IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS E. MUTZ, : CIVIL ACTION

:

Plaintiff, :

:

v. :

:

AGERE, INC. :

:

Defendant. : No. 04-5082

MEMORANDUM

Thomas E. Mutz filed this action against his former employer, Agere, Inc. Mutz

contends that Agere illegally denied his right to take leave for a serious health condition

and retaliated against him for taking leave for that condition. Mutz also contends that

Agere unlawfully terminated him in order to interfere with his attainment of benefit

rights. On June 16, 2005, Agere filed a motion for summary judgment, arguing that Mutz

cannot show that it retaliated against him for taking leave for a serious health condition

and that Mutz cannot demonstrate that it terminated him in order to interfere with his

attainment of benefit rights. For the reasons discussed below, this court will grant

Agere’s motion. 

I. BACKGROUND

Thomas E. Mutz filed this suit against Agere, Inc. on October 29, 2004, raising

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

and the Employee Retirement Income Security Act (“ERISA”), id. § 1001, et seq. In his

complaint, Mutz states that he worked for Agere for more than twenty-four years until his

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separation from the company on March 28, 2003. Pl.’s Compl., at 1. Agere is a provider

of advanced integrated circuit solutions for wireless data, high-density storage, and multiservicing network applications. Paul Bento Decl., at ¶ 5. Mutz was a unionized

computer-aided design drafter. Pl.’s Compl., at 1-2. 

Agere contracted with Kemper National Services to administer employee leave. 

Id. at 2. Mutz states that on December 24, 2002, he received written approval from

Kemper for intermittent leave under the FMLA based on hypothyroidism. Id. at 2. 

According to Mutz, he was entitled to take time off “if his illness flared up and required

treatment, or if he needed to go to see his doctor.” Id. Mutz contends that the notice

approving his intermittent leave stated that he had a right to “take up to 12 weeks of

unpaid leave in a rolling 12-month period.” Id. Mutz states that effective December 12,

2002, his leave was to be deducted from the twelve weeks of FMLA entitlement. Id. 

According to Mutz, the notice “left to [his] discretion whether and when to take

intermittent leave. He was given no instructions on when he could take leave, or in what

time increments he could take leave.” Id. He was “not notified of any requirement to

keep time records, and there were not any conditions placed on the FMLA leave.” Id. at

3. He was “not provided any code information, time card description, or any other details

or conditions regarding his leave.” Id. 

Mutz states that the illness for which he sought and received approval for

intermittent FMLA leave is such that it “creeps up on him slowly and then takes over his

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body.” Id. Mutz states that when he used his intermittent leave, he notified his stand-in

supervisor, Charlotte Kirby, “who was well aware of the situation.” Id. According to

Mutz, “[s]he was the only person he needed approval from and he had her approval.” Id.

Mutz further notes that he complied with all work rules. Id. 

On February 10, 2003, Agere informed Mutz and another employee, Glenn Ott,

that they were being terminated for falsely indicating on their time sheets on numerous

occasions that they were at work when they were not there. Mutz Dep., at 36. In order to

enter and exit Agere’s facility, Mutz had to swipe his identification badge at a gate by the

parking lot and, depending on the time of day, at the door of the building in which he

worked. Id. at 34. Agere maintained records of the swipes. Edgar Tanner Dep., at 76. 

According to Agere, Mutz’s time sheets did not correspond to the recorded gate swipes. 

Def.’s Mem. Supp. Summ. J., Ex. K-M. In many instances, the gate swipes reflected that

Mutz was at work for less time than he reflected on his time sheets. Id. 

Mutz’s union filed a grievance, stating that he was being terminated without just

cause. Id., Ex. O. On February 12, 2003, Agere, the union, and Mutz entered into an

agreement pursuant to which Mutz was considered suspended without pay from February

11, 2003 until March 28, 2003, the date on which he voluntarily resigned. Id., Ex. O-P;

Mutz Dep., at 51. 

Mutz notes that Agere allowed employees who were at least forty-five years old or

who had at least twenty-five years of service to apply for an early retirement buy-out. 

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 Mutz also raises a claim under Section 2615(a)(1) of the FMLA, which makes it unlawful for an employer

“to interfere with, restrain, or deny” an employee’s FMLA rights. 29 U.S.C. § 2615(a)(1). Because Agere does not

move for summary judgment on Mutz’s Section 2615(a)(1) claim, this court need not consider whether that claim

must be dismissed. 

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Pl.’s Compl., at 6. According to Mutz, on November 30, 2003, he turned forty-five years

old, and on October 29, 2003, he would have attained twenty-five years of service with

Agere. Id.

Mutz contends that Agere violated the FMLA by denying his FMLA rights and by

retaliating against him for taking FMLA leave by terminating him. Id. at 4-5. Mutz also

claims that Agere violated ERISA by interfering with his ERISA rights. Id. at 7. 

According to Mutz, Agere terminated him seven months before he would have qualified

for the early retirement buy-out in order to save the company hundreds of thousands of

dollars in early retirement pension benefits that it otherwise would have had to pay. Id.

On June 16, 2005, Agere filed a motion for summary judgment, seeking to dismiss

the FMLA retaliation claim and the claim that Agere violated his ERISA rights. 

Specifically, Agere argues that Mutz’s FMLA retaliation claim should be dismissed

because his FMLA leave and the adverse employment action were not causally related

and because the adverse decision was based on a legitimate, nondiscriminatory reason:

Mutz falsely indicating on his time sheet on numerous occasions that he was at work

when he was not there. Agere also argues that Mutz’s ERISA claim should be dismissed

because Mutz cannot establish that Agere specifically intended to violate ERISA.1

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II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” F.R.C.P. 56(c). The moving party bears the initial burden

of showing that there is no genuine issue of material fact. Highlands Ins. Co. v. Hobbs

Group LLC, 373 F.3d 347, 350-51 (3d Cir. 2004). Once the moving party has carried its

burden, the nonmoving party must come forward with specific facts to show that there is

a genuine issue for trial. Williams v. West Chester, 891 F.2d 458, 464 (3d Cir. 1989). A

fact is “material” if its resolution will affect the outcome under the applicable law, and an

issue about a material fact is “genuine” if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The court must draw all justifiable inferences in favor of the nonmoving

party. Highlands Ins. Co., 373 F.3d at 351.

III. DISCUSSION

A. The FMLA Retaliation Claim

To establish a prima facie case of retaliation under the FMLA, a plaintiff must

show that (1) he took an FMLA leave, (2) he suffered an adverse employment decision,

and (3) the adverse decision was causally related to his leave. Conoshenti v. Public

Service Electric & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). Once a prima facie case of

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retaliation is established, the defendant must produce a legitimate, non-discriminatory

reason for the retaliatory employment action taken against the plaintiff. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). Once a legitimate, nondiscriminatory reason is proffered, the plaintiff must proffer sufficient evidence for the

finder of fact to conclude by a preponderance of the evidence that the legitimate, nondiscriminatory reason offered by the defendant was a pretext for retaliation. Id. at 143. 

This court must first determine the length and type of FMLA leave that Mutz took.

The FMLA grants eligible employees the right to take up to twelve workweeks of

leave during a twelve-month period for certain family reasons and any serious health

condition that makes the employee unable to perform the functions of his position. 29

U.S.C. § 2612(a)(1). An eligible employee may be entitled to take FMLA leave

intermittently on a reduced schedule when medically necessary. Id. § 2612(b). The

phrase “intermittent leave” is defined under the implementing regulations as “leave taken

in separate periods of time due to a single illness or injury, rather than for one continuous

period of time, and may include leave of periods from an hour or more to several weeks.” 

29 C.F.R. § 825.800.

The FMLA and its regulations impose certain notice requirements to be granted

leave. See id. §§ 825.302-825.303. If leave is foreseeable, an employee must provide at

least thirty days advance notice to the employer, or if thirty days is impossible under the

circumstances, notice is required “as soon as practicable.” Id. § 825.302(a). If leave is

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unforeseeable, the employee is to give notice “as soon as practicable under the facts and

circumstances of the particular case.” Id. § 825.303(a). Generally, “as soon as

practicable” means no more than two days after learning of the need for the leave,

although an exception is made where extraordinary circumstances prevent such notice. 

Id. § 825.302(b). Notice may be provided by the employee or by a “spokesperson” if the

employee is not able to do so, either in person “or by telephone, telegraph, [fax,] or other

electronic means.” Id. § 825.303(b).

An employee giving notice of the need for FMLA leave “need not expressly assert

rights under the FMLA or even mention the FMLA,” but, at a minimum, must provide

sufficient information to notify the employer that he needs FMLA leave. Id. §

825.302(c). “Although there is no precise definition as to what constitutes ‘sufficient

notice,’ an employee is required to provide his employer with enough information for the

employer to determine that the leave qualifies under the Act.” McCarron v. British

Telecom, 2002 WL 1832843, at *4 (E.D.Pa. Aug. 7, 2002). 

However, “it is the employer’s responsibility to determine the applicability of the

FMLA and to consider requested leave as FMLA leave.” Id. at *5. If an employee has

not provided enough information to put the employer on notice that FMLA-qualified

leave is needed, the employer is expected to obtain “any additional required information

through informal means.” 29 C.F.R. § 825.303(b). “In all circumstances, it is the

employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to

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give notice of the designation to the employee.” Id. § 825.208(a).

In this case, the record reveals that Mutz applied for FMLA leave for December 2

through December 4, 2002 for the flu, bronchitis, and sinusitis. Mutz Dep., at 76-78. In

late December 2002, Kemper, on behalf of Agere, granted Mutz’s request. Tammy Lee

Jones Dep., at 35. Although Mutz alleges that he was also granted intermittent FMLA

leave for hypothyroidism, the record reveals that Mutz only called Kemper about a

possible need for intermittent FMLA leave for hypothyroidism, and Kemper advised him

that he would have to fill out a separate application for that condition. Id. at 51. There is

no evidence that Mutz ever filed a separate application for intermittent FMLA leave for

hypothyroidism or that Kemper ever approved such a request. Therefore, this court finds

that the only FMLA leave that Mutz took was from December 2 through December 4,

2002 for the flu, bronchitis, and sinusitis. 

The parties do not dispute that Mutz suffered an adverse employment decision in

February 2003. Therefore, this court must next determine whether the adverse decision

was causally related to Mutz’s FMLA leave. 

Timing alone can be sufficient to establish the necessary causal link between the

FMLA leave and the adverse action when it is “unusually suggestive.” See Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000); see also Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989) (finding that the plaintiff established sufficient evidence

of causation by showing that the adverse action occurred only two days after the protected

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activity). Absent “unusually suggestive” timing, however, timing alone is generally

insufficient to establish the causal link. Farrell, 206 F.3d at 280. In such circumstances,

courts may look for other evidence from which a causal connection can be inferred, such

as evidence of a “pattern of antagonism” occurring between the protected activity and the

adverse action. Id. at 280-81. 

In this case, the adverse employment action occurred in February 2003, more than

two months after Mutz’s FMLA leave in early December 2002. This time gap of over

two months between the FMLA leave and the adverse action is certainly not “unusually

suggestive” of a causal link. Furthermore, Mutz has not provided any other evidence

from which a causal connection can be inferred. Therefore, this court finds that Mutz has

not established a prima facie case of retaliation.

However, even if Mutz could establish a prima facie case of retaliation, this court

finds that Mutz’s FMLA retaliation claim must be dismissed because he has not shown

that Agere’s reason for the adverse action was pretextual. In this case, Agere has

produced a legitimate, non-discriminatory reason for the adverse employment action

taken against Mutz. Specifically, Agere based the decision to terminate Mutz on his

falsifying time sheets. Def.’s Mem. Supp. Summ. J., Ex. K-M. 

A plaintiff can prove pretext by presenting evidence that: (1) casts sufficient doubt

upon each legitimate reason proffered by the defendant so that a finder of fact could

reasonably conclude that each reason was a fabrication; or (2) allows a finder of fact to

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infer that discrimination was more likely than not a motivating or determinative cause of

the employment action. Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). 

Mutz argues that Agere’s failure to follow its progressive discipline plan when it

announced on February 10, 2003 that it was terminating him shows pretext. See Craig v.

Y & Y Snacks, Inc., 721 F.2d 77, 80 (3d Cir. 1983) (failure to follow progressive

discipline plan suggests pretext). However, the record reveals that Agere did not have a

progressive discipline plan for employees who falsely indicated on their time sheets that

they were at work when they were not there. Edgar Tanner Dep., at 55 (stating that

Agere’s policy has been to terminate employees immediately for falsification of records). 

Accordingly, this court finds that Mutz’s argument that Agere’s failure to follow its

progressive discipline plan shows pretext must fail.

Mutz also argues that Agere improperly based its finding that he falsified his time

sheets on the gate clocks because there was an issue between the union and Agere

regarding the replacement of a guard at the gate with a gate clock and because the gate

clocks converted a salaried employee, such as Mutz, into an hourly employee. However,

a plaintiff cannot discredit a defendant’s reason for an adverse decision by merely

showing that it was wrong or mistaken. Fuentes, 32 F.3d at 765. Instead, the plaintiff

must show “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its actions that a

reasonable factfinder could rationally find them unworthy of credence.” Keller v. Orix

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Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997). “In simpler terms, [the

plaintiff] must show, not merely that the employer’s proffered reason was wrong, but that

it was so plainly wrong that it cannot have been the employer’s real reason.” Id. at 1109. 

“The question is not whether the employer made the best, or even a sound, business

decision; it is whether the real reason is [discrimination].” In this case, Mutz does not

show that Agere’s reason for the adverse decision was so plainly wrong that it could not

have been Agere’s real reason. In fact, Mutz’s own deposition testimony supports

Agere’s reason for the adverse decision. See Mutz Dep., at 89-91 (stating that he left

early one day in December 2002 but represented on his time sheet that he was at work the

whole day); see also id. at 98 (stating that in December 2002 he was showing up to work

late but did not report it). Accordingly, this court finds that Mutz’s argument that Agere

improperly based its finding that he falsified his time sheets on the gate clocks does not

establish pretext.

Mutz has not cast sufficient doubt upon the legitimate reason proffered by Agere

so that a finder of fact could reasonably conclude that the reason was a fabrication. 

Moreover, Mutz has not presented any evidence that allows a finder of fact to infer that

retaliation was more likely than not a motivating or determinative cause of the

employment action. Accordingly, Mutz’s FMLA retaliation claim is dismissed. 

B. The Claim under Section 510 of ERISA

Section 510 of ERISA provides:

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It shall be unlawful for any person to discharge, fine, suspend, expel,

discipline or discriminate against a participant or beneficiary for exercising

any right to which he is entitled under the provisions of an employee benefit

plan . . . or for the purpose of interfering with the attainment of any right to

which such participant may become entitled under the plan.

29 U.S.C. § 1140. 

To prove a prima facie case under Section 510, a plaintiff must show “(1) that an

employer took specific actions (2) for the purpose of interfering (3) with an employee’s

attainment of pension benefit rights.” Eichorn v. AT&T Corp., 248 F.3d 131, 149 (3d

Cir. 2001). In order to recover under Section 510, a plaintiff need not prove that the sole

reason for his termination was to interfere with pension rights. Dewitt v. Penn-Del

Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997). Nevertheless, a plaintiff must show

that the defendant had the “specific intent” to violate ERISA. Id. “Proof of incidental

loss of benefits as a result of a termination will not constitute a violation of [S]ection

510.” Id. “[W]here the only evidence that an employer specifically intended to violate

ERISA is the employee’s lost opportunity to accrue additional benefits, the employee has

not put forth evidence sufficient to separate that intent from the myriad of other possible

reasons for which an employer might have discharged him.” Id. at 523. 

Therefore, to recover under Section 510, a plaintiff must show that the defendant

made a conscious decision to interfere with the plaintiff’s attainment of pension eligibility

or additional benefits. Id. Because “smoking gun” evidence of specific intent to

discriminate does not exist in most cases, the evidentiary burden in cases involving

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Section 510 may also be satisfied by the introduction of circumstantial evidence. Id. 

Mutz argues that Agere’s failure to follow its progressive discipline plan in

terminating him is evidence of its intent to violate ERISA. However, as this court

previously indicated, Agere did not have a progressive discipline plan for employees who

falsely indicated on their time sheets that they were at work when they were not there. 

Tanner Dep., at 55. Instead, Agere’s policy was to immediately terminate employees who

falsified their records. Id. Accordingly, this argument must fail.

Mutz also argues that Agere’s erroneous finding that he falsified his time sheets is

evidence of its intent to violate ERISA. However, as noted above, Mutz’s own deposition

testimony supports Agere’s finding that Mutz falsely indicated on his time sheets on

numerous occasions that he was at work when he was not there. See Mutz Dep., at 89-91,

98. Therefore, this claim must fail.

Finally, Mutz appears to believe that Agere’s failure to consider his intermittent

FMLA leave is evidence of its intent to violate ERISA. However, the record reflects that

the only FMLA leave that Mutz took was from December 2 through December 4, 2002

for the flu, bronchitis, and sinusitis. Id. at 76-78; Tammy Lee Jones Dep., at 35. Because

Mutz was never on intermittent FMLA leave, there was no reason for Agere to consider

such leave when it disciplined him. Accordingly, this court finds that this argument lacks

merit.

The record shows that Mutz was disciplined for falsely indicating on his time

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sheets on numerous occasions that he was at work when he was not there. Mutz’s loss of

benefits as a result of the discipline was only incidental. Since Mutz has not

demonstrated that Agere had the specific intent to violate ERISA when it disciplined him,

the claim under Section 510 of ERISA is dismissed.

IV. CONCLUSION

Because Mutz has not shown a causal connection between his FMLA leave in

early December 2002 and the adverse employment action in February 2003, and because

Mutz has not shown that Agere’s reason for the adverse decision was pretextual, the

FMLA retaliation claim is dismissed. Moreover, because Mutz has not established that

Agere had the specific intent to violate ERISA, Mutz’s claim under Section 510 of

ERISA is dismissed. Agere did not move for summary judgment on Mutz’s claim under

Section 2615(a)(1) of the FMLA; therefore, that claim remains. An appropriate order

follows.

ORDER

AND NOW, this 21st day of July, 2005, upon consideration of Agere, Inc.’s motion

for summary judgment (Doc. # 16), and replies thereto, it is hereby ORDERED that said

motion is GRANTED. The FMLA retaliation claim and the claim under Section 510 of

ERISA are DISMISSED. The claim under Section 2615(a)(1) of the FMLA remains.

/s/ 

LAWRENCE F. STENGEL, J.

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