IN THE SUPERIOR COURT OF PENNSYLVANIA

No. xxxx ABC 2010

MONICA KAPUTO,

Appellant,

v.

YARNWORKS INDUSTRIES,

Appellee.

Appeal from the Order of the Unnamed County Courtof Common Pleas, dated June 30, 2010, No. X-xxxx-2006

BRIEF OF APPELLEE

Attorney Name, EsquireFIRM NAME, P.C.AddressTelephone: Facsimile:

Attorney for Appellee

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

COUNTER-STATEMENT OF THE QUESTIONS INVOLVED. . . . . . . . . . . . . . 1

COUNTER-STATEMENT OF THE CASE

A. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Statement Of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

I. SCOPE AND STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . 7

II. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FOR SUMMARYJUDGMENT ON THE ADA CLAIM BECAUSE, BY MS.KAPUTO'S OWN ADMISSION, ANY DISABILITYSUFFERED BY HER WAS JOB-RELATED, SHE WASNOT A QUALIFIED INDIVIDUAL, AND SHE DID NOTREQUEST, AND YARNWORKS DID NOT DENY HER,A REASONABLE ACCOMMODATION. . . . . . . . . . . . . . . . . . . . . 8

A. The ADA Amendments Act of 2008 Does Not Apply ToThis Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Ms. Kaputo's Stress/Anxiety Was Not A Disability UnderThe ADA, Because It Was Related To A Specific Job AndDid Not Prevent Her From Performing Other Jobs. . . . . . . . . . . . . . 11

i

TABLE OF CONTENTS (CONT'D)

Page

C. Ms. Kaputo Was Not A Qualified Individual With ADisability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D. Ms. Kaputo Did Not Request, And Yarnworks Did NotDeny Her, A Reasonable Accommodation To Perform HerJob. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FOR SUMMARYJUDGMENT ON THE FMLA CLAIM BECAUSEYARNWORKS AFFORDED MS. KAPUTO ALL LEAVETO WHICH SHE WAS ENTITLED UNDER THE FMLAAND IT DID NOT DISCRIMINATE AGAINST HERFOR TAKING FMLA LEAVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Ms. Kaputo Cannot Prove A Prescriptive Violation Of TheFMLA, Because She Received All Of The Leave To WhichShe Was Entitled Under The Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. Ms. Kaputo Cannot Prove A Proscriptive Violation Of TheFMLA Because She Cannot Prove That She Suffered AnAdverse Employment Action Related To Her FMLA Leave.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

IV. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FOR SUMMARYJUDGMENT ON THE ADEA DISPARATETREATMENT CLAIM BECAUSE THERE IS NOEVIDENCE FROM WHICH A TRIER OF FACT COULDINFER THAT MS. KAPUTO WAS DISCHARGED ONACCOUNT OF HER AGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

A. Ms. Kaputo Cannot Establish A Prima Facie Case OfDiscrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ii

TABLE OF CONTENTS (CONT'D)

Page

B. Ms. Kaputo Cannot Point To Persuasive Evidence ThatYarnworks ' Rat ionale For Her Volun taryTermination—Her Failure To Return To Work After TheExpiration Of FMLA Leave—Was A Pretext For AgeDiscrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

C. Ms. Kaputo Cannot Prove That Age Was The "But-For"Cause Of Her Termination From Employment . . . . . . . . . . . . . . . . . 29

V. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FOR SUMMARYJUDGMENT ON THE ADEA DISPARATE IMPACTCLAIM BECAUSE THERE IS NO EVIDENCE FROMWHICH A TRIER OF FACT COULD INFER THATYARNWORKS HAD A POLICY THAT HAD ANADVERSE IMPACT ON OLDER WORKERS, SUCH ASMS. KAPUTO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

VI. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FOR SUMMARYJUDGMENT ON THE PHRA CLAIM FOR THE SAMEREASONS YARNWORKS WAS ENTITLED TOSUMMARY JUDGMENT ON THE FEDERALCLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

CERTIFICATE OF SERVICE

iii

TABLE OF AUTHORITIES

Cases Page

Aldrup v. Caldera, 274 F.3d 282 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . 14

Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bartlett v. Bradford Publ'g, Inc., 2005 PA Super 350, 885 A.2d 562. . . . . . . . . . 7

Bearley v. Friendly Ice Cream Corp., 322 F. Supp. 2d 563 (M.D. Pa. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Benson v. Cal. Corr. Peace Officers Ass'n, No. 2:08-cv-0886 IFM PS, 2010 WL 682285 (E.D. Cal. Feb. 24, 2010) (unpublished). . . . . . . . . . . . 13

Bowen v. Niagara Mohawk Power Corp., No. 02-CV-749, 2006 WL 3096487(N.D.N.Y. Oct. 30, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006). . . . . . . . . . . . . . . . 24

Callison v. City of Phila., 430 F.3d 117 (3d Cir.), cert. denied, 546 U.S. 876 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Cohen v. Temple Physicians, Inc., 11 F. Supp. 2d 733 (E.D. Pa. 1998). . . . . . . . 32

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135 (3d Cir. 2004). . . . . . . 23

Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452 (E.D. Pa. 2005). . . . 21, 23

EEOC v. Agro Distrib., LLC, 555 F.3d 462 (5th Cir. 2009).. . . . . . . . . . . . . . . . 10

Embrico v. U.S. Steel Corp., 404 F. Supp. 2d 802 (E.D. Pa. 2005), order aff'd, 245 F. App'x 184 (3d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . 31

Erbe v. Potter, No. 1:08-CV-0813, 2010 WL 1052947 (M.D. Pa. Mar. 22, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

TABLE OF AUTHORITIES (CONT'D)

Cases Page

Fikes v. Wal-Mart, Inc., 322 F. App'x 882 (11th Cir. 2009). . . . . . . . . . . . . . . . . 10

Garvin v. Progressive Cas. Ins. Co., No. 5:08-cv-3758, 2010 WL 1948593 (E.D. Pa. May 10, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir. 1984). . . . . . . . . . . . . . . . 24

Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274 (11th Cir. 1999).. . . . . . . . 23

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). . . . . . . . . . . . . . . . . . . . 29

Hajel v. Ludlum, No. 2:10cv137, 2010 WL 2103923 (W.D. Pa. May 25, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harris v. SmithKline Beecham, 27 F. Supp. 2d 569 (E.D. Pa. 1998), aff'd, 203 F.3d 816 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996), cert. denied, 520 U.S. 1162 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Jenkins v. Nat'l Bd. of Med. Examiners, No. 08-5371, 2009 WL 331638 (6th Cir. Feb. 11, 2009) (unpublished). . . . . . . . . . . . . . . . . . . 9, 10

Johnson v. Cmty. Coll. of Allegheny County, 566 F. Supp. 2d 405 (W.D. Pa. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 24

Kiesewetter v. Caterpillar Inc., 295 F. App'x 850 (7th Cir. 2008). . . . . . . . . . . . 10

Kroptavich v. Pa. Power & Light Co., 2002 PA Super 87, 795 A.2d 1048. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32

Lynch v. Matthews Int'l, Civil Action No. 08-1717, 2010 WL 2640597 (W.D. Pa. June 29, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

MacKenzie v. City of Denver, 414 F.3d 1266 (10th Cir. 2005). . . . . . . . . . . . . . 13

v

TABLE OF AUTHORITIES (CONT'D)

Cases Page

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . 25

Nagle v. RMA, The Risk Mgmt. Ass'n, 513 F. Supp. 2d 383 (E.D. Pa. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ozlek v. Potter, Civil Action No. 05-CV-0257, 2006 WL 964484 (E.D. Pa. Apr. 13, 2006) (unpublished), aff'd, 259 F. App'x 417 (3d Cir. 2007) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Parker v. Midw. Air Traffic Control, Civil Action No. 08-218, 2009 WL 1357238 (W.D. Pa. May 12, 2009).. . . . . . . . . . . . . . . . . . . . . . 10

Rohr v. Salt River Project Agric. Improve. & Power Dist., 555 F.3d 850 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sevast v. Kakouras, 591 Pa. 44, 915 A.2d 1147 (2007). . . . . . . . . . . . . . . . . . . . . 7

Sherback v. Wright Auto. Group, 987 F. Supp. 433 (W.D. Pa. 1997). . . . . . . . . 12

Smith v. City of Jackson, Miss., 544 U.S. 228 (2005).. . . . . . . . . . . . . . . . . . 30, 32

Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311 (3d Cir. 2006), cert. denied, 551 U.S. 1141 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Sutton v. United Air Lines, 527 U.S. 471 (1999). . . . . . . . . . . . . . . . . . . . . . . . . 12

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999). . . . . . . . . . . . . . 11

Tice v. Ctr. Area Transp. Auth., 247 F.3d 506 (3d Cir. 2001). . . . . . . . . . . . . . . 12

Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . 12

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). . . . . . . . . . . . . . . . . . 32

Weiler v. Household Fin. Corp., 101 F.3d 519 (7th Cir. 1996). . . . . . . . . . . . . . 13

vi

TABLE OF AUTHORITIES (CONT'D)

Cases Page

Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751 (3d Cir. 2004), cert. denied, 544 U.S. 961 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

29 U.S.C. §§ 621 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. §§ 2601 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 2612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22, 23

42 U.S.C. § 12102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 12111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 12112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

43 P.S. §§ 951 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

29 C.F.R. § 1630.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

Pub. L. No. 110-325, 122 Stat. 3553 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pa.R.C.P. 1035.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

vii

COUNTER-STATEMENT OF THE QUESTIONS INVOLVED

1. Is there sufficient evidence in the record from which a trier of fact could

infer that Appellant, Monica Kaputo, was a qualified individual within the meaning

of the Americans with Disabilities Act ("ADA") who requested a reasonable

accommodation that was denied her by Appellee, Yarnworks?

The court below answered "No."

2. Is there sufficient evidence in the record from which a trier of fact could

infer that Appellee, Yarnworks Industries, denied Appellant, Monica Kaputo, leave

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

or that Yarnworks discriminated against Ms. Kaputo for taking FMLA leave?

The court below answered "No."

3. Is there sufficient evidence in the record from which a trier of fact could

infer that Appellee, Yarnworks Industries, discharged Appellant, Monica Kaputo, on

account of her age in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §§ 621 et seq.?

The court below answered "No."

1

4. Is there sufficient evidence in the record from which a trier of fact could

infer that Appellee, Yarnworks Industries, maintained a policy that had had an

adverse impact on older workers such as Appellant, Monica Kaputo, in violation of

the ADEA?

The court below answered "No."

5. Is there sufficient evidence in the record from which a trier of fact could

infer that Appellee, Yarnworks Industries, discriminated against Appellant, Monica

Kaputo, in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§

951 et seq.?

The court below answered "No."

COUNTER-STATEMENT OF THE CASE

A. Procedural History

Appellant, Monica Kaputo, commenced this action for damages for alleged

employment discrimination in violation of the ADEA, the ADA, the FMLA, and the

PHRA, by filing a complaint on or about June 8, 2006 in the Unnamed County Court

of Common Pleas. Appellee, Yarnworks Industries ("Yarnworks"), filed an answer

on July 6, 2006, denying liability. (Reproduced Record ["R.R."] 2a.)

2

On January 28, 2010, Yarnworks brought a motion for summary judgment

which was opposed by Ms. Kaputo. (R.R. 1a.) The court, the Honorable Erskine

Cotton presiding, issued an order granting the motion for summary judgment on June

30, 2010 (R.R. 3a) and set forth its reasons in an opinion filed the same day (R.R. 4a-

8a).

B. Statement Of Facts

Ms. Kaputo began employment with Yarnworks as a Quality Manager on

August 31, 1999 and last worked for Yarnworks on July 22, 2003. (Supplemental

Reproduced Record ["S.R.R."] __b [Kaputo Dep. 5-6].) On that day, Ms. Kaputo

claims that she collapsed on the job due to stress and anxiety caused by the job. (Id.

__b, __b, etc. [Kaputo Dep. 10-12, 52-53, 61, 73].) No one witnessed her collapse.

(Id. __b–__b [Kaputo Dep. 13-14].) According to Ms. Kaputo, she had been

experiencing dizziness and had had trouble concentrating and sleeping for months,

but she did not tell anyone at Yarnworks about her problems. (Id. __b, etc. [Kaputo

Dep. 14-16, 61].) She sought treatment for her symptoms from her physician and

from a therapist, who diagnosed anxiety, depression, and job stress. (Id. [Kaputo

Dep. 16-20; Mot. Summ. J. Exs. C, D, E].) Ms. Kaputo's physician recommended that

she not return to work for Yarnworks. (Id. [Kaputo Dep. 35-36].)

3

Yarnworks provided Ms. Kaputo with 12 weeks of unpaid leave under the

FMLA and promised to keep her job open during that time. In addition, although the

Employee Handbook provided no special policy for sick leave for salaried employees,

Bradley O'Hare, President and CEO of Yarnworks, advised Ms. Kaputo that in

recognition of her years on the job, the company would pay her salary through August

2. (Id. [Mot. Summ. J. Ex. B; Kaputo Dep. 64].)

Ms. Kaputo did not request any job accommodations because she stated she

was unable to work under any circumstances. (Id. [Mot. Summ. J. Exs. M, N; Kaputo

Dep. 33-35, 47, 64-65].) She expressed the opinion that her stress could not be

accommodated because "it's a stress-related business." (Id. [Kaputo Dep. 47].)

Nonetheless, Mr. O'Hare offered to accommodate her so that she could return to

work. (Id. [Kaputo Dep. 64-65].)

As the end of her FMLA leave approached, Ms. Kaputo advised Yarnworks

that she was not able to return to work and asked if the company would lay her off so

that she could receive unemployment benefits. (Id. [Kaputo Dep. 37-38, 83-84].) Mr.

O'Hare declined to lay her off, noting that she was a valuable employee and the

company welcomed her return to work. He again offered to return her to work at

Yarnworks, either at her old position or at a quality control position with less

responsibility and lower salary. (Id. [Mot. Summ. J. Exs. F, H; Kaputo Dep. 38].)

Ms. Kaputo rejected Mr. O'Hare's offers and did not return to work upon the

4

expiration of her FMLA leave. (Id. [Mot. Summ. J. Exs. K, L; Kaputo Dep. 85-86,

88].) Yarnworks treated her separation from employment as voluntary. (Id. [Mot.

Summ. J. Ex. L].)

Thereafter, Ms. Kaputo e-mailed Mr. O'Hare that she considered herself fired

based on his refusal to lay her off and the company's hiring of Clair Prince in

September 2003. (Id. [Mot. Summ. J. Ex. H].) Mr. O'Hare assured Ms. Kaputo that

Ms. Prince was not hired to replace her. (Id. [Mot. Summ. J. Ex. K].) In fact, Ms.

Kaputo acknowledged that Ms. Prince, who was hired as Director of Quality, held a

different position than Ms. Kaputo and was hired to oversee her. (Id. [Kaputo Dep.

56].) At the time of Ms. Prince's hire, she was 43 years old, and Ms. Kaputo was 60.

(Id. [Mot. Summ. J. Ex. I].)

SUMMARY OF THE ARGUMENT

The court of common pleas correctly granted summary judgment in favor of

Yarnworks on Ms. Kaputo's ADA claim because the undisputed evidence

demonstrated that her alleged disability—anxiety and depression induced by work-

related stress—did not prevent her from performing all work. Ms. Kaputo asserted

that her impairment interfered only with her ability to work for Yarnworks. She was

not a qualified individual with a disability, because she asserted that no

accommodation would allow her to work for Yarnworks. She refused to engage in

5

the interactive process to find a reasonable accommodation that would allow her to

work for Yarnworks. The only request she made was to be laid off so that she could

collect unemployment insurance. This is not an accommodation to perform the

functions of her job.

Summary judgment in favor of Yarnworks was appropriate on the FMLA claim

because Yarnworks granted her all of the FMLA leave to which she was entitled,

even paying her salary for some of it, in spite of the fact that company policy did not

require such payment. She was not terminated for taking FMLA leave. The

undisputed evidence demonstrates that she quit.

Summary judgment was properly granted on the ADEA disparate treatment

claim because Ms. Kaputo's employment was not terminated; she resigned.

Yarnworks held open her position and invited her return at the conclusion of FMLA

leave. The undisputed evidence shows that Clair Prince, who was hired as Director

of Quality during Ms. Kaputo's FMLA leave, was not hired to replace Ms. Kaputo as

Quality Manager. The position of Director of Quality supervised the position of

Quality Manager.

Because the analysis of the PHRA claims is the same as that under federal law

employment discrimination counterparts, summary judgment was appropriate on the

PHRA claims.

6

ARGUMENT

I. SCOPE AND STANDARD OF REVIEW.

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2(1), summary

judgment is required

whenever there is no genuine issue of any material fact as to a necessaryelement of the cause of action. In considering the merits of a motion forsummary judgment, a court views the record in the light most favorableto the non-moving party, and all doubts as to the existence of a genuineissue of material fact must be resolved against the moving party. Finally,the court may grant summary judgment only when the right to such ajudgment is clear and free from doubt.

Sevast v. Kakouras, 591 Pa. 44, 52-53, 915 A.2d 1147, 1152-53 (2007) (citations

omitted). "A material fact is one that directly affects the outcome of the case.

Disputed facts which are not critical to the issue in the petition will not preclude

summary judgment." Bartlett v. Bradford Publ'g, Inc., 2005 PA Super 350, ¶ 18, 885

A.2d 562, 568 (citations omitted) (internal quotation marks omitted). "The purpose

of [summary judgment] is to eliminate cases prior to trial where a party cannot make

out a claim or a defense after relevant discovery has been completed[.]" Pa.R.C.P.

1035.2 explanatory cmt. (1996).

"This Court's scope of review of an order granting summary judgment is

plenary. [The] standard of review is clear: the trial court's order will be reversed

only where it is established that the court committed an error of law or clearly abused

its discretion." Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585, 812 A.2d

7

1218, 1221 (2002) (citation omitted). The court of common pleas properly entered

summary judgment in this case because there was no genuine issue as to any material

fact, and Yarnworks was entitled to judgment as a matter of law.

II. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FORSUMMARY JUDGMENT ON THE ADA CLAIMBECAUSE, BY MS. KAPUTO'S OWN ADMISSION,ANY DISABILITY SUFFERED BY HER WAS JOB-RELATED, SHE WAS NOT A QUALIFIEDINDIVIDUAL, AND SHE DID NOT REQUEST, ANDYARNWORKS DID NOT DENY HER, AREASONABLE ACCOMMODATION.

A. The ADA Amendments Act Of 2008 Does Not Apply ToThis Case.

There are two types of discrimination under the ADA: "(1) subjecting the

employee to an adverse employment action motivated by prejudice or fear; or (2)

failing to provide a reasonable accommodation for a disability." Bearley v. Friendly

Ice Cream Corp., 322 F. Supp. 2d 563, 576 (M.D. Pa. 2004). Ms. Kaputo has alleged

only a failure to provide a reasonable accommodation for a disability, presumably

stress and anxiety. In order to establish a prima facie claim for failure to

accommodate under the ADA, Ms. Kaputo must show that (1) she had a disability;

(2) Yarnworks had notice of her disability; (3) she could perform the essential

functions of her position with reasonable accommodation; and (4) Yarnworks failed

8

to provide her with a reasonable accommodation. Johnson v. Cmty. Coll. of

Allegheny County, 566 F. Supp. 2d 405, 450 (W.D. Pa. 2008).

Ms. Kaputo argues at pages 15-17 of her brief that the court below should have

evaluated the elements of her claim under the ADA Amendments Act of 2008

("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008), which restored

congressional intent to provide broad coverage for disability discrimination.

Although the ADAAA was not signed into law until September 25, 2008 and did not

become effective until January 1, 2009, Ms. Kaputo contends that the Act should

have been applied retroactively because this case was pending at those times. In

support, she cites to Jenkins v. Nat'l Bd. of Med. Examiners, No. 08-5371, 2009 WL

331638 (6th Cir. Feb. 11, 2009) (unpublished), and Rohr v. Salt River Project Agric.

Improve. & Power Dist., 555 F.3d 850, 853 (9th Cir. 2009). Neither case calls for

wholesale retroactive application of the ADAAA.

The Ninth Circuit in Rohr avoided addressing whether the ADAAA could be

applied retroactively but did acknowledge that it "sheds light on Congress' original

intent when it enacted the ADA." 555 F.3d at 861. In its unpublished decision in

Jenkins, the Sixth Circuit opted to apply the ADAAA without any discussion

"[b]ecause this case involves prospective relief and was pending when the

amendments became effective." 2009 WL 331638, at *1. To the extent that the

Jenkins decision has any validity, it is thus distinguishable from this case, which was

9

an action for damages. Moreover, to the extent that Jenkins calls for retroactive

application of the ADAAA, that decision is a departure from the overwhelming

number of cases—including cases arising in the federal district courts in

Pennsylvania—that have decided that the ADAAA is not to be applied retroactively.

See, e.g., Fikes v. Wal-Mart, Inc., 322 F. App'x 882, 883 n.1 (11th Cir. 2009); EEOC

v. Agro Distrib., LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009); Kiesewetter v.

Caterpillar Inc., 295 F. App'x 850, 851 (7th Cir. 2008); Lynch v. Matthews Int'l, Civil

Action No. 08-1717, 2010 WL 2640597, at *4 n.5 (W.D. Pa. June 29, 2010); Hajel

v. Ludlum, No. 2:10cv137, 2010 WL 2103923, at *2 (W.D. Pa. May 25, 2010);

Garvin v. Progressive Cas. Ins. Co., No. 5:08-cv-3758, 2010 WL 1948593, at *4

(E.D. Pa. May 10, 2010); Erbe v. Potter, No. 1:08-CV-0813, 2010 WL 1052947, at

*7 n.3 (M.D. Pa. Mar. 22, 2010); Parker v. Midw. Air Traffic Control, Civil Action

No. 08-218, 2009 WL 1357238, at *4 (W.D. Pa. May 12, 2009). The court of

common pleas was correct not to apply the ADAAA.

Even if there were an argument in favor of retroactive application, Ms. Kaputo

has not explained how the amendments would have changed the outcome in this case.

In the absence of evidence that application of the ADAAA would have created a

genuine issue of material fact as to an element of Ms. Kaputo's ADA claim, the

failure to apply the amendments cannot serve as a basis for reversing the grant of

summary judgment in this case.

10

B. Ms. Kaputo's Stress/Anxiety Was Not A DisabilityUnder The ADA, Because It Was Related To A SpecificJob And Did Not Prevent Her From Performing OtherJobs.

"Disability" is defined as "a physical or mental impairment that substantially

limits one or more major life activities." 42 U.S.C. § 12102(1)(A); 29 C.F.R. §

1630.2(g)(1). Disability can also include having "a record of such impairment" or

"being regarded as having such an impairment." 42 U.S.C. § 12102(1)(B), (C); 29

C.F.R. § 1630.2(g)(2), (3). Under the relevant regulations, major life activities

include caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Thinking and

concentrating have also been held to constitute major life activities. Johnson, 566 F.

Supp. 2d at 450 (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir.

1999)). An individual is substantially limited if she is unable to perform, or is

"significantly restricted as to the condition, manner or duration under which [she] can

perform" a major life activity. 29 C.F.R. § 1630.2(j)(1). Factors to be considered

under this standard include "(i) The nature and severity of the impairment; (ii) The

duration or expected duration of the impairment; and (iii) The permanent or long term

impact, or the expected permanent or long term impact of or resulting from the

impairment." Id. § 1630.2(j)(2). "[A]n individual must have an impairment that

prevents or severely restricts the individual from doing activities that are of central

11

importance to most people's daily lives. The impairment's impact must also be

permanent or long term." Johnson, 566 F. Supp. 2d at 450-51 (quoting Toyota Motor

Mfg., Ky. v. Williams, 534 U.S. 184, 198 (2002)). If working is the major life activity

that is substantially limited by the alleged disability, as appears to be alleged in this

case, then the plaintiff "must, at minimum, allege that he or she is 'unable to work in

a broad class of jobs.' . . . 'To be substantially limited in the major life activity of

working, then, one must be precluded from more than one type of job, a specialized

job, or a particular job choice.'" Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 512

(3d Cir. 2001) (quoting Sutton v. United Air Lines, 527 U.S. 471, 491, 492 (1999)).

Ms. Kaputo alleged that she was disabled due to a condition that was diagnosed

as job-related stress and anxiety and depression secondary to stress. (S.R.R. __b

[Mot. Summ. J. Exs. C, D, E].) Stress—whether work-related or not—can be

disabling if it "substantially limits a person's major life activities or is regarded by the

employer as doing so." Sherback v. Wright Auto. Group, 987 F. Supp. 433, 436

(W.D. Pa. 1997) (posttraumatic stress disorder). Yarnworks does not dispute Ms.

Kaputo's assertion at page 9 of her brief that depression can be a disability as well.

However, work-induced stress and anxiety, as that apparently experienced by Ms.

Kaputo, is not a disability under the ADA if the plaintiff is able to work at other jobs

in other conditions. Johnson, 566 F. Supp. 2d at 451 (job-related stress was not

disabling; plaintiff acknowledged that the only life activity limited by her condition

12

was not simply the ability to work, but specifically the ability to work with her

employer; in addition, she was able to retain her part-time employment as an online

instructor for another college and as minister of music for her church, and the plaintiff

provided no evidence that she would be unable to perform the duties of job, without

accommodations, at another college or university); Bowen v. Niagara Mohawk Power

Corp., No. 02-CV-749, 2006 WL 3096487, at *6 (N.D.N.Y. Oct. 30, 2006) (plaintiff,

who was advised by treating physicians not to return to her job because of the stress

level but who did not bid on other jobs with her employer and who stated that she was

not disabled, did not establish that she was a qualified individual with a disability

under the ADA). The stress must substantially limit the employee from working at

any job. Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996) (grocery

store manager was not disabled by workplace stress, because he was able to work

considerable hours pursuing real estate and sign-making business activities during the

final months of his leave of absence), cert. denied, 520 U.S. 1162 (1997). "The

inability to perform a single, particular job does not constitute a substantial limitation

in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). Likewise, stress

induced by a particular supervisor, MacKenzie v. City of Denver, 414 F.3d 1266, 1276

(10th Cir. 2005); Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996);

Benson v. Cal. Corr. Peace Officers Ass'n, No. 2:08-cv-0886 IFM PS, 2010 WL

682285, at *6 (E.D. Cal. Feb. 24, 2010) (unpublished); Ozlek v. Potter, Civil Action

13

No. 05-CV-0257, 2006 WL 964484, at *4 (E.D. Pa. Apr. 13, 2006) (unpublished),

aff'd, 259 F. App'x 417 (3d Cir. 2007) (unpublished), or certain other employees,

Aldrup v. Caldera, 274 F.3d 282, 287 (5th Cir. 2001), is not disabling under the

ADA.

In discovery, Ms. Kaputo was unable to identify a single activity of her

position of Quality Manager that she was physically or mentally unable to perform.

(S.R.R. __b [Mot. Summ. J. Ex. O].) Moreover, in her application for unemployment

compensation benefits, she asserted that she was available for work. (Id. __b [Mot.

Summ. J. Ex. J].) On the other hand, she insisted that she could not return to work

at Yarnworks because she could not handle the stress of working for Mr. O'Hare (id.

__b [Kaputo Dep. 34-35; Ex. N]) and "it's a stress related business" (id. __b [Kaputo

Dep. 47]). By her own admission, the stress she suffered was related to her work at

Yarnworks (id. __b [Kaputo Dep. 52-53, 61, 73]), not to working in general. Clearly

Ms. Kaputo was not substantially limited in her ability to work in a broad class of

jobs but only in her ability to work at Yarnworks. The inability to work in a

particular job is not a disability under the ADA.

Furthermore, the evidence does not support Ms. Kaputo's assertion that

Yarnworks regarded her as having a disability. Within a week of the commencement

of Ms. Kaputo's FMLA leave on July 22, 2003, Mr. O'Hare, the President and CEO

of Yarnworks, had already reached out to her to let her know that the company valued

14

her and wanted her to return to work. (Id. __b [Kaputo Dep. 65; Mot. Summ. J. Ex.

B].) In early September of 2003, Mr. O'Hare talked to Ms. Kaputo about returning

to work. (Id. __b [Kaputo Dep. 35].) Later in September, after Ms. Kaputo had

informed Yarnworks that she would not be returning to work because she could not

handle her on-the-job responsibilities (id. __b [Kaputo Dep. 37]), Mr. O'Hare e-

mailed her to tell her that she was a valued employee and was welcome to return to

her old position or to a position with less responsibility (id. __b [Kaputo Dep. 38;

Mot. Summ. J. Ex. F]). When the time passed for Ms. Kaputo to return to work

following the expiration of her FMLA leave, and she announced that she would be

filing for unemployment compensation, Mr. O'Hare e-mailed her that he assumed she

was able to return to work, since receipt of an unemployment compensation award

requires an ability to work, and he welcomed her to return to her old position which

had been held open for her. (Id. __b [Mot. Summ. J. Exs. G, H].) Far from treating

Ms. Kaputo as an individual with a disability, Yarnworks regarded her as a valued

employee, whom the company would welcome back to work.

Because Ms. Kaputo did not point to a genuine issue of material fact as to

whether she was disabled within the meaning of the ADA, the court of common pleas

appropriately entered summary judgment in favor of Yarnworks on the ADA claim.

15

C. Ms. Kaputo Was Not A Qualified Individual With ADisability.

Even if Ms. Kaputo suffered from an actual disability or was regarded by her

employer as having a disability, summary judgment in favor of Yarnworks was proper

because Title I of the ADA forbids an employer from discriminating against a

"qualified individual" on the basis of disability, 42 U.S.C. § 12112(a), and Ms.

Kaputo was not a qualified individual. A "qualified individual" is "an individual

who, with or without reasonable accommodation, can perform the essential functions

of the employment position that such individual holds or desires." Id. § 12111(8).

Ms. Kaputo admitted that she was unable to work for Yarnworks under any

circumstances, including with an accommodation, because of the stress related to her

job. (S.R.R. __b [Kaputo Dep. 33-35, 37, 47; Mot. Summ. J. Exs. M, N].)

Moroever, Ms. Kaputo made no effort in response to Yarnworks' motion for

summary judgment to demonstrate that she was able to return to work and perform

the full duties of her position as Quality Manager. She misrepresents the record when

she states, at page 18 of her brief, that "[t]hroughout the pertinent period, Kaputo was

awaiting final word from her doctor that she could return to work." In fact, her own

doctor recommended against her returning to work with Yarnworks, and Ms. Kaputo

conceded that he reacted with shock when, in early September 2003, she asked him

for a note to return to work. (Id. __b [Kaputo Dep. 35-36].) If the employee cannot

demonstrate that she is able to perform the work, termination of employment

16

following short-term disability for stress does not violate the ADA, even if the

employer allegedly caused the stress. Harris v. SmithKline Beecham, 27 F. Supp. 2d

569, 581 (E.D. Pa. 1998), aff'd, 203 F.3d 816 (3d Cir. 1999). Therefore, even if the

lower court had found the existence of an issue of fact as to whether Ms. Kaputo's

stress/anxiety was a disability within the meaning of the ADA, the issue would not

have been material, and Yarnworks was still entitled to summary judgment on the

ADA claim. Ms. Kaputo is not a qualified individual with a disability subject to the

protections of the Act.

D. Ms. Kaputo Did Not Request, And Yarnworks Did NotDeny Her, A Reasonable Accommodation To PerformHer Job.

"[B]oth employer and employee have a duty to assist in the search for

appropriate reasonable accommodation and to act in good faith." Williams v. Phila.

Hous. Auth. Police Dep't, 380 F.3d 751, 771 (3d Cir. 2004) (citation omitted)

(internal quotation marks omitted), cert. denied, 544 U.S. 961 (2005). However, a

plaintiff cannot recover without demonstrating that a reasonable accommodation was

possible. Id. at 772.

The evidence in the record is undisputed that Ms. Kaputo did not request an

accommodation to perform the duties of her job, either before she took FMLA leave

or after her leave had expired. Ms. Kaputo has freely admitted that before she took

17

FMLA leave, she did not tell anyone at Yarnworks about episodes of dizziness she

had been experiencing or that she felt her job was getting away from her. (S.R.R. __b

[Kaputo Dep. 14-16].) She also admitted that she never asked anyone at Yarnworks

for an accommodation for her stress/anxiety because of the stress related to her job

and she did not feel she could handle the responsibility. (Id. __b [Kaputo Dep. 33,

37, 47, 64-65; Mot. Summ. J. Ex. M].)

On the other hand, the record is replete with evidence of attempts made by

Yarnworks to return Ms. Kaputo to work, notwithstanding her refusal to work with

the company to devise a reasonable accommodation. The company extended FMLA

leave to her and even voluntarily paid for a portion of the leave, although company

policy did not require any pay (id.__b [Kaputo Dep. 64; Mot. Summ. J. Ex. B]), and

the FMLA allows uncompensated leave, 29 U.S.C. § 2612(c). At the same time, the

company offered to accommodate her needs upon her return. (S.R.R. __b [Kaputo

Dep. 64-65].) Approximately one month before the expiration of her FMLA leave,

Ms. Kaputo met with Mr. O'Hare to discuss a return to work. (Id. __b [Kaputo Dep.

35].) As the expiration of her FMLA leave approached, and Ms. Kaputo indicated

that she could not handle the stress of the job (id. __b [Kaputo Dep. 37]), the

company offered her a position with less responsibility and less pay, if she was

unwilling to return to her old job (id. __b [Kaputo Dep. 38, Mot. Summ. J. Ex. F]).

18

Mr. O'Hare, on behalf of the company, urged her to return to work, even when she

indicated that she thought she had been fired. (Id.__b [Mot. Summ. J. Exs. G, H].)

Yarnworks did all it could to bring Ms. Kaputo back to work after the

expiration of her FMLA leave, but she was intransigent in her position that she was

unable to continue to work for the company due to the stress. Indeed, her own doctor

advised against a return to work at Yarnworks. (Id. __b [Kaputo Dep. 36].) On this

record, Ms. Kaputo cannot establish that a reasonable accommodation was possible.

Ms. Kaputo's allegations that Yarnworks failed to engage in an interactive process for

identifying a reasonable accommodation are baseless. On the contrary, her persistent

failure to engage in an interactive process with Yarnworks and her repeated insistence

that due to stress she could not do the job under any circumstances establish that she

could not perform the job with or without a reasonable accommodation.

Likewise, Ms. Kaputo's suggestion that Yarnworks denied her unpaid leave for

medical treatment as a reasonable accommodation is not based on fact. First of all,

as just stated, Yarnworks granted her the full 12 weeks of FMLA leave, some of

which was paid leave, even though company policy did not require paid leave.

Second, as recounted above, as the time for expiration of Ms. Kaputo's FMLA leave

approached, she made it clear to Yarnworks that she could not return to work. She

never stated that additional time off for medical treatment would enable her to

perform the duties of her job. Rather, she insisted that she could never perform those

19

duties. Instead, she asked to be laid off so that she could collect unemployment

insurance. (Id. __b [Kaputo Dep. 37-38, 83-84].) This was not a request for

uncompensated leave to enable Ms. Kaputo to return to her job; it was a request for

money to help her through a tough time.

Yarnworks did not refuse to grant her a reasonable accommodation. Ms.

Kaputo denied an ability to work and refused to cooperate with Yarnworks to develop

an accommodation. For this reason, the court below correctly granted summary

judgment in favor of Yarnworks.

III. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FORSUMMARY JUDGMENT ON THE FMLA CLAIMBECAUSE YARNWORKS AFFORDED MS. KAPUTOALL LEAVE TO WHICH SHE WAS ENTITLEDUNDER THE FMLA AND IT DID NOTDISCRIMINATE AGAINST HER FOR TAKINGFMLA LEAVE.

The Third Circuit Court of Appeals has explained the two types of rights under

the FMLA:

The FMLA contains two relatively distinct types of provisions. First, it creates a series of prescriptive substantive rights for eligibleemployees, often referred to as the "entitlement" or "interference"provisions which set floors for employer conduct. See Churchill v. StarEnters., 183 F.3d 184, 192 (3d Cir. 1999). Eligible employees "shall beentitled to a total of twelve workweeks of leave during anytwelve-month period" if the employee has a "serious health conditionthat makes the employee unable to perform the functions of the position

20

of such employee." 29 U.S.C. § 2612(a)(1)(D). Following a qualifiedabsence, the employee is entitled to be reinstated to the former positionor an alternate one with equivalent pay, benefits and working conditions. 29 U.S.C. § 2614(a)(1).

Additionally, the FMLA provides protection againstdiscrimination based on the exercise of these rights, often referred to asthe "discrimination" or "retaliation" provisions. See 29 U.S.C. §2615(a)(1) and (2); 29 C.F.R. § 825.220(c) ("An employer is prohibitedfrom discriminating against employees . . . who have used FMLAleave."). Employers may not "use the taking of FMLA leave as anegative factor in employment actions, such as hiring, promotions ordisciplinary actions." 29 C.F.R. § 825.220(c).

Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.), cert. denied, 546 U.S.

876 (2005); see also Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452, 462

(E.D. Pa. 2005) ("Prescriptive or substantive FMLA rights include an eligible

employee's ability to obtain leave provided by the FMLA. Proscriptive FMLA rights

include protection in the event that an employee is discriminated against for

exercising the prescriptive rights as set forth in the statute." (citations omitted)

(quotation marks omitted)). The Complaint alleges a prescriptive violation at ¶ 50

and a proscriptive violation at ¶ 51.

21

A. Ms. Kaputo Cannot Prove A Prescriptive Violation OfThe FMLA, Because She Received All Of The Leave To Which She Was Entitled Under The Act.

To prove a prescriptive or entitlement or interference violation, "the employee

only needs to show that [s]he was entitled to benefits under the FMLA and that [s]he

was denied them." Callison, 430 F.3d at 119. However, there are no facts in the

record from which a reasonable trier of fact could infer that Ms. Kaputo was denied

her 12 weeks of FMLA leave. Instead, the undisputed evidence showed that when

Yarnworks learned that Ms. Kaputo would be unable to work for a while in July

2003, Mr. O'Hare, on behalf of the company, offered her the full protections of the

FMLA. In fact, the company offered to pay for several days of the FMLA leave, even

though company policy did not require payment (S.R.R. __b [Kaputo Dep. 64; Mot.

Summ. J. Ex. B]) and the FMLA does not require that FMLA leave be paid, see 29

U.S.C. § 2612(c). There was never any question that Ms. Kaputo was on unpaid

leave. She even asked Mr. O'Hare to lay her off so that she could apply for

unemployment compensation and get back on her feet financially. (Id. __b [Kaputo

Dep. 37-38, 83-83].) Mr. O'Hare was in contact with Ms. Kaputo by e-mail and

telephone in the days leading up to the expiration of her FMLA leave, and he advised

her that the FMLA leave was about to end. (Id. __b [Kaputo Dep. 38, Mot. Summ.

J. Exs. F, H, K].)

22

The FMLA entitles employees to up to 12 weeks of unpaid leave in any 12-

month period due to a serious health condition. 29 U.S.C. § 2612(a)(1)(D).

Employees who exhaust the 12 weeks of FMLA leave without returning to work are

not entitled to return to their old jobs. Dogmanits, 413 F. Supp. 2d at 462-63. "[A]

plaintiff suffers no FMLA injury when she receives all the leave she requests."

Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir. 1999). Because

Ms. Kaputo received all of the FMLA leave to which she was entitled, the court of

common pleas was correct in granting summary judgment in favor of Yarnworks on

the prescriptive FMLA claim.

B. Ms. Kaputo Cannot Prove A Proscriptive Violation OfThe FMLA Because She Cannot Prove That SheSuffered An Adverse Employment Action Related ToHer FMLA Leave.

To establish a prima facie case of a proscriptive or discrimination or retaliation

violation of the FMLA, an employee "must show that (1) [s]he took an FMLA leave,

(2) [s]he suffered an adverse employment decision, and (3) the adverse decision was

causally related to [her] leave." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d

135, 146 (3d Cir. 2004). It is undisputed that Ms. Kaputo took FMLA leave.

In general, adverse employment actions are those actions by an employer that

alter an employee's compensation, terms, conditions, or privileges of employment,

23

such as a discharge, a failure to hire, a demotion, a transfer to a less desirable

position, or an unsatisfactory job evaluation. Johnson, 566 F. Supp. 2d at 430. To

be actionable, the adverse action must be material and not trivial. See Burlington N.

& Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (construing retaliation provision

under Title VII). Termination of employment certainly would fall within the

definition of "adverse employment action." The problem with this argument is that

Yarnworks did not fire Ms. Kaputo. She quit, announcing that she considered herself

terminated. (S.R.R. __b [Kaputo Dep. 37, 85-86, 88; Mot. Summ. J. Ex. G].)

This leaves Ms. Kaputo with the claim of constructive discharge.

"Constructive discharge occurs when an 'employer knowingly permit[s] conditions

of discrimination in employment so intolerable that a reasonable person subject to

them would resign.'" Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n.4 (3d

Cir. 2006) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3d Cir. 1984)),

cert. denied, 551 U.S. 1141 (2007). The reasonable person standard requires an

objective inquiry, not a subjective one, since presumably any employee who quits

feels that she must do so. Nagle v. RMA, The Risk Mgmt. Ass'n, 513 F. Supp. 2d 383,

392 (E.D. Pa. 2007).

Although Ms. Kaputo has not articulated a factual basis for a constructive

discharge claim, it appears to be Ms. Kaputo's position that she was forced to quit her

job, in retaliation for taking FMLA leave, because Yarnworks made conditions

24

intolerable by allowing Mr. O'Hare to browbeat her and by hiring Ms. Prince to take

her place. The evidence simply does not support Ms. Kaputo's interpretation of

events. As discussed in Point IV.A, infra, Ms. Prince was not hired to replace her.

Moreover, Mr. O'Hare did not berate her, but merely set out her employment options.

The tone of Mr. O'Hare's written communications is collegial. (S.R.R. __b [Mot.

Summ. J. Exs. F, H, K, L].) Because Yarnworks did not discriminate against Ms.

Kaputo on account of her taking FMLA leave, the court below properly granted

summary judgment in favor of Yarnworks on Ms. Kaputo's proscriptive FMLA

claim.

IV. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FORSUMMARY JUDGMENT ON THE ADEADISPARATE TREATMENT CLAIM BECAUSETHERE IS NO EVIDENCE FROM WHICH A TRIEROF FACT COULD INFER THAT MS. KAPUTO WASDISCHARGED ON ACCOUNT OF HER AGE.

When, as in this case, there is no direct evidence of age discrimination,

Pennsylvania courts analyze claims of disparate treatment in violation of the ADEA

under the burden-shifting framework developed in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See generally Kroptavich v. Pa. Power & Light

Co.,2002 PA Super 87, 795 A.2d 1048. Under that scheme, the plaintiff must first

establish a prima facie case of discrimination. "If the plaintiff cannot meet this

25

minimal burden, the employer is entitled to judgment as a matter of law." Id. ¶ 19,

795 A.2d at 1055. Second, if the plaintiff makes out "a prima facie case, a

presumption of discrimination arises, and the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the challenged

employment decision." Id. ¶ 20, 795 A.2d at 1055. Third, "[i]f the employer satisfies

its burden of production, . . . the plaintiff [has] the opportunity to show that the

legitimate reasons proffered by the employer were pretexts for what, in reality, was

a discriminatory motivation." Id. ¶ 21, 795 A.2d at 1055. A plaintiff alleging age

discrimination may establish a prima facie case by showing that at the relevant time

the plaintiff

(i) belonged to a protected class, i.e., was at least 40 years of age; (ii)was qualified for the position; (iii) was dismissed despite beingqualified; and (iv) suffered dismissal under circumstances giving rise toan inference of discrimination, such as the fact that the plaintiff wasreplaced by someone substantially younger.

Id. ¶ 23, 795 A.2d at 1056.

A. Ms. Kaputo Cannot Establish A Prima Facie Case OfDiscrimination.

Summary judgment in favor of Yarnworks on the ADEA disparate treatment

claim was proper because Ms. Kaputo cannot make out a prima facie case of age

discrimination. It is Ms. Kaputo's theory that she was effectively terminated when the

company hired Clair Prince in September 2003. (S.R.R. __b [Mot. Summ. J. Ex. G].)

26

Because she was 60 years old at the time of her separation from employment, Ms.

Kaputo clearly belonged to the protected class. Likewise, at age 43 at the time of her

hire (id. __b [Mot. Summ. J. Ex. I]), Ms. Prince was substantially younger than Ms.

Kaputo. However, Ms. Kaputo did not make out a prima facie case and was not

entitled to a presumption of discrimination because (1) she cannot show that she was

qualified for the position of Quality Manager, (2) she was not dismissed, (3) Ms.

Prince was not hired to replace her, and (4) Ms. Kaputo did not set forth any other

circumstances giving rise to an inference of discrimination on account of age.

Although Yarnworks made numerous efforts to bring her back to work, Ms.

Kaputo testified consistently throughout her deposition that she was unable to work

under any circumstances. (Id. __b [Kaputo Dep. 33-35, 47, 64-65; Mot. Summ. J.

Exs. M and N].) She acknowledged that she suffered from stress, and she could not

work at Yarnworks because "it's a stress-related business." (Id. __b [Kaputo Dep.

47].)

Even if Ms. Kaputo were nominally qualified to perform the functions of

Quality Manager, her prima facie case fails because it is clear from her deposition

testimony and from the e-mail exchange between her and Mr. O'Hare on behalf of the

company that she was not terminated. On the contrary, Yarnworks gave her a full 12

weeks of FMLA leave and even paid her salary for several days of the leave in

recognition of her years on the job. (Id. __b [Kaputo Dep. 64; Mot. Summ. J. Ex. B].)

27

She rejected the company's offers to return her to her old position or to a less

stressful, lower paying position upon the expiration of the FMLA leave. (Id. __b

[Kaputo Dep. 38, 85-86, 88; Mot. Summ. J. Ex. F].) Ms. Kaputo did not return to

work, even when she was advised that her FMLA leave was about to expire the

following day. (Id. __b [Kaputo Dep. 93; Mot. Summ. J. Ex. K].) Following Ms.

Kaputo's failure to return to work upon the expiration of her FMLA leave, the

company promptly notified her that she had been voluntarily terminated. (Id. __b

[Mot. Summ. J. Ex. L].)

Finally, Ms. Kaputo cannot show that her termination occurred under

circumstances giving rise to an inference of discrimination. The only discriminatory

circumstance she cites is the hiring of a younger woman, Ms. Prince, as Director of

Quality. However, Ms. Prince was hired in September 2003 (id. __b [Mot. Summ.

J. Exs. G, H]), prior to Ms. Kaputo's failure to return to work on October 17, 2003 and

voluntary termination (id.__b [Mot. Summ. J. Ex. L]). Furthermore, Ms. Kaputo

acknowledged that Ms. Prince, who was hired as Director of Quality, not Quality

Manager, held a different position than she had and that Ms. Prince was, in fact, hired

to oversee her. (Id. __b [Kaputo Dep. 56].) Finally, when she failed to return to work

as Quality Manager, Yarnworks spread out Ms. Kaputo's job responsibilities among

four different employees, each of whom was more than 40 years old. (Id.__b [Mot.

Summ. J. Ex. I].)

28

B. Ms. Kaputo Cannot Point To Persuasive Evidence ThatYarnworks' Rationale For Her VoluntaryTermination—Her Failure To Return To Work AfterThe Expiration Of FMLA Leave—Was A Pretext ForAge Discrimination.

Even if Ms. Kaputo were able to make out a prima facie case, Yarnworks is still

entitled to summary judgment on the ADEA disparate treatment claim because there

is no evidence from which a jury could infer that Yarnworks used her failure to return

to work as a pretext for terminating her employment on account of her age. As just

recited, Mr. O'Hare, on behalf of the company, made several offers to return Ms.

Kaputo to work, even up to the last day of her FMLA leave, all of which she rejected.

There is absolutely no evidence in the record, direct or indirect, that Yarnworks took

Ms. Kaputo's age into consideration in taking any employment action against her.

C. Ms. Kaputo Cannot Prove That Age Was The "But-For" Cause Of Her Termination From Employment.

Even if Ms. Kaputo were able to show that her age was a motivating factor in

any adverse employment action by Yarnworks, summary judgment in favor of

Yarnworks was appropriate because she cannot prove that age was the sole

motivating factor. In Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), the U.S.

Supreme Court held that

a plaintiff bringing a disparate-treatment claim pursuant to the ADEAmust prove, by a preponderance of the evidence, that age was the

29

"but-for" cause of the challenged adverse employment action. Theburden of persuasion does not shift to the employer to show that itwould have taken the action regardless of age, even when a plaintiff hasproduced some evidence that age was one motivating factor in thatdecision.

Id. at 2352. In other words, there are no "mixed-motives" cases under the ADEA.

Therefore, even if Ms. Kaputo's age were a factor in any decision to terminate her

employment, she has no claim under the ADEA if, as in this situation, Yarnworks had

another legitimate reason for terminating her employment, i.e., that she failed to

return to work after the expiration of her FMLA leave. For all of the foregoing

reasons, the Court should grant Defendant's Motion for Summary Judgment as to

Count I of the Complaint.

V. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FORSUMMARY JUDGMENT ON THE ADEADISPARATE IMPACT CLAIM BECAUSE THERE ISNO EVIDENCE FROM WHICH A TRIER OF FACTCOULD INFER THAT YARNWORKS HAD APOLICY THAT HAD AN ADVERSE IMPACT ONOLDER WORKERS, SUCH AS MS. KAPUTO. 1

The U.S. Supreme Court has recognized that the ADEA authorizes recovery

in so-called disparate impact cases. Smith v. City of Jackson, Miss., 544 U.S. 228,

Because Ms. Kaputo did not brief the disparate impact claim in response to the1

motion for summary judgment or in her brief on appeal, she appears to have waivedthe claim. Yarnworks addresses the claim in an abundance of caution.

30

232 (2005). "In a disparate impact claim under the ADEA, the plaintiff challenges

a specific, facially neutral employment practice that operates to deprive the individual

of employment opportunities or otherwise adversely affect his status as an employee."

Embrico v. U.S. Steel Corp., 404 F. Supp. 2d 802, 817 (E.D. Pa. 2005) (citation

omitted) (internal quotation marks omitted), order aff'd, 245 F. App'x 184 (3d Cir.

2007).

"As a threshold matter, . . . a plaintiff must have first suffered some type of

adverse employment action before [s]he can bring a cognizable disparate impact

claim." Id. at 828 (brackets added). As discussed in Point IV, Ms. Kaputo did not2

suffer an adverse employment action, because she was not fired but voluntarily quit

her job when she failed to return to work following the expiration of her FMLA leave.

Accordingly, Yarnworks was entitled to summary judgment on the ADEA disparate

impact claim.

Even if the Court were to treat Ms. Kaputo's separation from employment as

an adverse employment action, the disparate impact claim still fails because Ms.

Kaputo has utterly failed to identify a company policy that has an adverse impact on

older workers, such as Ms. Kaputo. The U.S. Supreme Court has noted that

it is not enough to simply allege that there is a disparate impact onworkers, or point to a generalized policy that leads to such an impact.

For an additional discussion of adverse employment action, see supra Point2

III.B.

31

Rather, the employee is "'responsible for isolating and identifying thespecific employment practices that are allegedly responsible for anyobserved statistical disparities.'"

Smith, 544 U.S. at 241 (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642,

656 (1989)). In ¶ 30 of the Complaint, Ms. Kaputo merely alleged that "the actions

of the Defendant have had a discriminatory effect upon the Plaintiff." (S.R.R. __b

[Compl.].) The failure to identify the specific employment practice that had an

adverse impact on Ms. Kaputo supports the court of common pleas' grant of summary

judgment in favor of Yarnworks on the ADEA disparate impact claim.

VI. THE COURT OF COMMON PLEAS CORRECTLYGRANTED YARNWORKS' MOTION FORSUMMARY JUDGMENT ON THE PHRA CLAIMFOR THE SAME REASONS YARNWORKS WASENTITLED TO SUMMARY JUDGMENT ON THEFEDERAL CLAIMS.

"Generally, claims brought under the PHRA are analyzed under the same

standards as their federal counterparts." Kroptavich, 2002 PA Super. 87, ¶ 18, 795

A.2d at 1055; see also Cohen v. Temple Physicians, Inc., 11 F. Supp. 2d 733, 736

(E.D. Pa. 1998) ("[T]he PHRA is interpreted in accord with Title VII and the ADA.").

Accordingly, for the reasons discussed in Points II through V of this Argument,

summary judgment was properly granted in favor of Yarnworks on Ms. Kaputo's

PHRA claims.

32

CONCLUSION

For the foregoing reasons, Defendant Yarnworks respectfully requests that

this Court affirm the judgment of the court of common pleas.

Date: December ____, 2010 Respectfully submitted,

FIRM NAME, P.C.

______________________________Attorney, EsquireAddressTelephone: NumberFacsimile: NumberE-Mail: address

Attorney for Appellee

33

CERTIFICATE OF SERVICE

I certify that on December ___, 2010, a copy of each of the foregoing Brief of

Appellee and the Supplemental Reproduced Record was served on Appellant by

placing the same in a postage-prepaid envelope in first-class mail, addressed to

Appellant's counsel as follows:

Attorney, EsquireAddress

________________________________Attorney, Esquire