The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ELIZABETH M. GORMAN, CIVIL ACTION
Plaintiff,
v.
ACTEON NETWORKS, LLC, NO. 19-5818
Defendant.
DuBOIS, J. May 26, 2021
M E M O R A N D U M
I. INTRODUCTION
In this employment discrimination case, plaintiff Elizabeth Gorman claims that her
former employer, defendant Acteon Networks, LLC (“Acteon”), discriminated against her on the
basis of her age and disability—a shoulder injury—and retaliated against her for exercising her
rights under the Pennsylvania Workers’ Compensation Act. Plaintiff asserts claims of
“discriminatory treatment and discharge” under the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (“ADEA”) (Count I) and the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq. (“ADA”) (Count II), “retaliation-discharge” under Pennsylvania common law
(Count III), and improper discontinuation of her medical benefits in violation of the Consolidated
Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161, et seq. (“COBRA”) (Count IV).
Presently before the Court is Defendant Acteon Networks, LLC’s Motion for Summary
Judgment. For the reasons set forth below, the Motion is granted in part and denied in part.
II. BACKGROUND1
Defendant “sells and installs telecommunications, security equipment, fiber optic cabling,
paging systems, and wi-fi networks from its office in Fort Washington, Pennsylvania.” Def.’s
1 The facts are presented in the light most favorable to plaintiff. Disputed facts are noted as such. Where
appropriate, plaintiff and defendant’s statements of material facts are cited in lieu of a direct citation to the record.
Statement of Undisputed Facts (“Def.’s SUF”) ¶ 1. Plaintiff began working for defendant in
2006. Pl.’s Counter-Statement Mat. Facts (“Pl.’s CSMF”) ¶ 1. From 2006 to 2018, plaintiff held
a position as a sales representative, selling telecommunications equipment. Def.’s SUF ¶ 8. At
times, her role required her to visit clients in-person to conduct site surveys. Id. ¶ 22. Jack
Yoast, President of Acteon, was plaintiff’s supervisor. Gorman Dep. 29:21-22.
When she first started at Acteon, plaintiff worked from home, except for visits with
clients about two to three times a week. Id. 16:18-17:15. Yoast testified that plaintiff was
eventually told she could no longer work from home because she “was not hitting her numbers.”
Yoast Dep. 33:16-20. Plaintiff does not dispute that this privilege was revoked, but testified that
there were no “complaints about [her] performance while [she] worked from home.” Gorman
Dep. 103-25-104:2.
On June 1, 2018, plaintiff and a co-worker visited a client to conduct a site survey and
stopped for lunch on their way back to the office. Id. 38:2-12. During that stop, plaintiff tripped
on a sidewalk curb and fell, injuring her left shoulder and tearing her rotator cuff. Id. 36: 24-
37:3. Thereafter, plaintiff “worked from home for about three weeks,” until Yoast sent her an
email “saying that [she] had to come into the office.” Id. 43:10-13. Due to her injury, plaintiff
was unable to drive or open the car door with her left arm so her husband drove her back and
forth to work daily through August 15, 2018. Id. 43:13-16. On August 16, 2018, plaintiff had
surgery on her injured shoulder and began receiving workers’ compensation benefits. Id. 44:16-
19. She then took time off from work to recover. Id. 112:18-25. Following her surgery,
plaintiff “wore a hard sling for four months” and was still unable to drive or open the car door
with her left arm. Pl.’s CSMF ¶ 6.
Plaintiff testified that she called Yoast to discuss taking time off from work to recover
from her surgery but he did not answer her calls, so she told the office manager that she was
taking time off. Gorman Dep. 112:18-22. Plaintiff and Yoast did not have any communication
between the date of her surgery, August 16, 2018, and September 4, 2018. Id. 114:17-20. On
September 4, 2018, Yoast sent plaintiff an email with the subject line “It’s Time,” which stated
in relevant part:
Basically, my message is that it’s time for you to hang up the receiver on the Dterm
V and retire. I want you to go out with dignity and I think this is the best way for
you to end your storied career in the telecommunications industry. Although you
might not agree, I think it is best for you to concentrate on your recovery and spend
time with your family. I am sure you have thought about it, and given the timing
of your injury and surgery, the timing could not be better. I have hinted at this in
the past but, again, the timing is perfect and I expect that you will tender your
retirement letter today.
Pl.’s Ex. 4. Plaintiff did not respond to the email. Gorman Dep. 92:4. On October 18, 2018,
plaintiff received a letter from Acteon stating that she had been terminated from her position and
that her health insurance would be discontinued on October 31, 2018. Id. 95:2-16.
“On February 20, 2020, Acteon offered [p]laintiff reinstatement to her position.” Def.’s
SUF ¶ 60. Plaintiff declined the offer on the ground that she would have been required to report
to someone other than Yoast, the President, and “that would not have been acceptable.” Gorman
Dep. 96:12-13.
On April 2, 2021, Defendant Acteon Networks, LLC’s Motion for Summary Judgment
was filed (Document No. 31). Plaintiff, Elizabeth Gorman’s Response in Opposition to
Defendant’s Motion for Summary Judgment was filed on May 5, 2021 (Document No. 40). On
May 14, 2021 the Reply Brief in Further Support of Defendant, Acteon Networks, LLC’s Motion
for Summary Judgment was filed (Document No. 44). The Motion is thus ripe for decision.
III. LEGAL STANDARD
The Court will grant a motion for 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is
material when it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
The Court’s role at the summary judgment stage “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether . . . there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. However,
the existence of a “mere scintilla” of evidence in support of the nonmoving party is insufficient.
Id. In making this determination, “the court is required to examine the evidence of record in the
light most favorable to the party opposing summary judgment[] and resolve all reasonable
inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party
opposing summary judgment must, however, identify evidence that supports each element on
which it has the burden of proof. Celotex Corp., 477 U.S. at 322.
IV. DISCUSSION
A. ADEA and COBRA Claims
Plaintiff asserts claims of “discriminatory treatment and discharge” under the ADEA and
improper discontinuation of her medical benefits in violation of COBRA. Compl. ¶¶ 29-43; 62
(Counts I and IV). Defendant seeks summary judgment on both claims on the ground that
defendant does not maintain the requisite number of employees to be covered by either statute.
The ADEA defines “employer” as “a person engaged in an industry affecting commerce
who has twenty or more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b); Liou v. Le Reve
Rittenhouse Spa, LLC, No. CV 18-5279, 2019 WL 1405846, at *3 (E.D. Pa. Mar. 28, 2019)
(DuBois, J.). Similarly, “[e]mployers with fewer than 20 employees are exempt from COBRA’s
requirements.” Geissal v. Moore Med. Corp., 524 U.S. 74, 80 (1998) (citing 29 U.S.C.
§ 1161(b)).2 Accordingly, to defeat defendant’s Motion on this ground, plaintiff must show that
there exists a genuine dispute of material fact as to whether defendant maintained at least 20
employees during the year preceding her termination in September 2018. The Court next
addresses that issue.
Defendant argues that “at all times in 2017, 2018, and 2019, Acteon had no more than
nineteen (19) employees at any given time.” Mot. 7. Defendant supports this argument with the
following evidence: (1) tax documents filed in 2017-2018 (“PA Form UC-2A Employer’s
Quarterly Report of Wages Paid to Each Employee”), Def.’s Ex. 15-17; (2) a payroll register
from 2018, Def.’s Ex. 22; and (3) Yoast’s deposition testimony, Yoast Dep. 101:9-15. Plaintiff,
on the other hand, relies on an allegation in the Complaint—“[d]efendant, upon information and
belief, employed 25 or more persons when the unlawful conduct . . . occurred”—Compl. ¶ 7; and
her deposition testimony explaining that the 25-person estimate was based on Christmas card
lists, an office telephone number list, and personal knowledge; Gorman Dep. 31:3-8. Plaintiff
was unable to produce the Christmas card or office telephone number lists as evidence. The
Court concludes that plaintiff’s remaining evidence on the number of defendant’s employees—
2 This exception applies to employers that “normally employed fewer than 20 employees on a typical
business day during the preceding calendar year.” § 1161(b).
her recollection based on documents she could not produce—is insufficient to create a genuine
dispute of material fact in the face of defendant’s strong evidence to the contrary.
Although the Court’s role at the summary judgment stage is not to make credibility
determinations or weigh the evidence, it must “assess how one-sided evidence is, or what a ‘fair-
minded’ jury could ‘reasonably’ decide.” Williams v. Borough of W. Chester, Pa., 891 F.2d 458,
460 (3d Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 263 (1986) (Brennan,
J., dissenting)). To overcome a motion for summary judgment, the nonmoving party “cannot
simply reassert factually unsupported allegations contained in its pleadings.” Williams v.
Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325).
“Mere conjecture” is insufficient to create a genuine dispute of material fact. Jenkins v.
Anderson, No. CIV.A. 08-1035, 2009 WL 2870649, at *3 (E.D. Pa. Sept. 3, 2009) (citing Gans
v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)).
The Court determines that the evidence with respect to the number of defendant’s
employees is one-sided in favor of defendant. While defendant has provided official tax
documents, payroll records and sworn testimony of Acteon’s President—all of which confirms
that defendant employed no more than 19 persons during the relevant time period—plaintiff
relies solely her own testimony. Additionally, without the lists upon which plaintiff claims to
have relied in estimating that defendant employed 25 people, the Court determines that her
testimony constitutes “mere conjecture.” Based on her testimony alone, the Court concludes that
plaintiff has not demonstrated the existence of a genuine dispute of material fact as to the number
of employees defendant maintained.
For the foregoing reasons, that part of defendant’s Motion which seeks summary
judgment on plaintiff’s ADEA and COBRA claims (Counts I and IV) is granted.
B. ADA Claim
The Court next evaluates plaintiff’s claim of “discriminatory treatment and discharge”
under the ADA. (Count II) (hereinafter, “discrimination claim”). Because the ADA applies to
employers with 15 or more employees, it is undisputed that defendant is covered by the ADA.
See 42 U.S.C. § 12111.
The ADA prohibits covered employers from discriminating against qualified individuals
on the basis of disability. See 42 U.S.C. § 12112(a). Discrimination claims under the ADA are
subject to the three-part burden-shifting framework set out in McDonnell Douglas Corp v.
Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, plaintiff has the initial
burden of establishing a prima facie case of discrimination. Id. at 802. If plaintiff succeeds, the
burden shifts to the employer, which must articulate “some legitimate, nondiscriminatory
reason” for the adverse employment action. Id. Then, the burden shifts back to plaintiff to prove
that the employer’s proffered reasons are a pretext for discrimination. Id. at 804. The “plaintiff
at all times bears the ‘ultimate burden of persuasion.’” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993). The Court evaluates each step in turn.
i. Plaintiff’s prima facie case
To establish a prima facie case of disability discrimination under the ADA, a “plaintiff
must show (1) that she is disabled within the meaning of the ADA, (2) that she is otherwise
qualified for the job, with or without reasonable accommodations, and (3) that she was subjected
to an adverse employment decision as a result of discrimination.” Sulima v. Tobyhanna Army
Depot, 602 F.3d 177, 185 (3d Cir. 2010). “[W]hether a person was a ‘qualified individual with a
disability’. . . [is examined] from the point at which the alleged discriminatory decision was
made.” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535-36 (3d Cir. 2007) (citations
omitted). Accordingly, the Court evaluates whether plaintiff has established a prima facie case
of disability discrimination at the time of her termination.
Plaintiff argues that she has established a prima facie case of disability discrimination on
the grounds that (a) her shoulder injury rendered her disabled under the ADA at the time of her
termination, (b) she was qualified for her position as a salesperson and could have performed the
job with or without an accommodation, and (c) she was terminated because of her disability. For
the following reasons, the Court determines that plaintiff has presented sufficient evidence to
establish a prima facie case of disability discrimination.
a. Disabled
To be considered “disabled” under the ADA, a plaintiff must show that (1) she has a
physical or mental impairment that substantially limits one or more of her major life activities,
(2) she has a record of such an impairment, or (3) she is regarded as having such an impairment.
See 42 U.S.C. § 12102(2). Plaintiff argues that she was disabled under the ADA under the first
prong of this definition. The Court thus evaluates whether plaintiff’s injury substantially limited
one or more of her major life activities.
Under the ADA, “major life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
42 U.S.C. § 12102. During her deposition, plaintiff explained that she could not drive herself to
work because she could not drive or open the car door with her left arm. Gorman Dep. 61:16-24.
In addition, plaintiff filed a certification, stating that after her surgery, she wore a hard sling,
which “completely immobilized [her] left arm and left [her] unable to perform any manual task
with it,” and even after the hard sling was removed, “it took months of physical therapy for [her]
to be able to lift, push, pull, and reach out like normal.” Pl.’s Cert. ¶¶ 11-12. Other courts have
determined that shoulder injuries like plaintiff’s qualify as disabilities under the ADA. See, e.g.,
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 591 (5th Cir. 2016). Additionally,
plaintiff’s testimony provides a sufficient basis upon which a jury could reasonably conclude that
she was substantially limited in performing several major life activities. Accordingly, the Court
concludes that plaintiff has sufficiently demonstrated that she was disabled under the ADA, and
satisfied the first element of a prima facie case.
b. Qualified
The next step in establishing a prima facie case of disability discrimination requires
plaintiff to show that she was qualified to perform her job at the time of her termination. To
make that showing, plaintiff must first establish that she possessed the skill, experience or
education necessary to adequately perform the job. See Skerski v. Time Warner Cable Co., 257
F.3d 273, 278 (3d Cir. 2001). Second, plaintiff must establish that she was capable of
performing the essential elements of the position with or without reasonable accommodation. Id.
Defendant argues that plaintiff was not qualified for her position on the ground that she could not
satisfy the second step. Thus, the Court focuses its inquiry on whether plaintiff has shown that
she could perform the essential elements of her position with or without an accommodation.
Plaintiff does not argue that she could have performed the essential functions of her role
without an accommodation. Rather, she contends that she could have performed the essential
functions of her job with reasonable accommodations—working from home and having a co-
worker drive her to customer sites. In its Motion, defendant argues that (1) plaintiff never
requested those accommodations, and (2) even if she had, the request to have a co-worker drive
her to customer sites was unreasonable. The Court evaluates each of defendant’s arguments in
turn and concludes that both present genuine disputes of material fact.
Defendant contends that plaintiff did not notify it of her need for an accommodation in
violation of the general rule that “it is the responsibility of the individual with a disability to
inform the employer than an accommodation is needed.” Graves v. Finch Pruyn & Co., 457
F.3d 181, 184 (2d Cir. 2006). However, an exception to this rule applies “where the disability is
obvious or otherwise known to the employer without notice from the employee.” Felix v. New
York City Transit Authority, 154 F.Supp.2d 640 (S.D.N.Y. 2001). Plaintiff does not argue that
this exception applies in this case, but the Court notes that it likely applies, given that plaintiff
sustained her injury while performing her job for defendant and defendant was aware of the
timing of her surgery. Nevertheless, in response to defendant’s argument that she failed to notify
it of her need for an accommodation, plaintiff sufficiently demonstrates the existence of a
genuine dispute of material fact.
Plaintiff testified that, after her injury and prior to her surgery, she spoke to Yoast about
working from home post-surgery, but he told her “[i]f [she] couldn’t come in, then [she]
wouldn’t have a job.” Gorman Dep. 107:4-9. She also testified that, after her surgery, she tried
to reach Yoast, but that he would not return her calls, so she told the office manager that she was
taking some time off. Id. 112:18-22. Yoast, on the other hand, testified that plaintiff never
reached out and “fell off the face of the earth” after her injury. Yoast Dep. 71:1-5. In light of
these conflicting testimonies, the Court determines that there exists a genuine dispute of material
fact with respect to defendant’s first argument—whether plaintiff requested an accommodation.
Defendant’s second argument—having a co-worker drive her to visit customers would
have been unreasonable—also presents a genuine dispute of material fact. The reasonableness of
a proposed accommodation is evaluated through a cost-benefit analysis. Specifically, plaintiff
must identify “an accommodation, the costs of which, facially, do not clearly exceed its
benefits.” Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661, 670 (3d Cir. 1999).
“Summary judgment may be granted for a defendant only ‘in cases in which the plaintiff's
proposal is either clearly ineffective or outlandishly costly.’” Skerski v. Time Warner Cable Co.,
a Div. of Time Warner Ent. Co., L.P., 257 F.3d 273, 284 (3d Cir. 2001) (citations omitted).
Defendant contends that plaintiff’s request to have a co-worker drive her to customer
visits was unreasonable on the ground that Acteon was a small company and could not spare one
of its employees to complete that task. Reply at 5. However, this argument does not account for
the fact that plaintiff’s injury occurred on a client visit to which she had been driven by a co-
worker. See supra, Part II; Gorman Dep. 38:2-5. Additionally, defendant’s bare contention that
plaintiff’s proposed accommodation was unreasonable is insufficient to demonstrate that it
would have been “outlandishly costly” or “ineffective.” Thus, on the present state of the record,
the Court concludes that plaintiff has demonstrated the existence of genuine disputes of material
fact with respect to whether she was qualified to perform her role with a reasonable
accommodation in satisfaction of the second element of her prima facie case.
c. Causal Nexus
Finally, to establish a prima facie case of disability discrimination, plaintiff must show a
causal nexus between her disability and her termination. See, e.g., New Directions Treatment
Servs. v. City of Reading, 490 F.3d 293, 301 (3d Cir. 2007) (“[T]o make out a claim under the
ADA, the plaintiff need only show that intentional discrimination was the but for cause of the
allegedly discriminatory action.”). The United States Court of Appeals for the Third Circuit has
held that “unduly suggestive” temporal proximity may give rise to an inference of causation. See
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). However, standing alone, a
temporal gap of one month or greater does not sufficiently demonstrate causation. See Tirk v.
Dubrook, Inc., 673 F. App’x 238, 241 (3d Cir. 2016) (citing Thomas v. Town of Hammonton,
351 F.3d 108 (3d Cir. 2003)).
In this case, plaintiff has sufficiently shown causation by presenting evidence of
defendant’s stated reasons for terminating her, in addition to temporal proximity. On September
4, 2018, Yoast sent plaintiff a termination email, stating, inter alia, “I think it is best for you to
concentrate on your recovery and spend time with your family . . . . given the timing of your
injury and surgery, the timing could not be better.” This evidence, combined with the three-
month gap between plaintiff’s injury and her termination, is sufficient to support a jury
conclusion that plaintiff was terminated because of her injury. Plaintiff has thus presented
sufficient evidence of causation in satisfaction of the third element of her prima facie case.
For the foregoing reasons, the Court concludes that a jury could reasonably conclude that
plaintiff established a prima facie case of disability discrimination.
ii. Defendant’s Proffered Non-Discriminatory Reasons
Under the second step of the McDonnell Douglas framework, the Court must determine
whether defendant has articulated a legitimate non-discriminatory reason for terminating
plaintiff. In its Motion, defendant states, “[p]laintiff was terminated for poor sales performance,
which had been steadily declining for some time and communicated to [p]laintiff.” Mot. 21.
Specifically, according to defendant, “[p]laintiff’s sales had declined to approximately just
$150,000 on an annualized basis, and it is undisputed that leading up to her termination, Plaintiff
was failing to cover the cost of her annual salary and fringe benefits from Acteon.” Id.
Defendant supports this contention with reports on plaintiff’s sales performance during the
relevant period and Yoast’s testimony. Def.’s Ex. 20; Def.’s Ex. 21; Yoast Dep. 69:4-19. Based
on this evidence, the Court concludes that defendant has articulated a legitimate, non-
discriminatory reason for terminating plaintiff in satisfaction of the second step of the
McDonnell Douglas framework.
iii. Plaintiff’s Evidence of Pretext
Under the third and final step of the McDonnell Douglas framework, the burden shifts
back to plaintiff to show that defendant’s articulated reason is a pretext for discrimination. To
show pretext, “the plaintiff must point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994). In other words, plaintiff must show “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them ‘unworthy of credence.’” Id. at 765 (quoting
Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
In this case, plaintiff presents sufficient evidence from which a factfinder could
reasonably disbelieve defendant’s explanation that she was terminated for poor performance.
First, she contends that the evidence of her job performance that defendant relies on “was
incomplete, as it was halfway through the year and [p]laintiff had multiple projects in the
pipeline.” Pl.’s Opp. 10. Second, she discredits Yoast’s deposition testimony that she was
terminated for poor performance on the ground that his termination email did not mention
performance and focused solely on the timing of her injury and recovery. Finally, plaintiff
claims that she “was offered reinstatement, which again is illogical to offer someone who was
performing poorly to the point of getting fired.” Id. at 11. Based on all of this evidence, the
Court concludes that a reasonable factfinder could conclude that defendant’s proffered reasons
for terminating plaintiff are unworthy of credence. Plaintiff has thus satisfied the third and final
step of the McDonnell Douglas framework.
Accordingly, the Court denies defendant’s Motion to the extent it seeks summary
judgment on plaintiff’s disability discrimination claim under the ADA.
C. Common Law Retaliation Claim
Plaintiff’s final claim against defendant arises under the Pennsylvania Workers’
Compensation Act and common law. She asserts that she was terminated in retaliation for
“pursuing her rights under the Pennsylvania Workers’ Compensation Act.” Compl. ¶ 57. In
Shick v. Shirey, the Pennsylvania Supreme Court recognized this cause of action by carving out
an exception to Pennsylvania’s at-will employment policy. 552 Pa. 590 (Pa. 1998). The Shick
court held, “[t]he Workers’ Compensation Act does provide a basis for our finding that
termination of an at-will employee for filing a workers’ compensation claim violates public
policy.” Id. at 603.
Like ADA claims, workers’ compensation retaliation claims are analyzed under the
McDonnell Douglas burden shifting framework. See Kieffer v. CPR Restoration & Cleaning
Serv., LLC, 200 F. Supp. 3d 520, 539 (E.D. Pa. Aug. 3, 2016); Smith v. R.R. Donnelley & Sons
Co., Civil Action No. 10-1417, 2011 WL 4346340, at *4, 2011 U.S. Dist. LEXIS 105347 at * 9
(E.D. Pa. Sept. 16, 2011). To establish a prima facie case of retaliation, plaintiff must prove that
(1) she engaged in a protected activity under the Workers’ Compensation Act; (2) she suffered
an adverse employment; and (3) there exists a causal connection between the protected activity
and the adverse action. Kieffer v. CPR Restoration & Cleaning Servs., LLC, 733 F. App’x 632,
638 (3d Cir. 2018). Once plaintiff has established a prima facie case of retaliation, the burden
shifts to the defendant to proffer a non-retaliatory reason for termination. Finally, plaintiff bears
the burden of showing that that reason is a pretext for retaliation. In resolving defendant’s
Motion, the Court evaluates each step in turn.
i. Plaintiff’s Prima Facie Case
The first and second prongs of plaintiff’s prima facie case have been satisfied in this
case—she filed a workers’ compensation claim, and she was subsequently terminated. Thus, the
Court focuses its analysis on whether plaintiff has sufficiently demonstrated causation. To show
causation in support of her retaliation claim, plaintiff presents the same evidence as in her ADA
claim—Yoast’s termination email and temporal proximity. For the following reasons, the Court
concludes that, although this evidence of causation is not as compelling in the retaliation context
as in the disability discrimination context, it is sufficient to defeat defendant’s Motion.
As an initial matter, the facts underlying plaintiff’s retaliation claim overlap significantly
with those supporting her discrimination claim. Given the genuine disputes of material fact that
the Court has identified supra in connection with her discrimination claim, a jury could
reasonably conclude that plaintiff’s disability and her decision to file for workers’ compensation
were both motivating factors in defendant’s decision to terminate her.
In addition, plaintiff’s temporal proximity evidence provides more compelling support
for her retaliation claim than it does for her discrimination claim. Plaintiff began receiving
workers’ compensation benefits just under three weeks before she was terminated (compare with
the three-month gap between her injury and her termination). This length of time is within the
realm of what courts have deemed “unduly suggestive.” Seeger v. Cincinnati Bell Tel. Co., 681
F.3d 274, 283 (6th Cir. 2012). Although it is not conclusive evidence of causation, temporal
proximity, combined with the close relationship between plaintiff’s disability and her filing for
workers’ compensation, is sufficient to create a genuine dispute of material fact as to the cause of
her termination.
The Court notes that plaintiff’s argument that Yoast’s termination email demonstrates
causation is not as compelling in the retaliation context as it is in the discrimination context.
First, Yoast said nothing about workers’ compensation benefits in the email. Additionally,
plaintiff admits that Yoast encouraged her to apply for workers’ compensation benefits in the
first place and that he and other employees of defendant helped her submit her application.
Def.’s SUF ¶ 41; Gorman Dep. 43:23-44:5. This email, standing alone, is insufficient evidence
that plaintiff was terminated because she engaged in a protected activity under the Workers’
Compensation Act. However, given the factual link between her disability and her decision to
apply for workers’ compensation, and the three week-gap between her filing for workers’
compensation benefits and her termination, the Court determines that plaintiff has presented
sufficient evidence of causation.
Accordingly, the Court concludes that a jury could reasonably conclude that plaintiff has
presented a prima facie case of retaliation, and next evaluates defendant’s proffered non-
retaliatory reason and plaintiff’s evidence of pretext.
ii. Defendant’s Non-Retaliatory Reason and Plaintiff’s Evidence of Pretext
In moving for summary judgment on plaintiff’s retaliation claim, defendant reasserts the
same legitimate reason it provides in response to her ADA claim—poor performance—and
plaintiff again argues that Yoast’s termination email demonstrates that reason is pretextual. As
stated supra, the email is not direct evidence that defendant terminated plaintiff because she filed
a workers’ compensation claim. However, it does support plaintiff’s argument that her
disability, and subsequent receipt of workers’ compensation, were factors in the decision.
Additionally, given the significant factual overlap between plaintiff’s discrimination and
retaliation claims, the genuine disputes of material fact that underpin her discrimination claim
will also impact the outcome of her retaliation claim. Accordingly, the Court determines that
both claims present genuine disputes of material fact and should be submitted to a jury.
To the extent that defendant’s Motion seeks summary judgment on plaintiff’s common
law retaliation claim, the Motion is denied.
V. CONCLUSION
For the foregoing reasons, Defendant Acteon Networks, LLC’s Motion for Summary
Judgment is granted in part and denied in part. The Motion is granted to the extent it seeks
summary judgment with respect to plaintiff’s claims under the ADEA and COBRA. The Motion
is denied to the extent it seeks summary judgment with respect to plaintiff’s disability
discrimination claim under the ADA and retaliation claim under Pennsylvania common law. An
appropriate order follows.