BEIRD v. LINCOLN UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TRACY L. BEIRD :

: CIVIL ACTION

v. :

: NO. 17-5303

LINCOLN UNIVERSITY OF THE :

COMMONWEALTH SYSTEM OF HIGHER :

EDUCATION :

MEMORANDUM

SURRICK, J. SEPTEMBER 17, 2020

Presently before the Court in this employment discrimination action is Defendant’s

Motion for Summary Judgment. (ECF No. 12.) For the following reasons, Defendant’s Motion

will be granted in part and denied in part.

I. BACKGROUND

A. Plaintiff Worked in Defendant’s Office of Institutional Research

Plaintiff began working for Defendant Lincoln University (the “University”) as a senior

secretary in October 2001. (Pl. Ex. 1.) In October of 2007, she accepted a position as assessment

coordinator/data coordinator in Defendant’s Office of Institutional Research. (Pl. Ex. 3; Plaintiff

Dep. 63-64.) As assessment coordinator, Plaintiff collected and organized student census

information and coordinated student evaluations of courses and professors. (Pl. Dep. 19, 68, 71,

83; Oikelome Dep. 33-34.)

From 2001 through 2012, Plaintiff reported to Dr. Renford Brevett, the Director of

Institutional Research. (Pl. Ex. 3; Pl. Dep. 61.) When Dr. Brevett left the University at the end

of 2012, Plaintiff began reporting to Catherine Rutledge, who had been the University Registrar

and was appointed Interim Director of Institutional Research. (Pl. Dep. 79.) In July 2014, the

University hired a permanent director, Roxanne Foster, and Rutledge returned to her position as

Registrar. At that time, Plaintiff began reporting to Foster. (Id. at 87; Foster Dep. 28.)

Beginning in January 2016, when Foster left the University, Plaintiff reported to Gloria

Oikelome. (Id.; Pl. Dep. 99.) Oikelome served in various capacities at the University from

January 2014 to May 2016, including Interim Director of Institutional Research, Director of

Assessment and Accreditation, and Director of Institutional Effectiveness Research and Planning.

(Oikelome Dep. 11-12.)

In addition to the director and data coordinator, the Office of Institutional Research also

employed a program analyst. (Rutledge Dep. 52; Foster Dep. 21-24.) Unlike the data

coordinator, who pulled information from the University’s database for various purposes, the

program analyst modeled and interpreted the data, which required certain proficiencies in

computer programming. (Oikelome Dep. 33-35; Foster Dep. 27; Rutledge Dep. 62.)

Accordingly, Defendant required the program analyst, at a minimum, to have a bachelor’s degree,

and it preferred that the individual have a master’s degree in “a business area, mathematics,

computing, research design, statistics or a related field.” (Pl. Dep. Ex. 29.)

In July 2015, Plaintiff applied for the program analyst job, which was vacant at the time.

(Pl. Dep. 164,172; Foster Dep. 58.) Although she did not have a bachelor’s degree, when she

was a senior secretary at the University, she sometimes “[a]ssist[ed] in the absence of the

program analyst.” (Pl. Dep. 20; Pl. Ex. 12.) In addition, when the program analyst position was

vacant during Rutledge’s tenure as Interim Director, Rutledge taught Plaintiff how to do some of

the program analyst’s tasks and Plaintiff handled some of the program analyst’s responsibilities.

(Rutledge Dep. 57-60.; Pl. Dep. 82, 166-68.) However, Plaintiff was not sure that she should

apply for the program analyst position and she did not think that she would be given an interview.

(Pl. Dep. 164.) However, Foster and Rutledge, both of whom were on the hiring committee for

the position, encouraged Plaintiff to apply. (Id. at 174; Foster Dep. 59-61.)

Foster was in charge of hiring for the position and offered an interview to Plaintiff and

three or four other individuals. (Foster Dep. 59-61.) Foster, Rutledge, and Oikelome, the third

member of the hiring committee, interviewed the candidates together and agreed that another

candidate, LaThiza Crowelle (“Crowelle”) was more qualified than Plaintiff. (Id. at 61-62.) At

the time, Crowelle had a bachelor’s degree in business administration and organizational

leadership and was on her way to obtaining a master’s degree in business. (Def. Ex. H.) Foster

fired Crowelle after 30 days at the University because she was not a “good fit.” (Foster Dep. at

22.)

At her deposition, when she was asked if Plaintiff was qualified for the job, Foster said

that she did not “know how to answer that.” (Id. at 59.) She also testified that she “wanted a

high-level analytical person because of the direction [they] were taking in trying to become more

proactive in manipulating data.” (Id. at 61.) According to Rutledge, Plaintiff was not qualified

for the position because she did not have a degree and did not have all of the necessary data

analytics skills for the job. (Rutledge Dep. 60-62.)

B. Plaintiff Took a Significant Amount of FMLA Leave to Care for Herself and

Family

Beginning around 2011, and until she was terminated on April 1, 2016, Plaintiff

requested FMLA leave on a number of occasions to attend to her husband’s, their two

daughters’, and her own health issues. (Pl. Dep. 9, 77-78, 86-89, 98, 135-41; Def. Ex. F.) For

some issues, she used sick or vacation time instead. (Pl. Dep. 93-94.) With one exception,

Plaintiff was never denied a request to take leave. (Id. at 94-95.) On the one occasion that she

was denied leave, she had requested a few days off to accompany her daughter to the Special

Olympics held at Penn State. However, she could not take all of the requested days off because

of a mandatory work training. (Id. at 95.) She was still able to attend some of the Special

Olympics program. (Id. at 97.) Otherwise, none of her supervisors ever denied any of her

requests for FMLA-protected leave. (Id. at 79, 86, 101-03, 141.) Defendant was aware of why

Plaintiff frequently needed to take leave. (See id. at 85.)

Although Defendant almost always granted Plaintiff’s requests for leave, the record

indicates that her supervisors were not happy with her constant absences. For example, while

Rutledge was Interim Director of Institutional Research, she believed Plaintiff’s use of FMLA

leave was “a problem” because it forced her to do “extra work.” (Rutledge Dep. 55-56.) She

even complained to the Vice President of Academic Affairs and told him she did not want to be

Interim Director anymore because of her workload. (Id. at 56-57.) Rutledge acknowledges that

one of the reasons that she made that statement was because she had to do Plaintiff’s job when

she was out on leave. (Id. at 57.)

In addition, in Plaintiff’s June 2015 performance evaluation, Foster noted that Plaintiff

could “be depended on to complete any assignment in advance of the deadline even though her

health and unique family challenges may require her to take time off, or to work from home.”

(Pl. Ex. 11.) After Plaintiff’s termination from the University, when she asked Foster to serve as

a reference, Foster responded, “I am uncertain I would be the honest recommendation you might

seek because I would need to speak to your attendance record.” (Pl. Ex. 28.) In addition, when

Plaintiff asked Foster about the reasons for her termination, one of the ways in which Foster

responded was by sending Plaintiff a book entitled “The Essential Guide to Federal Employment

Laws,” the cover page of which specifically listed the primary federal employment laws,

including the ADA and FMLA. (Pl. Ex. 29; Foster Dep. at 6.) According to Foster, she sent that

book to Plaintiff because she thought it may answer some of Plaintiff’s questions. (Foster Dep.

6.)1 Also according to Foster, around the fall of 2015, Oikelome made a comment to her “about

the days [Plaintiff] was missing and how everybody has problems[ … Oikelome] had to take

care of her parents and she still worked.” (Pl. Dep. 191-92.)

In February 2016, after Oikelome became Interim Director of Institutional Research,

Plaintiff explained to Oikelome her family’s health issues and why she needed time off.

Oikelome responded that “everybody had to be at work.” (Id. at 143-44.) Around that time,

Oikelome had another employee take over some of Plaintiff’s responsibilities, such as the course

evaluations. (Id. at 227-28.) Finally, when asked at her deposition if anything stands out about

Plaintiff’s tenure at the University, Oikelome responded, “I know from [Foster] and from the

time that I briefly oversaw her in terms of when I had the interim director role and also per HR

that there were times when she would have to take leave . . . .” (Oikelome Dep. at 48.)

C. Defendant Terminated Plaintiff After Consolidating Two of Its Departments

In 2015, in response to some negative feedback from a university accrediting body,

Defendant began considering merging the Office of Institutional Research and the Office of

Assessment and Accreditation. (Oikelome Dep. 70, 83.) As part of those considerations,

Oikelome was tasked with finding out how other institutions went about housing both of these

roles in one office. (Id. at 83-84.) By early January 2016, Oikelome and others recognized that

1 Defendant cites various out-of-circuit cases for the proposition that post-termination

events are irrelevant to workplace retaliation and discrimination claims. (See Def. Reply 1-2,

ECF No. 16.) In so doing, Defendant fails to acknowledge the Third Circuit case law on the

issue, which holds that post-termination comments may be probative of past managerial attitudes

and discriminatory intent. See, e.g., Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515,

524 (3d Cir. 2003); Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 133 (3d Cir. 1997).

as part of any consolidation, they may need to eliminate redundant positions between the two

offices. (Id. at 88-91.) Among these overlapping positions were the directorships of the two

departments, which would be combined into one position. (Id. at 90.) Also among the

overlapping positions were the data coordinator and program analyst, which the consolidation

team determined to merge into one “program analyst” position. (Id. at 89.) According to

Oikelome, Plaintiff did not have the necessary skill set for this new position, which was meant

for a “strong quantitative analytic person.” (Id. at 90, 152-53.) No other positions were being

combined or eliminated. (Id. at 89-90 & Ex. 9.)

On January 14, 2016, the Interim Provost and Vice President of Academic Affairs

notified Oikelome that the President of the University approved the planned reorganization and

that Oikelome was being offered the position of Associate Vice President for Institutional

Effectiveness. (Id. at 108; Def. Ex. N.) Dissatisfied with the compensation that she would

receive for the new position, however, Oikelome informed the President in an email that she was

“rescinding the request for merging the Office of Assessment & Accreditation with the Office of

Institutional Research & Planning” and “declining the position of Associate Vice President for

Institutional Effectiveness.” (Oikelome Dep. 126-27 & Ex. 7.) In that same email, she wrote

that “[i]t is also becoming apparent that attempts to replace an employee that has not contributed

to the effective operation of the IR office is not supported due to concerns about what the

employee may or may not do as it relates to Title III operations.” (Id. Ex. 7.) When asked to

clarify this statement, Oikelome explained that because some positions at the University were

funded by Title III grants, there were concerns that the merger might jeopardize the grant money.

(Id. at 146-49.) Oikelome also explained that she was referring to the data coordinator position

in this email, but what she meant was that the position itself was not contributing to the Office of

Institutional Research, not that Plaintiff personally was not contributing to the office. (Id. at 149-

50.) In her own words, she stated that “the position we had was not contributing and the

employee who was in that position at that time happen[ed] to be Tracy Beird.” (Id. at 150.)

Ultimately, in March 2016, the departmental merger was consummated, and the

University approved the elimination of the Data Coordinator position. (Id. Ex. 9.) During an

email exchange between various university administrators regarding cabinet approval of the

merger, Oikelome noted, unsolicited, that cabinet approval was not necessary for the

“termination of an employee.” (Id.) On March 23, 2016, Plaintiff was informed via letter dated

March 21, 2016 that she was being terminated as a result of the merger, effective April 1, 2016.

(Pl. Dep. 200-01 & Ex. 38.) Plaintiff acknowledges that she had been aware of the consolidation

since October 2015. (Id. at 11.) She did not, however, know that she would be terminated. (Id.

at 157.)

Plaintiff’s performance reviews indicate that from 2007 to 2015, she consistently

exceeded expectations. (Pl. Exs. 4-11.)

II. DISCUSSION

Plaintiff initiated this action on November 27, 2017, alleging: (1) interference and

retaliation, in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.

(“FMLA”) (Counts I and II); (2) discrimination, in violation of the Americans with Disabilities

Act, as amended, 42 U.S.C. § 12101 et seq. (“ADA”), and Pennsylvania Human Relations Act,

43 P.S. § 951 et seq. (“PHRA”) (Count III); retaliation, in violation of the ADA and PHRA

(Count IV); (3) discrimination, in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.

(Count V); and retaliation, also in violation of the Rehabilitation Act (Count VI). (Compl., ECF

No. 1.) Defendant’s Motion for Summary Judgment is ripe for our review.2

A. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). When making this determination, we must weigh all facts in the light most

favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving

party. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). “For its part, ‘[t]he non-

moving party must oppose the motion and, in doing so, may not rest upon the mere allegations or

denials of his pleadings’ but, instead, ‘must set forth specific facts showing that there is a genuine

issue for trial. Bare assertions, conclusory allegations, or suspicions will not suffice.’” Id. at

288-89 (quoting D.E. v. Central Dauphin Sch. Dist., 765 F.3d 260, 268-69 (3d Cir. 2014)). “A

factual dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Id. at 289 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). “Conversely, ‘where a non-moving party fails sufficiently to establish the existence of

an essential element of its case on which it bears the burden of proof at trial, there is not a

genuine dispute with respect to a material fact and thus the moving party is entitled to judgment

as a matter of law.’” Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016) (quoting

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)).

B. Plaintiff’s FMLA Retaliation Claim May Proceed to Trial

Counts I and II of the Complaint allege both interference and retaliation. Count I

addresses Plaintiff’s rights with respect to caring for her family members, and Count II addresses

2 In her response, Plaintiff consented to the dismissal with prejudice of Counts IV – VI of

the Complaint, but that she opposed Defendant’s Motion in all other respects. (ECF No. 14).

Plaintiff’s rights with respect to caring for herself. The legal standards are the same regardless of

who receives the care. Therefore, we address these claims together.

“To establish a prima facie FMLA retaliation claim, a plaintiff must demonstrate that

‘(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment

decision, and (3) the adverse action was causally related to her invocation of rights.’” Neidigh v.

Select Specialty Hospital-McKeesport, 664 F. App’x 217, 223 n.12 (3d Cir. 2016) (quoting

Lichtenstein v. UPMC, 691 F.3d 294, 301-02 (3d Cir. 2012)). As in Title VII employment

discrimination cases, if a plaintiff succeeds in establishing a prima facie case of FMLA-related

retaliation, the employer “‘must articulate a legitimate, nondiscriminatory reason for the adverse

employment action. The burden then shifts back to the plaintiff to prove, by a preponderance of

the evidence, that the articulated reason was a mere pretext for discrimination.’” Capps v.

Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017) (quoting Ross v. Gilhuly, 755 F.3d 185,

193 (3d Cir. 2014)).

The only adverse employment action Plaintiff appears to offer for purposes of summary

judgment is her termination. (See Pl. Br. 2, 16, ECF No. 14.) However, Defendant appears to

concede that both the termination and refusal to hire Plaintiff for the program analyst position

could be construed as adverse employment actions. (Def. Br. 23, ECF No. 12-1.) We consider

both.

With regard to Plaintiff’s burden of establishing a prima facie retaliation case, Defendant

argues that Plaintiff cannot show causation. “Whether a causal link exists ‘must be considered

with a careful eye to the specific facts and circumstances encountered.’” Budhun v. Reading

Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (quoting Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 279 n.5 (3d Cir. 2000)). “To demonstrate a causal connection, a plaintiff generally

must show ‘either (1) an unusually suggestive temporal proximity between the protected activity

and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to

establish a causal link.’” Id. (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,

267 (3d Cir. 2007)). “In the absence of that proof the plaintiff must show that from the ‘evidence

gleaned from the record as a whole’ the trier of the fact should infer causation.” DeFlaminis, 480

F.3d at 267 (quoting Farrell, 206 F.3d at 281).

Defendant cites numerous cases in which courts granted summary judgment to employers

on FMLA retaliation claims where, as here, the employer consistently approved the employee’s

requests for leave. See, e.g., Torres v. Cnty. of Berks, No. 17-1890, 2018 WL 564406, at *9

(E.D. Pa. Jan. 26, 2018); Calero v. Cardone Indus., Inc., No. 11-3192, 2012 WL 2547356, at *8

(E.D. Pa. June 29, 2012). However, in Calero, the court specifically indicated that although that

kind of history is probative of a lack of causation, it “by no means establishes” a lack of causation

between subsequent requests for FMLA leave and adverse employment action. See id.

Plaintiff’s situation is also distinguishable from that in Calero, where the plaintiff’s manager told

him on one occasion that “we all have issues … you can’t miss any more time.” 2012 WL

2547356, at *2. As the court explained, “[t]his isolated comment, although perhaps

inappropriate, does not create a ‘pattern’ of antagonism or even evidence of antagonism standing

alone…. Instead, it is akin to a ‘stray remark, unconnected with and remote from the decision-

making process’” leading to the adverse employment activity. Id. at *8 (quoting Brewer v.

Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995)).

Here, by contrast, all three of Plaintiff’s most recent supervisors at the University, who

also happened to comprise the hiring committee for the program analyst position, made remarks

implying or declaring that they were unhappy with Plaintiff’s constant use of FMLA leave. That

is in stark contrast to the “isolated comment” in Calero or the Torres case cited by Defendant,

where several coworkers were outwardly critical of the plaintiff for missing so much work, but

none of those individuals were supervisory. 2018 WL 564406, at *4. Considered together, and

viewed in the light most favorable to Plaintiff, Rutledge’s, Foster’s, and Oikelome’s comments

were not “stray” remarks, and they do give rise to an inference of causation.

Citing Plaintiff’s lack of qualifications and the departmental merger, however, Defendant

has met its “minimal burden” of establishing a legitimate, nondiscriminatory reason for passing

over Plaintiff for the program analyst position and eventually terminating her. See Lichtenstein,

691 F.3d at 302. Therefore, the burden shifts back to Plaintiff to establish that her insufficient

credentials and the merger were pretextual reasons for the adverse employment actions. To meet

this burden, Plaintiff “‘must point to some evidence, direct or circumstantial, from which a

factfinder could reasonably … disbelieve [Defendant’s] articulated legitimate reasons.’” Id. at

302 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Plaintiff “‘must demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

[Defendant’s] proffered legitimate reasons for its actions that a reasonable factfinder could

rationally find them ‘unworthy of credence.’’” Id. at 310 (quoting Fuentes, 32 F.3d at 765).

With regard to the program analyst position, the evidence is convincing that Plaintiff was

not qualified for the job. Although she may have assisted with the program analyst’s

responsibilities from time to time, the fact remains that she did not have a college degree, which

was a prerequisite for the position. Plaintiff also has not established that she had the requisite

computer programming skills. Notwithstanding the fact that Foster and Rutledge encouraged

Plaintiff to apply for the position, and that it was wrong to send Plaintiff after something that they

knew she could not attain, their actions in this respect are not probative of any retaliatory animus.

Moreover, their actions have no other bearing on the plausibility of Defendant’s legitimate

reasons for the adverse employment actions against Plaintiff.

Plaintiff’s termination, on the other hand, is not so clear cut. Clearly, businesses have a

right to eliminate positions, terminate employees, and engage in other measures to cut costs and

streamline their internal processes. However, the record indicates that Plaintiff was the only one

terminated in connection with the merger. The record also shows that Oikelome played a

significant role in handling the staffing issues that arose from the merger, and that Oikelome had

some animus towards Plaintiff because of her use of FMLA leave. Indeed, Oikelome appeared to

brush Plaintiff off when Plaintiff tried to explain why she needed so much leave and Oikelome

also made comments to Foster that were critical and condescending towards Plaintiff, particularly

with respect to her use of FMLA leave. Finally, in the context of the entire email chain among

Oikelome and other university leaders regarding cabinet approval of the merger, Oikelome’s

unsolicited email that cabinet approval was not needed for “termination of an employee” could be

read to suggest that Oikelome was eager to terminate Plaintiff. (See Oikelome Dep. Ex. 9.) Until

Oikelome sent that email, no one on the chain spoke in terms of terminating an employee.

Rather, they spoke in terms of “eliminating a position.” (See id.)

This is not to say that Defendant embarked on a complicated merger process solely as a

justification for terminating Plaintiff. However, a factfinder could reasonably conclude that

during the merger process, Oikelome singled out Plaintiff for an improper reason. See Jute v.

Hamilton Sundstrand Corp., 420 F.3d 166, 180 (2d Cir. 2005) (finding genuine issues of material

fact existed as to whether merger was prextext for terminating employee). Summary judgment as

to Plaintiff’s retaliation claims will be denied.3

C. Plaintiff’s Interference Claim May Proceed to Trial

“An interference action is not about discrimination, it is only about whether the employer

provided the employee with the entitlements guaranteed by the FMLA.” Callison v. City of

Philadelphia, 430 F.3d 117, 120 (3d Cir. 2005). To succeed on an FMLA interference claim, “a

plaintiff must establish: ‘(1) he or she was an eligible employee under the FMLA; (2) the

defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to

FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA

leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the

FMLA.’” Capps v. Mondelez Global, LLC, 847 F.3d 144, 155 (3d Cir. 2017) (quoting Ross, 755

F.3d at 191-92). If an employee receives all of the benefits to which she is entitled under the

FMLA, she cannot prevail on an interference claim. Id.; Ross, 755 F.3d at 192 (“[W]e have made

it plain that, for an interference claim to be viable, the plaintiff must show that FMLA benefits

were actually withheld.”).

3 The parties do not address the issue of whether Plaintiff would be able to defeat

summary judgment under a “mixed-motive” theory of retaliation. Under a mixed motive theory a

plaintiff may prevail if she “present[s] evidence ‘from which a reasonable jury could conclude

that [Defendant] had legitimate and illegitimate reasons for its employment decision and that

[Plaintiff’s] use of FMLA leave was a negative factor in the employment decision.’” See

Colonna v. UPMC Hamot, No. 16-53, 2017 WL 4235937, at *8 n.2 (W.D. Pa. Sept. 25, 2017)

(quoting Egan v. Delaware River Port Auth., 851 F.3d 263, 275 (3d Cir. 2017)). The “mixed-

motive” framework is “more lenient” than the “pretext” framework. See id.; Lichtenstein, 691

F.3d at 303. “The difference is in the degree of causation that must be shown: in a ‘mixed-

motive’ case, the plaintiff must ultimately prove that her protected status was a ‘motivating’

factor, whereas in a non-mixed-motive or ‘pretext’ case, the plaintiff must ultimately prove that

her status was a ‘determinative’ factor.” Colonna, 2017 WL 4235937, at *8 n.2 (quoting

Connelly v. Lane Constr. Corp., 809 F.3d 780, 788 (3d Cir. 2016)).

Defendant appears to challenge only Plaintiff’s showing on the fifth element of an

interference claim. As Defendant points out, Plaintiff confirmed multiple times at her deposition

that she was never denied FMLA benefits. In fact, she stated that “I don’t believe the FMLA was

interfered with.” (Pl. Dep. at 231.) As Plaintiff notes, however, in some cases, terminating an

employee for requesting FMLA leave may constitute both retaliation and interference. See

Capps, 847 F.3d at 156 n.11 (recognizing that a claim for termination-based interference may lie

where “the employee ‘requested FMLA leave but was fired before the leave was scheduled to

begin,’ i.e., before the employee actually took the leave”) (citing Erdman v. Nationwide Ins. Co.,

582 F.3d 500, 509 (3d Cir. 2009)).

Given the lack of case law on this type of interference claim, the questions of the relevant

standards and Plaintiff’s burden of proof are problematic. Cf. DeCicco v. Mid-Atlantic

Healthcare, LLC, 275 F. Supp. 3d 546, 563 (E.D. Pa. 2017) (“[T]he precise circumstances under

which a plaintiff may advance both retaliation and interference claims is not entirely clear.”).

Some courts have allowed interference claims to survive summary judgment solely on the basis

of termination during FMLA-covered leave. See, e.g., Kohler v. TE Wire & Cable LLC, No. 14-

3200, 2016 WL 885045, at *10 (D.N.J. Mar. 8, 2016). However, we question whether

terminating an employee who is currently using or about to use FMLA leave can be actionable in

all circumstances. If that were the case, an FMLA-bound employee could never be terminated,

even for a perfectly legitimate reason.

Several courts have to read a temporal causation element into this type of interference

claim. See, e.g., Phillips v. Great Dane, LLC, No. 18-401, 2019 WL 2448320, at *3 (M.D. Pa.

June 12, 2019) (denying summary judgment where employee was terminated “within a short

time” of notifying employer of medical issues and “before he could use FMLA leave”) (emphasis

added); Detwiler v. Clark Metal Prods. Co., No. 08-1099, 2010 WL 1491325, at *17 (W.D. Pa.

Mar. 19, 2010) (denying summary judgment where employee was terminated “within days” of

notifying employer of need to take additional FMLA leave) (emphasis added). Even then,

however, employers could still face liability for engaging in legitimate employment actions.

We join our colleague’s opinion in DeCicco in concluding that without clear guidance

from the Third Circuit on the contours of a termination-based interference claim, we should be

hesitant to dismiss an interference claim on summary judgment where a plaintiff’s termination

“resulted in benefits being withheld.” See 275 F. Supp. 3d at 564. Nevertheless, we still must

decide whether Plaintiff’s termination prevented her from availing herself of FMLA benefits to

which she was entitled. Based on the record, we conclude that it did.

On October 8, 2015, Plaintiff requested FMLA leave to care for her daughter. (Pl. Ex.

21.) As of November 3, 2015, several months before the elimination of Plaintiff’s position was

approved, Plaintiff was approved for intermittent FMLA leave from October 5, 2015 through

April 4, 2016. (Pl. Ex. 23.) As of March 22, 2016, that leave had been extended through

September 20, 2016. (Pl. Ex. 23.) From February to March 2016, Plaintiff was on FMLA leave

for multiple days. (Pl. Dep. 135-36 & Ex. 17.) On March 15, 2016, Plaintiff requested additional

leave to care for her husband. (Pl. Ex. 26.) She had also been approved for leave from March 1,

2016 through May 16, 2016, apparently in relation to her other child. (Pl. Dep. 98 & Ex. 9.)

Around that time, Plaintiff had close to 300 hours of FMLA leave remaining. (Pl. Ex. 25.)

Giving Plaintiff the benefit of all reasonable inferences, one could conclude that Plaintiff

would have taken additional time off under the FMLA after her April 1, 2016 termination. She

has thus raised a genuine issue of material fact as to whether her termination on April 1, 2016

interfered with her FMLA benefits. Summary judgment will be denied as to Counts I and II.

D. Plaintiff’s Disability Discrimination Claim Will Be Dismissed4

Plaintiff asserts that based on Oikelome’s disparaging remarks and conduct in

restructuring the Office of Institutional Research, a jury could conclude that Defendant

“terminated her because of her association with her disabled family members.” (Pl. Br. at 20,

ECF No. 14.) Although Plaintiff appears to abandon any claims based on her own alleged

disabilities, we will determine whether she could proceed on that basis also.

Typically, “[t]o establish a prima facie case under the ADA, a plaintiff must show that

[s]he (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse

employment action because of that disability.” Stouch v. Twp. of Irvington, 354 F. App’x 660,

666 (3d Cir. 2009) (citing Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006)).

However, the ADA includes an “association” provision, which extends discrimination to

“excluding or otherwise denying equal jobs or benefits to a qualified individual because of the

known disability of an individual with whom the qualified individual is known to have a

relationship or association.” 42 U.S.C. § 12112(b)(4). To establish a prima facie case of

discrimination under an associational theory, the plaintiff must show that the employer “was

motivated by [the relative’s] disability rather than by [the plaintiff’s] stated intention to miss

work; in other words, that she would not have been fired if she had requested time off for a

different reason.” Erdman, 582 F.3d at 510 (citing Den Hartog v. Wasatch Academy, 129 F.3d

4 Before the passage of the ADA Amendments Act of 2008 (the “ADAAA”), courts

unanimously considered the ADA and PHRA coextensively. See Gardner v. SEPTA, 410 F.

Supp. 3d 723, 734 n.5 (E.D. Pa. 2019). However, because the ADAAA relaxed the definition of

disability, some courts have since considered ADA and PHRA claims separately. See, e.g.,

Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 689 n.7 (W.D. Pa. 2014). Here, because

our decision does not depend on the definition of disability, we consider the ADA and PHRA

claims together. See Jeffrey v. Thomas Jefferson Univ. Hosp., Inc., No. 17-0531, 2019 WL

2122989, at *9 n.6 (E.D. Pa. May 14, 2019).

1076, 1085 (10th Cir. 1997) (requiring association provision plaintiffs to show that an “adverse

employment action occurred under circumstances raising a reasonable inference that the

disability of the relative or associate was a determining factor in the employer’s decision”)). The

Third Circuit allows associational discrimination claims to proceed if the employee was “fired

because her employer feared that she might miss work to care for a disabled relative even though

she had not taken or requested time off.” See id. (emphasis in original). In permitting such

claims, the Third Circuit reasons that “a decision motivated by unfounded stereotypes or

assumptions about the need to care for a disabled person may be fairly construed as ‘because of

the … disability’ itself.” Id. at 511 (quoting 42 U.S.C. § 12112(b)(4)).

In all ADA discrimination cases, “[o]nce a plaintiff establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action.” Stouch, 354 F. App’x at 666 (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-05 (1973)). “The plaintiff then bears the burden of establishing that this

proffered reason is a pretext for discrimination.” Id.; Walton v. Mental health Ass’n of

Southeastern Pennsylvania, 168 F.3d 661, 667-68 (3d Cir. 1999)).

Here, Plaintiff fails to establish the causation element of her prima facie case. There is no

evidence suggesting that Defendant terminated Plaintiff because of her or her relatives’ disability.

Plaintiff reiterates the arguments she made in support of her FMLA claims, i.e., the departmental

consolidation and Oikelome’s “disparaging comments about the time off Beird was taking and

planned to take because of her disabled family members.” (Pl. Br. at 20, ECF No. 14) (emphasis

added). However, if Defendant was singling Plaintiff out for her time off, rather than for her or

her family members’ disabilities, the proper claim is one for FMLA retaliation, not associational

disability discrimination. See Erdman, 582 F.3d at 510 & n.6. Indeed, Defendant knew about

Plaintiff’s and her family member’s health issues for years before Plaintiff was terminated.

Accordingly, “[t]he most [Plaintiff] can hope to show is that she was fired for requesting time off

to care for [her family] (the basis for her FMLA claim), not because of unfounded stereotypes or

assumptions on [Defnedant’s] part about care required by disabled persons.” Id. at 511.

Summary judgement will be entered in favor of Defendant as to Count III of the

Complaint.

III. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment will be granted in

part and denied in part.

An appropriate order follows.

BY THE COURT:

_/s/ R. Barclay Surrick______

R. BARCLAY SURRICK, J.