “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). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.” Lichtenstein

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

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

The Diocese argues that it is entitled to summary judgment on every claim.

(Doc. 24, p. 1.) Peticca contends that summary judgment is inappropriate because

there are disputed issues of material fact on every claim. (Doc. 26, pp. 6–25.) The

court addresses Peticca’s claims and the parties’ arguments in turn.

A. FLSA and PMWA claims

Peticca alleges that the Diocese violated the FLSA and the PMWA by

failing to pay her overtime wages when she worked more than 40 hours per week.

(Doc. 1-2, pp. 10–11.) “Because of the similarities between the PMWA and the

FLSA, Pennsylvania courts analyze overtime and minimum wage violations of the

PMWA and the FLSA under the same framework.” Bansept v. G & M Auto., 434

F. Supp. 3d 253, 258 (E.D. Pa. 2020) (citing Bedolla v. Brandolini, No. 18-146,

2018 WL 2291117, at *4 (E.D. Pa. May 18, 2018); Razak v. Uber Techs., Inc., No.

16-573, 2016 WL 5874822, at *7 (E.D. Pa. Oct. 7, 2016)). The FLSA requires

employers to “pay their employees at least a specified minimum hourly wage for

work performed and to pay one and one-half times the employee’s regular rate of

pay for hours worked in excess of forty hours per week.” De Asencio v. Tyson

Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003) (internal citations omitted) (citing 29

U.S.C. §§ 206, 207). The PMWA requires the same. 43 P.S. § 333.104(a)–(c).

Both the FLSA and the PMWA exempt employees “employed in a bona fide

executive, administrative, or professional capacity . . .” from minimum wage and

overtime pay requirements. 29 U.S.C. § 213(a)(1); 43 P.S. § 333.105(a)(5).8 The

Diocese argues that as a cemetery manager, Peticca qualified as an administrative

employee and was therefore not entitled to overtime pay pursuant to the

administrative exemption. (Doc. 25, p. 15.)

8 Courts analyze the PMWA and FLSA’s administrative exemptions together, and because the

parties do not dispute this approach or suggest a relevant difference between the two statutes, the

court will do the same. See Baum v. Astrazeneca LP, 372 F. App’x 246, 248 n.4 (3d Cir. 2010)

(citing federal regulations when analyzing a PMWA administrative exemption act issue because

“Pennsylvania courts have looked to federal law regarding the Fair Labor Standards Act

(“FLSA”) for guidance in applying the PMWA”) (citing Commonwealth of Pa. Dept. of Labor &

Indus., Bureau of Labor Law Compliance v. Stuber, 822 A.2d 870, 873 (Pa. Commw. Ct. 2003),

aff’d, 859 A.2d 1253 (Pa. 2004)); Brown v. Meadows at E. Mountain-Barre for Nursing &

Rehab. LLC, No. 3:22-CV-00828, 2024 WL 1916713, at *3 n.9 (M.D. Pa. May 1, 2024) (noting

that the only difference between the PMWA and FLSA’s executive exemptions “apparent to the

Court . . . implicates the compensation factor”). Thus, the court refers to both the FLSA and

PMWA statutory exemption for administrative employees together as “the administrative

exemption.”

The Department of Labor’s regulations clarify that an “employee employed

in a bona fide administrative capacity” is an employee (1) who is compensated at a

specific salary level; (2) “[w]hose primary duty is the performance of office or

non-manual work directly related to the management or general business

operations of the employer or the employer’s customers”; and (3) “Whose primary

duty includes the exercise of discretion and independent judgment with respect to

matters of significance.” 29 C.F.R. § 541.200(a); 34 Pa. Code § 231.83 (providing

an almost identical definition); Clark v. Delaware Valley Sch., 450 F. Supp. 3d

551, 563 (M.D. Pa. 2020) (citing 29 C.F.R. § 541.200(a)). Within that definition,

“the term ‘primary duty’ means the principal, main, major or most important duty

that the employee performs.” 29 C.F.R. § 541.700(a). “Determination of an

employee’s primary duty must be based on all the facts in a particular case, with

the major emphasis on the character of the employee’s job as a whole.” Id.; see

O’Bryant v. City of Reading, 197 F. App’x 134, 136–37 (3d Cir. 2006).

The employer bears the burden of proving that an employee works in a bona

fide administrative capacity and is therefore exempt from the FLSA and PMWA’s

requirements “with no entitlement to overtime pay . . . .” Thomas v. Teksystems,

Inc., No. 2:21-CV-460, 2026 WL 381239, at *4 (W.D. Pa. Feb. 11, 2026) (quoting

Gillott v. Powerex, Inc., 904 F. Supp. 442, 446–47 (W.D. Pa. 1995)); Martin v.

Cooper Elec. Supply Co., 940 F.2d 896, 900 (3d Cir. 1991) (“The burden of

proving [the exemptions from the FLSA’s overtime requirements listed in 29

U.S.C. § 213(a)(1)] is upon the employer . . .”) (citing Idaho Sheet Metal Works,

Inc. v. Wirtz, 383 U.S. 190, 206 (1966)). “The question whether an employee is

exempt is a mixed question of law and fact.” Clark, 450 F. Supp. 3d at 564 (citing

Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010)).

Accordingly, to prove that Peticca’s cemetery manager position qualified for

the administrative exemption and she is not entitled to overtime pay, the Diocese

must show that: (1) her salaried compensation met specific benchmarks set by

federal and state regulations; (2) her “primary duty” as cemetery manager was “the

performance of office or non-manual work directly related to the management or

general business operations of [the Diocese] or [the Diocese’s] customers”; and (3)

that primary duty included “the exercise of discretion and independent judgment

with respect to matters of significance.” 29 C.F.R. § 541.200(a)(1)–(3); 34 Pa.

Code § 231.83.

Peticca does not dispute that the Diocese proved the first and third factors,

so the court assumes without deciding that those factors are satisfied for the

purpose of deciding the Diocese’s motion for summary judgment. (Doc. 26, pp.

13–16); see Brown, 2024 WL 1916713, at *3 n.9 (noting that, because the parties

did not dispute the salary factor of the executive exemption to the FLSA and

PMWA’s overtime requirements in their briefing, “the Court will decline to opine

on whether this factor is satisfied at this time”). Instead, the parties’ arguments

focus on the second factor–whether Peticca’s primary duty as cemetery manager

was “the performance of office or non-manual work directly related to the

management or general business operations of [the Diocese] or [the Diocese’s]

customers.” 29 C.F.R. § 541.200(a)(2); (Doc. 25 pp. 15–18); (Doc. 26, pp. 13–16);

(Doc. 31, pp. 2–3.)

The Diocese contends that Peticca’s duties as cemetery manager included

personnel management, cemetery administration, and financial responsibilities.9

(Doc. 25, p. 15.) It acknowledges that Peticca may have performed some

“nonexempt, physical work” as a cemetery manager. (Id.) But it claims her

“primary duty” was to complete administrative and managerial tasks. (Id. at 15–

16.) The Diocese also argues that Peticca had to spend time doing nonexempt

work because she did not hire enough cemetery maintenance workers. (Id. at 17.)

9 An employee performs work “directly related to the management or general business

operations” of the employer when that work is “directly related to assisting with the running or

servicing of the business, as distinguished, for example, from working on a manufacturing

production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a);

see also 34 Pa. Code § 231.83(1)(i). Both Federal and Pennsylvania regulations give the

following examples of work directly related to management or general business operations:

[T]ax; finance; accounting; budgeting; auditing; insurance; quality control;

purchasing; procurement; advertising; marketing; research; safety and health;

personnel management; human resources; employee benefits; labor relations;

public relations, government relations; computer network, internet and database

administration; legal and regulatory compliance . . .

34 Pa. Code § 231.83(1)(i); 29 C.F.R. § 541.201(b).

Accordingly, it claims that Peticca “cannot seek to thwart the exemption through

her own failure to perform her managerial duties.” (Id. at 17–18.)

In response, Peticca avers that she spent significant time doing “physical

labor, such as digging graves, installing headstones, mowing the lawn, cleaning up

trash, and taking care of the cemetery grounds” as cemetery manager. (Doc. 26, p.

15.) Peticca relies on a Pennsylvania regulation which states that an employee

who spends more than 20 percent of their time during a work week completing

non-administrative tasks does not qualify for the PMWA’s administrative

exemption. (Id. at 14–15.)10 She argues that the testimony of Joseph Brlansky,

Shanabrook, and herself about their work as cemetery managers, and the cemetery

manager job description provided by the Diocese, create a dispute of material fact

about the nature of her primary duty as cemetery manager. (Id. at 15–16.) She

also argues that any clerical work she performed does not qualify as an

administrative or exempt task. (Id. at 15.)

10 Peticca urges the court to resolve the primary duty question using a Pennsylvania regulation

that purportedly states that an employee in an administrative capacity “does not devote more than

20% of time worked in a workweek, or, in the case of an employee of a retail or service

establishment, who does not devote more than 40% of time worked in the workweek to activities

which are not directly and closely related to the performance of [administrative tasks].” (Doc.

26, pp. 14–15 (citing 34 Pa. Code § 231.83(1)–(4).) But the Pennsylvania Department of Labor

and Industry amended that regulation in 2020, and the current version does not include the time

percentage language on which Peticca relies. 34 Pa. Code § 231.83. Peticca argues that the

earlier version of the regulation is controlling here because she was appointed to the position of

cemetery manager before the amendment. (Doc. 26, p. 15 n.2.) Peticca does not cite any

authority in support of this timing argument. The court does not determine in this memorandum

whether the earlier version of the Pennsylvania regulation applies in this case.

In reply, the Diocese reiterates its argument that Peticca had to perform

nonexempt work because she failed to hire additional employees, and she “must

not now be permitted to use her past performance failures to evade the

administrative exemption.” (Doc. 31, pp. 2–3.) It again emphasizes that her duties

as cemetery manager were administrative, so she is not entitled to overtime

compensation. (Id.)

The court will deny the Diocese’s motion for summary judgment on

Peticca’s FLSA and PMWA claims. The parties do not meaningfully dispute that

Peticca performed a mix of administrative (exempt) and physical or manual (non-

exempt) work as cemetery manager. See 29 C.F.R. § 541.200(a)(2) (differentiating

administrative work from non-administrative work); (Doc. 25, pp. 16–18; Doc. 26,

pp. 13–16.) Instead, they disagree over which type of task made up her “primary

duty” as cemetery manager. (Doc. 25, p. 18; Doc. 26, p. 16.)

Federal regulations clarify that an employee’s primary duty is “the principal,

main, major or most important duty that the employee performs.” 29 C.F.R.

§ 541.700(a). The amount of time an employee spends doing exempt and non-

exempt work “can be a useful guide in determining whether exempt work is the

primary duty of an employee,” but “[t]ime alone . . . is not the sole test.” Id.

§ 541.700(b). The relevant factors include:

The relative importance of the exempt duties as compared with other

types of duties; the amount of time spent performing exempt work; the

employee’s relative freedom from direct supervision; and the

relationship between the employee’s salary and the wages paid to other

employees for the kind of nonexempt work performed by the employee.

Id. § 541.700(a). Examining these factors based on the record before the court,

disputes of material fact remain that preclude summary judgment on the question

of Peticca’s primary duty as cemetery manager. The job description for the

position specifically requires the cemetery manager to “be able to undertake the

role of maintenance & service as described in the subordinates job description as

and when required.” (Doc. 25-2, p. 32.) Joseph Brlansky testified that undertaking

the duties of subordinates could involve physical labor, including digging graves

and helping with burials. Shanabrook agreed that “filling in for a grounds

maintenance person” is a primarily physical duty. (Doc. 30-4, p. 9.) This evidence

could establish that some physical, nonexempt work is an inherent part of the

cemetery manager’s duties, and neither the Diocese nor Peticca points to specific

evidence—other than Peticca’s own testimony—that indicates how much of

Peticca’s work as a cemetery manager included these non-exempt tasks as opposed

to administrative tasks. (See Doc. 25, pp. 15–18; Doc. 25-1, ¶¶ 13–27; Doc. 30, ¶

15; Doc. 26, pp. 15–16); Clark, 450 F. Supp. 3d at 565 (noting that neither party

offered “evidence of the percentage of time the plaintiffs spent doing the various

tasks” even though, pursuant to 29 C.F.R. § 541.700(b), the amount of time spent

on specific tasks can be a “useful guide” in the primary duty inquiry).

Moreover, the fact that the Diocese ultimately terminated Peticca in part

because she failed to complete physical tasks like keeping up with cemetery

maintenance and incorrectly digging graves suggests that these were important

responsibilities. See In re Enter. Rent-A-Car Wage & Hour Emp. Pracs. Litig.,

2012 WL 3928278, at *12, *17 (finding that a reasonable juror could conclude that

the plaintiff’s non-exempt duties were more important than his exempt duties,

suggesting that his position did not qualify for the FLSA’s executive or

administrative exemptions from overtime requirements because his primary duty

was not managerial or administrative); Clark, 450 F. Supp. 3d at 565 (“An

appropriate inquiry is to examine the [employees’] primary value to the

[employer]”) (citing Ferrell v. Gwinnett Cty. Bd. of Educ., 481 F. Supp. 2d 1338,

1344 (N.D. Ga. 2007)). And the record does not provide a clear comparison

between Peticca’s salary and the earnings of cemetery maintenance employees at

the Diocese who performed the same non-exempt work she did. See, e.g., Itterly v.

Family Dollar Stores, Inc., 606 F. App’x 643, 648 (3d Cir. 2015) (relying in part

on a comparison between the plaintiff’s salary and the wages of nonexempt

employees to determine the plaintiff’s primary duty).

Accordingly, genuine disputes of material fact about Peticca’s primary duty

remain. The court’s conclusion on this point is not changed by the Diocese’s

argument that Peticca had to perform nonexempt tasks because she failed to hire

employees. (Doc. 25, p. 17.)11 That argument injects an additional element of

causation into the primary duty inquiry that is not present in Department of Labor

regulations, and the Diocese recognizes that the United States Court of Appeals for

the Third Circuit has not “directly addressed” the issue. Itterly, 606 Fed. App’x. at

646 (citing 29 C.F.R. § 541.700(a)); (Doc. 25, p. 17.) Even if the court were to

accept the Diocese’s causation argument, however, disputed material facts

preclude it from granting the Diocese’s motion for summary judgment on its basis.

Peticca claims that she failed to hire additional employees in part because she

lacked necessary help from Jackson and Kollar, and the record indicates that

Jackson and Kollar knew about her requests for help. Therefore, the court will

deny the Diocese’s motion for summary judgment on Peticca’s FLSA and PMWA

claims.

B. FMLA retaliation claim

Peticca claims the Diocese fired her because she took FMLA leave. (Doc. 1-

2. pp. 11–12.) Accordingly, she raises an FMLA retaliation claim against the

Diocese. (Id.)

11 The court’s conclusion is also not impacted by the Diocese’s argument that Peticca “admitted

that virtually all her job responsibilities were managerial in nature,” and this “admi[ssion]”

demonstrated that her position qualified for the administrative exemption. (Doc. 25, p. 15; Doc.

31, p. 3.) That is because the question of whether a specific position qualifies for the

administrative exemption is as mixed question of law and fact, so Peticca’s opinion about her job

responsibilities is not dispositive. Clark, 450 F. Supp. 3d at 564 (citing Pignataro, 593 F.3d at

268).

The FMLA permits employees to take leave for medical reasons, and

“[e]mployers may not interfere with or retaliate against employees for invoking

their FMLA rights . . . .” Walker v. Se. Pa. Transp. Auth., No. 24-2275, 2025 WL

1879521, at *2 (3d Cir. July 8, 2025) (citing Erdman v. Nationwide Ins. Co., 582

F.3d 500, 509 (3d Cir. 2009)). When an FMLA retaliation claim is based on

circumstantial evidence, the court applies the burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Budhun v.

Reading Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014) (citing Lichtenstein

v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). Thus, to

succeed on her retaliation claim, Peticca must establish 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.” Id.

(quoting Lichtenstein, 691 F.3d at 302). If she establishes a prima facie retaliation

claim,12 “the burden shifts to [the Diocese] to provide evidence of a legitimate non-

discriminatory reason” for terminating her employment. Id. (citing McDonnell

Douglas, 411 U.S. at 802). If the Diocese meets this “minimal burden,” Peticca

12 The burden of establishing a prima facie claim under the McDonnell Douglas framework “is

not intended to be onerous.” Suarez v. Pa. Hosp. of Univ. of Pa. Health Sys., No. CV 18-1596,

2018 WL 6249711, at *5 (E.D. Pa. Nov. 29, 2018) (citing Anderson v. Wachovia Mortg. Corp.,

621 F.3d 261, 271 (3d Cir. 2010)).

“must then point to some evidence that [the Diocese’s] reasons for the adverse

action are pretextual.” Id. (quoting Lichtenstein, 691 F.3d at 302).

1. Prima facie case of FMLA retaliation

Peticca must establish a prima facie case of FMLA retaliation to satisfy the

first McDonnell Douglas step, and the court finds that she has. Id. The Diocese

concedes that Peticca invoked her right to FMLA leave and later suffered an

adverse employment action. (Doc. 25, p. 19.) That leaves causation as the only

disputed element of Peticca’s FMLA retaliation claim. (See id.) “The ultimate

question with respect to causation in an FMLA retaliation case is whether FMLA-

qualifying leave was a ‘negative factor’ that hastened a plaintiff’s termination.”

Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp. 3d 744, 759 (W.D.

Pa. 2016), aff’d sub nom. Caplan v. L Brands/Victoria’s Secret Stores, 704 F.

App’x 152 (3d Cir. 2017) (quoting Lichtenstein, 691 F.3d at 311).

To establish a prima facie case of causation, Peticca “must point to evidence

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

leave and her termination.” Lichtenstein, 691 F.3d at 307 (citing Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 279–81 (3d Cir. 2000)). To show that link,

a plaintiff usually identifies “(1) an unusually suggestive temporal proximity

between the protected activity and the allegedly retaliatory action, or (2) a pattern

of antagonism coupled with timing to establish a causal link.” Budhun, 765 F.3d at

258 (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.

2007)). When the temporal proximity is not unusually suggestive, the court asks

whether “the proffered evidence, looked at as a whole, may suffice to raise the

inference.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d

Cir. 2007) (quoting Farrell, 206 F.3d at 280). The types of evidence a plaintiff

may proffer to support an inference of causation include “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.3d at 279–81); see also Blakney v. City of Phila., 559 F. App’x 183, 186 (3d

Cir. 2014) (“Absent direct evidence of antagonism, circumstantial evidence may be

used to support an inference of antagonism. For example, ‘a plaintiff may establish

the connection by showing that the employer gave inconsistent reasons for

terminating the employee.’”) (quoting Farrell, 206 F.3d at 280–81).

The Diocese argues that Peticca fails to proffer evidence supporting

causation, and that she cannot excuse her poor performance as a cemetery manager

by alleging that Tom Brlansky improperly trained her. (Doc. 25, p. 20.) It

emphasizes that Peticca had “already availed herself of 8 of the 12 weeks of

FMLA leave to which she was entitled” when it terminated her employment almost

exactly two months after she took FMLA leave. (Id. at 21.) Moreover, it claims a

two-month gap between taking FMLA leave and suffering an adverse employment

action is not “unduly suggestive” of retaliation, and because the Diocese

immediately granted Peticca FMLA leave when she requested it, there is no

“pattern of antagonism,” either. (Id. at 21 & n.4 (citing Williams v. Phila. Hous.

Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004) superseded by statute on

other grounds as stated in Robinson v. First State Cmty. Action Agency, 920 F.3d

182, 187–89 & n.30 (3d Cir. 2019).) The Diocese also continued to pay Peticca’s

salary until October 2023, so it argues she received her full FMLA benefits and

then some. (Id. at 21.) Finally, it argues that Peticca testified that she did not

know why the Diocese terminated her employment, which suggests that the reason

was not retaliatory. (Id. at 21–22.)13

On the other hand, Peticca argues that the evidence shows both a suggestive

temporal proximity and a pattern of antagonism. (Doc. 26, pp. 16–18.) She offers

a different framing of the proximity issue. (Id. at 17–18.) First, she claims that the

two-month gap between when she took FMLA leave and when the Diocese

terminated her employment is unduly suggestive. (Id. at 17 (citing Bryson v. Regis

Corp., 498 F.3d 561, 571 (6th Cir. 2007).) Second, she argues that by complaining

13 Peticca argues that the Diocese makes this argument by taking a statement from her deposition

out of context. (Doc. 26, pp. 20–21 (“In such testimony, Peticca was clearly referring to the fact

that it did not make sense to her that she was terminated given she never received a formal

performance write up or similar document prior to her termination.”) Drawing all reasonable

inferences in favor of Peticca, the court finds that the disputed testimony is not dispositive.

about the “mess” at the gates of heaven cemetery and encouraging Shanabrook and

Brlansky to make a list of issues they found there mere days after she took FMLA

leave, Kollar and the Diocese scrutinized her performance shortly after she took

leave, which suggests causation. (Id. at 18–19.) As for a pattern of antagonism,

Peticca argues that: (1) at several meetings with Diocese officials she attended

while on leave, the Diocese “questioned the nature of her leave and when she

would be returning to work”; (2) unlike it did for other employees who took

FMLA leave, the Diocese did not immediately provide her STD application

paperwork; and (3) again, the Diocese subjected her work to “heightened scrutiny”

when she took FMLA leave. (Id. at 18–19.)

In reply, the Diocese again argues that the two-month gap between the

beginning of Peticca’s leave period and her ultimate termination from the cemetery

manager position is not unduly suggestive. (Doc. 31, pp. 4–6.) She had already

taken two thirds of her FMLA leave, and the Diocese continued to pay her salary

for several months after it terminated her employment, undermining her retaliation

argument. (Id. at 4–5.) Moreover, the Diocese argues that the meeting it held with

Peticca focused on the performance issues Shanabrook and Brlansky discovered at

the Gates of Heaven Cemetery, not Peticca’s invocation of her FMLA rights. (Id.

at 5–6.)

The parties agree that about two months elapsed between the time Peticca

took leave and when the Diocese fired her. (Doc. 25, p. 21; Doc. 26, pp. 17–18.)

The court finds that, standing on its own, a two-month gap neither requires nor

precludes a finding that Peticca has stated a prima facie case of causation.

Compare Fasold v. Justice, 409 F.3d 178, 189–90 (3d Cir. 2005) (finding

suggestive proximity in a period of more than two months) with Williams, 380 F.3d

at 760 (holding that a two-month and several-day period was not unduly

suggestive).

Peticca presents additional evidence of retaliatory animus. LeBoon, 503

F.3d at 232–33. For example, Peticca alleges that the Diocese placed her

performance as a cemetery manager under greater scrutiny only after she took

leave. Indeed, Kollar asked Shanabrook and Brlansky to compile a list of

problems they discovered at the Gates of Heaven Cemetery three days after Peticca

took FMLA leave, even though, drawing all reasonable inferences in Peticca’s

favor, the pair had already covered for Peticca and worked at the cemetery for

several weeks before they told Kollar about the problems there and Kollar initiated

an investigation. And Kollar recognized the apparently suspicious timing between

the Diocese’s investigation of the cemetery and Peticca’s request for leave when

she emailed Jackson and another colleague in July 2023 and noted: “[k]nowing

[Peticca], she will twist our dismissal to look like we are on a witch hunt just to

avoid paying her while she is injured.” (Doc. 30-14, p. 2.)

Peticca’s argument is also supported by evidence suggesting the Diocese

knew about her performance issues long before she took leave and failed to

discipline her for some of the same issues listed in her termination notice. The

Diocese claims it “discovered” numerous issues at the Gates of Heaven Cemetery

while Peticca was on leave, and it terminated Peticca because of her evident poor

performance. (Doc. 25, p. 23.) But Peticca provides evidence, like Joseph

Brlansky’s letter and emails between Kollar and Jackson, that suggests the Diocese

knew about several of the performance issues listed on her termination notice years

before she took leave. Kollar testified that she visited the Gates of Heaven

Cemetery several times between 2020 and 2023. And yet, apart from some

performance reviews during her introductory period as a cemetery manager in

2019, between July 2020 and June 2023, Peticca received no performance reviews,

performance improvement plans, written discipline, or formal grievances until her

meeting with Kollar and Jackson while she was out on leave.

Courts recognize that an employer’s decision to increase scrutiny of an

employee’s performance or attendance soon after the employee takes FMLA leave

may support a prima facie case of causation. For example, in Branch v. Temple

University, the plaintiff argued that his employer “engaged in a ‘witch hunt’ to find

any reason to terminate [him].” Branch v. Temple Univ., 554 F. Supp. 3d 642, 663

(E.D. Pa. 2021). Two days after the plaintiff employee requested to use FMLA

leave, the employer checked “logbooks” that the employee was supposed to sign

during his shifts and found that he had failed to sign most of them. Id. The

employer terminated his employment on this basis, even though the employee

proffered evidence that the logbook requirement was never enforced. Id. at 651,

663. The court held that a reasonable jury could conclude that the employer’s

“decision to check all of [the employee’s] logbooks two days after he took FMLA

leave, which led to his termination, constituted a period of antagonism directly

stemming from [the employee’s] protected activity.” Id. at 663; see also

Lichtenstein, 691 F.3d at 307 (holding that an employer’s decision to review an

employee’s call-off records after learning of an FMLA-protected absence could

lead a trier of fact to infer that the employer’s decision to request the call-off

records and later fire the employee was “triggered” by the employer learning about

the FMLA-protected absence, thus establishing causation).

Although, unlike in Branch, the Diocese waited almost two months to

terminate Peticca’s employment after she took FMLA leave, the court finds that

she has stated a prima facie claim of causation by combining some temporal

proximity with other evidence of retaliatory intent. See Fasold, 409 F.3d at 188–

90; Ghalib v. Lycoming Coll., No. 4:25-CV-00463, 2025 WL 2713740, at *4

(M.D. Pa. Sept. 23, 2025) (“Here, Plaintiff has alleged that in early May 2024 he

complained of the alleged discrimination, and by July his hours had been reduced

to zero. That falls directly within the temporal proximity that the Third Circuit has

found to support an inference of retaliation”) (citing Fasold, 409 F.3d at 190);

Martin v. Chester Charter Scholars Acad. Charter Sch., No. CV 20-2067, 2021

WL 6051444, at *7 (E.D. Pa. Dec. 21, 2021) (“She was fired within two months of

returning from leave and two months of requesting additional accommodations.

This timing is suggestive.”) (citing Fasold, 409 F.3d at 189–90).

A reasonable jury could find that Peticca’s decision to take FMLA leave was

a “‘negative factor’ that hastened her termination.” Lichtenstein, 691 F.3d at 311

(quoting 29 C.F.R. § 825.220(c)). Thus, she has stated a prima facie case of

FMLA retaliation.

2. The Diocese’s legitimate reason for termination and Peticca’s

pretext argument

Because Peticca has established a prima facie case of FMLA retaliation, the

burden shifts to the Diocese to provide a legitimate, nondiscriminatory reason

supporting its decision to fire her. Lichtenstein, 691 F.3d at 302 (quoting

McDonnell Douglas, 411 U.S. at 802.) The Diocese claims it terminated Peticca’s

employment because of “a thorough investigation which showed well-documented

instances of performance deficiencies and other misconduct, discovered only after

Plaintiff went on leave.” (Doc. 25, p. 23.)

Peticca does not dispute that this reason satisfies the Diocese’s burden.

(Doc. 26, p. 19 (“Peticca also clearly identified ‘pretextual reasons’ for her

termination . . . Peticca has established multiple reasons to disbelieve Defendant’s

articulated ‘legitimate reason’ for her termination.”)) And an employee’s poor job

performance is a legitimate and nondiscriminatory reason for terminating her

employment. Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014). Therefore, the

court finds that the Diocese meets its burden at the second McDonnell Douglas

step. See Lichtenstein, 691 F.3d at 302.

With step two satisfied, the burden shifts back to Peticca, and she “must

point to some evidence, direct or circumstantial, from which a factfinder could

reasonably disbelieve [the Diocese’s] articulated legitimate reasons” to show by a

preponderance of the evidence that the Diocese’s reasons are pretextual. Id. at 302

(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (cleaned up)); Willis v.

UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015); Helwig

v. Myers, No. 3:22-CV-01916, 2026 WL 115832, at *16 (M.D. Pa. Jan. 15, 2026).

There are two ways to demonstrate pretext. Willis, 808 F.3d at 644 (citing

Fuentes, 32 F.3d at 762). First, a plaintiff may “point to evidence that would allow

a factfinder to disbelieve the employer’s reason for the adverse employment

action.” Id. (citing Fuentes, 32 F.3d at 765). Second, a plaintiff may “point to

evidence that would allow a factfinder to believe that an invidious discriminatory

reason was ‘more likely than not a motivating or determinative cause’ of the

employer’s action.” Id. at 645 (quoting Fuentes, 32 F.3d at 764).

Peticca offers two primary pretext arguments. First, she claims that her

FMLA leave period was “used as a period for [the Diocese] to find issues with her

performance to justify the decision to terminate her.” (Doc. 26, p. 19.) She argues

that Kollar and the Diocese knew of the problems at the Gates of Heaven Cemetery

for years and only addressed them, and her performance generally, after Peticca

took FMLA leave, which demonstrates pretext. (Id. at 19–20.) Second, she argues

that by dismissing her without first progressively disciplining her through methods

like performance improvement plans and write-ups, the Diocese failed to follow its

own dismissal procedures, which suggests pretext. (Doc. 26, p. 20.)

In reply, the Diocese argues that it did not use Peticca’s FMLA leave period

as an opportunity to investigate her; it discovered serious problems at the Gates of

Heaven Cemetery for the first time when Shanabrook and Joseph Brlansky covered

for Pettica after she took leave. (Doc. 31, p. 6.) The discovery sparked the

investigation, not Peticca’s leave taking. (Id. at 7.) And it argues that it dismissed

her without progressive disciplinary measures because “destroying or failing to

report the destruction of cemetery property and overseeing persons being buried in

the wrong grave, among other serious transgressions, do not warrant progressive

discipline. They warrant immediate termination.” (Id.)

Peticca presents evidence of inconsistency that precludes summary judgment

on the pretext issue. Specifically, the evidence demonstrates that the Diocese

knew of her poor performance as a cemetery manager long before Joseph Brlansky

and Shanabrook covered for her while she took FMLA leave. Jackson sent Peticca

a termination letter with an “employee formal warning form” attached to it on

August 11, 2023. (Doc. 30-12, pp. 2–6.) The form listed numerous performance

issues including, among others: “unreported damage to a company owned vehicle;”

“unreported damage to the premises;” numerous problems with Peticca’s grave

digging technique; failure to place vaults in the ground correctly; burying an

individual in the wrong grave space; failure to collect payment or improperly

negotiating burial contracts; “a complete disregard of management structures and

authority;” and failing to properly recruit additional employees. (Id. at 4–6.)

Again, the Diocese argues that it terminated Peticca in August 2023 because,

when she took FMLA leave, it discovered egregious issues at the Gates of Heaven

Cemetery. (Doc. 25, p. 23; Doc. 31, pp. 6–7.) But Joseph Brlansky wrote a letter

to Kollar in 2020 raising many of the same issues included in the termination

notice. Therein, he mentioned Peticca “yelling [at] him that [he] does not know

what [he] is talking about,” that Peticca “has been corrected for incorrectly digging

graves at least 6 times over the last year,” a “broken vault” that “occurred because

of the same issue” that caused the incorrectly dug graves, and a failure to use

proper “slings.” (Doc. 30-6, pp. 2–3.) He also wrote that “[Peticca] has not been

in the cemetery industry very long” and that he believed “her not seeking help and

or guidance will be a huge detriment [to] her ability to learn and grow. I am

honestly unsure if she has followed any instruction or advice I have given to her.”

(Id. at 4.) Kollar testified that Peticca received no formal discipline, nor was she

placed on a performance improvement plan or other corrective program, as a result

of the events described in the letter.

Joseph Brlansky also testified that he noticed potential problems with Gates

of Heaven Cemetery graves while covering for Peticca on a different occasion

before she took a leave of absence and FMLA leave, but he did not report them to

Kollar. Moreover, some email conversations between Kollar and Jackson,

discussed during Kollar’s deposition, demonstrate their concerns with Peticca’s

“insubordination and disrespect,” while other conversations lead to a reasonable

inference that they were frustrated with Peticca’s hiring practices. Despite these

issues and those raised in Brlansky’s letter, from July 2020 to June 2023, Peticca

received no performance reviews, performance improvement plans, written

discipline, or formal grievances.

Based on this evidence, a reasonable factfinder could disbelieve the

Diocese’s reasons for terminating Peticca’s employment. Willis, 808 F.3d at 644.

This is because the evidence suggests that the Diocese knew of many of the

performance issues that it claims ultimately led to Peticca’s dismissal long before

she took FMLA leave, but those issues did not become grounds for dismissal, or

even discipline, until after Peticca took FMLA leave. In Lichtenstein, the Third

Circuit held that summary judgment on the pretext issue was improper for a similar

reason. Lichtenstein, 691 F.3d at 311. It noted that the employer “was aware of

[the employee’s] performance deficiencies prior to her taking [FMLA-covered

leave]. Despite this knowledge, [the employer] did not fire [the employee] until

after she took her [FMLA-covered] leave.” Id. And although the employer

provided an alternative explanation for the suspicious timing, the employee

presented contrary evidence that raised “significant doubts” about that explanation.

Id.; see also Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 806 (7th Cir. 2001)

(recognizing that a factfinder could infer that “the employee would not have been

fired absent her taking of leave” in a hypothetical situation where “a supervisor

who had been aware of problems with an employee did not decide to fire the

employee until she took leave, and the supervisor based the firing on the incidents

of which the employer had already been aware”); cf. Ross, 755 F.3d at 194

(holding that an employee did not prove pretext where an employer extended a

performance improvement plan to accommodate the employee’s leave and that

“[a]n employee cannot easily establish a causal connection between his protected

activity and the alleged retaliation when he has received significant negative

evaluations before engaging in the protected activity”) (quoting Shaner v. Synthes,

204 F.3d 494, 504–05 (3d Cir. 2000)).14

Here, many of the performance issues that the Diocese ultimately used to

justify Peticca’s firing were known to it long before she took FMLA leave, yet

those issues did not warrant discipline until after Peticca took FMLA leave. The

Diocese argues that it fired Peticca “based on a thorough investigation which

showed well-documented instances of performance deficiencies and other

misconduct, discovered only after Plaintiff went on leave.” (Doc. 25, p. 23

(emphasis added).) Peticca presents evidence that could lead a reasonable trier of

fact to disbelieve the Diocese’s reason for firing her given that at least some of the

specified performance deficiencies were discovered before Plaintiff went on leave.

It is true that, based on the court’s review, Peticca has not presented

evidence that the Diocese knew about every performance issue and instance of

misconduct ultimately listed in the termination notice, such as her failure to bury

individuals in the correct grave and damage to the Diocese’s truck. However,

viewing the facts in the light most favorable to Peticca, the court concludes that

summary judgment on the issue of pretext is inappropriate, especially when the

14 As the Third Circuit explained in Lichtenstein, the Seventh Circuit in Kohls affirmed summary

judgment for the employer because the record made clear that the employer did not discover

many of the employee’s performance issues until after the employee took leave. Lichtenstein,

691 F.3d at 311 (discussing Kohls, 259 F.3d at 799–806).

Diocese was generally aware of Peticca’s poor performance yet took no action nor

disciplined her. See Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 490

(6th Cir. 2005) (“[The employer] was aware of many of [the employee’s] alleged

performance deficiencies prior to his FMLA leave, thereby casting doubt on the

timing of the purported reasons for his termination . . . it is undisputed that [the

employer] did not intend to immediately fire [the employee] for these deficiencies

until it was anticipated that he might take a leave to treat his alcoholism”)

(emphasis added); Lichtenstein, 691 F.3d at 311–12 (quoting Moorer, 398 F.3d at

488–90). Therefore, the court will deny the Diocese’s motion for summary

judgment on Peticca’s FMLA retaliation claim.

C. Breach of contract and WPCL claims

Peticca claims the Diocese breached a unilateral contract formed by its STD

insurance policy and employee handbook when it refused to pay her STD benefits.

(Doc. 1-2, pp. 12–13.) She also alleges that the STD benefits are wages, and by

refusing to pay them out when it fired her, the Diocese violated the WPCL. (Id. at

13–14.)

The Diocese argues that neither its employee handbook nor the STD plan

create a contract, so it is entitled to summary judgment on both claims. (Doc. 25,

pp. 23–26.) In the alternative, the Diocese claims that the STD benefits Peticca

seeks are not wages Peticca earned and she lost her eligibility for those benefits

when the Diocese fired her. (Id. at 26.)

In response, Peticca argues that the STD plan and employee handbook

created a unilateral contract that formed when she continued to perform her duties

after reviewing the policies. (Doc. 26, p. 22 (quoting Braun v. Wal-Mart Stores,

Inc., 24 A.3d 875, 941 (Pa. Super. Ct. 2011), aff’d, 106 A.3d 656 (Pa. 2014)). And

although an employer may reserve the right to alter an employee’s compensation

for future services, it cannot alter that compensation retroactively. (Id. at 23.)

Therefore, Peticca argues that the employee handbook and STD benefit plan,

combined with her continued performance of her job duties, constitute a contract.

(Id.) Peticca argues her WPCL claim survives summary judgment for the same

reason. (Id. at 24.)

In reply, the Diocese argues that its employee handbook explicitly disclaims

any intention to form a contract, and Peticca presented no evidence to suggest that

it promised STD benefits apart from its official written policies. (Doc. 31, p. 8

(noting that, in Braun, the employer conceded that its handbook promised specific

benefits to employees, whereas the Diocese did not) (citing Braun, 24 A.3d at

944).) Therefore, it argues, no reasonable person could read the handbook or STD

policy as expressing the Diocese’s intention to be “legally bound by the

representations in its Employee Handbook.” (Id. at 10.)

The elements of a breach of contract claim under Pennsylvania law are: “(1)

the existence of a contract, including its essential terms; (2) a breach of the

contract; and (3) the resultant damages.” Doe v. Univ. of Scis., 961 F.3d 203, 211

(3d Cir. 2020) (quoting Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law

Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016)) (cleaned up).

The WPCL sets forth that, when an employer fires an employee, the employer

must pay out the employee’s “wages or compensation earned” no later than the

employee’s next regular payday. 43 P.S. § 260.5(a). “A prerequisite for relief

under the WPCL is a contract between employee and employer that sets forth their

agreement on wages to be paid. Relief under the WPCL is implausible without the

existence of a contract.” Giuliani v. Polysciences, Inc., 275 F. Supp. 3d 564, 577

(E.D. Pa. 2017) (quoting Razak v. Uber Techs., No. 16-573, 2016 WL 5874822, at

*9 (E.D. Pa. Oct. 7, 2016)) (cleaned up).

Thus, both Peticca’s breach-of-contract and WPCL claims require the

existence of a contract, and this is the element of both claims the parties dispute.

(See Doc. 26, pp. 21–25; Doc. 31, pp. 8–11.) Peticca is an at-will employee, so her

employment on its own does not create the contract necessary to sustain these

claims. (Doc. 30-3, p. 48); Diehl v. Elec. Data Sys. Corp., No. CIV.A. 1:07-CV-

1213, 2008 WL 2705540, at *3 (M.D. Pa. July 10, 2008). Peticca specifies two

provisions within the Diocese’s employee documents where she believes the

Diocese’s intention to form a contract was expressed: the STD benefit plan itself

and the Diocese’s employee handbook. (Doc. 26, p. 21.)

Pennsylvania courts recognize that an employee handbook or a benefit plan

may be enforceable as a contract against an employer “if a reasonable person in the

employee’s position would interpret its provisions as evidencing the employer’s

intent to supplant the at-will rule and be bound legally by its representations” in the

relevant document. Evans v. Capital Blue Cross, 269 A.3d 569, 575–77 (Pa.

Super. Ct. 2022) (quoting Bauer v. Pottsville Area Emergency Med. Servs., Inc.,

758 A.2d 1265, 1269 (Pa. Super. Ct. 2000)) (applying this rule to representations

an employer made in a “summary plan description” that described a short-term

disability insurance plan run by an employer); Diehl, 2008 WL 2705540, at *4–*5

(applying this rule to an employee handbook); Bauer, 758 A.2d at 1270 (same);

Hicks v. Glob. Data Consultants, LLC, 288 A.3d 875, 885 (Pa. Super. Ct. 2022)

(applying the rule to commission schedules); See Braun, 24 A.3d at 945

(“Instantly, the employee handbook contained Wal–Mart’s policies regarding rest

breaks, off-the-clock work and meal breaks, policies which were reinforced by

Wal–Mart’s corporate-wide policies and orientation sessions in which the

handbook was disseminated and signed for by the hourly associates, resulting in a

unilateral contract between Wal–Mart and the members of the class.”) (citing

Bauer, 758 A.2d at 1269).

In most cases, “explicit disclaimers of contract formation in an employee

handbook preclude a breach of contract claim.” Braun, 24 A.3d at 941 (quoting

Caucci v. Prison Health Servs., Inc., 153 F. Supp. 2d 605, 611 (E.D. Pa. 2001));

Martin v. George Junior Republic in Pa., No. CIV.A. 15-471, 2015 WL 5472885,

at *5 (W.D. Pa. Sept. 16, 2015). Here, the Diocese’s employee handbook contains

the following disclaimer:

The contents of this handbook are presented as a matter of information

only. While the Diocese of Harrisburg firmly supports the plans,

policies and procedures described herein, they are not to be construed

as conditions of employment. The Diocese of Harrisburg reserves the

right to modify, revoke, suspend, terminate or change any or all such

plans, policies or procedures, in whole or in part, at any time, with or

without notice. The language used in this handbook is not intended to

create, nor is it to be construed to constitute, a contract between the

Diocese of Harrisburg and any one or all of its employees.

(Doc. 25-2, p. 142.) The handbook contains a similar disclaimer to the one at issue

in Baron v. Quad Three Group, Inc., which the court found “expressly disavowed

any intent to contract with its employees pursuant to this employee handbook” and

therefore could not create a unilateral contract. 2013 WL 3822134, at *6–*7 (Pa.

Super. Ct. Jan. 22, 2013); see also Martin, 2015 WL 5472885, at *5 (holding, after

analyzing a similar disclaimer, that “no reasonable person could conclude that a

contract existed or that Defendants otherwise intended to be bound by the

provisions in the Handbook”) (discussing Baron, 2013 WL 3822134, at *6–*7);

Diehl, 2008 WL 2705540, at *4–*5 (interpreting a similar disclaimer to preclude a

breach of contract claim); Engle v. Milton Hershey Sch., No. 1:06 CV 010093,

2007 WL 1365916, at *8 (M.D. Pa. Jan. 19, 2007) (same).

Although the court reached the opposite holding in Braun, it did so in part

because the employer defendant conceded that it made explicit promises to provide

the benefits described in its employee handbook. See 24 A.3d at 944 (“[The

employer’s representative] conceded that the employee handbook promised these

benefits to employees”); Martin, 2015 WL 5472885, at *4 (distinguishing Braun

on the basis of the promises concession) (citing Braun, 24 A.3d at 939, 944).

Peticca identifies no similar concession of a promissory offer from the Diocese

here, nor does she explain how the Diocese’s policies created a promissory offer

she then accepted by continuing to perform her duties. (Doc. 26, pp. 21–25.) She

argues that “the at-will employment doctrine does not relieve an employer of its

contractual obligation to provide the compensation promised in return for an

employee’s services.” (Id. at 22.) But she does not explain how a reasonable

person could read the handbook or the STD policy to make a promissory offer in

light of the disclaimers found therein, and she points to no extra-textual evidence

indicating the Diocese’s attempt to make a promissory offer. (See id); Braun, 24

A.3d at 944. Because the Diocese employee handbook contains a clear disclaimer

of intent to create a unilateral contract, no reasonable factfinder could find that a

reasonable employee could read the employee handbook to create a unilateral

contract. See Braun, 24 A.3d at 941 (quoting Caucci, 153 F. Supp. 2d at 611).

That leaves the STD policy itself. The STD policy does not contain the

same explicit disclaimer of contractual intent found in the employee handbook.

(Doc. 25-2, pp. 132–139.) But the court reaches the same conclusion about its

expression of an intention to form a contractual relationship for several reasons.

First, the policy contains the following reservation:

The Diocese of Harrisburg reserves the right to amend this Plan from

time to time and these Amendments can include, but are not to be

limited to, changes in the definition of disability, eligibility, benefit

periods, and benefit amounts. However, any changes will not change

the benefits already being received by any employee/claimant.

(Doc. 25-2, p. 139.)15 Reserving the right to modify an agreement at any time,

without the consent of the other party, demonstrates that the reserving party does

not wish to be contractually bound. Barton v. Hewlett-Packard Co., 635 F. App’x

46, 48 (3d Cir. 2015). In Barton, the plaintiff argued that the defendant employer

breached a contract formed by its sales commission schedules. Id. at 47–48. The

sales commission schedules included a disclaimer similar to the one found in the

Diocese’s STD policy. Id. at 48. The Third Circuit explained:

15 Peticca argues that any change to the STD policy contemplated by the disclaimer would only

affect future “services after such modification is implemented,” and an employer cannot

“retroactively modify the terms of an employee’s compensation for work performed prior to such

modification.” (Doc. 26, p. 23.) The court finds that this argument could relate to the practical

effect of the disclaimer but has little bearing on how a reasonable person would interpret the

terms of the policy.

Here, [the employer] clearly manifested its intention not to be bound by

the commission rates set forth in the Sales Letter. [The employer]

reserved the right to “adjust the terms of the Sales Plan or to cancel it

any time”; to “adjust or cancel the terms of Sales plans, or Sales letters

with or without notice at any time”; to “change or discontinue” its

Global Sales Compensation Policy “with or without notice at any time”;

and to decide any dispute regarding commission payments “in its sole

discretion.” As other courts of appeal have recognized, no contract is

formed if an employer retains complete discretion to modify or cancel

an employee’s commission. This conclusion accords with hornbook

Pennsylvania law.

Id. (internal citations and footnotes omitted). Therefore, the Diocese’s reservation

of the right to amend its STD policy at any time demonstrates an intention not to

be contractually bound by the policy’s language. See id.

Moreover, a reservation of a right to amend at any time is a common feature

of handbooks and other documents that courts have found not to express an

intention to create a contract. See Diehl, 2008 WL 2705540, at *4 (“The plan also

reserves for EDS ‘the right to change, modify, suspend, interpret or eliminate any

provision . . . at any time, with or without notice’”); Baron, 2013 WL 3822134, at

*6 (“The policies, procedures and benefits stated in this manual may be changed at

any time at the sole discretion of [the employer]”); Martin, 2015 WL 5472885, at

*3 (“The employee should be aware that these policies and programs may be

amended at any time, and that depending on the particular circumstances of a given

situation, the organization’s actions may vary from written policy.”) The court

finds that this clearly stated level of employer discretion belies an intent to be

legally bound by the plan. Nonetheless, the court notes that in Hicks, the court

held that a commission schedule that specifically stated that the employer “could

adjust commission schedules at any time” still formed a unilateral contract through

continued employee performance. 288 A.3d at 884–86. Therefore, although the

court finds that the reservation of the right to unilaterally modify the terms of the

STD plan belies an intent to create a contract, it is not determinative on its own.

Second, the employee handbook specifically states that “[w]hile the Diocese

of Harrisburg firmly supports the plans, policies and procedures described herein,

they are not to be construed as conditions of employment.” (Doc. 25-2, p. 142.)

The record is not clear as to whether the STD plan is considered part of the

employee handbook, but the employee handbook contains a summary of the STD

plan, demonstrating that the general disclaimer of contractual intent and of the

intention to create conditions of employment extends to the STD plan itself. (Id. at

143.)

Third and finally, although the STD plan and the handbook summary

include some of the mandatory language that led the court in Evans to hold that a

policy expressed contractual intent, it does not raise the possibility of legal action

against the Diocese. (Id. at 132–39; Doc. 30-8, at 2–9); see Evans, 269 A.3d at

576. In Evans, although the plan at issue gave the employer “full discretion and

authority to determine the eligibility for benefits and to construe and interpret all

terms and provisions of [t]he Program[,]” it also explained that “legal action” could

be taken against the employer in certain circumstances. Evans, 269 A.3d at 571,

576. Based on that section of the plan, the court held that “[t]he fact that legal

action can be taken against [the employer] contradicts that it has full and final

authority to interpret the terms and provisions of the Program and suggests that

[the employer] intends to be legally bound by the [plan].” Id. at 576. Here, there

is no mention of legal action to challenge the Diocese’s authority to change the

terms of its plan, including the definitions of important terms like “disability,” for

employees not yet receiving STD benefits. (Doc. 25-2, pp. 134–139.)

A handbook or other employment document must contain a “clear indication

that the employer intended to overcome the at-will presumption” through the

representations in the document to support the existence of a unilateral contract, or

other evidence of a promissory offer. Braun, 24 A.3d at 941 (quoting Caucci, 153

F. Supp. 2d at 611.) No reasonable juror could find that a reasonable person in

Peticca’s position could read the STD policy to create a unilateral contract through

continued performance of her duties. Therefore, the court will grant the Diocese’s

motion for summary judgment on Peticca’s breach of contract and WPCL claims.

See Diehl, 2008 WL 2705540, at *5 (“Having concluded that the short-term plan is

not a contract . . . the court finds that [the plaintiff] cannot maintain a Wage Law

claim.”)

CONCLUSION

The court will deny the Diocese’s motion for summary judgment as to

Peticca’s FLSA, PMWA, and FMLA retaliation claims. It will grant the motion as

to Peticca’s breach of contract and WPCL claims. An order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 16, 2026