Federal District Court Opinions

CONSTANT, Plaintiff, v. MELLON BANK, N.A., Defendant. 02:
03cv1706. United States District Court, W.D. Pennsylvania.
July 3, 2006


TERRENCE McVERRY, District Judge

Presently before the Court for disposition is the MOTION
FOR SUMMARY JUDGMENT, with brief in support, filed by
Defendant Mellon Bank, N.A., and the brief in opposition
filed by Plaintiff, Susan Constant. After careful
consideration of Defendant’s motion, the filings in support
and opposition thereto, the memoranda of the parties, the
relevant case law, and the record as a whole, the Court
finds that there is not sufficient record evidence upon
which a reasonable jury could return a verdict for
Plaintiff, Susan Constant, on her claim of retaliation
under the Family and Medical Leave Act. Therefore, the
Court will grant the motion for summary judgment of
Defendant, Mellon Bank, N.A.


Plaintiff Susan C. Constant (“Plaintiff”) brought this
lawsuit under the Family and Medical Leave Act (“FMLA”) on
November 7, 2003, in which she alleges that Defendant
Mellon Bank N.A. (“Mellon”) illegally terminated her
employment in retaliation of her request to take FMLA
leave. Page 2

Mellon has filed the instant motion for summary judgment
in which it contends that Plaintiff is unable to establish
a prima facie case of retaliation under the FMLA. In the
alternative, Mellon contends that assuming arguendo that
Plaintiff could state a prima facie case of FMLA
retaliation, summary judgment should still be granted in
its favor because there is no evidence that Mellon’s
legitimate, articulated reason for Plaintiff’s discharge
(poor performance) was false and that Plaintiff’s request
for FMLA leave was the real reason for her discharge.


The facts relevant to this discussion, and viewed in the
light most favorable to Plaintiff, are as follows. In
February 2002, Plaintiff was hired by Mellon as a Marketing
Specialist III in its Corporate Marketing Department. As a
Marketing Specialist III, Plaintiff worked on a variety of
internal and external marketing and communications
projects, often in conjunction with other Mellon employees.
Plaintiff’s supervisor throughout her employment with
Mellon was Peter Hayes, Director of Marketing for Mellon.
Mr. Hayes reported to Rose Cotton Gabbianelli, Senior Vice
President and Director of Corporate Affairs for Mellon.

On May 26, 2002, Plaintiff and her husband were arrested
at their home after they were involved in a domestic
dispute which resulted in a Mt. Lebanon police officer
being shot. Plaintiff was arrested and charged with
conspiracy to commit attempted murder, conspiracy to commit
aggravated assault, recklessly endangering another person,
and obstructing the Page 3 administration of justice.[fn1]
Following Plaintiff’s arrest, she was incarcerated for five
days in the Allegheny County Jail, after which she returned
to her job at for Mellon. As a result of her arrest,
Plaintiff missed four days of work; however, she used four
vacation days for the work days that she missed.

Plaintiff testified during her deposition that Mellon was
supportive of her following her arrest and return to work.
After she returned, Mr. Hayes advised her that she needed
to maintain a professional demeanor and keep her personal
issues outside of the workplace. Plaintiff worked in a
cubicle which had no door and was in close proximity to

During the time period following her release from jail, it
was necessary for Plaintiff to occasionally attend court
hearings and meet various court/bail requirements, such as
court-mandated drug and alcohol testing, preliminary
hearings, and meetings with her attorney, during the work
day. Also, Plaintiff testified that she frequently
discussed her legal situation with her co-workers during
work hours and made personal calls from work to discuss her
legal situation (including calls to her counselor and her
attorney). See Pl. Depo. at 41-42.

The record reflects that in the four months following her
arrest, Plaintiff was absent from work on no fewer than
twenty-two (22) separate occasions and that Mellon granted
her permission to miss work on each of these occasions. Pl.
Depo. at 46-57, Pl. Depo. at 56-57, Exhs. 1-14. In her
deposition Plaintiff testified that she was not disciplined
as a result of any of these absences. Page 4

On August 7, 2002, Mr. Hayes met with Plaintiff for her
2002 mid-year performance review. According to Plaintiff,
Mr. Hayes complimented her work on the CFI website and on
the branding brochures she had written, but he also advised
her that she needed to minimize the number of personal
telephone calls she made from work and informed her that
she spoke loudly on the telephone. See Pl. Affidavit at
§ 7; Pl. Depo. at 59. Plaintiff agreed to minimize
her personal calls. Pl. Depo. at 59.

Two days later, on August 9, 2002, Mr. Hayes met with
Plaintiff and again specifically asked her not to make
telephone calls from her desk about her legal situation, to
reduce the number of personal calls in general, and to
lower her voice during those calls so as not to disrupt her
co-workers. Pl. Depo. Exh. 15.

During the week of October 7, 2002 Plaintiff made several
personal calls from her office, which apparently disrupted
the workplace. Pl. Depo. Exh. 15. As a result, on November
4, 2002, Mr. Hayes issued a disciplinary memo to Plaintiff
which stated the following:

RE: Corrective Action/Initial Warning

The purpose of this memo is to notify you that you are
being placed on the first stage of corrective action due
to disruptive and inappropriate behavior in the workplace.

As you will recall, when you returned to work in June, it
was clearly stated to you that you must maintain a
professional demeanor, keep your personal issues outside
the workplace, and avoid discussing your personal
situation with coworkers while in the workplace. However,
within a few weeks you began to conduct personal
conversations over the telephone that were clearly
overheard by others in the department (including myself),
as well as raising the topic of your personal situation
with others in the department. You were reminded of the
requirement to separate your personal and professional
activities while in the workplace during your Page 5
mid-year review on August 7th, and, on August 9th we held
a separate conversation in which I specifically asked you
not to make telephone calls from your desk to discuss your
personal situation, and to minimize your personal calls
(and to be sure they couldn’t be overheard if personal
calls were made). I also reminded you that these
activities were not acceptable and that if I were forced
to raise the issue again you would be placed on corrective

It is now clear that during the week of October 7th you
made repeated personal calls which have been overheard by
others, and have caused inappropriate and unnecessary
disruption in the workplace. As a result, you are being
placed on corrective action/initial written warning.

This memo formally initiates the corrective action
process. If immediate and sustained improvement is not
shown, additional steps will be taken, up to and including
termination of your employment at Mellon.

Pl. Depo. at 62-63, Ex. 15. Following this written warning,
Plaintiff once again agreed to curtail her personal calls
while at work. Pl. Depo. at 65.

The summary judgment record reflects that Plaintiff did
not file any complaint regarding the November 4, 2002,
corrective action/initial warning with Human Resources or
Mellon management because she felt it was “justified.” Pl.
Depo. at 66.

On December 13, 2002, Plaintiff once again engaged in a
loud and disruptive personal conversation at work. Pl.
Depo. at 66-67. This conversation was overheard by
Plaintiff’s co-workers, who complained about the
conversation and one of her co-workers allegedly was so
upset by the conversation that she left work. See Depo. of
James Lauteri at 15-16; Hayes Depo. at 71-73.

On January 27, 2003, Mr. Hayes met with Plaintiff for her
year-end performance review and evaluation. In the section
titled “Comments on Year End Assessment” on Results-Based
Goals, Mr. Hayes wrote: Page 6 Susan met all of her goals
for 2002 and exceeded them in some cases, especially in the
case of the marketing communications items. She was
directly responsible for the development of the sector
brochures to support the brand campaign, and completed this
difficult assignment on time, despite a variety of hurdles
including the need to work with a variety of departments
and personnel to gain the approvals needed to print the
brochures. In addition Susan has started to provide other
writing support to the department to help offset the
increasing requests for marketing writing that are being
made through Design and Video. Susan was also instrumental
in getting the CFI web site up and running and in
maintaining it over the course of the last 9 months of the

Pl. Depo, Exh. 16 at 3.

In the year-end evaluation, Mr. Hayes also noted, however,
that Plaintiff “needed improvement” in the category of
“Integrity”[fn2] and noted:

Overall Susan was effective at demonstrating the shared
values, however there are some areas that require
continuing attention and work. While Susan can provide
excellent work at times, her work is sometimes marred by
haste and a lack of attention to detail. This can be
corrected with a better focus on self editing and learning
to proofread her own work. The value of integrity is in
question only because Susan has struggled to keep some
very difficult personal circumstances out of the
workplace, as professionals are required to do. However
Susan has show (sic) improvement in this area and there
are signs that this issue will pass in time.

Pl. Depo, Exh. 16 at 5.

During the annual review, Plaintiff identified a
“Competency to Be Developed” as “[i]mprove attention to
detail.” Id. The strategy identified by Plaintiff to meet
this goal was to “[r]un spell check; print and proof hard
copy” and “[w]hen possible, proof after 24 hours.” Id.
Page 7

During her deposition, Plaintiff testified that
proofreading was “part and parcel” of the position as
Marketing Specialist III. Pl. Depo. at 71-72.

Plaintiff filed no complaint or objection to her 2002
annual Performance Review.

On April 10, 2003, Plaintiff’s husband was involved in a
car accident, in which he sustained serious personal
injuries. On April 23, 2003, Plaintiff spoke to Mr. Hayes
about her possible need to take FMLA leave to assist her
husband, who was not allowed to drive and could only be in
a car to go to/from medical appointments. On April 25,
2003, at 3:09 PM, Plaintiff sent an email to Mr. Hayes
formally requesting FMLA leave and asking Mr. Hayes to
contact Human Resources for her. Mr. Hayes replied by email
the same day at 4:07 PM and told Plaintiff that he would
contact Human Resources and also asked Plaintiff to give him
the “details on when you want to start, how long you’ll be
gone for, etc.” Exh. D. to Pl’s Affidavit. According to
Plaintiff, later that evening, she spoke with Mr. Hayes and
told him that she would like to take the FMLA time in
half-day increments, but Mr. Hayes told her that “she would
need to take FMLA time in full, contiguous days and could
not take it in non-contiguous half days.” Pl’s Br. at 7-8
(citing Pl. Affidavit at 28-29; Pl. Depo. at 88,89).

Plaintiff alleges that on April 28, 2003, Mr. Hayes called
her at home and asked about her FMLA plans. She told him
again that she wanted to use the FMLA leave in
non-contiguous, half-day segments. “He acrimoniously
insisted that he would only allow her to take the time in
full, contiguous days.” Pl’s Br. at 8. She asked that he
check with Human Resources and, if he was correct, “she
would come up with a way to accommodate that requirement.”
Id. Page 8

On May 5, 2003, Mellon Benefit Administrator Angelo Gnazzo
sent Plaintiff the requisite FMLA paperwork. Plaintiff had
the Certification of Health Care Provider form completed by
her husband’s treating physician on May 15, 2003, and
returned the form to Mellon. In the Certification of Health
Care Provider form, Plaintiff indicated that she needed
“time off to transport husband to/from medical
appointments. Typically, this will require 1/2 day absence
per appointment. I am estimating that he will require no
more than 20 appointments, including diagnostics.” Pl.
Depo., Exh. 20.

On May 23, 2003, Angelo Gnazzo informed Plaintiff that her
intermittent leave request under FMLA had been approved.
Pl. Depo., Exh. 21. Plaintiff testified that she was
allowed to take all requested FMLA leave time while she was
employed by Mellon. The record reflects that Plaintiff took
two days of FMLA time in May, one and a half days of FMLA
time in June 2003, and had requested to take off two days
in July 2003. Pl. Depo., Ex. 24.

Plaintiff did not file any complaints with Mellon Human
Resources or Mellon Management over any difficulties with
her utilization of FMLA time. In fact, Plaintiff testified
that she was allowed to take all of her FMLA leave time in
half-day increments as she had originally requested.

Plaintiff contends that “[u]p until the end of April,
2003, [she] had received no communications — either
verbally or in writing — that advised her that there
were issues with her work performance.” Pl’s Br. at 6.
However, the summary judgment record evidence reflects that
this allegation is not accurate. For example, Mr. Hayes
testified during his deposition that he observed continued
problems with Plaintiff’s performance, such as: Page 9

a. With regard to a database that Plaintiff compiled
comparing Mellon to its competitors, Mr. Hayes testified:
“We found we had issues around the typos that were in it
and we’ve continued to find them over the last year. So,
there were mistakes in spelling, business line
attribution, things like that.” Hayes Depo. at 29;

b. With regard to brochures that Plaintiff worked on, Mr.
Hayes testified: “We had standard boilerplate describing
Mellon that we had difficulties with, I ended up having to
revisit. There were mistakes in revision that kept
creeping back in. . . . We also, on the asset management
one, [Plaintiff] couldn’t get to a resolution with the
line of business about a description of MIAM, acronym for
Mellon Institutional Asset Management, so it ended up
being written by Guy Hudson in conjunction with myself.”
Hayes Depo. at 29-30.

c. With regard to a brochure, Mr. Hayes testified that
Plaintiff’s type caused the entire brochure to be
reprinted. Hayes Depo. at 30. Specifically, Plaintiff
referenced a “Bank Lender Study” when she should have
referenced a “Bank Leader Study.” Id.

d. With regard to CFIdeas, an internal Mellon newsletter,
Mr. Hayes testified that Plaintiff had several problems in
content and style. Hayes Depo. at 32. According to Mr.
Hayes, Plaintiff’s problems were so severe that Shawn
Bannon, a Mellon Communications Specialist, was assigned
to edit Plaintiff’s work. Hayes Depo. at 31-32.

e. With regard to an overview Plaintiff prepared on
pension funding, Mr. Hayes testified that Plaintiff had
problems with organization of material and with her
writing, which “tended to be rambling.” Hayes Depo. at 37.

f. With regard to Plaintiff’s role in negotiating the
SkillSoft contract, a contract with an external training
provider, Mr. Hayes testified that Plaintiff did not keep
him properly informed of the contract status and left him
very little time to review the contract before it had to
be signed. Hayes Depo. at 158-63.[fn3] Page 10

Ms. Cotton, the Senior Vice President and Director of
Corporate Affairs for Mellon, testified that she also noted
continued problems with Plaintiff’s work. At least twice in
the spring of 2003, Ms. Cotton met with Plaintiff to
discuss problems with her writing. Cotton Depo. at 15. At
the first meeting, Ms. Cotton discussed content and quality
of writing issues with Plaintiff’s work on CFIdeas; at the
second meeting, Plaintiff’s work on CFIdeas was again the
topic. Cotton Depo. at 16, 26.

The summary judgment record also reflects that Ms. Cotton
and Mr. Hayes were not the only people critical of
Plaintiff and her work. For example, Beth Moore, Manager of
Employee Communications in the Corporate Affairs
Department, testified that she considered Plaintiff to be
an “average writer” who employed a “heavy use of jargon.”
Moore Depo. at 6, 12. Ms. Moore also stated that Plaintiff
would stop by to chat during work hours instead of working.
Id. at 20.

Shawn Bannon, Assistant Vice President and Communications
Specialist in the Corporate Affairs Department, testified
that he was “uncomfortable” working with Plaintiff. Bannon
Depo. at 14. He further testified that he complained on
several occasions about the quality of Plaintiff’s work.
Id. at 15-17.[fn4] Page 11

Dean Kniola, Marketing and Research Manager for Mellon,
testified that Plaintiff “was somewhat irritating to work
with” and that with Plaintiff “there were quite a bit of
curse words and, you know, always followed by a
perfunctory, pardon my French or something like that. . . .
[When] she became a little irritated herself at situations
or individuals, the shits and damns and what have you would
come out.” Kniola Depo. at 3, 8, 22.

James Lauteri, Brand Manager for Mellon, testified that he
received complaints about Plaintiff’s personal calls at work
from Plaintiff’s co-workers on several occasions, including
after the December 13, 2001 telephone call in which
Plaintiff admittedly spoke very loudly. Mr. Lauteri
testified that after the December 2001 telephone call,
Plaintiff’s co-workers were “very uncomfortable and they
left” the office. Lauteri Depo. at 5, 15, 16-17.

Deborah Guydish, Corporate Manager of Learning and
Development for Mellon, worked with Plaintiff in connection
with the negotiations of the SkillSoft contract. Ms.
Guydish testified that she was concerned during
negotiations that Plaintiff was asking for provisions in
the contract that “were not industry standards, and we
shouldn’t be pursuing them.” Guydish Depo. at 29-30. Based
on her concerns about Plaintiff’s involvement with the
SkillSoft negotiations, Ms. Guydish asked “corporate” to
become involved in the negotiations.

Lastly, Mary Ann Gera, who is not a Mellon employee, but
rather the SkillSoft representative who negotiated the
contract with Mellon, testified that “Plaintiff came up
with ideas that are not part of our business practice. She
was interested in getting Mellon licenses Page 12 that
people can exchange into and out of. And we don’t just do
things like that.” Gera Depo. at 23. Ms. Gera also
testified that Plaintiff’s request for floating licenses
“[m]aybe in the short term” negatively affected the
relationship between Mellon and SkillSoft. Id. at 24.

On June 2, 2003, Mr. Hayes gave Plaintiff a corrective and
final warning, which provided:

RE: Corrective Action/Final Warning

The purpose of this memo is to notify you that you are
being placed on the final stage corrective action due to
chronic and repeated failure to meet the work requirements
of your job.

The second and final stage of corrective action is
warranted because you are already on initial corrective
action for inappropriate behavior in the workplace in
regard to keeping your personal issues outside the
workplace and the need for you to maintain a professional
demeanor, per the correction action memo you signed on
November 24, 2002. This final corrective action builds on
the November memo and addresses the work-related issues
and an overall decline in performance and productivity.

The following work-related issues are the basis for this
corrective action.

1. An inability to meet the writing requirements of the
communicator’s position. Despite being hired as a writer
and communicator, the work you have produced lately has
deteriorated in quality until recent projects have
required repeated rewrites from senior management. In
addition, requested changes are sometimes not included or
are inserted without regard for how they impact text flow
and grammar (an issue that is a chronic problem and was
discussed and noted in your 2002 performance review). In
addition, you have demonstrated a lack of knowledge about
the correct formatting for certain kinds of basic
communications, specifically newsletters and white papers,
and demonstrated an inability to consider and choose the
right ways to present information so that it is
understandable and useful to readers. As a communications
specialist, these activities are all core requirements of
your job position and grade.

2. Unclear communication/Lack of keeping management
informed. On repeated occasions you have provided
confusing verbal or unclear written information to your
supervisor and clients that has misled their Page 13
understanding of situations or activities. Specifically,
you have continually shown an inability to articulate key
issues and to communicate those issues effectively.
Sending a data-laden e-mail without context, identifying
key issues or warning of upcoming deadlines is not
informing management. Examples of this tendency are the
recent inability to raise key issues to management during
the SkillSoft negotiations, not providing a clear
explanation of the dating issue to MIAM on the placemat
project (despite knowing the business issues involved
with the dating for MIAM), the lackadaisical approach to
identifying roles and responsibilities for sectors vs.
Corporate Marketing on the development of Sector
Capabilities Brochures, and the misleading way that you
introduced your request for FMLA (by asking for
“significant” time off, then asking for two weeks off,
only for me to discover via an e-mail that the request was
actually for 6 half days).

3. Poor business judgment.

Your decision to agree to a three-year contract extension
with SkillSoft without first obtaining approval from you
(sic) supervisor showed a glaring lack of business
judgment. This decision forced Mellon into a three-year
contract with corresponding financial obligations when you
did not have the authority to make budget decisions. This
followed numerous discussions between you and me about
the lack of quality in SkillSoft product set and the need
to reevaluate the product, indicating that you chose to
renew the contract despite clear knowledge of some of the
failures of the program and a management predisposition
not to renew the contract.

I will continue to support you and to assist you in
remediation of your performance deficiencies. However,
please be aware that substantial changes and improvements
are required to successfully perform your job duties.

This memo formally initiates the final stage of
corrective action. If immediate and sustained improvement
is not shown, or if other problems arise, additional steps
will be taken, up to and including termination of your
employment at Mellon.

Pl. Depo, Ex. 17.

The following day, on June 3, 2003, Plaintiff requested a
meeting with Mr. Hayes to discuss the June 2 warning. On
June 4, 2003, Mr. Hayes met with Plaintiff as requested.
Page 14 During the June 4th meeting, Mr. Hayes explained,
inter alia, that Plaintiff’s writing had deteriorated and
that he had received a complaint from an internal Mellon
customer about Plaintiff’s handling of a situation. The
issue of Plaintiff’s request for FMLA leave was not

Plaintiff contends that Mr. Hayes and others at Mellon
became much more critical of her written work after she
requested FMLA leave. For example, the June edition of
CFIdeas required at least seven drafts and the letter to
Mellon managers regarding SkillSoft that Plaintiff had
prepared required multiple drafts.[fn5] Mellon alleges that
because Plaintiff’s performance had not improved and the
same problems continued to exist, Ms. Cotton and Mr. Hayes
made the decision to terminate Plaintiff’s employment.
Plaintiff was informed of that decision on June 30, 2003.


Summary judgment should be granted “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 judgment as a matter of law.”
Fed.R.Civ.P. 56(c). Thus, the Court’s task is not to
resolve disputed issues of fact, but to determine whether
there exist any factual issues to be tried. Anderson v.
Liberty Page 15 Lobby, Inc., 477 U.S. 242, 247-49 (1986).
The non-moving party must raise “more than a mere scintilla
of evidence in its favor” in order to overcome a summary
judgment motion. Williams v. Borough of West Chester, 891
F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477
U.S. at 249). Further, the non-moving party cannot rely on
unsupported assertions, conclusory allegations, or mere
suspicions in attempting to survive a summary judgment
motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986)). Distilled to its essence, the summary judgment
standard requires the non-moving party to create a
“sufficient disagreement to require submission [of the
evidence] to a jury.” Liberty Lobby, 477 U.S. at 251-52.