The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MATTHEW BEISHL : CIVIL ACTION
:
v. :
:
COUNTY OF BUCKS : NO. 18-2835
O P I N I O N
JACOB P. HART DATE: 9/17/2019
UNITED STATES MAGISTRATE JUDGE
Matthew Beishl has brought this action against Bucks County, his former employer, in
connection with his dismissal. He has asserted claims under the Family Medical Leave Act
(“FMLA”), 29 USC §2601 et seq., the Americans With Disabilities Act (“ADA”), 42 USC
§1201, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.
Bucks County (“the County”) has filed a motion seeking summary judgment on all
counts. For the reasons explained below, I will grant the County’s motion.
I. Summary Judgment
Summary judgment is warranted where the pleadings and discovery, as well as any
affidavits, show that there is no genuine dispute as to any material fact and that the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden
of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). In response, the non-moving party must present more than mere bare
assertions, conclusory allegations, or suspicions to show the existence of a genuine issue.
Jutrowski Township of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). It is not sufficient to
reassert factually unsupported allegations contained in the pleadings. Anderson v. Liberty
Lobby, 466 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, supra, at 325.
When ruling on a summary judgment motion, the court must construe the evidence and
any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty
Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358 , 361 (3d Cir. 1987).
Nevertheless, Rule 56 “mandates the entry of summary judgment ... against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, supra, at
323.
II. Factual Background
A. Facts Relevant to the FMLA Claims
Beishl became employed by Bucks County in March, 2006, as a custodian assigned to the
County’s Neshaminy Manor Nursing Home. Amended Complaint (“Complaint”) at ¶¶10-11. In
2010, he was promoted to Groundskeeper Level 1, and assigned to Core Creek Park. Id. He
remained in this position until he was fired by the County on May 8, 2017. Id.
In 1999, Beishl was diagnosed with esophageal achalasia. Id. at ¶13. This is a condition
where the valve which controls the esophagus fails to relax with swallowing. Dorland’s
Illustrated Medical Dictionary, 31st ed. (2007) at 15. According to Beishl, his esophageal
achalasia caused swallowing problems, vomiting, aspiration during sleep which could cause
chest pain, and retention of food particles in the esophagus, which at least once caused a fungal
infection. Deposition of Matthew Beishl, attached to Motion for Summary Judgment (“Motion”)
as Exhibit 6, at 20-21.
According to Beishl, the County was aware of his condition at all times during the period
of his employment. Complaint at ¶13. The County, however, maintains that the third-party
administrator of its FMLA program only notified the County of the parameters of FMLA leave
which was approved for an employee, in terms of dates and hours approved, and never notified it
of the nature of the medical condition underlying an employee’s use of FMLA. Deposition of
Travis Monroe, attached to Motion as Exhibit 5, at 95.
CIGNA, which was the third-party administrator during this period, approved a
continuous period of FMLA leave for Beishl from April 23, 2014, through June 9, 2014, so that
he could undergo surgery related to his esophageal achalasia. CIGNA Leave Status
Determination, attached to Motion as Exhibit 9; Beishl Deposition, supra, at 35-37. (In Beishl’s
complaint, he averred that his surgery took place in 2015, but at his deposition, he said that he
believed it was actually in 2014, which corresponds to CIGNA’s records. Id. at 39).
On or about July 1, 2015, CIGNA approved Beishl’s request for intermittent FMLA leave
from December, 2014, through December 22, 2015. Intermittent leave, as opposed to block
leave, means that the days of leave need not be taken consecutively; an employee may call out on
an occasional basis, as his health condition requires. CIGNA Leave Status Determination
Notification of July 1, 2015, attached to Motion as Exhibit 13. Beishl was approved for “8.00
hours 5 times every 1 week(s) for incapacity and 8.00 hours 4 times every 1 month(s) for Office
Visit.” Id. In his notice of approved FMLA leave from CIGNA, Beishl was also notified that he
had “88 hours/2.2 weeks” of FMLA time remaining. Id.; Beishl Deposition, supra, at 96-7.
On February 16, 2016, Beishl was notified by a supervisor that he should find his union
representative and appear at a Loudermill hearing, i.e. a disciplinary or pre-termination hearing
as required under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). At the
hearing, which took place that afternoon, the County informed Beishl that he was subject to
disciplinary action for violations of the County’s FMLA policy. County of Bucks Record of
Disciplinary Action, attached to Motion as Exhibit 14.
Specifically, the County accused Beishl of (a) having taken 19 days of purported FMLA
leave after his leave expired on December 22, 2015; (b) having taken days of purported FMLA
leave after he “ran out of hours/time in October”; and (c) failing to report to CIGNA all of the
days he called out of work. Record of Disciplinary Action, supra; Complaint at ¶¶16-17;
Minutes of Matt Beishl Loudermill Hearing, attached to Motion as Exhibit 15. Further,
according to the County, Beishl had violated its policy that an individual taking five or more
consecutive days of FMLA leave must apply for a block leave. Record of Disciplinary Action,
supra.
Beishl’s deposition testimony regarding the explanations he gave at his Loudermill
hearing is somewhat at variance with the hearing minutes, but it is sufficient to say that Beishl
told the County that his violation of FMLA policies was the result of confusion, and of having
been given inconsistent or misleading information by CIGNA. Beishl Deposition, supra, at 85-
88; Minutes supra.
At Beishl’s deposition, this exchange took place:
DEFENDANT’S COUNSEL: And was it the County’s belief that you had violated these
policies over the – with the conduct leading up to this discipline?
BEISHL: The county’s belief?
DEFENDANT’S COUNSEL: Correct.
BEISHL: I would say yes.
Beishl’s Deposition, supra, at 88.
Beishl was given a five-day suspension. Record of Discipline, supra. The Record of
Discipline reflected that further violations would result in termination. Id.
On June 29, 2016, CIGNA approved intermittent leave for Beishl from December 24,
2015 through January 11, 2016; and from February 12, 2016 through December 23, 2016.
Notification of June 26, 2016, attached to Motion as Exhibit 13, Bates Stamped COB 0575.
Subsequently, on December 28, 2016, CIGNA extended Beishl’s intermittent leave through June
23, 2017. Id. at Bates Stamp 1137.
In its Motion, the County maintains that Beishl had unexcused absences every day for the
week of January 1-6, 2017, and then called out under FMLA on every workday between January
9 and January 31, 2017. Exhibit 16 at Bates Stamp COB 0610. Beishl has not contested the
accuracy of these statements. Response to Defendant’s Statement of Undisputed Material Facts
at ¶¶83-84.1
On or about January 26, 2017, Beishl’s immediate supervisor, David Sutterly, called
Beishl and told him that he needed to apply for continuous (or block) FMLA leave because he
had missed more than four consecutive days of work. David Sutterly Deposition, attached to
Motion as Exhibit 3 at 27-29. Subsequently, Beishl submitted a request for a block FMLA leave,
which was approved from January 5, 2017, until February 19 or 21, 2017. Complaint at ¶21;
Answer to Amended Complaint at ¶21.
According to Beishl, he underwent an endoscopy on Friday, February 17, 2017, revealing
a buildup of fluid, which was then suctioned out. Beishl Deposition, supra, at 115.
On February 21, 2017, Beishl attempted to return from FMLA leave, but he was sent
home by a supervisor because he had not produced a physician’s note stating that he could
1 Beishl denied these statements, but only on the basis that “Defendant’s Exhibit 16 is a written document which
speaks for itself, and all characterizations thereof are denied.” Plaintiff’s Response to Defendant’s Statement of
Undisputed Material Facts at ¶¶83-84.
resume normal work activities without an accommodation, which the County required for a
return from block leave. Complaint at ¶22. Beishl testified at his deposition:
I was upset because I had already missed so much work, and I would have never needed
the note if I had still had the intermittent leave as opposed to the block leave which they
had basically told me I had to have. Because you don’t need a doctor’s note when you
have intermittent leave, at least that was my understanding.
Id. at 116.
According to Beishl, his primary physician “was on vacation or something” that week.
Id. at 118. Beishl returned to work with a physician’s note on March 1, 2017. Id.
B. The County’s Investigation of Beishl’s Use of FMLA Leave
Sometime in the month of January, 2017, while Beishl was absent on FMLA leave, one
or more of Beishl’s coworkers told Jay McQuaid, the County’s Operations Manager, that Beishl
played in a rock band. McQuaid Deposition, attached to Motion as Exhibit 2 at 63-4. McQuaid
told Richard Spencer, the County’s Director of Operations, that some County employees had
seen Facebook posts from Beishl about band performances which took place “on days that he
was out.” Spencer Deposition, attached to Motion as Exhibit 1 at 86-7.
Apparently, this was not the only office scuttle-butt about Beishl. According to
McQuaid, County employees had told him that they heard Beishl calling into sports talk radio
programs during working hours. McQuaid Deposition, supra, at 77-8. (It is not clear whether he
was doing this on days he was on FMLA leave, or whether he was said to be calling from work).
McQuaid reported this to Spencer, who testified that McQuaid also told him that Beishl was
rumored to take days off “surrounding different sporting events in Philadelphia.” Spencer
Deposition, supra, at 89-90.
In an email dated January 12, 2017, Spencer advised Travis Monroe and Lauren Smith in
the County Human Resources department, of these developments:
Lauren and Travis,
One of our consistent FMLA users is Matt Beishl. He was disciplined last year for abuse
of the County FMLA policy and put on a 3d step final notice. He was calling out to us
FMLA but not calling into CIGNA. We caught it during one of our routine audits as he
was over his FMLA approve[d] hours by something like 100+ hours which would have
put him at 16 plus occurrences.
Matt continues to call out under his new FMLA leave granted under Standard [which
replaced CIGNA as the County’s third-party administrator] and intermittently uses his
own regular sick, etc., whatever time he has available. It was brought to my attention
recently that they had seen Matt posting on Facebook the days when he was out about the
band that he plays in that performed the evening before. I did a little quick searching
online and turns out he is in a band called flabbergasted. The majority of his callouts are
around the weekends, which is also when the band plays. I also understand that the
callouts tend to be around Eagles or Phillies games and have heard from others that on
occasion you can hear him calling into the sports talk shows during work hours. He is
very much into his sports.
I had provided a pattern of his absences in the past and was told there was not much we
could do. Just wanted you to be aware of the new information surround[ing] callouts
which create a staffing problem for us.
Thanks.
Email, attached to Motion as Exhibit 18. (Bold in original).
Travis Monroe responded to Spencer on the same day: “Can you provide us with the
dates in which they may have coincided with his time out playing in the band? The Eagles and
Phillies games will be hard to confirm but the band performances may be something we can
investigate further.” Id. Spencer replied: “Will compare dates.” Id. He also forwarded to
Monroe a link to a Facebook page which contained photographs showing Beishl performing with
his band, Flabbergasted. Id.
Beginning in January, 2017, Spencer began an investigation to determine whether the
coincidence between Beishl’s FMLA leave days and other events created a pattern suggestive of
a violation of FMLA policy. Spencer Deposition, supra, at 94, 116.
On February 21, 2017, Lauren Smith reported to Spencer that Beishl had returned to
work, but without a doctor’s clearance. Email of February 21, 2017, attached to Motion as
Exhibit M. She wrote: “Now he just told me he won’t be able to get a note until his 2/27 appt.
with the doctor.” Id. Spencer responded: “Well his next concert is this Friday night 2/24 at
Hurricane Jack’s. Wonder if his doctor cleared him to sing lead vocals Friday night. We have to
do something about this abuse.” Id. He received a response from Travis Monroe: “Kevin, I
agree. I’ll talk offline with Lauren about an approach.” Id.
With Spencer’s knowledge, McQuaid briefly attended the February 24, 2017,
Flabbergasted concert at Hurricane Jack’s, and videotaped Beishl performing as lead singer.
McQuaid Deposition, supra, at 65-68. McQuaid gave the video to Spencer the following
Monday morning, and told him that Beishl looked “fine” in his opinion. Id. at 69-70, 94.
C. Subsequent Loudermill Hearings and Beishl’s Termination
On March 1, 2017, when Beishl returned to work with certification from his physician, he
was informed by a supervisor that he would be subject to another Loudermill Hearing.
Complaint at ¶23. A meeting took place on March 20, 2017, although it is unclear from the
record whether it was considered a Loudermill hearing, or more of an initial meeting preceding a
formal hearing. According to Spencer, the March 20, 2017, meeting was attended by him,
Lauren Smith, Jay McQuaid, and two union shop stewards, as well as Beishl. Spencer
Deposition, supra, at 169.
At the March 20, 2017, meeting or hearing, Spencer accused Beishl of abusing his FMLA
leave. Id. at ¶24; Report on Matthew Beishl FMLA Use, attached to Beishl’s Response as
Exhibit O at 1. Beishl was confronted with the videotape of himself performing with his band on
February 24, 2017. Beishl Deposition, attached to Motion as Exhibit 6, at 123. Beishl pointed
out that he had represented himself as healthy and able to return to work three days earlier, on
February 21, 2017, and was only out on FMLA leave on the 24th because he had not obtained a
doctor’s note. Id.
Nevertheless, the February 24, 2017, concert was not the only date identified at the
hearing. According to Beishl, Spencer “came up with all these strange dates”, “a whole bunch of
dates,” and “he said there was a pattern of me calling out when I was playing with the band.” Id.
at 123, 125. As Beishl remembered it, the March 20, 2017, meeting “kind of focused around the
band.” Id. at 127.
Spencer testified at his deposition that Beishl stated in his own defense that “I felt better
in the afternoon.” Spencer Deposition, supra, at 172. Beishl also explained to them that the had
an intermittent condition which “could flare up at any given time”: “During that meeting he
actually explained to us what his condition was even though we did not ask him to because we
don’t get involved in what medical conditions are part of this.” Id.
Spencer further testified:
One of the questions that we asked him and discussed with him was, is there a reason
why that if it could flare up at any time, there seems to be more of a concentration in the
winter months versus summer months. There tends to be a concentration around
weekends and holidays versus we would expect to see a more random pattern with
something that could be generally at any minute. We talked about the patterns that we
had seen there and asked him. He really didn’t have much of an answer for that.
Id. at 172-3.
Spencer also remembered Biehl saying that in wintertime, it stressed him to have his
workplace temporarily transferred from Core Creek Park to the Neshaminy Manor Nursing
Home. Id. at 173. (The subject of the wintertime transfers will be discussed in detail below, as it
pertains to the ADA claims).
It is not clear what, if anything, was resolved at the March 20, 2017, meeting, or if it was
essentially to give Beishl notice of the subject of an impending Loudermill hearing. In any
event, on the morning of April 19, 2017, Beishl was given a written Notice of Loudermill
Meeting signed by Spencer, in which it was written:
It has come to my attention that you may have conducted yourself in a manner that
violates the Policies, Rules, and Regulations of the County of Bucks. A statement of
events, which may serve as the basis for the imposition of discipline against you, is set
forth below:
Event: Abuse of County FMLA policy related to repeated callouts following a two or
three day pattern around weekends and also occurring on same dates as concerts for
which the employee was performing with his band. Employee also has a pattern of
calling out around holidays while working a day before or after so that employee would
receive Holiday pay. Employee received a step III final discipline in 2016 for the similar
events of FMLA abuse.
County of Bucks Notice of Loudermill Meeting, attached to Plaintiff’s Response as Exhibit O, at
Bates Stamp COB 0615.
The Notice also stated that Beishl was accused of violating County Work Rules
pertaining to family and medical leave, dishonesty, excessive tardiness or absenteeism, and
“action that is in any way detrimental to employee morale. Id.
The hearing took place that afternoon. According to Spencer, at the April 19, 2017,
hearing, Beishl was presented with “a lot of the same information” they had discussed at the
March 20, 2017, hearing. Spencer Deposition, supra, at 178.
A report authored by Spencer, and dated May 3, 2017, states:
April 18, 2017 [sic 19]: … At the meeting we reviewed the attendance patterns,
attendance record, FMLA leave use specifically leave taken on same days as band
concerts where Matt performed. Matt admitted to performing in the band on same days
or around the same days that he had called out for FMLA related reasons. Matt also
confirmed that the video of him singing at the February 24th concert was indeed him and
that this was also one of the days he had called out sick for FMLA. Matt stated that his
medical condition was intermittent and he never knew when a medical event would occur
that would render him incapable of performing his job as a grounds employee in the
parks.
County of Bucks Report on Matthew Beishl FMLA Use, attached Motion as Exhibit 16, and to
Response as Exhibit O.2
Beishl testified at his deposition that at the April 19, 2017, hearing:
I had said that playing with the band was completely unrelated to missing work. I mean
there was plenty of times, I remember saying, “I played with the band and worked the
same day. I never missed work the day after playing with the band. They have nothing
to do with each other.” I remember saying – I asked him who was complaining about
working with me. Because he said it was affecting employee morale. I said, “I get along
with everybody.” I didn’t understand that. I didn’t really understand any of it.
…
They brought up the FMLA from the time that I had been calling out and it was
exhausted … . I said, “I didn’t do that here.” … I did not ever – I made sure that that
didn’t happen again. They brought that up again. I guess they connected them somehow.
I don’t know.
Beishl Deposition, supra, at 131.
Beishl was asked at his deposition: “And did he [Spencer] believe that you had abused
your FMLA leave?” Id. at 129. He responded: “Yes.” Id.
2 Notably, the statements attributed to Beishl in Spencer’s May 3, 2017, report were said to have been made on April
19. However, at his deposition, Spencer testified that Beishl made these statements on March 20. It is possible that
Beishl made the same statements at both hearings, although it is also possible that Spencer was simply confused at
his deposition. Fortunately, this disparity does not seem to be of importance.
As noted, Spencer prepared a report, which was dated May 3, 2017, entitled Report on
Matthew Beishl FMLA Use. Beishl Report, supra, attached to Motion as Exhibit 16. In it,
Spencer detailed his accusations, citing as supporting evidence:
• “Calendars from 2015, 2016 & 2017 where employee leave time was plotted and
color coded according to the reason the employee was out from work. The
calendar highlights various events (holidays, sporting games, concert events, and
time of year) around which attendance patterns occur … ”;
• The Flabbergasted concert schedule;
• February 19, 2016, Disciplinary Action form notifying Beishl that any future
violations of FMLA leave policy would lead to termination;
• Posts from Flabbergasted’s Facebook page; and
• Video from the February 24, 2017, Flabbergasted concert.
Id. at Bates Stamp COB 0579.
The report did reflect Beishl’s statement that it “was more difficult to travel up to
Neshaminy Manor” in the winter. Id. However, it also set forth three Flabbergasted concerts
which occurred while Beishl was out under FMLA, one concert which took place the day after a
FMLA leave day, and one which took place on a day on which Beishl took excused leave
without pay. Id. Notably, although the February 24, 2017, Flabbergasted concert took place
after Beishl attempted to return to work, there was also a concert on January 14, 2017, during the
month Beishl never appeared at work, and one month before his endoscopy. Id. Spencer also
cited ten Eagles games which were played during, the day before, or the day after, Beishl took
FMLA leave. Id.
Further, Spencer noted ten times in 2016 that Beishl had taken FMLA leave “which was
concentrated around weekends or holidays”: put another way, the FMLA days included a
Monday or a Friday, thereby creating long weekends or long holidays. Id. In one instance,
Beishl took FMLA leave from May 20 through June 2, which reportedly included one
Flabbergasted concert, Memorial Day, and the following weekend. Id.
The report concluded: “It is my recommendation that Matt Beishl be terminated for
continued violation of FMLA leave abuse [sic] and potential fraud. It is also my
recommendation that this matter be turned over to the Controller’s office and potentially the
District Attorney’s office to determine if fraud has taken place as FMLA is a federal policy.” Id.
at Bates Stamp COB 0580. Attached to the report was Spencer’s color-coded calendar.
Spencer forwarded his report to Monroe and Smith in Human Relations, with a note
seeking a meeting with Brian Hessenthaler, the County’s Chief Operating Officer, and the
county solicitor. Spencer Deposition, supra, at 150. Monroe agreed with Spencer’s
recommendation that Beishl be terminated based on the information in Spencer’s report.
Deposition of Travis Monroe, at 77-8. Hessenthaler approved the termination, based on the
pattern of absences described by Spencer in his report. Brian Hessenthaler Deposition, attached
to Motion as Exhibit 20 at 31-2.
In a meeting which took place on May 8, 2017, Spencer informed Beishl that the County
was terminating his employment for FMLA abuse. Complaint at ¶26. Beishl filed a grievance
over his termination, but at the third level, Scott Miller, his union representative, informed him
that the union would not represent him at arbitration. Beishl Deposition, supra, at 139.
This case was filed on July 5, 2018. It originally included ADA and PHRA claims
asserting a failure to accommodate, as well as the claims discussed herein. Those counts were
dismissed by the Honorable Timothy J. Savage in a December 27, 2018, decision ruling on the
County’s Motion to Dismiss for Failure to State a Claim.
D. Facts Pertinent to the ADA and PHRA Claims
The facts discussed below overlap temporally with the facts discussed above, and there is
also overlap in the subject matter, since they all create one series of events. The facts in this
section, however, are more central to Beishl’s remaining ADA and PHRA claims, and for the
purposes of clarity I have set them forth separately.
Beginning before Spencer became the Director of Operations, and at least since
December, 2014, the County temporarily relocated a number of Grounds Department employees
during the winter months from county parks to other county locations. Spencer Deposition,
supra, at 68; Beishl Deposition, supra, at 40-41. Spencer stated at his deposition that this
occurred because, in the winter, “there is a lack of work outside.” Id.
Since December, 2014, Beishl was sent for the winter months from Core Creek Park to
work at the Neshaminy Manor, with periods spent working at other locations as well, such as the
courthouse and the health department. Beishl Deposition, supra, at 41-44. Grounds Department
employees other than Beishl were also relocated for the winter. Plaintiff’s Response to
Defendant’s Statement of Undisputed Material Facts at ¶32.
On or about December 1, 2014, while working at the Neshaminy Manor, Beishl
submitted to the County a Bucks County ADA Accommodation Request form. County of Bucks
ADA Accommodation Request, attached to Response as Exhibit D. In this form, Beishl stated
that his medical impairment was “achalasia.” Id. He wrote that it: “Causes problems eating,
sleeping, chest pain, swallowing, vomit during sleep, severe acid reflux.” Id.
Beishl wrote in his ADA request that his job duties at Core Creek Park were not affected
by his achalasia. Id. However, he wrote: “My request is to remain at my current reporting
location, shift and duties (Core Creek, 7 a.m.-3:30 p.m., Grounds Level I)” because his “body
has adapted to sleep patterns, increased travel times due to transfer will cause my health to
deteriorate.” Id.
Beishl’s ADA request led to a meeting with Travis Monroe of the Human Relations
Department on December 4, 2014. Beishl Deposition, supra, at 28-29. At that meeting, Beishl
explained to Monroe that, aside from his medical reasons for wanting to return to Core Creek
Park, he also had “family issues” in that his wife was struggling with a drinking problem Id. at
31-2. According to Beishl, Monroe told him that if he was to “accept the accommodation,” a
more senior employee would be moved in place of him “and it was going to be an issue.” Id. at
30.
At his own deposition, Monroe said that he had no recollection of this conversation with
Beishl, but that, generally “other employees being impacted wouldn’t come into focus on my
considerations that I would make for that individual, so just generally speaking that doesn’t make
any sense or sound like anything I would say because it doesn’t have any relevance to what the
employee’s requesting.” Monroe Deposition, supra at 96.
Beishl also spoke to Gerry Anderson, who was then the Director of Operation. Id. at 42.
After this, and after speaking with his wife, Beishl decided that “it would not be a good idea” to
pursue the ADA accommodation because he “didn’t want to make waves” with other union
members. Id. at 30-31. Beishl testified that, aside from exploring the possibility of an ADA
accommodation, he filed a union grievance regarding his temporary transfer in the winter of
2014-2015, but testified at his deposition: “I think I may have dropped it” because his shop
steward told him the issue was a matter of county policy, and could not be grieved. Id. at 45.
Beishl testified that, after he was returned to Core Creek Park, he was given “harder jobs,
more work.” Beishl Deposition, supra, at 92, 108-9. He felt that he was being “targeted.” Id. at
109. This occurred between 2015 and 2017. Id.
The next winter, that of 2015-2016, Beishl and a number of other Grounds Department
employees were again relocated. In Beishl’s Complaint, he alleges that, at the February 16,
2016, Loudermill hearing discussed above, he “relayed how taxing working at … Neshaminy
Manor … was on his health.” Complaint at ¶17. The County denies this occurred, writing in its
Answer that, at that meeting, Beishl never “referenced his purported desire not to work at
Neshaminy Manor or the purported effects of his temporary assignment to Neshaminy Manor on
his health.” Answer to Amended Complaint at ¶17.
In any event, in the winter of 2016-2017, five Grounds Department staff were
temporarily relocated. Spencer Deposition, supra, at 67-8. Sometime in the first few days of
December, Spencer told David Sutterly, Beishl’s direct supervisor, to tell Beishl to report on
Monday, December 5, 2016, to the loading dock at the Bucks County Courthouse. Sutterly
Deposition, supra, at 14. When Sutterly did this, Beishl asked not to be relocated because his
wife was having “some issues.” Id. at 15. He did not mention his own health. Id. Sutterly told
Beishl that it was not his decision to make, and that the decision came from Spencer. Id. at 16.
On December 2, 2016, Beishl sent Spencer the following email:
Kevin, I’m contacting you in an appeal to not be moved, not because of the Union, but
because of my family. Please keep what I say confidential, but aside from my health
issues, my wife and I are having problems, and I need to be close to home. She is
battling alcoholism, and has been for some time. She lost her job as well. I’ve tried in
the past to get her help, and over Thanksgiving, she went into Lower Bucks Hospital to
dry out. I never know what to expect, and my two girls (9 and 11) are also in deep
emotional stress. We’ve been recommended to therapy and I’ve contacted CIGNA about
the county program again. I even attempted to move to weekends to avoid being so far
away. Please, I don’t want grievances and all the surrounding turmoil. I will break my
stones to the best of my ability. I’ll beg if I need to. I’m the only income of the house,
missing work kills me financially, so please don’t think I’m a lazy person. The stress is
horrible. Please help. Sincerely, Matt Beishl.
Email, attached to Response as Exhibit R, Bates Stamp COB 1469.
Spencer responded the same day:
Matt, the selection of the employees for winter relocation was not up to management.
We just asked for the union to provide us with 5 staff who would be moving as we do not
have enough work for grounds during the winter. I can only recommend working out a
solution with one of your fellow employees.
I do want you to know that you should contact the County’s EAP for counseling
(attached). CIGNA or IBC would be the contact for leave time. I will be praying for you
and your family during this time.
Id. at Bates Stamp 1468.
Beishl wrote back to Spencer the same afternoon, in two separate emails, repeating his
request to stay at Core Creek Park, and asking for Spencer to reconsider his answer. Id. at Bates
Stamp 1467 and 1468. He wrote that Scott Miller, the union representative, told him that: “this
is a management decision of who moves.” Id. at Bates Stamp 1467. In these two emails, Beishl
did not repeat his reasons for wanting not to be relocated, except in writing: “Please take my
circumstances into consideration.” Id. On December 3, 2016, however, Spencer wrote to Beishl
again, explaining that “We have a shortage of staff at the manor and administration building and
need help on winter projects.” Id. He wrote: “I will reiterate that if you can work out with
another Core Creek employee that would be your best option.” Id. Beishl responded: “Thanks
for your time.” Id.
Beishl was reassigned that winter. However, as discussed above, he was out of work on
FMLA leave from Monday, January 2, 2017, through March 1, 2017.
III. Discussion
A. Count I
1. Legal Principles
In the first count of Beishl’s complaint, he alleges that the County unlawfully retaliated
against him for exercising his statutory rights under FMLA. As the Court of Appeals for the
Third Circuit has explained:
When employees invoke rights granted under the FMLA, employers may not “interfere
with, restrain, or deny the exercise of or attempt to exercise” these rights. 29 USC §
2615(a)(1). Nor may employers “discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful. 29 USC §2615(a)(2). The
former provision is generally, if imperfectly, referred to as “interference” whereas the
latter is often referred to as “retaliation.” Callison v. City of Philadelphia, 430 F.3d 117,
119 (3d Cir. 2005). Although neither provision expressly forbids employers from
terminating employees “for having exercised or attempted to exercise FMLA rights,” a
Department of Labor regulation has interpreted the sum of the two provisions as
mandating this result. See 29 CFR §825.220(c). Under this regulatory interpretation,
employers are barred from considering an employee’s FMLA leave “as a negative factor
in employment actions such as hiring, promotions or disciplinary actions.” Id.
Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300-302 (3d Cir. 2012).
FMLA retaliation claims are analyzed under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Lichtenstein, supra, at 302; Wilson v.
Graybar Electric Company, Civ. A. No. 17-3701, 2019 WL 1229778 at *21 (E.D. Pa. 2019).
Under this framework, Beishl must first establish a prima facie case of retaliation by pointing to
evidence in the record sufficient to create a genuine factual dispute as to each of these elements:
(1) he invoked his right to FMLA leave; (2) he suffered an adverse employment action; and (3)
the adverse action was causally related to his invocation of his FMLA rights. Id. at 300-302.
If a plaintiff is successful in setting forth a pro se case of FMLA retaliation, the burden of
proof shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for its
action. Id., citing McDonnell Douglas, supra, at 411 U.S. 802.
If the defendant meets this “minimal burden”, the plaintiff must point to some evidence,
direct or circumstantial, from which a factfinder could reasonably disbelieve the County’s
articulated legitimate reason. Id., citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
To survive summary judgment, the plaintiff does not need to prove that his invocation of his
FMLA rights was the sole, or even the most important, factor upon which the employer based its
action. Fuentes, supra, at 764. However, his evidence rebutting the defendant’s proffered
legitimate reasons must allow a factfinder reasonably to infer that the proffered reason was
pretextual; i.e., that it was either a post hoc rationalization, or otherwise did not actually motivate
the employment action. Id.
Crucially, it is not sufficient for a plaintiff to show that his employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether the decision was motivated by
discrimination, and not whether the defendant employer was wise, prudent, or even competent.
Id. at 765. Instead, in responding to a summary judgment motion, a plaintiff must show such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the defendant’s
proffered reasons that a finder of fact could rationally find that reason “unworthy of credence.”
Id., citing Ezold v. Wolf, Block, Shorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992), cert.
denied 510 U.S. 826 (1993).
Specifically in the context of FMLA retaliation cases, this principle has been described
as an “honest belief rule”, whereby, in a FMLA retaliation case, “the question is not whether the
employer’s reasons for a decision are ‘right but whether the employer’s description of its reasons
is honest.’” Capps v. Mondelez Global, LLC, 847 F.3d 144, 153 (3d Cir. 2017), citing
Gustovich v. AT&T Communications, Inc. 972 F.2d 845, 848 (7th Cir. 1992); Arana v. Temple
University Health System, Civ. A .No. 17-525, 2018 WL 2063600 at *7 (E.D. Pa. May 3, 2018);
Isley v. Aker Philadelphia Shipyard, Inc., 275 F. Supp.3d 620, 629-630 (E.D. Pa. 2017).
This nomenclature appears to have originated in the Seventh Circuit, where the Court of
Appeals wrote in a case involving COBRA:
Discrimination statutes allow employers to discharge employees for almost any reason
whatsoever (even a mistaken but honest belief) as long as the reason is not illegal
discrimination. Thus, when an employee is discharged because of an employer’s honest
mistake, federal anti-discrimination laws offer no protection.
Capps, supra, citing Kariotis v. Navistar International Transportation Company, 131 F.3d 672,
680 (7th Cir. 1997).
As an example of how the honest belief rule works in practice, the Capps court discussed
Scruggs v. Carrier Corp., 688 F.3d 821, 827 (7th Cir. 2012): “Where the evidence demonstrated
that the employer held an honest suspicion that the employee was misusing his FMLA leave at
the time it made the decision to terminate the employee, the Seventh Circuit found that the
evidence could not support a conclusion that the employer intentionally discriminated against the
employee for taking FMLA leave.” 847 F.3d at 153. Scruggs is obviously relevant to the matter
at hand.
2. The Facts of This Case
Beishl has certainly shown that he invoked his right to FMLA leave, and that he was
terminated. He has not, however, come forward with evidence upon which a factfinder could
reasonably rely in finding that his termination was causally related to his invocation of his rights
under FMLA. The overwhelming trend of the evidence suggests that the County did not fire
Beishl because he took FMLA leave, but because the County believed he abused it. He has not,
therefore, demonstrated a prima facie case of FMLA retaliation.
Even if I were to find that Beishl set forth a satisfactory prima facie case of FMLA
retaliation, this same evidence is insufficient under the burden-shifting framework of McDonnell
Douglas to permit a factfinder to reasonably disbelieve the County’s articulated reason for
Beishl’s termination, i.e., FMLA abuse.
In defending this claim, Beishl maintains that the County’s explanation is “riddled with
contradictions, inconsistencies, and implausibilities.” Response at 17. He primarily supports
this by factually attacking the County’s calendars which purported to show his pattern of FMLA
abuse.
During his employment, Plaintiff utilized 94 FMLA days in total. Of those 94 days, he
only played with his band on two of those days or approximately 2% of his FMLA days.
In fact, Plaintiff played with Flabbergasted and did not take FMLA leave on more
occasions (eleven days). Therefore, if anything, there was a pattern of not using FMLA
days during Flabbergasted concerts. Moreover, the two days that he actually did use
FMLA on the same day as a concert are easily explained. The first date, December 23,
2016, was the Friday night before Christmas Eve and Christmas Day, when Plaintiff
would not have been scheduled to work anyway. … On the second date, February 24,
2017, Plaintiff was out on forced FMLA leave. Plaintiff attempted to return to work on
February 21, 2017, but was sent back out due to allegedly not having a “note” clearing
him to return to work.
…
Finally, while Plaintiff utilized FMLA leave on 37 Mondays or Fridays, he utilized 57
FMLA days on Tuesdays, Wednesdays, or Thursdays.
Response at 17-18 (internal citations omitted; bold in original).
At most, this pokes holes in the County’s methodology. For example, although Beishl
relies upon the fact that he only performed in two rock concerts on days when he was actually on
FMLA leave, the County relied upon Spencer’s report which stated that there were three such
days: December 23, 2016, January 14, 2017 and January 24, 2017. Report on Matthew Beishl
FMLA use, supra, at Bates Stamp COB 0579. Further, Spencer’s report indicated that, between
November, 2016, and May, 2017, Beishl also took FMLA leave on one day before a concert; and
performed on one day when he was on unexcused leave. Id. As mentioned above, this included
a concert on January 14, 2017, which was flatly in the middle of his block FMLA leave. Id.
Equally, it is apparent from Spencer’s report that many of the Tuesday, Wednesday, and
Thursday FMLA days Beishl cites were adjacent to Mondays or Fridays, and therefore created
the long weekends which the County found suspicious. Report, supra, at Bates Stamp 0579.
Thus, at most, Beishl has shown that the calendars Spencer relied upon in preparing the
report on which the County relied in terminating his employment were less than perfect, and less
than unambiguous. He has not, however, shown that the calendars were so implausible and/or
incoherent that they were clearly a pretext for discrimination.
Beishl argues that performing with his band on or close to FMLA days is not suggestive
of fraud, because – as Spencer admits Beishl told him – he “often felt better by the afternoon on
days where he had to utilize FMLA leave.” Spencer Deposition, supra, at 171. This may be the
literal truth. However, as explained in Fuentes and Capps, that is not crucial here. What is
important is that Beishl has not shown that the County did not honestly believe he committed
FMLA abuse.
On the contrary, the evidence indicates that Spencer and the other County decisionmakers
honestly believed – rightly or wrongly – that an individual who was capable of screaming rock
lyrics into a microphone in a bar until the small hours of the morning was capable of coming to
work that day or the day before. According to both McQuaid and Spencer, the investigation into
Beishl’s use of FMLA time was precipitated by co-worker rumors that Beishl posted on
Facebook about performing with his band “on days that he was out,” and that he took days off
“surrounding different sporting events.” McQuaid Deposition, supra, at 63-4, Spencer
Deposition at 86-7, 89-90.
Even emails exchanged between Spencer, Monroe, and Smith indicate that County
decisionmakers believed that performing rock concerts on FMLA days was evidence of misuse.
As above, Spencer texted Smith about the February 24, 2017, performance: “Wonder if his
doctor cleared him to sing lead vocals Friday night. We have to do something about this abuse.”
Email of February 21, 2017, supra. Monroe replied: “I agree.” Id.
There is no evidence to the contrary. Beishl argues that, when Spencer initially wrote to
Smith and Monroe, on January 12, 2017, his predisposition to find an excuse to fire Beishl was
demonstrated in the statement: “I had provided a pattern of his absences in the past and was told
there was not much we could do.” Motion Exhibit 18, supra. However, Spencer’s reference to
Beishl’s “pattern” of absences may indicate that he had earlier wondered whether Beishl was
misusing his FMLA leave.
When questioned about this at his deposition, Spencer stated that he did not challenge an
employee’s right to take necessary medical leave:
ATTORNEY: His FMLA creates a staffing problem, right?
SPENCER: Not his FMLA. Time out of work creates a staffing problem. Employees
are entitled to the leaves that they have.
ATTORNEY: Right. But if they take a day off for their FMLA, it creates a staffing
problem, right?
SPENCER: It may in some situations, yes. But that’s not to say that they are not
entitled or able to take their time. What we’re looking at is whether or not
the time they’re taking is in accordance with what they’ve been granted
and approved.
Spencer Deposition, supra, at 92.
Beishl further argues that pretext is demonstrated by the fact that he was fired for
performing with a rock band and attending sporting events during non-work hours, even though
the County had no policy precluding employees from engaging in these activities: “as a result,
Defendant essentially terminated Plaintiff for something he was permitted to do, which is the
essence of pretext.” Response at 19.
This argument is not persuasive. There is no evidence that Beishl’s leisure activities
were of interest to the County except in that he was believed to be using FMLA time to facilitate
them, rather than for its intended purpose. The only references in the evidence to Beishl’s band,
or to football, is in the context of determining whether his pattern of FMLA use suggested fraud.
Beishl was not fired for being in a rock band, or attending Eagles games. He was fired because
the County believed – again, whether rightly or wrongly – that he took FMLA time to do so.
Finally, Beishl argues that the concept of “honest belief”, as described in Capps and
Kariotis does not apply in this case. Beishl argues that, unlike Kariotis, who apparently was
subject to dismissal for “almost any reason whatsoever,” Beishl, was a union member who could
only be fired for cause. Response at 20, citing Brian Hessenthaler Deposition, supra, at 23. This
is a non sequitur. Any rights Beishl may have had under his union’s collective bargaining
agreement created an issue which is completely separate from whether the County’s articulated
position that it fired him for FMLA abuse was a pretext for discrimination.
Because Beishl has not pointed to evidence in the record sufficient to create a genuine
factual dispute as to whether his termination was casually related to his having taken FMLA
leave, this count cannot survive summary judgment. Even if Beishl were deemed to have set
forth a pro se case of FMLA retaliation, this count would still be properly dismissed because he
has not successfully rebutted the County’s articulated legitimate reason for his termination.
B. Disability Discrimination; the ADA and PHRA
Under the ADA, an employer is prohibited from discriminating against a qualified
individual with a disability because of the individual’s disability. 42 USC §12112(a). In order to
establish a prima facie case of discrimination under the ADA, a plaintiff must show that (1) he is
a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodation by the employer; and
(3) he has suffered an adverse employment decision as a result of discrimination. Taylor v.
Pheonixville School District, 184 F.3d 296, 305-6 (3d Cir. 1999).
As a practical matter, it is not clear what is left of Beishl’s ADA claim other than
retaliation, following Judge Savage’s December 27, 2018, Opinion dismissing the claim of
failure to accommodate. However, in its Motion for Summary Judgment, the County treated the
claim of disability discrimination separately from the ADA retaliation claim, so I will do the
same.
As above, the evidence is not reasonably interpreted as showing that the County
terminated Beishl for any reason other than that it believed he had abused his FMLA leave. For
that reason, Beishl will not be able to show that he was terminated as a result of discrimination
on the basis of disability.
Beishl argues that the County terminated his employment because of the unpredictable
nature of his esophageal achalasia, which could lead him to call out sick at inopportune times.
Beishl Deposition, supra, at 137-8. However, he has not pointed to evidence which could
corroborate this. As discussed above, Spencer testified at his deposition that, although
employees’ FMLA leave could create staffing problems, “that is not to say that they are not
entitled or able to take their time.” Spencer Deposition, supra, at 92.
There are no letters, emails, or other evidence showing that Spencer resented Beishl
having an illness. As above, Beishl has shown that Spencer asked the Human Relations about
his leave patterns earlier than 2016 (“I had provided a pattern of his absences in the past…”).
However, it would be nothing more than unsupported speculation to assume that the subtext was
that Spencer disapproved of Beishl taking FMLA time. Notably, Spencer stated that he had been
concerned with Beishl’s “pattern of absences”, and not the mere fact of his absences.
As evidence of ADA discrimination, Beishl also states that “the Defendant subjected
Plaintiff to three Loudermill hearings due to his usage of FMLA leave in order to treat his
disability.” Response at 21. Yet, here again, the evidence shows that the three Loudermill
hearings were held to determine whether Beishl abused his FMLA leave, not simply because he
used FMLA leave. As Spencer testified: “What we’re looking at is whether or not the time
they’re taking is in accordance with what they’ve been granted and approved.” Spencer
Deposition, supra, at 92.
Beishl testified at his deposition that, when he spoke to Travis Monroe in early
December, 2014, about seeking an accommodation under the ADA to prevent his temporary
relocation from Core Creek Park, “Monroe dissuaded [him] from doing so” on the basis that it
would inconvenience other workers. Response at 21. He argues that this showed hostility to his
need for ADA accommodation. Monroe testified at his own deposition that he would not have
said these things to Beishl. Monroe Deposition, supra, at 96. Clearly, whether or not Travis told
Beishl that his proposed ADA request would inconvenience others is an issue of fact which can
not be resolved on a motion for summary judgment.
However, Beishl’s conversation with Monroe took place 25 months before the County
began investigating Beishl’s use of his FMLA leave, and 30 months before his termination.
Beishl’s 2014 inquiry regarding ADA accommodation was never mentioned during the
investigation, or at any of the Loudermill hearings. Standing alone, therefore, it cannot be
reasonably considered causally connected to the employment action at issue here – namely,
Beishl’s termination.
Beishl suggests that the County’s rejection of his requests in the winters of 2015-2016
and 2016-2017 to remain at Core Creek Park also constituted hostility to his desire to obtain
ADA accommodation. Leaving aside the fact that Judge Savage has already ruled that a request
for a shorter commute is not a reasonable request for accommodation under the ADA, the
evidence shows that Beishl did not ask to remain at Core Creek Park because of his esophageal
achalasia those years, but because of his family troubles. Indeed, Beishl never filed an ADA
Accommodation Form after December, 2014, despite obviously knowing after 2014 that this was
the way to obtain ADA accommodation form the County.
Further, in the entire email exchange between Beishl and Spencer in December, 2016,
Beishl discussed his wife’s challenges and his family’s financial issues, but mentioned his own
health only in the clause “but aside from my health issues … .” This might be enough to
constitute a request for ADA accommodation if it referred back to some prior, more detailed,
communication with Spencer explaining how a longer commute would affect his health, but
Beishl has not even alleged that there was any another communication with Spencer about his
esophageal achalasia. The phrase “but aside from my health issues”, standing alone, is
insufficient to invoke the ADA, particularly because it specifically points to reasons for his
request other than his health issues.3
The only other evidence to which Beishl points in arguing that he can show the County’s
hostility to his alleged disability is Hessenthaler’s rhetorical question at his deposition: “If the
issue is with his throat, how could he be a lead singer in a rock group?” Hessenthaler
Deposition, supra, at 32. However, this does not express animosity or negative view about
Beishl as an employee with a disability, as it might have if Hessenthaler had said: “If the issue is
with his throat, how could he be a groundskeeper for the County?”
Rather, Hessenthaler’s testimony adds to the evidence that the County decisionmakers
believed that Beishl did not actually suffer from disabling symptoms on occasions when he took
FMLA leave on the day of, or immediately before or after a rock performance.
As a whole, therefore, Beishl has not come forward with evidence sufficient to permit a
finder of fact to find a causal link between his alleged disability and any adverse employment
action by the County. (In that regard, it can also be noted that Beishl has not shown any
comparator evidence to prove that employees other than him were treated more favorably). This
also compels the dismissal of his discrimination claim under the PHRA, because the same
analysis is used analyzing a PHRA claim. Taylor v. Pheonixville School District, 184 F.3d 296,
306 (3d Cir. 1999).
3 Spencer testified: “My understanding is, I read that he was making an appeal on his wife’s behalf and the
condition that he was dealing with of his wife at the time, being closer to home for the kids, some things that they
were dealing with as a family … He said aside from my health issues. To me, that’s him putting aside whatever
health issues he had … .” Spencer Deposition, supra, at 174.
C. Retaliation Under the ADA and PHRA
The ADA contains an anti-retaliation provision, which states that: “No person shall
discriminate against any individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42
USC §12203(a).
Claims of ADA retaliation are analyzed under the McDonnell Douglas burden shifting
framework. Shaner v. Synthes (USA), 204 F.3d 494, 500 (3d Cir. 2000). Thus, to establish a
prima facie case of retaliation under the ADA, a plaintiff must show: (1) protected employee
activity; (2) adverse action by the employer either after or contemporaneous with the employee’s
protected activity; and (3) a causal connection between the employee’s protected activity and the
employer’s adverse action. Krouse v. American Sterilizer Company, 126 F.3d 494, 500 (3d Cir.
1997).
A request for FMLA leave may, under certain circumstances, qualify as a request for a
reasonable accommodation under the ADA. Capps, supra, at 847 F.3d at 156. In this case,
Judge Savage has already found that Beishl’s requests not to work at Neshaminy Manor and for
FMLA leave constitute protected activity under the ADA. Opinion of December 27, 2018, at 14.
Therefore, Beishl has shown the first of the elements set forth above. Certainly, Beishl was
terminated after his protected activity, so the second element is established.
Judge Savage also found that the three months between Beishl’s third request that he not
be transferred to Neshaminy Manor and his termination was not such a long period as to preclude
a finding of a causal connection. Id. at 14-15. For that reason, he declined to dismiss Beishl’s
retaliation counts.
Nevertheless, only a gap of a few days between a protected action and a termination is
sufficient, standing alone, to show a causal connection. Fusco v. Bucks County of Pennsylvania,
Civ. A. No. 08-2082, 2009 WL 4911938 at *12 (E.D. Pa. 2009), citing Weston v. Pennsylvania,
251 F.3d 420, 431 (3d Cir. 2001) and Jalil v. Avdel Corporation, 873 F.2d 701, 708 (3d Cir.
1989). Thus the three month period identified by Judge Savage does not in itself show a causal
connection.
As Beishl points out, timing which exceeds a few days can be sufficient to show a causal
link when taken together with other types of suggestive evidence. See Fusco, supra, citing
Abrahamson v. William Paterson College of New Jersey, 260 F.3d 265, 289 (3d Cir. 2001). A
broad array of evidence may show a causal link, such as ongoing antagonism, or vague and
inconsistent reasons for the termination. Abrahamson, supra, at 289.
Unlike in Abrahamson, however, there was never anything vague or inconsistent about
the reasons given for Beishl’s termination. The County has been exceptionally explicit and
consistent in expressing directly to Beishl, in communications between County decisionmakers,
and in discovery, that Beishl was fired for what the County found to constitute an abuse of his
FMLA leave. Nor, as discussed in the prior section, has Beishl shown a pattern of antagonism
toward him based on his disability. The factors mentioned in Abrahamson are not, of course, an
exclusive list of ways that a causal link can be shown. Here, however, no “other types of
suggestive evidence” are present.
Consequently, Beishl has not shown a prima facie case of ADA retaliation, and this count
of his complaint is also subject to summary judgment. The identical PHRA retaliation claim
must also be dismissed, because it, too, is analyzed under the McDonnell Douglas framework.
Marra v. Philadelphia Housing Authority, 497 F.3d 286, 300 (3d Cir. 2007).
IV. Conclusion
For the reasons set forth above, Defendant County of Bucks’ Motion for Summary
Judgment will be granted on all counts, and this matter dismissed with prejudice.
BY THE COURT:
/s/Jacob P. Hart
___________________________________
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE