IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TAMI TREASTER, :

: 4:09-cv-632

Plaintiff, :

: Hon. John E. Jones III

v. :

: Hon. J. Andrew Smyser

CONESTOGA WOOD :

SPECIALITIES CORP., :

Defendants. :

MEMORANDUM AND ORDER

June 25, 2010

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation

(“R&R”) of Magistrate Judge J. Andrew Smyser (Doc. 50), filed on April 29,

2010, which recommends that we grant the Defendant Conestoga Wood

Specialties Corp.’s (“Defendant” or “Conestoga”) Motion for Summary Judgment

(Doc. 26) with respect to eight of the ten claims asserted by Plaintiff Tami Treaster

(“Plaintiff” or “Treaster”). 

Plaintiff filed objections to the R&R, arguing that summary judgment

should not have been granted on her Family Medical Leave Act (“FMLA”)

interference claim. (Doc. 51). Defendant filed objections to the R&R, arguing

1

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 1 of 12
that summary judgment should have been granted with respect to Plaintiff’s Title

VII retaliation claim and FMLA retaliation claim. (Doc. 52). Accordingly, this

matter is ripe for disposition. 

For the reasons set forth below, the Court will adopt the Magistrate Judge’s

R&R, overrule the parties’ objections and grant the Defendant’s Motion for

Summary Judgment in part.

I. PROCEDURAL BACKGROUND

On April 7, 2009, Plaintiff commenced this action by filing a complaint

against Defendant, her former employer. (Doc. 1). On October 1, 2009, Plaintiff

filed an amended complaint containing ten counts. (Doc. 17). They are as

follows:

(1) Count I - Title VII Hostile Work Environment Claim;

(2) Count II - Title VII Retaliation Claim;

(3) Count III - FMLA Interference Claim;

(4) Count IV - FMLA Retaliation Claim;

(5) Count V and VI - Disability Discrimination Claims under the

Americans with Disabilities Act (“ADA”);

(6) Count VII - ADA Retaliation Claim;

2

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 2 of 12
(7) Counts VIII and IX - Disability Discrimination Claims under the

Pennsylvania Human Relations Act (“PHRA”); and

(8) Count X - PHRA Retaliation Claim.

On October 6, 2009, the Defendant filed an answer to the amended complaint. 

(Doc. 18). Following the close of discovery, the Defendant filed a motion for

summary judgment (Doc. 26), which we referred to Magistrate Judge Smyser for a

report and recommendation. (Doc. 33).

On April 29, 2010, Magistrate Judge Smyser issued the instant R&R (Doc.

50), which is presently before the Court for review.

II. STANDARDS OF REVIEW

A. Review of Magistrate Judge’s R&R

When objections are filed to the report of a magistrate judge, the district

court makes a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objections are made. 28 U.S.C. §

636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may

accept, reject, or modify, in whole or in part, the magistrate judge’s findings or

recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §

636(b)(1) permits whatever reliance the district court, in the exercise of sound

discretion, chooses to place on a magistrate judge’s proposed findings and

3

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 3 of 12
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423

U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). 

B. Summary Judgment

Summary judgment is appropriate if the record establishes “that there

is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party

bears the burden of demonstrating the absence of a genuine issue of material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden

by pointing to an absence of evidence supporting an essential element as to which

the non-moving party will bear the burden of proof at trial. Id. at 325. Once the

moving party meets its burden, the burden then shifts to the non-moving party to

show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is

“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find

for the non-moving party, and a factual dispute is “material” only if it might affect

the outcome of the action under the governing law. Anderson v. Liberty Lobby,

Inc, 477 U.S. 242, 248-49 (1986).

In opposing summary judgment, the non-moving party “may not rely merely

on allegations of denials in its own pleadings; rather, its response must ... set out

specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The non4

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 4 of 12
moving party “cannot rely on unsupported allegations, but must go beyond

pleadings and provide some evidence that would show that there exists a genuine

issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). 

Arguments made in briefs “are not evidence and cannot by themselves create a

factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.

Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). 

However, the facts and all reasonable inferences drawn therefrom must be viewed

in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of

Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Summary judgment should not be granted when there is a disagreement

about the facts or the proper inferences that a factfinder could draw from them. 

Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the

mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; there must be a

genuine issue of material fact to preclude summary judgment.” Anderson, 477

U.S. at 247-48. 

III. DISCUSSION

As an initial matter, we note that the parties do not object to the Magistrate

Judge’s recommendation that summary judgment be granted on Counts I, V, VI,

5

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 5 of 12
VII, VIII, IX and X. We have reviewed Magistrate Judge Smyser’s sound

reasoning and agree that summary judgment is appropriately granted on those

counts. Thus, we shall adopt the R&R in this regard.

Next, we shall turn to an analysis of parties objections. Inasmuch as the facts

are well known to the parties and the Court, we shall only recite the facts pertinent

to our analysis herein.1

A. Plaintiff’s Objection

As noted above, Plaintiff objects to the Magistrate Judge’s recommendation

that summary judgment be granted on her FMLA interference claim, contained in

Count III. Magistrate Judge Smyser found that the Plaintiff raised new FMLA

interference claims in her brief in opposition to the summary judgment motion that

were not alleged in her amended complaint. Specifically, Magistrate Judge Smyser

concluded that it was impermissible for Plaintiff to amend her complaint through

briefing on the summary judgment motion, thus he declined to address the newly

raised FMLA interference claims. Magistrate Judge Smyser also recommended

 A full exposition of the material facts was undertaken by Magistrate Judge Smyser at

1

pages 7 to 39 of the R&R. (Doc. 50).

6

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 6 of 12
that we grant summary judgment on the Plaintiff’s FMLA interference claim based

on the Defendant allegedly misinforming Plaintiff of her FMLA rights.

2

Plaintiff argues that her brief does not raise new claims but merely provides

a “legal explanation” for the ways in which the Defendant interfered with

Plaintiff’s FMLA rights. (Doc. 51, p. 3). Defendant maintains that it is

impermissible for Plaintiff to raise new FMLA interference claims for the first time

in the summary judgment briefing.

It is well settled that courts need not consider additional claims that are

raised for the first time in briefing. See Aldinger v. Spectrum Control, Inc., 207

Fed. Appx. 177, 180 n. 1 (3d Cir. 2006) (district court refused to address the

plaintiffs’ claim that defendant violated the WARN Act by failing to give notice of

termination because that issue was raised for the first time in plaintiffs’ brief in

opposition to the defendant’s motion for summary judgment and was not pleaded in

their complaint); Melrose, Inc. v. City of Pittsburgh, 2008 WL 4449687, *13 (W.D.

Pa. Sept. 2008) (“It is well established that a plaintiff may not attempt to amend a

complaint through a brief in opposition to a motion for summary judgment.”);

 Magistrate Judge Smyser recommended that Plaintiff’s claim that the Defendant 2

interfered with her FMLA rights by terminating her when it became aware that she intended to

exercise her FMLA rights be construed as an FMLA retaliation claim rather than an FMLA

interference claim. The parties do not object to this recommendation.

7

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 7 of 12
Johnson v. Community College of Allegheny County, 566 F. Supp. 2d 405, 449

(W.D. Pa. 2008) (it is inappropriate for plaintiff to raise additional interference

allegations for the first time in her opposition brief; thus claims are improperly

before the court). 

After reviewing the Plaintiff’s amended complaint and brief in opposition to

the motion for summary judgment, it is clear to the Court that Plaintiff only raised

two FMLA interference claims in her amended complaint and her brief contains

arguments about alleged FMLA interference claims that were never pled by her.

Contrary to Plaintiff’s assertion, the allegations in the brief are not simply “legal

explanations” for the ways in which Defendant allegedly interfered with her FMLA

rights. Thus, we agree with Magistrate Judge Smyser that these claims need not

be addressed and shall his adopt his recommendation in that regard. 

Moreover, we agree with Magistrate Judge Smyser’s conclusion that

summary judgment be granted on the Plaintiff’s FMLA interference claim as pled

in the amended complaint. As noted above, Plaintiff claims that the defendant 3

misinformed her of her FMLA rights, particularly by telling her that if she were to

 While it appears that Plaintiff is not objecting to the Magistrate Judge’s

3

recommendation on this point, we will exercise caution and review this recommendation of the

Magistrate Judge, inasmuch as Plaintiff objects to the overall recommendation that summary

judgment on Plaintiff’s FMLA interference claim.

8

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 8 of 12
be absent for any reason she “needed FMLA to back it up.” (Doc. 31-2, p. 49). 

However, Plaintiff has failed to explain how the Defendant telling her she needed

FMLA to “back up” her absences misinformed her of her FMLA rights. The

FMLA contains a provision which entitles employers to request medical

certifications from an employee requesting leave. See 29 U.S.C. § 2613(a). Thus,

the fact that the Defendant informed Plaintiff that her absences would have to be

“back[ed] up” by FMLA is hardly an interference with her FMLA rights. 

Accordingly, we shall adopt the Magistrate Judge’s recommendation that summary

judgment be granted in favor of the Defendant on Plaintiff’s FMLA interference

claim. 

B. Defendant’s Objections

Defendant’s object to Magistrate Judge Smyser’s recommendations that

summary judgment be denied as to Plaintiff’s Title VII retaliation claim alleging

gender discrimination and Plaintiff’s FMLA retaliation claim. We shall discuss

Defendant’s objection to each recommendation in seriatim.

1. Title VII Retaliation Claim

Defendant objects to the Magistrate Judge’s recommendation on the Title

VII retaliation claim on two grounds. First, the Defendant contends that the

Magistrate Judge erroneously found that Plaintiff met her burden of proving a

9

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 9 of 12
prima facie case. Second, the Defendant argues that Magistrate Judge Smyser

erred by holding that a reasonable fact finder could find that the reasons given by

Defendant for suspending and discharging Plaintiff from employment were

pretextual. 

Based on our review of the Magistrate Judge’s reasoning on the Title VII

retaliation claim as well as our own review of the record, we decline to sustain the

Defendant’s objection to the Magistrate Judge’s recommendation that summary

judgment be denied. We agree that Plaintiff has presented sufficient evidence such

that we cannot find, as a matter of law, or as a matter beyond factual dispute, that

Plaintiff’s belief that she was complaining about sexual discrimination was not

reasonable. Further, we find that temporal proximity between Plaintiff’s

complaints and her suspension is some evidence of a causal connection between

the two events. Additionally, there is evidence that Plaintiff was given inconsistent

reasons for the adverse action taken against her, which can be considered as

evidence of causal connection between her complaints and the adverse action taken

against her, as well as evidence of pretext. Thus, based on the foregoing, we shall

adopt the Magistrate Judge’s recommendation that Defendant’s motion to dismiss

be denied with respect to Plaintiff’s retaliation claim.

10

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 10 of 12
2. FMLA Retaliation Claim

The Defendant objects to the Magistrate Judge’s recommendation that we

deny it’s motion for summary judgment with respect to Plaintiff’s FMLA

retaliation claim, arguing that the Magistrate Judge erred in concluding that

Plaintiff met her burden of proving a prima facie case. Based on our review of the

Magistrate Judge’s reasoning, and our own independent review of the record, we

shall overrule the Defendant’s objection. Specifically we find that Plaintiff has

presented evidence that she invoked the FMLA with respect to her February 22,

2008 absence and that she went to the Human Resources department and obtained

FMLA paperwork. Construing these facts in the light most favorable to the

Plaintiff, there is evidence sufficient to support an inference that she invoked

FMLA rights. Further, we agree with Magistrate Judge Smyser’s reasoning that

evidence presented by the Plaintiff with regards to the timing between her request

for FMLA paperwork and her suspension and termination, coupled with the

inconsistent reasons given for her suspension, is sufficient for a reasonable fact

finder to find a causal connection. Accordingly, we shall adopt the Magistrate

Judge’s recommendation and deny the Defendant’s motion for summary judgment

with respect to the Plaintiff’s FMLA retaliation claim.

11

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 11 of 12
V. CONCLUSION

Accordingly, for the reasons set forth above, the parties’ objections are

overruled and the Magistrate Judge’s R&R will be adopted in its entirety. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation of Magistrate Judge Smyser (Doc.

50) is ADOPTED in its entirety.

2. The Defendant’s Motion for Summary Judgment (Doc. 26) is

GRANTED in part and DENIED in part to the following extent:

a. Summary Judgment is granted in favor of the Defendant on

Counts I, III, V, VI, VII, VIII, IX and X.

b. Summary Judgment is denied on Counts II and IV.

3. The parties shall stipulate to a trial term within ten (10) days of the

date of this Order.

s/ John E. Jones III

John E. Jones III

United States District Judge

12

Case 4:09-cv-00632-JEJ Document 54 Filed 06/25/10 Page 12 of 12