IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

DEENA BRADSHER :

Plaintiff, :

 : CIVIL ACTION NO. 04-3309

v. :

 :

CITY OF PHILADELPHIA POLICE :

DEPARTMENT :

Defendant. :

MEMORANDUM AND ORDER

Tucker, J. September 18, 2007

Presently before the Court are Defendant’s Motion for Summary Judgment (Doc. 9) and

Plaintiff’s Response (Docs. 11, 12). For the reasons set forth below, upon consideration of the

Motion and response thereto, this Court will grant Defendant’s Motion.

I. BACKGROUND

From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent

facts are as follows. Plaintiff brings this action for retaliation, interference, and illegal policy

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

Plaintiff states that she was employed as a police officer on October 6, 1997. On January

24, 2001, Plaintiff was an eligible employee under the FMLA in that she worked for the

Defendant for at least twelve months and for at least 1,250 hours during the preceding twelve

months. Between September and October 2003, Plaintiff was intermittently out on sick leave for

stated medical reasons.

From January 2003 to October 7, 2003, Plaintiff was absent for forty-nine days, and

reportedly violated Defendant’s sick leave policy fifteen times. Plaintiff was absent fifteen days

between September 12, 3003 and October 7, 2003, and reportedly violated the sick leave policy

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twelve times. Sections V (F), (G), (H), and (I) of Defendant’s sick leave policy required

Plaintiff to remain at home throughout the duration of her leave for “sick checks,” and to notify

her unit prior to leaving home for any reason. As of January 24, 2003, Plaintiff was aware that

her supervisor was conducting physical sick checks of her (Def.’s Mem. L. 3); Bradsher was

aware that she could be terminated if she failed a sick check on more than four occasions in a

one-year period. (Pl.’s Br. Opp. to Summ. J. 12.) Bradsher was also aware that the

entryway/intercom buzzer system at her residence was not functioning properly while she was

being sick-checked between September 24, 2003 and October 8, 2003, and she informed

supervisors of this fact. (Pl.’s Br. 4.)

On October 8, 2003, Plaintiff was notified of nine (9) purported violations of Defendant’s

sick leave policy when a “physical sick check” indicated that she was not at home while on sick

leave. Defendant notified Plaintiff that she could be terminated for these alleged violations. In

January 2004, Plaintiff was suspended for forty-three days without pay and with “intent to

dismiss.” On or about February 24, 2004, Plaintiff alleges that she was constructively

discharged when she resigned from employment with Defendant in order to collect her pension.

She claims that her suspension and constructive discharge from employment were in retaliation

for her taking FMLA leave.

Plaintiff states that by enforcing the above sections of Defendant’s sick leave policy,

Defendant violated the FMLA because said sections interfere with Plaintiff’s substantive rights

to take leave, to be entitled to take leave, to be restored to her former position after leave, and to

be free from retaliation and harassment for taking leave. Moreover, Plaintiff alleges that these

sections illegally conflict with the FMLA’s anti-abuse provisions.

Defendant denies that it is liable to Plaintiff on her FMLA claims and seeks dismissal of

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Plaintiff’s entire Complaint with prejudice. This Court agrees.

A. Defendant’s Sick Leave Policy

Pursuant to the City of Philadelphia Police Department’s sick leave policy, Directive 66,

if an employee of the Police Department (“PPD”) calls out sick from work, and is either on the

Excessive Use of Sick Leave List, or has less than 1200 hours of accumulated sick leave, the

employee will be subject to visits and/or telephone calls between the hours of 7:00 a.m. and 1:00

a.m. by a sick leave investigator and supervisory personnel of the PPD. Employees must remain

at their residences or place of sick confinement until returning to duty. If an employee leaves

her place of confinement, she must notify her district prior to departure from and when returning

to her place of confinement. If an employee is not home when she is sick checked, the employee

is subject to disciplinary action.

Plaintiff was familiar with Directive 66 and the PPD’s policy regarding sick checking

employees. Further, Plaintiff knew that her accumulated sick leave time was very low, and she

was notified in writing in 2001 that she was using too much non-certified sick leave. Plaintiff

was also informed in 2002 that she used too many sick days. Thus, Plaintiff knew that she

would be sick checked at home.

On January 24, 2003, Plaintiff was notified that she failed a physical sick check on

January 14, 2003, and was being issued a written warning. Plaintiff also failed sick checks on

January 16, 2003, and April 25, 2003. Plaintiff was issued a written warning for the January 16,

2003 violation and a one day suspension for the April 25, 2003, violation. According to

Plaintiff, as of January 24,2003, she knew that her supervisor was conducting physical checks on

her.

On May 2, 2003, Plaintiff was notified that she had used a total of thirteen (13) nonCase 2:04-cv-03309-PBT Document 16 Filed 10/02/07 Page 3 of 8
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certified sick days during the calendar year. On July 28, 2003, Plaintiff was placed on the

Excessive Use of Sick Leave list. From January 2003 through September 2003, Plaintiff called

out sick on thirty-four (34) occasions, but only had enough sick leave to be paid for nine (9) of

those occasions. The remaining occasions were taken as unpaid sick leave. Moreover, during

this period, Plaintiff was extensively checked. On six occasions, Plaintiff was home and signed

the sick check forms.

B. Plaintiff’s Medical Absences

On September 30, 2003, Plaintiff was admitted to Jeanes Hospital emergency room for

treatment of an ovarian cyst. Later, she told a supervisor that she would probably “need a

FMLA” and that she “may need surgery” and she may want to take an FMLA if time permitted.

Although Plaintiff never definitively stated that she would require surgery, she ultimately did not

have surgery, and may not have formally requested FMLA leave, the Court will accept as fact

for purposes of this analysis Plaintiff’s contention that she was on FMLA leave between

September 12, 2003 and October 7, 2003. (Pl.’s. Br. 7.)

Plaintiff returned to work on October 7, 2003, and was placed on restricted duty in the

GRIPP unit. On November 5, 2003, Plaintiff failed a physical sick check ordered by Lieutenant

James Figorski. On November 12, 2003, Plaintiff failed to appear at work and failed to call in

sick. Plaintiff was suspended for three (3) days commencing on January 10, 2004; ten (10) days

commencing January 15, 2004; and thirty (30) days commencing February 1, 2004. Plaintiff

was suspended for failing physical sick checks on January 16, 2003, April 25, 2003, October 5,

2003, October 6, 2003, and November 5, 2003.

II. LEGAL STANDARD

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

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interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986). A factual dispute is “material” if it might affect the outcome of the case under

governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing

the district court of the basis of its motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular

issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the

district court that there is an absence of evidence to support the non-moving party’s case.” Id. at

325. After the moving party has met its initial burden, “the adverse party’s response, by

affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial.” Fed. R. Civ. P. 56(e). That is, summary judgment is appropriate if the

non-moving party fails to rebut by making a factual 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. “[I]f the opponent [of summary judgment]

has exceeded the ‘mere scintilla’ [of evidence] threshold and has offered a genuine issue of

material fact, then the court cannot credit the movant’s version of events against opponent, even

if the quality of the movant’s evidence far outweighs that of its opponent.” Big Apple BMW,

Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court

must view the evidence presented on the motion in the light most favorable to the opposing

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party. Anderson, 477 U.S. at 255.

III. DISCUSSION

A. Rights Under the FMLA

FMLA entitles eligible employees to twelve (12) weeks of unpaid leave during any

twelve (12) month period for certain family reasons and any “serious health condition” that

makes the employee unable to perform the duties of her position. Employers may not deny or

interfere with an employee’s rights guaranteed by the FMLA and are prohibited from

discharging or discriminating against any eligible employee who exercises those rights.

Courts recognize two causes of action under the FMLA. First, it is unlawful for any

employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” any right

secured by the Act. Claims pursuant to this provision are referred to as “interference claims.”

Interference claims are not about discrimination, the issue is simply whether the employer

provided its employee the entitlements set forth in the FMLA. 

The second cause of action recognized under the FMLA is for retaliation. The Act states

that it is unlawful for an employer to “discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful” by the FMLA. In sum, an employer cannot

discriminate against an employee who has taken FMLA leave. To establish a prima facie case of

retaliation, the Plaintiff must show: (1) she engaged in a statutorily protected activity; (2) she

suffered an adverse employment action; and (3) a causal connection exists between the protected

activity and the adverse action. Thereafter, the burden shifts to the Defendant to articulate a

legitimate, non-discriminatory reason for the adverse action. The burden then shift back to the

Plaintiff to show that the stated reason of the Defendant is a pretext.

Defendant argues that Plaintiff was suspended pursuant to the provisions of Directive 66,

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which provides for progressive discipline, including dismissal, for employees who fail a physical

sick check. Plaintiff violated the PPD sick leave policy on numerous occasions, and was given

written warnings and suspensions for her violations. Defendant’s policy is applied to all

employees, regardless of whether they exercise their rights under the FMLA. 

Further, Defendant claims that Plaintiff is unable to show that she was constructively

discharged. To show constructive discharge, the Plaintiff must show that “the conduct

complained of would have the foreseeable result that working conditions would be so unpleasant

or difficult that a reasonable person in the employee’s shoes would resign.” In this case, the

Court agrees that Plaintiff has not shown that what occurred would cause a reasonable person to

resign. Plaintiff was suspended pursuant to the provisions of Directive 66, which applies to all

7,000 employees of the PPD who have not all resigned as a result of Directive 66 suspensions.

Thus, the facts do not support a finding of constructive discharge.

Because Defendant’s sick leave policy does not violate the FMLA, Plaintiff’s entire set

of claims must fail.

B. Defendant’s Sick Leave Policy and the FMLA

In Callison v. City of Philadelphia, 430 F. 3d 117, 121 (3d Cir. 2005), the Third Circuit

affirmed the District Court ruling that the City’s sick leave policy requiring employees to be

subject to sick checks neither conflicts with nor diminishes the protections guaranteed by the

FMLA, and the sick leave policy is not invalidated by the Act. In affirming the trial court’s

ruling, the Court of Appeals emphasized that the City’s sick leave policy “neither prevents

employees from taking FMLA leave nor discourages employees from taking such leave. It

simply ensures that employees do not abuse their FMLA leave.” Id. at 120 (citations omitted).

Plaintiff insists that she was in fact on FMLA during the period in question, so she

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evidently was not discouraged from taking FMLA leave by the City’s sick leave policy. Here,

the City’s use and application of Directive 66 is consistent with Callison in that it “sets forth

obligation of employees who are on leave, regardless of whether the leave is pursuant to the

FMLA . . . [and ensures] that employees who are on leave from work do not abuse their leave,

particularly those who enter leave while on the employer’s Sick Abuse List.” Id. at 120-21.

CONCLUSION

Plaintiff was not discouraged from exercising her rights under the FMLA. Furthermore,

Plaintiff was disciplined for her repeated failed sick checks during those absences. The City’s

sick leave policy, Directive 66, is consistent with and does not violate the FMLA. Thus the City

did not abrograte Plaintiff’s FMLA rights by suspending her for violating its sick leave policy

while exercising her FMLA rights.

For the foregoing reasons, this Court will grant Defendant’s Motion for Summary

Judgment. An appropriate Order follows.

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