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Rumanek v. Independent School Management, Inc.

United States District Court, Third Circuit

January 10, 2014



SHERRY R. RALLON, Magistrate Judge.


Presently before the court in this retaliation action brought under the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., the Delaware Discrimination in Employment Act ("DDEA"), 19 Del. C. § 711, et seq., and the Delaware Persons with Disabilities Employment Protections Act ("DPDEP"), 19 Del. C. § 720, et seq., is the motion for summary judgment of defendant Independent School Management, Inc. ("ISM" or "Defendant"). (D.I. 96) For the following reasons, the court shall grant-in-part and deny-in-part ISM's motion for summary judgment.[1]


A. Romanek's Employment with ISM

ISM is a Delaware corporation that provides advice and assistance to private schools on various management issues. (D.I. 66 at ¶ 9; D.I. 71 at ¶ 9) ISM's employee handbook sets forth a progressive discipline policy. (D.I. 110, Ex. 1 at 23:14-24:1) The progressive discipline policy provides that an employee will typically be given a verbal warning first, followed by a written reprimand, unpaid time off from work, and ultimately, termination. ( Id. at 24:2-6) The policy further provides that "ISM reserves the right to bypass disciplinary steps and base its disciplinary action on the severity, frequency or combination of infractions when circumstances warrant immediate action." ( Id. at 24:9-13) Under the policy, ISM reserves the right to discharge employees at any time. ( Id. at 24: 15-16)

ISM hired plaintiff Sandra Rumanek as a contract worker in 2002.[2] (D.I. 71 at ¶ 10; D.I. 110 at 2) In 2005, ISM hired Rumanek into a different position as a full time employee. ( Id. ) In 2007, ISM transferred Rumanek to perform the position of"Director of Management Institutes and Survey Specialist, " giving Rumanek significant responsibility over ISM's Summer Institute. ( Id. ) Rumanek reported directly to ISM President Roxanne Higgins and received periodic salary increases and bonuses. (D.I. 71 at ¶ 12; D.I. 110 at 2)

In February 2009, Higgins and Rumanek had a discussion regarding a change in Rumanek's position to an ISM Field Adviser position in late September or early October of 2009. (D.I. 116, Ex. 28 at FOIA407, 420, 424) The parties dispute whether this discussion was exploratory, or whether Higgins affirmatively offered Rumanek the position, but they agree that no compensation for the position was established during the discussion and no contract was executed. ( Id.; D.I. 109, Ex. 92 at 628:9-15; D.I. 106, Ex. 85 at 206:10-207:21)

In preparation for ISM's 2009 and 2010 Summer Institute, Rumanek negotiated a contract with the Hyatt hotel in Philadelphia which was intended to protect ISM's net revenue by tying its minimum expenditures at the hotel to the actual program registration numbers. (D.I. 116, Ex. 28 at FOIA328) However, Rumanek failed to adjust the minimum numbers with the Hyatt prior to the April 15, 2009 deadline. ( Id. at FOIA385) As a result, ISM suffered a $200, 000 loss. (D.I. 110, Ex. 1 at 51:9-21) Higgins characterized the missed deadline as a mistake and Rumanek's responsibility for the incident was excused. (D.I. 116, Ex. 28 at FOIA385; D.I. 110, Ex. 1 at 53:5-9)

Another incident occurred in April 2009, when an ISM employee, Brian Fulmer, was given a verbal warning for insubordination after he publicly scolded another ISM employee. Fulmer had previously engaged in similar conduct directed to the same co-employee and had been instructed that it should not occur in the future. (D.I. 110, Ex. 1 at 49:18-50:12) As of April 2009, Rumanek and Fulmer were employed at the same level of the organizational hierarchy. ( Id. at 49:7-17)

In a meeting on May 11, 2009, Rumanek and Higgins further discussed Rumanek's transition to the Field Adviser position, and Higgins informed Rumanek that the change would need to be postponed until December 2009 or January 2010. (D.I. 116, Ex. 28 at FOIA407, 420, 424; D.I. 109, Ex. 92 at 628:9-15; D.I. 106, Ex. 85 at 206:10-207:21) On May 28, 2009, Rumanek sent a memorandum to Higgins addressing her concerns that Higgins was delaying her new position, among other matters. (D.I. 110, Ex. 4; D.I. 116, Ex. 28 at FOIA423) In response to Rumanek's memorandum, Higgins proposed a meeting with Rumanek, which took place on June 1, 2009. (D.I. 110, Ex. 2; D.I. 116, Ex. 28 at FOIA407-10) After the meeting, Rumanek and Higgins agreed that Rumanek could start the new position in September if she could keep her expenses within $700 per month for the first four months. (D.I. 116, Ex. 28 at FOIA420-21, 425) This agreement was documented in a June 2, 2009 memorandum from Higgins to Rumanek, which stated that Rumanek would assume the role of ISM Field Adviser in the fall, on a date of Rumanek's choosing. (D.I. 103, Ex. 54 at FOIA209) The memorandum indicated that the terms of compensation would be reassessed in January 2010. ( Id. ) Although Rumanek and Higgins both initialed the memorandum, Rumanek later indicated that she was "uncomfortable with the lack of clarity of the language" and sought a formal contract. ( Id.; D.I. 116, Ex. 28 at FOIA412)

In early September 2009, Higgins presented Rumanek with a compensation proposal, and Rumanek drafted a memorandum in response with her own proposal. (D.I. 116, Ex. 28 at FOIA428-29; D.I. 103, Ex. 54 at FOIA211) Higgins approved the proposal made by Rumanek, which permitted Rumanek to maintain her base salary of $87, 138, in addition to earning commissions, for a period of twelve months beginning in October 2009. (D.I. 103, Ex. 54 at FOIA211; D.I. 101, Ex. 28 at FOIA436)

On April 6, 2010, Rumanek reported to Higgins that she had a compensation shortfall of about $6, 000. (D.I. 110, Ex. 1 at 87:2-15) Higgins explained that she reduced Rumanek's base salary by $3, 000 per month when Rumanek began earning commissions. (D.I. 103, Ex. 54 at FOIA 218-19) When Higgins realized that the agreement included a provision stating that Rumanek's base salary would remain the same for twelve months, she reinstated Rumanek's base salary. ( Id. at FOIA227-28) Rumanek identified other errors in her pay, which ISM corrected. ( Id. at FOIA243; D.I. 101, Ex. 28 at FOIA545, 592)

B. August Stoner's EEOC Complaint

On March 31, 2006, ISM hired August Stoner, an African American woman. (D.I. 71 at ¶ 13; D.I. 110 at 3) In the spring of 2007, Stoner told Rumanek that Stoner's manager was harassing her due to her race. (D.I. 105, Ex. 70 at FOIA64; D.I. 110, Ex. 3 at 12) Rumanek verbally relayed Stoner's concerns to Higgins, who told Rumanek that Stoner's complaint was not Rumanek's concern and advised Rumanek to "drop it." ( Id.; D.I. 110, Ex. 1 at 167:16-20) Stoner filed an EEOC complaint and a Charge of Discrimination with the Delaware Department of Labor, and Rumanek participated as a witness in Stoner's proceedings. (D.I. 106, Ex. 76 at R4554) Higgins later learned of Rumanek's participation on May 28, 2009. (D.I. 110, Ex. 1 at 35:6-9; D.I. 109, Ex. 92 at 377:15-378:1) Higgins testified that Rumanek's participation in Stoner's case was disappointing for her, especially after Higgins forgave Rumanek for the mistake on the Hyatt contract. (D.I. 110, Ex. 1 at 42:1-44:3)

C. Romanek's Request for Accommodation, FMLA Leave, and Termination

In November 2009, Rumanek was involved in two car accidents and suffered injuries that included tingling and weakness in her shoulders and upper arms, fatigue, and headaches. (D.I. 110, Ex. 12) As a result of the accidents, Rumanek requested permission to work from home and use a telephone headset, and ISM accommodated both requests in February 2010. (D.I. 116, Ex. 28 at FOIA191; D.I. 99, Ex. 22 at D597)

On August 6, 2010, Higgins emailed Rumanek to schedule a meeting to discuss Rumanek's compensation. (D.I. 103, Ex. 54 at FOIA241) Rumanek and Higgins planned to meet on August 23, 2010. ( Id. at FOIA243) On August 20, 2010, Rumanek emailed Higgins a request to record the compensation meeting scheduled for August 23, 2010. ( Id. at FOIA245) Rumanek indicated that the recording was necessary due to her short-term memory loss as a result of the November 1, 2009 accident. ( Id. ) Higgins responded on August 22, 2010, asking to reschedule the meeting. ( Id. at FOIA248) On the following day, Higgins proposed rescheduling the compensation meeting to September 8, and asked to schedule another meeting before then to discuss the allegations of retaliation raised by Rumanek in her email dated August 20, 2010. ( Id. at FOIA250) Higgins and Rumanek agreed to meet on August 30, 2010, with the understanding that the meeting would not be recorded, but an independent third party would be present. ( Id. at FOIA254-55; D.I. 102, Ex. 31 at D3986)

On August 25, 2010, Rumanek filed an intake questionnaire with the EEOC. (D.I. 116, Ex. 28 at FOIA189-92) On August 27, 2010, Rumanek requested FMLA leave for one month, and ISM approved the request. (D.I. 103, Ex. 54 at FOIA264) As a result, the August 30, 2010 meeting was postponed. ( Id. at FOIA266-69) Higgins wrote a letter to Rumanek on August 30, 2010, indicating that it would be necessary to have the personnel meeting upon her return from FMLA leave and refusing to permit the use of a recording device at the meeting. ( Id. at FOIA266-67; D.I. 110, Ex. 8) Rumanek responded that she wished to be left alone while on leave, and Higgins honored Rumanek's request. (D.I. 103, Ex. 54 at FOIA269)

On September 16, 2010, Rumanek requested an extension of her FMLA leave to November 3, 2010. (D.I. 101, Ex. 28 at FOIA694, 701) Rumanek's medical provider subsequently indicated that she would not be able to return to work until November 27, 2010. ( Id. at FOIA713-18) ISM notified Rumanek that the November 27, 2010 date exceeded the twelve week FMLA period, which ended on November 18, 2010. ...

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