# PERRY-HARTMAN v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

> District Court, E.D. Pennsylvania · July 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10401391

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10401391

## How later opinions describe it (automated extraction)

- noting that in the absence of direct evidence of retaliation, retaliation claims ordinarily proceed under the McDonnell Douglas framework
- affirming district court’s grant of summary judgment in employer’s favor because the plaintiff’s “performance evaluations contained similar criticisms both before and after he made the company aware that he suffered from MS and before and after he filed his first EEOC charge”
- concluding that the evidence showed that the plaintiff lost job duties due to a reorganization unrelated to any discrimination

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ABBY PERRY-HARTMAN, : CIVIL ACTION
Plaintiff, :
:
v. : No.: 17-cv-4732
:
THE PRUDENTIAL INSURANCE COMPANY :
OF AMERICA, :
Defendant. :

MEMORANDUM

SITARSKI, M.J. July 20, 2021

Presently pending before the Court is Defendant’s Motion for Summary Judgment (Def.’s
Mot. for Summ. J., ECF No. 37), Plaintiff’s response thereto (Pl.’s Resp., ECF No. 41) and
Defendant’s reply in support of its motion. (Def.’s Reply, ECF No. 45). For the reasons that
follow, Defendant’s motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant hired Plaintiff in 2000 as an Associate Manager in the Cash Management
group of its Individual Life Insurance Service Delivery department. (Def.’s Stmt. of Undisputed
Material Facts, ECF No. 37-2, at ¶ 1). In 2007, she transferred to another Associate Manager
position with the Manual Intervention group. (Id. at ¶ 2). In this role, she supervised a team of
associates who manually performed calculations related to Defendant life insurance policies. (Id.
at ¶ 3).
From October 2007 until mid-April 2015, Joanne Minor, Manager of Customer Service,
supervised Plaintiff. (Id. at ¶ 4). In January 2014, Plaintiff emailed Minor regarding a dispute
with her coworker. (Jan. 24, 2014 Email, ECF No. 41-4). The email informed Minor,
apparently for the first time, of Plaintiff’s post-traumatic stress disorder (PTSD). (See id.)
Plaintiff avers that she also suffers from diabetes, depression and anxiety. (Compl., ECF No. 1,
at ¶ 8).
As Plaintiff’s supervisor, Minor had responsibility for completing Plaintiff’s Interim
Performance Appraisal and Annual Performance Review each year. (Id. at ¶ 8; see also id. at ¶¶
13, 17). In July and early December, prior to each review, Managers attend calibration sessions
to discuss and rate the performance of the Associate Managers who report to them. (Id. at ¶¶ 11,

119). The Interim Performance Appraisal covers the first six months of the year only. (See id. at
¶ 12). It does not include an overall rating, but it informs the employee where he or she “is
trending” in that regard. (Id. at ¶ 10). The Annual Performance Review includes an overall
rating of “Exceptional Contributor,” “High Contributor,” “Effective Contributor,” “Greater
Contributions are Needed” (GCN), or “Unsatisfactory Contributor.” (Id. at ¶ 9).
Throughout the period that Minor supervised Plaintiff, Minor’s reviews of Plaintiff noted
various issues with her behavior and performance, including her leadership, verbal
communication and listening skills, and professionalism. (Id. at ¶¶ 6-7). Plaintiff’s 2014 Interim
Performance Appraisal, provided to her in August, noted Plaintiff’s unprofessional tendency to
share private information, failure to filter messaging to peers and subordinates, and overall need

to change her communication style. (Id. at ¶¶ 12-14). However, Minor rated Plaintiff as an
Effective Contributor, or trending that way, on all reviews from 2008 through and including her
2014 Interim Performance Appraisal. (Minor Dep. Tr., ECF No. 41-4, Ex. C at 12:8-10, 24:12-
17).
In October 2014, Plaintiff sent Minor a letter regarding a perceived lack of support in the
workplace. (Oct. 22, 2014 Ltr., ECF 41-4, at Ex. D). The letter did not mention PTSD
specifically but referred to Plaintiff’s “conditions,” “declining” “personal health,” “feeling . . .
depressed,” and “feeling so down for so long now that I have actually contemplated going out on
disability.” (Id.).
Plaintiff received her 2014 Annual Performance Review in February 2015. (Def.’s Stmt.
of Undisputed Material Facts, ECF No. 37-2, at ¶ 16). In the review, Minor rated Plaintiff as
GCN. (Id. at ¶ 17). The review identified as ongoing areas of concern Plaintiff’s
unprofessionalism and inconsistent leadership and noted that she had not significantly improved
in these areas or with her communication skills. (Id. at ¶ 18). It warned that Defendant would

place Plaintiff in performance counseling if she did not soon demonstrate significant
improvement. (Id. at ¶ 19).
In mid-April 2015, Nancy Smyth replaced Minor as Plaintiff’s supervisor. (Id. at ¶ 32).
On April 22, 2015, Smyth held a meeting with Plaintiff and the other Associate Managers. (Id.
at ¶ 43). At a coaching session later that day, Smyth told Plaintiff that she did not approve of her
body language during the earlier meeting. (Id.). Plaintiff replied that she had a disability that
caused uncontrollable body language responses. (Id. at ¶ 44). Smyth responded, “Well, maybe
you don’t belong here, maybe this isn’t the job for you.” (Id.). Later in the conversation, Smyth
lunged over the desk, made a gun gesture with her hand, pointed it close to Plaintiff’s head and
stated, “I’m not Joanne Minor, I’ll give it to you straight between the eyes and you better learn

how to take it.” (Id. at ¶ 45).
Plaintiff returned the following day, April 23, 2015, to inform Smyth that she did not
appreciate how Smyth had spoken about her disability. (Id. at ¶ 46). During the conversation,
Plaintiff told Smyth, “[I]f I talked to my people the way you talked to me, I’d be in HR in five
minutes.” (Id. at ¶ 48). Smyth countered, “Well, go ahead, Abby, see where that will get you.”1
(Id.).
In July 2015, Plaintiff raised concerns about Smyth with Kimberly King, Vice President
of Policyholder Administration, who relayed them to Jodi Bloch, Director of Human Resources
(HR). (Id. at ¶¶ 65, 70). In subsequent communications between Bloch and Plaintiff, Plaintiff
told her about Smyth’s comments and the handgun gesture. (Bloch Dep. Tr., ECF No. 42, Ex. I
at 67:11-68:7). Plaintiff also attempted to tell Bloch about her disability, but she informed

Plaintiff that Defendant’s Accommodations unit handled that information. (Id. at 42:20-23).
On July 29, 2015, Bloch and HR Manager Eve Young met with Smyth and Plaintiff to
discuss how they could communicate better, exchange feedback, and improve their working
relationship. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 81). The following
day Plaintiff submitted a Workplace Accommodation Request to Defendant’s Health and
Wellness group. (Id. at ¶¶ 80, 84). The request enumerated four accommodations that Plaintiff
considered necessary to carry out her job functions: (1) to work remotely three to four days per
month to manage stress; (2) to have a “support person” present for one-on-one meetings with
Smyth; (3) to have Smyth provide primarily written feedback; and (4) to have additional
individuals besides Smyth evaluate her performance and determine her ratings and salary. (July

30, Workplace Accommodation Request, ECF No. 39, at 3). Plaintiff also wrote that she could
perform her job functions if Defendant provided her with a calm, supportive and professional
environment. (Id.).

1 During another meeting between Smyth and Plaintiff, Plaintiff told Smyth she was
“afraid of her and retaliation.” (Pl. Dep. Tr., ECF No. 43, Ex. A at 132:19-20). Smyth
responded, “Oh, Abby, you’re a grown woman, what am I going to do? Beat you up.” (Id. at
132:20-21). The record does not indicate when this exchange occurred.
On August 20, 2015, Diane Hettinger, Director of Return to Work and Accommodations,
provided Defendant’s response to her request. (Def.’s Stmt. of Undisputed Material Facts, ECF
No. 37-2, at ¶ 93). Defendant permitted Plaintiff to work remotely a few days per month. (Id. at
¶ 86). Although it refused her request to have a support person present for all individual
meetings with Smyth, Young nevertheless started to attend discussions about performance
evaluations between Smyth and Plaintiff. (Id. at ¶ 88). Young also met with Plaintiff each
month. (Id.). Defendant denied Plaintiff’s request to have Smyth provide mainly written

feedback, even though Smyth did, at times, provide written feedback. (Id. at ¶ 90). As for
Plaintiff’s fourth request, that others beyond Smyth participate in her review and the
determination of her ratings and compensation, HR personnel and higher management were
already doing so. (Pl. Dep. Tr., ECF No. 37-4, Ex. 1 at 198:19-199:2).
Plaintiff received her 2015 Interim Performance Appraisal, completed by both Minor and
Smyth, on August 21, 2015. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 95).
The review identified ongoing issues regarding Plaintiff’s leadership, verbal communication and
listening skills, and tendency to act based on emotion. (Id. at ¶ 96).
On March 11, 2016, Plaintiff emailed Young and Smyth advising them that she had filed
a dual charge with the Equal Opportunity Employment Commission (EEOC) and the

Pennsylvania Human Relations Commission (PHRC). (Mar. 11, 2016 Email, ECF No. 41-1, Ex.
N). Also on March 11, 2016, Smyth signed Plaintiff’s 2015 Annual Performance Review, jointly
completed by Minor and her. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶
106; 2015 Annual Performance Review, ECF No. 37-6, Ex. 25). Plaintiff received the review on
March 16, 2016. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 105). Plaintiff
again received a GCN rating, as in her prior annual review. (Id.). The review also noted similar
issues as those raised in prior reviews. (See id. at ¶ 107). It gave examples of inappropriate and
unprofessional comments she had made, including a disclosure of confidential information at the
end of 2015 for which she received a formal Written Warning in February 2016. (Id. at ¶¶ 102-
03). The review warned that if her leadership did not improve, Defendant might terminate her.
(Id. at ¶ 107).
On May 20, 2016, Plaintiff submitted a second Workplace Accommodation Request. (Id.
at ¶ 108). This request cited three accommodations that Plaintiff believed would allow her to
perform her job duties: (1) to continue working remotely at times to manage stress; (2) “a

transfer” away from Smyth; and (3) to have no one-on-one meetings with Smyth. (May 20, 2016
Workplace Accommodation Request, ECF No. 39-1, at 5). Plaintiff also repeated her desire for
“a safe, supportive working environment.” (Id.).
Defendant continued to permit Plaintiff to work remotely a few days per month. (Def.’s
Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 110). To address the request for a
“transfer” away from Smyth, Hettinger confirmed with Bloch that no open suitable positions
existed.2 (Id. at ¶ 112). Defendant otherwise refused to provide Plaintiff with a new supervisor.
(Id.). Defendant also again refused Plaintiff’s request to interact with Smyth only in the presence
of a third party. (Id. at ¶ 114). Nonetheless, it agreed that an HR representative would attend
performance evaluation meetings between Smyth and Plaintiff. (Id.) It also agreed to have

Young attend other meetings between Smyth and Plaintiff. (Id.). In addition, Bloch discussed
with Smyth and Plaintiff how they could have productive meetings between themselves only,
without others present. (Id. at ¶ 115).

2 Plaintiff notes that Defendant had hired a new Associate Manager in March 2016.
(Def.’s Resp. to Pl.’s Interrogatories, ECF No. 41-8, Ex. S, at Resp. No. 1). She also notes that
Defendant had transferred her six times over the course of her career. (Pl. Dep. Tr., ECF No. 37-
4, Ex. 1 at 256:12-14).
On August 15, 2016, King proposed the reorganization of Plaintiff’s group to centralize
its technical work, including moving all technical process specialists under a single Technical
Process Management Specialist as opposed to different Associate Managers. (Def.’s Stmt. of
Undisputed Material Facts, ECF No. 37-2, at ¶ 122). King proposed eliminating one of the
Associate Managers because they would have fewer reports after the reorganization. (Id. at ¶
123). However, neither she, nor Smyth, had any say in determining which Associate Manager to
terminate. (Id. at ¶¶ 124, 128). Rather, HR Director Bloch selected the person from among 32

Associate Managers based upon their two most recent reviews, the 2015 Annual Performance
Review and the 2016 Interim Performance Appraisal. (Id. at ¶¶ 125-26). Bloch chose Plaintiff
because she had performed the worst, according to these reviews. (Id. at ¶ 127).
Smyth finalized Plaintiff’s 2016 Interim Performance Appraisal in July 2016 but could
not provide it to her as scheduled in August 2016 because Plaintiff had taken approved leave
under the Family Medical Leave Act (FMLA). (See id. at ¶¶ 121, 129, 133). Instead, she
provided Plaintiff with the review on October 13, 2016, after Plaintiff had returned to work from
her FMLA leave. (Id. at ¶ 133). Smyth rated Plaintiff as trending GCN and identified similar
leadership and professionalism issues as those identified in earlier reviews. (Id. at ¶¶ 120, 134).
On October 20, 2016, Defendant sent Plaintiff a letter notifying her that it was

eliminating her position pursuant to the reorganization originally proposed by King. (Id. at ¶
136; see also id. at ¶¶ 122-23; Pl. Dep. Tr., ECF No. 37-4, Ex. 1 at 277:17-278:2). Under the
terms of the separation, Defendant placed Plaintiff on paid leave from November 5, 2019,
through November 19, 2019, and terminated her employment effective December 19, 2019. (Id.
at 278:3-12). Throughout this period, Plaintiff had the ability to apply for other positions within
the company but chose not to do so because she believed that “no one would touch [her]” in light
of Smyth’s reviews. (Id. at 278:13-25).
At Plaintiff’s deposition in this matter on January 22, 2019, Defendant learned that in the
summer and fall of 2016, Plaintiff forwarded thousands of Defendant’s documents to her
personal email account. (See Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 1).
Many of the documents were proprietary and confidential, Plaintiff lacked permission to take
them, and she had no demonstrated intention of returning them. (Limsky Cert., ECF No. 37-9, at
¶¶ 6-8). She testified that she took the documents because she anticipated that Defendant would
terminate her. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 137). Her

misappropriation of the documents violated company policy. (Limsky Cert., ECF No. 37-9, at ¶
8). In particular, Defendant’s “Digital Communications and Internet Use Standards”
(Communications Standards) authorized employees to send “confidential, privileged, proprietary
or sensitive business-related information or trade secrets . . . outside Prudential only if there is a
legitimate business need . . . .” (Limsky Cert., ECF No. 37-9, Tab 1, at 1). The Communications
Standards specifically disallowed “[f]orwarding e-mail from your Prudential account that
contains proprietary Prudential Information to your personal e-mail . . . .” (Id.). Likewise,
Defendant’s “Protecting Prudential Information and Assets” policy (Information Policy)
mandated, inter alia, that Plaintiff:
• Use Prudential’s information for appropriate business
purposes only;
• Prevent improper use and disclosure of information;
• Protect and secure Prudential’s information/data (e.g.,
customer, associate, business partner, product, and
financial) in all forms against unauthorized use, access,
duplication, disclosure, modifications or destruction;
• Maintain appropriate controls to safeguard Prudential’s
information and intellectual property in all its forms[.]

(Id. Tab 2, at 1).
On June 28, 2019, Defendant filed the instant motion for summary judgment, its
supporting memorandum and its statement of facts. (Def.’s Mot. for Summ. J., ECF No. 37;
Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1; Def.’s Statement of Undisputed
Material Facts, ECF No. 37-2). On July 30, 2019, Plaintiff filed its responsive brief.3 (Pl.’s
Resp., ECF No. 41-1). On August 16, 2019, Defendant filed a reply in support of its motion.
(Def.’s Reply, ECF No. 45). On January 6, 2021, this case was reassigned to me from the docket
of the Honorable Jacob P. Hart. (Order, ECF No. 50).

II. LEGAL STANDARD

Summary judgment shall be granted “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). A fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An
issue is “genuine” if there is sufficient evidence from which a jury could find in favor of the non-
moving party. Id. It is not the court’s role to weigh the disputed evidence and decide which is
more probative, or to make credibility determinations. Rather, the court must consider the
evidence, and all reasonable inferences which may be drawn from it, in the light most favorable
to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-
88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654,

655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361
(3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must
accept as true the allegations of the non-moving party, and “all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at 255.

3 Plaintiff chose not to file a counterstatement of facts. (Pl.’s Resp., ECF No. 41-1, at 2
n.2).
The moving party bears the initial burden of demonstrating that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Once the moving party carries this initial burden, the non-moving party must “come
forward with specific facts showing there is a genuine issue for trial.” Matsushita Elec. Indus.
Co., 475 U.S. at 587. The non-moving party must present something more than mere
allegations, general denials, vague statements, or suspicions. Trap Rock Indus., Inc. v. Local
825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992); Fireman’s Ins. Co. of

Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Instead, the non-moving party must
present specific facts and “affirmative evidence in order to defeat a properly supported motion
for summary judgment.” Anderson, 477 U.S. at 257. “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Id. at 249-50. If the non-
moving party has the burden of proof at trial, then that party must establish the existence of each
element on which it bears the burden. Celotex Corp., 477 U.S. at 322-23.

III. DISCUSSION
Plaintiff asserts claims for discrimination, retaliation, failure to accommodate and hostile
work environment under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,

and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. The same legal
standards and analysis apply to claims under these statutes, “and hence it is not uncommon to
address such claims collectively.” Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 509 n.2 (3d
Cir. 2004) (citing Bailey v. Storlazzi, 729 A.2d 1206 (Pa. Super. Ct. 1999)). Defendant moves
for summary judgment on all of Plaintiff’s claims, and also seeks summary judgment on the
basis of its after-acquired evidence defense.
A. Discrimination
1. Background Law
To prevail on a claim for discrimination, a plaintiff must show that “the protected trait
actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610,
113 S.Ct. 1701, 123 L.Ed.2d 338 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This showing that a protected trait had a
determinative influence on the decision of the employer can be made either through direct

evidence or circumstantial evidence. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
A claim based upon direct evidence must meet the standard set out in Price Waterhouse
v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded by statute on
other grounds as stated in Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, __ U.S. __,
140 S.Ct. 1009, 1017 (2020). “Therefore, in accordance with Justice O’Connor’s opinion in
Price Waterhouse, in order to prove a claim of discrimination in violation of the ADA based
upon . . . a direct evidence theory, the Plaintiff must present direct evidence that his alleged
disability was a ‘substantial factor’ in the [Defendant’s] alleged [adverse employment]
decision . . . .” Benko v. Portage Area Sch. Dist., No. Civ.A. 03-233J, 2006 WL 1698317, at *6
(W.D. Pa. June 19, 2006) (citing Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.2 (3d Cir. 2002)).

“Direct evidence means evidence sufficient to allow the jury to find that the decision makers
placed substantial negative reliance on [the Plaintiff’s disability] in reaching their decision to fire
him.” Id. (quoting Fakete, 308 F.3d at 338 n.2) (internal quotations omitted). If direct evidence
is presented the burden of persuasion on the issue of causation shifts, and the employer must
prove that it would have taken the same action even if it had not considered the plaintiff’s
disability. See id. at 338 (citing Price Waterhouse, 490 U.S. at 265-266).
If there is no direct evidence of discrimination, a plaintiff may present circumstantial
evidence of discrimination. Fuentes, 32 F.3d at 764. If circumstantial evidence is presented, a
plaintiff must satisfy the standard set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Embrico v. U.S. Steel Corp., 245 F. App’x. 184, 187 (3d
Cir. 2007); see also Glanzman, 391 F.3d at 512. McDonnell Douglas requires that a plaintiff
show that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he
suffered an adverse employment action; and (4) similarly situated persons who are not members

of the protected class were treated more favorably. See Jones v. Sch. Dist. of Phila., 198 F.3d
403, 410-11 (3d Cir.1999). “[T]he prima facie case under the McDonnell Douglas pretext
framework is not intended to be onerous.” Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d
Cir. 1995) (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981)). A prima facie case of disability discrimination requires that the plaintiff
successfully show that: (1) she is disabled within the meaning of the ADA; (2) she is otherwise
qualified to perform the essential functions of the job, with or without reasonable
accommodation by the employer; and (3) she was subject to some adverse action as a result of
her disability. See Gand v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998).
If a plaintiff meets the McDonnell Douglas standard, the burden of production shifts to

the employer who must come forward with a legitimate, nondiscriminatory reason for the
adverse employment decision. Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19
(3d Cir. 2000) (citing Burdine, 450 U.S. at 254-56). The employer is not required to prove that
this nondiscriminatory reason actually motivated the action in order to shift the burden back to
the plaintiff. Fuentes, 32 F.3d at 763.
If a defendant offers a legitimate, nondiscriminatory reason for its actions, the plaintiff
survives summary judgment only by “present[ing] sufficient evidence to raise a genuine issue of
fact as to whether the defendant’s proffered reasons were not its true reasons for the challenged
employment action.” Stewart v. Rutgers, 120 F.3d 426, 433 (3d Cir. 1997); see also Jones, 198
F.3d at 413. Thus, a plaintiff survives summary judgment by proffering “admissible evidence[ ]
that the employer’s articulated reason was not merely wrong, but that it was so plainly wrong
that it cannot have been the employer’s real reason,” or by “pointing to evidence in the record
which allows the fact finder to infer that discrimination was more likely than not a motivating or
determinative cause of the adverse employment action.” Jones, 198 F.3d at 413. To discredit a

legitimate reason proffered by an employer, a plaintiff must present evidence demonstrating
“such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proferred legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence.” Fuentes, 32 F.3d at 765.
In attempting to discredit a defendant’s proffered reasons, however, a plaintiff cannot
simply show that the defendant’s decisions were mistaken. The inquiry is whether the defendant
was motivated by discriminatory animus, not whether the defendant was wise, shrewd, prudent
or competent. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1996)
(“federal courts are not arbitral boards ruling on the strength of the ‘cause’ for the [adverse
employment action]. The question is not whether the employer made the best, or even a sound,

business decision; it is whether the real reason is discrimination.”); see also Ezold v. Wolf, Block,
Schorr & Solis–Cohen, 983 F.2d 509, 531, 533 (3d Cir. 1992).
Significantly, the ultimate burden of persuasion always remains with the plaintiff, and the
ultimate question is whether, after all the evidence is in, the plaintiff has proven her case by a
preponderance of the evidence. Aikens, 460 U.S. at 711. Even during the pretextual analysis, the
employer has no burden to prove that its proffered reasons are true; rather, the plaintiff must
prove by a preponderance of the evidence that the proffered reasons are pretextual. Burdine, 450
U.S. at 256.
2. Application
The parties agree that the Court should analyze Plaintiff’s discrimination claim under the
burden-shifting framework set forth in McDonnell Douglas and that the framework applies to
claims based on circumstantial evidence. (Def.’s Memo. in Supp. of Mot. for Summ. J., ECF
No. 37-1, at 23; see Pl.’s Resp., ECF No. 41-1, at 16; see also Venter v. Potter, 694 F. Supp. 2d

412, 421 (W.D. Pa. Mar. 9, 2010) (“‘Direct evidence’ of discrimination is evidence that is ‘so
revealing of discriminatory animus that it is not necessary to rely on any presumption’ from the
plaintiff’s prima facie case to shift the applicable burden of production to the defendant.”)
(quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) (emphasis in
original))). Defendant does not dispute that Plaintiff has made out a prima facie case of
discrimination. (Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 23). Rather, it
argues that it has pointed to a legitimate, nondiscriminatory reason for Plaintiff’s termination and
that Plaintiff has failed to offer evidence of pretext.
A corporate reorganization or workforce reduction is a legitimate, nondiscriminatory
reason for terminating employees. See Andersen v. Mack Trucks, Inc., 118 F. Supp. 3d 723, 744-

45 (E.D. Pa. July 30, 2015), aff’d, 647 F. App’x 130 (3d Cir. 2016); Rubano v. Farrell Area Sch.
Dist., 991 F. Supp. 2d 678, 701 (W.D. Pa. Jan. 8, 2014). Here, the undisputed evidence shows
that in August 2016 King proposed reorganizing Plaintiff’s Manual Intervention group to
centralize its technical work, including having all technical process specialists report to a single
Technical Process Management Specialist rather than different Associate Managers. (Def.’s
Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 122). Because the Associate Managers
would have fewer direct reports, King proposed eliminating one Associate Manager position, but
had no involvement in determining which one would be eliminated. (Id. at ¶¶ 123-24). Nor was
Smyth involved in the determination. (Id. at ¶ 128). Rather, Bloch selected Plaintiff from
among 32 Associate Managers because she had performed the worst according to her two most
recent reviews, the 2015 Annual Performance Review and 2016 Interim Performance Appraisal.
(Id. at ¶¶ 125-27).
With the Defendant having articulated a legitimate, nondiscriminatory reason for
terminating Plaintiff, the burden now shifts back to Plaintiff. See Stewart, 120 F.3d at 433 (3d

Cir. 1997); Jones, 198 F.3d at 413. “There is a low bar for establishing a prima facie case of
employment discrimination. However, a plaintiff whose employment position is eliminated in a
corporate reorganization or work force reduction carries a heavier burden in supporting charges
of discrimination than does an employee discharged for other reasons.” Andersen, 118 F. Supp.
3d at 744-56 (quoting Scheidemantle v. Slippery Rock Univ., 470 F.3d 535, 539 (3d Cir. 2006);
Hook v. Ernst & Young, 28 F.3d 366, 375 (3d Cir. 1994); citing, 983 F.2d at 523) (internal
quotations and additional cited cases omitted). “As long as employers do not act with
discriminatory intent, they may eliminate positions in the name of economic necessity or
efficiency, even when those positions are held by more senior workers.” Wilson v. Firestone
Tire & Rubber Co., 932 F.2d 510, 517 (6th Cir. 1991) (citing Barnes v. GenCorp Inc., 896 F.2d

1457, 1469 (6th Cir. 1990)). A “plaintiff in a work force reduction case must present direct,
circumstantial, or statistical evidence that [discrimination] was a determining factor in his job
displacement.” Id. (citing Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1991)).
Plaintiff points to two pieces of evidence to show that Defendant’s unlawful
discrimination played a determining role in her termination. First, she points to the
circumstances surrounding her rating drop from “effective” to “GCN” in her 2014 Annual
Performance Review completed by Minor. (Pl.’s Resp., ECF No. 41-1, at 18). She contends that
this drop “was preceded by Plaintiff writing to [Minor] about her disability and problems it was
causing her while also mentioning the possibility of going out on disability, and asking Ms.
Minor for help” in a January 2014 email regarding a dispute with a coworker. (Id.; Jan. 24, 2014
Email, ECF 41-4 at Ex. H). She also notes that Minor referred to her “PTSD reactions” in
discussions about the review and that the EOS surveys and leadership scores upon which the
drop was partially based were available when Minor had rated her “trending effective” on her
2014 Interim Performance Appraisal. (Id.). Second, she points to her April 22, 2015 coaching

session with Smyth. (Pl.’s Resp., ECF No. 41-1, at 18). Plaintiff alleges that at this session
Smyth told her that she did not like her body language during an earlier meeting. (Def.’s Stmt.
of Undisputed Material Facts, ECF No. 37-2, at ¶ 43). According to Plaintiff, she informed
Smyth that she had a disability that caused automatic bodily responses, to which Smyth
responded, “Well, maybe you don’t belong here, maybe this isn’t the job for you.” (Id. at ¶ 44).
As a threshold matter, the parties dispute whether Minor’s and Smyth’s statements and
actions could establish that discrimination served as a “determining factor” in Plaintiff’s
termination where it remains undisputed that neither had direct involvement in that decision.
Defendant contends that this fact forecloses any showing of causation by Plaintiff. (Def.’s
Reply, ECF No. 45, at 4). Plaintiff argues that an “adamantine chain of . . . factual links” runs

from Minor’s and Smith’s discriminatory intent, to her GCN ratings on her 2015 Annual
Performance Review and 2016 Interim Performance Appraisal, to her termination based on these
ratings in these reviews. (Pl.’s Resp., ECF No. 41-1, at 17). Taking all facts in the light most
favorable to Plaintiff, the Court agrees that a jury could find that discrimination played a
determinative role in Plaintiff’s termination. If the GCN ratings in Plaintiff’s 2015 Annual
Performance Review and 2016 Interim Performance Appraisal resulted from discrimination, and
Bloch based Plaintiff’s termination on these ratings, a jury could find that discrimination was a
“but for” cause of her termination. See Fuentes, 32 F.3d at 764. In other words, although it is
undisputed that Defendant did not undertake the corporate reorganization with the purpose of
terminating Plaintiff based upon discrimination, discrimination may nonetheless have served as a
“determining factor” in her termination if the performance reviews upon which it was based were
themselves the product of discrimination. See Wilson, 932 F.2d at 517 (a plaintiff who loses his
position in a workforce reduction may survive summary judgment by presenting evidence that
discrimination “was a determining factor” in the decision).

Defendant’s cited corporate reorganization cases are distinguishable on this basis. In
these cases, the evidence did not support a finding that discrimination played a role in how the
employer carried out the reorganization. See Kelley v. AmerisourceBergen Corp., No. 08-2377,
2009 WL 3127752, at *8 (E.D. Pa. 2009) (noting that the defendant based its decision to
terminate the plaintiff on a comparison of employee records, but the plaintiff did not argue that
the records were influenced by discrimination); see also Rubano, 991 F. Supp. 2d at 703
(concluding that the evidence showed that the plaintiff lost job duties due to a reorganization
unrelated to any discrimination); Andersen, 118 F. Supp. 3d at 746 (finding that the plaintiff’s
arguments regarding the defendant’s reorganization “attacked Defendants’ . . . business
judgment. They do not link the decision to terminate Plaintiff to . . . bias.”). Defendant also cites

a few cases for the proposition that mere “disagreement with . . . performance reviews” does not
establish discrimination. (Def.’s Reply, ECF No. 45, at 5). However, in none of these cases did
the plaintiff submit evidence to establish that the negative review or assessment resulted from
discrimination. See Sterner v. Siemens Med. Solutions USA, Inc., 706 F. App’x 772, 775 (3d Cir.
2017) (the plaintiff argued “that her supervisor . . . misjudged her performance”); Carter v. Mid-
Atl. Healthcare, LLC, 228 F. Supp. 3d 495, 508 (E.D. Pa. Jan. 12, 2017) (noting that the plaintiff
“failed to set forth any evidence to refute, contradict, or cast doubt upon” the fact that she
performed poorly in her job); Boyd v. Citizens Bank of Pa., Inc., No. 2:12-cv-00332, 2014 WL
2154902, at *24-25 (W.D. Pa. May 22, 2014) (finding that none of the plaintiff’s arguments
regarding discrimination in the context of her performance evaluation were supported by record
evidence).
Additionally, Defendant contends that Plaintiff cannot base her claim upon Minor’s
lowering of her rating to GCN after receiving notice of Plaintiff’s PTSD or Minor’s statement
about how her “PTSD reactions” “were going to look to Nancy Smyth,” who was replacing

Minor, because at Plaintiff’s deposition she “unequivocally testified that Minor . . . did not
engage in unlawful harassment or discrimination[.]” (Def.’s Reply, ECF No. 45, at 6 (emphasis
in original)). However, Plaintiff’s deposition testimony is not as clear as Defendant suggests.
Plaintiff agreed that her complaint does not specifically reference Minor and that the reference to
“Defendant’s actions” in paragraph 35 of her complaint refers to Smyth, but she did not testify
that Smyth discriminated against her exclusively or that Minor did not also discriminate against
her. (Pl. Dep. Tr., ECF No. 37-4, Ex. 1 at 74:8-12, 283:23-284:10). When asked whether she
contended “that Ms. Minor engaged in unlawful harassment and unlawful discrimination because
of [her] disability,” Plaintiff responded, “I don’t believe, in my heart of hearts, that she did what
Nancy did.” (Id. at 74:13-18). But this response is susceptible to multiple interpretations,

including that Smyth did not discriminate against Plaintiff in the same manner or to do the same
degree that Minor did. Viewed in this light, the testimony does not foreclose the possibility that
Minor, too, discriminated against Plaintiff. Indeed, taking the evidence in the light most
favorable to Plaintiff, a jury could find that Minor lowered Plaintiff’s rating to GCN in her 2014
Annual Performance Review after receiving the January 2014 email from Plaintiff about her
disability4 and, in a discussion about that review, asked Plaintiff to consider how Smyth would
perceive Plaintiff’s physical manifestations of her disability. (Def.’s Stmt. of Undisputed
Material Facts, ECF No. 37-2, at ¶ 17; Pl. Dep. Tr., ECF No. 43, Ex. A at 56:24-57:1). A jury
could further find that Plaintiff’s deposition testimony regarding Smyth’s not doing “what Nancy
did” referred only to the degree or manner of the discrimination suffered. The Court declines to
take this issue of discrimination by Smyth from the jury on the basis of unclear deposition
testimony.

As to Smyth, Defendant argues that Smyth’s April 22, 2015 comment to Plaintiff, “Well,
maybe you don’t belong here, maybe this isn’t the job for you,” does not support a finding of
discrimination. (Def.’s Reply, ECF No. 45, at 7). Defendant quotes Fuentes: “Stray remarks by
non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great

4 Defendant contends that Minor could not have discriminated against Plaintiff in her
2014 Annual Performance Review after learning of her disability in the January 2014 email
because Minor rated Plaintiff “trending effective” in her intervening 2014 Interim Performance
Appraisal. (Def.’s Reply, ECF No. 45, at 7). However, Defendant’s argument pertains only to
the credibility of Plaintiff’s evidence. Defendant points to no authority requiring that an
employer who learns of an employee’s disability discriminate against the employee consistently
or at the earliest opportunity for the employee to maintain her claim. In addition, Defendant
acknowledges that the “purpose” of the interim appraisal is only “to inform employees where
their performance is trending in terms of an overall rating, but the overall rating is not included”
in the final annual review. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 10).
Thus, the fact that Minor noted that Plaintiff was “trending effective” in her interim review
issued after the January 2014 email does not serve as a basis for summary judgment.
Further, in October 2014, Plaintiff sent Minor a letter regarding a perceived lack of
support in the workplace and related issues. (Oct. 22, 2014 Ltr., ECF 41-4, at Ex. D). Defendant
contends that this letter “is devoid of any reference to Plaintiff’s PTSD or a disability on its
face.” (Def.’s Reply, ECF No. 45, at 7). The letter did not reference Plaintiff’s PTSD
specifically, but Minor already knew of it from Plaintiff’s earlier email. (Jan. 24, 2014 Email,
ECF 41-4 at Ex. H). The letter otherwise referenced Plaintiff’s disabled status. Plaintiff noted
“declining” “personal health,” “my conditions” and “feeling . . . depressed[.]” (Oct. 22, 2014
Ltr., ECF 41-4, at Ex. D). She stated: “I have been feeling so down for so long now that I have
actually contemplated going out on disability.” (Id.). This letter could also have served to notify
Minor that Plaintiff suffered from a disability.
weight, particularly if they were made temporally remote from the date of decision.” (Id.
(quoting Fuentes, 32 F.3d at 767)). However, Smyth was a decisionmaker as to Plaintiff’s 2015
Interim Performance Appraisal, 2015 Annual Performance Review and 2016 Interim
Performance Appraisal, and the latter two reviews ultimately served as the basis for Plaintiff’s
termination. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶¶ 96, 106, 127, 133-
135). Smyth’s comment did not directly relate to these reviews, but it occurred within the period
covered by the 2015 Interim Performance Appraisal and 2015 Annual Performance Review and

could be construed as relating to Plaintiff’s professionalism and communication, two of the areas
of concern identified in her reviews. (2015 Interim Performance Appraisal, ECF No. 37-6, Ex.
22 at 5; 2015 Annual Performance Review, ECF No. 37-6, Ex. 25 at 12; 2016 Interim
Performance Appraisal, ECF No. 37-6, Ex. 31 at 6). Further, Smyth made the comment only a
few months prior to the completion of her 2015 Interim Performance Appraisal and less than
nine months prior to the determination of her GCN rating for her 2015 Annual Performance
Review. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶¶ 11, 43-44, 119). Thus,
the evidence of discriminatory intent is not as “temporally remote” as in Fuentes or the case from
which it quotes, Ezold. See Fuentes, 32 F.3d at 767 (statements allegedly evincing
discriminatory intent occurred 20 months prior to adverse employment action) (quoting Ezold,

983 F.3d at 545); Ezold, 983 F.2d at 545 (statements allegedly evincing discriminatory intent
occurred five years prior to adverse employment action).
Lastly, Defendant contends that “Smyth had no knowledge of Plaintiff’s specific
disability, including her PTSD.” (Def.’s Reply, ECF No. 45, at 7). However, even if Plaintiff
did not name her exact disability for Smyth, she “told Smyth that she had a disability that caused
auto responses with her body language.” (Def.’s Stmt. of Undisputed Material Facts, ECF No.
37-2, at ¶ 44). Thus, a jury could find that Smyth’s response -- that maybe Plaintiff did not
“belong” in her position or that it was not the “job for [her]”-- demonstrated discriminatory
animus toward Plaintiff’s disability, even without a specific name attached to it. (Id.).
Defendant has offered a legitimate, nondiscriminatory reason – the reorganization of
Plaintiff’s group – for terminating Plaintiff. However, Plaintiff has responded with evidence that
the performance review ratings Defendant used to select her for termination themselves resulted
from discrimination. If a jury credits Plaintiff’s evidence, it could conclude that discrimination
thus operated as a determining factor in the ultimate decision to terminate her. Accordingly, the

Court shall deny Defendant’s motion for summary judgment as to Plaintiff’s discrimination
claim.
B. Retaliation
1. Background Law
Plaintiff’s retaliation claim is also governed by the McDonnell Douglas burden-shifting
framework. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); see also Fasold
v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (noting that in the absence of direct evidence of
retaliation, retaliation claims ordinarily proceed under the McDonnell Douglas framework). To
advance a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected
activity; (2) the employer took a “materially adverse” employment action; and (3) a causal

connection exists between the employee’s protected activity and the adverse employment action.
See Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006); Kachmar v. SunGard Data
Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d
Cir. 2007). To establish the requisite causal connection, a plaintiff must prove 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.
See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Woodson, 109 F.3d at
920-21. In assessing a causal connection, a reviewing court must consider “the specific facts and
circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir.
2000).
If an employee establishes a prima facie case of retaliation, the burden shifts to the
employer to advance a legitimate, non-retaliatory reason for its adverse employment action.
Krouse, 126 F.3d at 500. The employer’s burden at this stage is “relatively light: it is satisfied if
the defendant articulates any legitimate reason for the [adverse employment action]; the

defendant need not prove that the articulated reason actually motivated the [action].” Id. at 500-
501 (quoting Woodson, 109 F.3d at 920 n.2).
If the employer satisfies its burden, the plaintiff must convince the factfinder both that the
employer’s proffered explanation was false and that retaliation was the real reason for the
adverse employment action. Krouse, 126 F.3d at 501; see also St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“It is not enough . . . to disbelieve
the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.”). The plaintiff must prove that retaliatory animus played a role in the
employer’s decisionmaking process and that it had a determinative effect on the outcome of that
process. Woodson, 109 F.3d at 931-35. The burden of proof remains at all times with the

plaintiff. Id. at 920 n.2.
2. Application
Defendant challenges the third element of Plaintiff’s prima facie claim, the existence of a
causal connection between her protected activity and the adverse employment action. (Def.’s
Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 28-29). It observes that it did not
receive notice of Plaintiff’s EEOC charge until after her 2015 Annual Performance Review had
been completed and the GCN rating contained therein had been determined. (Id. at 28). It cites
four cases, including two from the Third Circuit, for the proposition that a plaintiff cannot
demonstrate causation for a retaliation claim based on negative performance evaluations where
the negative evaluations began before the protected activity. (Id. at 28-29 (citing Lackey v. Heart
of Lancaster Reg’l Med. Ctr., 704 F. App’x 41, 48 (3d Cir. 2017); Verma v. Univ. of Pa., 533 F.
App’x 115, 118-19 (3d Cir. 2013); Brown v. Vanguard Grp., Inc., No. 16-946, 2017 WL 412802,
at *18 (E.D. Pa. Jan. 30, 2017); Daniels v. Sch. Dist. of Phila., 982 F. Supp. 2d 482, 485-86
(E.D. Pa. 2013))). It also argues that Plaintiff cannot show causation based upon her termination

because she has no evidence of a causal link between her EEOC charge and her termination and
the length of time between them does not support a finding of causation. (Id. (citing Mercer v.
Se. Pa. Transp. Auth., 26 F. Supp. 3d 432, 447 (3d Cir. 2014)).
Plaintiff responds that informal complaints about discrimination are also protected
activity and that her 2015 Annual Performance Review and 2016 Interim Performance Appraisal
occurred after she complained to King and Bloch in the summer of 2015. (Pl.’s Resp., ECF No.
41-1, at 19). She notes that Smyth signed the 2015 Annual Performance Review on the same
date Plaintiff notified Young and Minor of her EEOC filing and that “[s]uspiciously” it
referenced a written warning issued to Plaintiff in February 2016, after the review period. (Id.).
She claims that if retaliation motivated Smyth in completing her 2015 Annual Performance

Review, a causal link exists between her termination and protected activity because the
termination was based in part on the review. (Id.). Lastly, she posits that Smyth’s April 2015
statement, “Well, go ahead Abby, see where that [talking to HR] will get you,” could be
considered “a threat of retaliatory conduct.” (Id.).
In reply, Defendant notes that Plaintiff makes no attempt to distinguish its cited cases and
argues that her reliance on her earlier informal complaints to King and Bloch in the summer of
2015 only serves to extend the period between her protected activity and termination, thus
further undercutting any inference of causation. (Def.’s Reply, ECF No. 45, at 9). Defendant
contends that insofar as Plaintiff seeks to rely upon her 2015 Annual Performance Review and
2016 Interim Performance Appraisal as adverse employment actions, no evidence ties either to
the protected activity of Plaintiff’s informal complaints to King and Bloch. Defendant further
notes that the GCN rating for the 2015 Annual Performance Review predated Plaintiff’s
notifying Young and Minor of her EEOC filing thus severing any causal link between this
protected activity and the earlier negative rating. It also observes that nothing prevented the

2015 review from referencing a February 2016 warning, especially where the conduct at issue
occurred during the 2015 review period. (Id.). Finally, Defendant dismisses Smyth’s verbal
statement as a non-decisionmaker’s “stray remark” unrelated in topic or time to her termination.
(Id. (citing Fuentes, 32 F.3d at 767)).
Plaintiff does not dispute that the nine months between the March 2016 filing of her
EEOC charge and her December 2016 termination “is a far cry” from the periods the Third
Circuit has found to support a finding of causation. Mercer, 26 F. Supp. 3d at 447 (citing
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012); Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989); Farrell, 206 F.3d at 278-79); see also Lichtenstein, 691
F.3d at 307 (one week could establish causation); Jalil, 873 F.2d at 701 (two days could establish

causation); cf. Farrell, 206 F.3d at 279 (refusing to decide whether three to four weeks could
alone establish causation). Indeed, an even longer period, approximately 17 months, elapsed
between Plaintiff’s discussions with King and Bloch in July 2015 and her termination. (Pl.’s
Resp., ECF No. 41-1, at 8-9). These discussions are also too temporally removed from the two
reviews that factored into the decision to terminate her: her 2015 Annual Performance Review
completed during the winter of 2015-2016, and her 2016 Interim Performance Appraisal
completed during the summer of 2016. (See Def.’s Stmt. of Undisputed Material Facts at ¶¶ 11
(ratings for annual reviews are determined in early December), 12 (ratings for 2016 Interim
Performance Appraisal were determined in mid-July 2016); see also Mercer, 26 F. Supp. 3d at
447 (“approximately six months” was well beyond the temporal proximity needed to infer
causation)).
Plaintiff complains that Smyth signed her 2015 Annual Performance Review on March
11, 2016, the same day that Plaintiff notified Young and Minor of her EEOC filing. (Id. at 9).
However, Plaintiff admits that the GCN rating in the review was determined four months earlier

in a manager “calibration session” occurring in early December 2015. (Pl.’s Resp., ECF No. 41-
1, at 5). Further, this rating was the same as she had received from Minor in her 2014 Annual
Performance Review, and the issues identified in her 2015 Annual Performance Review and
2016 Interim Performance Appraisal with her communication, professionalism, and leadership
did not materially differ from the issues identified in her 2014 Annual Performance Review and
2015 Interim Performance Appraisal.5 (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-
2, at ¶¶ 17-18, 96, 107, 134). Thus, negative appraisals of some aspects of Plaintiff’s

5 Plaintiff’s 2014 Annual Performance Review concluded that “significant improvement
has not been made surrounding her professional presence, communication and leadership skills”
and warned that “if significant improvement is not made in early 2015, Abby will be placed in
performance counseling.” (2014 Annual Performance Review, ECF No. 37-4, Ex. 3 at 9).
Similarly, her 2015 Interim Performance Appraisal “strongly recommended that Plaintiff act on
the constructive feedback” provided to her to improve her “managerial behavior” and warned
that she needed to improve her “professional presence to avoid being placed in performance
management.” (2015 Interim Performance Appraisal, ECF No. 37-6, Ex. 22 at 5). Her 2015
Annual Performance Review, completed after Plaintiff began engaging in protected activity,
noted “some improvement” but also referenced repeated “unprofessional comments” and the
need “to improve her leadership effectiveness/presence . . . .” (2015 Annual Performance
Review, ECF No. 37-6, Ex. 25 at 12). It, too, warned that her “behavior” required improvement:
“If Abby does not improve her overall behavior, as it relates to leadership presence, it will result
in additional administrative action, up to and including termination.” (Id.). Plaintiff’s final
review, her 2016 Interim Performance Appraisal, noted continuing issues with “unprofessional”
comments and counseled, “Improvement is still needed regarding Abby’s Leadership presence
and effectiveness.” (2016 Interim Performance Appraisal, ECF No. 37-6, Ex. 31 at 6).
performance began prior to even the earliest protected activity identified by Plaintiff, the summer
2015 discussions with King and Bloch. As such, the Court infers no causal connection between
Plaintiff’s protected activity and the 2015 Annual Performance Review and 2016 Interim
Performance Appraisal considered in the decision to terminate her. See Lackey, 704 F. App’x at
48 (affirming district court’s grant of summary judgment in employer’s favor because the
plaintiff “received similar feedback on her scheduling errors both before and after” her protected
activity); Verma, 533 F. App’x at 118-19 (“this Court has declined to infer such a causal link

where an employee’s negative performance evaluations predated any protected activity”) (citing
Shaner v. Synthes, 204 F.3d 494, 504-05 (3d Cir. 2000)); Shaner, 204 F.3d at 505 (affirming
district court’s grant of summary judgment in employer’s favor because the plaintiff’s
“performance evaluations contained similar criticisms both before and after he made the
company aware that he suffered from MS and before and after he filed his first EEOC charge”);
see also Brown, 2017 WL 412802, at *18; Daniels, 982 F. Supp. 2d at 485-86.
Plaintiff also complains that her 2015 Annual Performance Review “[s]uspiciously”
referenced a February 2016 written warning issued outside of the 2015 review period. (Pl.’s
Resp., ECF No. 41-1, at 20). However, the conduct giving rise to the written warning was
serious enough to merit the reference to “possible administrative action, up to and including

termination,” contained in the review. (2015 Annual Performance Review, ECF No. 37-6, Ex.
25 at 12). Moreover, the underlying conduct occurred “at the end of 2015,” during the review
period. (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶¶ 102-03). Plaintiff cites
no authority and otherwise fails to explain why her review could not refer to matters, especially
serious ones, occurring through the time of its completion. (Pl.’s Resp., ECF No. 41-1, at 19-
20).
Plaintiff’s final argument in opposition to summary judgment is that Smyth demonstrated
“retaliatory animus” when she told Plaintiff in response to her reference to involving HR, “Well,
go ahead, Abby, see where that will get you.” (Pl.’s Resp., ECF No.41-1, at 20). “When
temporal proximity between protected activity and allegedly retaliatory conduct is missing,
courts may look to the intervening period for other evidence of retaliatory animus.” Krouse, 126
F.3d at 503-04. To demonstrate causation in this manner, the plaintiff must point to “a pattern of
antagonism in the intervening period” between the protected activity and the adverse

employment action. Woodson, 109 F.3d at 920-21. However, Smyth’s single, vague comment
does not evidence “a pattern of antagonism . . . .” See id. Nor was the comment made “in the
intervening period” between Plaintiff’s complaints to King and Bloch and Plaintiff’s subsequent
performance reviews or termination. See id. Rather, Smyth made this statement prior to the
complaints, Plaintiff’s earliest protected activity. (Def.’s Stmt. of Undisputed Material Facts,
ECF No. 37-2, at ¶¶ 47-48). In addition, Plaintiff had already received a GCN rating and
negative feedback on her communication, professionalism, and leadership in her 2014 Annual
Performance Review completed by Minor, prior to Smyth’s comment. (2014 Annual
Performance Review, ECF No. 37-4, Ex. 3 at 9). Thus, even if the comment had postdated
Plaintiff’s protected activity, it would not support an inference of causation because the negative

reviews began before the protected activity (and under a different reviewer). See Lackey, 704 F.
App’x at 48; Verma, 533 F. App’x at 118-19; Shaner, 204 F.3d at 505. Because Plaintiff cannot
establish causation, an element of her prima facie claim, the Court shall grant summary judgment
in Defendant’s favor on Plaintiff’s retaliation claim.
C. Failure to Accommodate
1. Background Law
The ADA prohibits an employer from failing to provide “a reasonable accommodation to
the known physical or mental limitations of an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A). “In order to establish a prima facie case for failure to
accommodate, [the plaintiff] must show that: (1) he had a disability; (2) the employer had notice
of this disability; (3) he can perform the essential functions of his position with a reasonable

accommodation; and (4) the employer failed to provide an accommodation.” Boice v. Se. Pa.
Transp. Auth., No. 05-4772, 2007 WL 2916188, at *12 (E.D. Pa. Oct. 5, 2007) (citation omitted).
A plaintiff “must also demonstrate as part of his facial showing that the costs associated
with his proposed accommodation ‘are not clearly disproportionate to the benefits that it will
produce.’” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580-81 (3d Cir. 1998) (quoting Borkowski
v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995)). “The term ‘costs’ includes
financial as well as administrative burdens on a company.” Id. at 581 (citing Sch. Bd. of Nassau
Cnty., Fla. v. Arline, 480 U.S. 273, 287 n.17, 107 S.Ct. 1123, 1131 n.17, 94 L.Ed.2d 307 (1987)).
“An employer is not obligated to provide an employee the accommodation he requests or prefers,
the employer need only provide some reasonable accommodation.” Yovtcheva v. City of Phila.

Water Dep’t, 518 F. App’x 116, 122 (3d Cir. 2013) (quoting Gile v. United Airlines, Inc., 95
F.3d 492, 499 (7th Cir. 1996) (citation omitted); citing Bates v. Long Island R.R. Co., 997 F.2d
1028, 1035 (2d Cir. 1993)). If the plaintiff sets forth a prima facie case, “the defendant then
bears the burden of proving, as an affirmative defense, that the accommodations requested by the
plaintiff are unreasonable, or would cause an undue hardship on the employer.” Gaul, 134 F.3d
at 581 (quoting Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
2. Application
Plaintiff submitted Workplace Accommodation Requests on July 30, 2015, and May 20,
2016.6 (July 30, 2015 Workplace Accommodation Request, ECF No. 39; May 20, 2016
Workplace Accommodation Request, ECF No. 39-1). The Court considers each request
separately.
a. July 30, 2015 Workplace Accommodation Request
Plaintiff’s July 30, 2015 Workplace Accommodation Request listed four

accommodations that Plaintiff believed would enable her to perform her job functions: (1) to
work from home up to four days per month to “decompress stress”; (2) to have a “support
person” present for any one-on-one meeting with Smyth; (3) to have Smyth provide feedback
primarily in writing rather than orally; and (4) to have others in addition to Smyth “oversee [her]
performance & make decisions on ratings and compensation[.]” (July 30, 2015 Accommodation
Request, ECF No. 39, at 3). Elsewhere on the form, Plaintiff wrote that she could perform all
job functions “if provided with a supportive and professional environment. Calm environment.”
(Id. (emphasis in original)).
Defendant granted Plaintiff’s request to work from home a few days per month. (Def.’s
Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 86). It denied her request to have a

support person for Plaintiff at all meetings between Smyth and her, although Young began
attending performance evaluation discussions between the two and otherwise meeting with
Plaintiff monthly. (Id. at ¶¶ 87-88). Defendant also denied Plaintiff’s request to have Smyth
provide primarily written feedback; however, “Smyth did on occasion” provide such feedback to

6 On September 2, 2016, Plaintiff submitted an additional Workplace Accommodation
Request not to “sit at [her] desk all day.” (September 2, 2016 Workplace Accommodation
Request, ECF No. 39-3). This request is not at issue.
Plaintiff. (Id. at ¶ 90). As for Plaintiff’s request that others in addition to Smyth oversee her
performance and have input into her ratings and compensation, “HR [and/]or upper
management” already participated in these matters. (Pl. Dep. Tr., ECF No. 37-4, Ex. 1 at
198:19-199:2).
Defendant argues that Plaintiff’s two requests it did not grant – for a support person at all
meetings with Smyth and for Smyth to provide primarily written feedback – “were unreasonable
as a matter of law as they would have effectively foreclosed Smyth from supervising Plaintiff.”

(Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 33). It notes that the Third
Circuit has made clear that employers need not grant requests that impose “impractical” or
“extraordinary administrative burdens” and that courts may not “establish the conditions of
employment” under which an employee shall work. (Id. (citing Gaul, 134 F.3d at 581)).
Defendant contends that it “acted in good faith to accommodate Plaintiff’s disability, granting
those requests that were reasonable and implementing alternative accommodations in response to
her unreasonable requests.” (Id. (citations omitted)). It also asserts that Plaintiff’s PHRA claim
based on this request is time-barred. (Id. at 32). In her response, Plaintiff does not address her
July 30, 2015 Workplace Accommodation Request but instead focuses on her May 20, 2016
request for a transfer. (Pl.’s Resp., ECF No. 41-1, at 20-22).

No reasonable jury could find that Defendant was required to grant Plaintiff’s requests
for a support person at all meetings between Smyth and her or for Smyth to provide Plaintiff
primarily written feedback. If granted, these accommodations would have required Smyth to
engage with Plaintiff primarily in the presence of the support person or in writing, thereby
limiting real-time, spontaneous coaching and supervision. These requirements would have
placed significant “administrative burdens” on Defendant generally and Smyth specifically. See
Gaul, 134 F.3d 576 at 581. Moreover, they would effectively permit Plaintiff “to establish the
conditions of her employment . . . [;] [h]owever, nothing in the ADA allows this shift in
responsibility.” Id. (quoting Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996)).
Further, “nothing in the law leads us to conclude that in enacting the disability acts, Congress
intended to interfere with personnel decisions within an organizational hierarchy.” Id. (quoting
Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 384 (2d Cir. 1996)). Preventing Smyth from
supervising Plaintiff in-person and one-on-one by requiring Defendant to have a support person
present for all meetings between them would do exactly that. Plaintiff – who does not even

address these requests for accommodation in her response – fails to “demonstrate as part of [her]
facial showing that the costs associated with [her] proposed accommodation ‘are not clearly
disproportionate to the benefits that it will produce.’” Gaul, 134 F.3d at 580-81 (quoting
Borkowski, 63 F.3d at 138).
In addition, the Court notes that Defendant provided alternative accommodations or
provided the requested accommodations in part. Although Defendant declined to have a support
person present for all meetings between Smyth and Plaintiff, Young and Plaintiff met for
monthly “touch points” in which Young provided support to Plaintiff. (Pl. Dep. Tr., ECF No.
37-4, at 168:5-13, 176:15-22 (acknowledging monthly meetings with Young and that she “has
always been supportive” or “at least . . . appeared to be”)). Young also attended Plaintiff’s

performance evaluation meetings with Smyth. (Id. at 205:3-7). Further, while Defendant
refused to require Smyth to provide Plaintiff feedback primarily in writing, Plaintiff admits that
Smyth did so at times. (Id. at 197:2-5).
“All the interactive process requires is that employers make a good-faith effort to seek
accommodations.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999).
Employers can demonstrate “good faith in a number of ways, such as taking steps like the
following: meet with the employee who requests an accommodation, request information about
the condition and what limitations the employee has, ask the employee what he or she
specifically wants, show some sign of having considered employee’s request, and offer and
discuss available alternatives when the request is too burdensome.” Id. “The interactive process
does not dictate that any particular concession must be made by the employer . . . .” Id. (citing
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999)). Here, Plaintiff’s
“insist[ance] on a single accommodation [was] unreasonable as a matter of law . . . .” Id. at 316
n.7.

Plaintiff’s also indicated in her July 30, 2015 Workplace Accommodation Request that
she could perform her job functions “if provided with a supportive and professional environment.
Calm environment.” (July 30, Workplace Accommodation Request, ECF No. 39, at 3 (emphasis
in original)). To the extent that Plaintiff requested such an environment as an accommodation
for her disability, courts have repeatedly found such vague requests for a less stressful or
demanding workplace unreasonable as a matter of law. See Gaul, 134 F.3d at 581 (finding it was
“difficult to imagine a more amorphous ‘standard’ to impose on an employer” than ensuring its
employee avoided “‘prolonged and inordinate stress’”); see also Connors v. Chrysler Fin. Corp.,
160 F.3d 971, 976 (3d Cir. 1998) (“employees are not guaranteed stress-free environments” by
discrimination laws) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir.

1992)); Cobb v. Phila. Gas Works, No. 01-4937, 2004 WL 764783, at *9 (E.D. Pa. Mar. 31,
2004) (“a move to a less stressful work environment is not a cognizable accommodation under
the ADA”), aff’d, 118 F. App’x 584 (3d Cir. 2004).
Lastly, Plaintiff’s PHRA claim based on the July 30, 2015 request is time-barred. “To
bring suit under the PHRA, a plaintiff must first have filed an administrative complaint with the
PHRC within 180 days of the alleged act of discrimination.” Woodson, 109 F.3d at 925 (citing
43 P.S. §§ 959(a), 962). If she fails to do so, “she is precluded from judicial remedies under the
PHRA. The Pennsylvania courts have strictly interpreted this requirement . . . .” Id. (citations
omitted). In this case, the alleged act of discrimination occurred on August 20, 2015, when
Hettinger spoke with Plaintiff about her request for accommodations. (Def.’s Stmt. of
Undisputed Material Facts, ECF No. 37-2, at ¶ 93). Plaintiff had 180 days, or until February 16,
2016, to file her administrative complaint. See Woodson, 109 F.3d at 925. However, she did not
file it until 22 days later, on March 9, 2016. (Compl., ECF No. 1, at ¶ 20).
Plaintiff’s requests to have a support person present for all meetings between Smyth and

her, for Smith to provide feedback mainly in writing, and for a less stressful workplace would
have proved disproportionately burdensome to Defendant. Indeed, Plaintiff does not argue
otherwise. Defendant engaged in good faith in providing alternative or partial accommodations.
Accordingly, the Court shall grant summary judgment in Defendant’s favor on Plaintiff’s failure
to accommodate claim based upon the July 30, 2015 Workplace Accommodation Request.
b. May 20, 2016 Workplace Accommodation Request
Plaintiff’s May 20, 2016 Workplace Accommodation Request listed three
accommodations that Plaintiff believed would enable her to perform her job functions: (1) to
continue working from home “as needed” to manage stress; (2) “a transfer from [her] current
boss Nancy Smyth”; and (3) to have “all [her] interactions with Nancy Smyth to continue7 to be

in the presence of another person and cannot be conducted in private with just Nancy and
Myself.” (May 20, 2016 Workplace Accommodation Request, ECF No. 39-1, at 5). Plaintiff
also noted in a separate section that she could perform her job functions “if provided a safe,
supportive working environment.” (Id.).

7 Curiously, Plaintiff’s choice of words suggests that all interactions between Smyth and
her were already occurring in the presence of a third party, yet Defendant denies that it granted
her earlier request to have a support person present for all meetings between the two. (Def.’s
Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 33).
Defendant continued to allow Plaintiff to work from home a few days per month. (Def.’s
Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 110). It refused to transfer Plaintiff after
Hettinger confirmed with Bloch that no open suitable positions existed. (Id. at ¶ 112).
Defendant also again refused Plaintiff’s request to have no one-on-one interaction with Smyth.
(Id. at ¶ 114). However, it agreed to provide someone from HR to attend Plaintiff’s performance
evaluation meetings with Smyth and to have Young attend other meetings between Plaintiff and
Smyth. (Id.). Bloch also met with Smyth and Plaintiff to discuss how they could have

productive meetings without a third party present. (Id. at ¶ 115).
Defendant argues that Plaintiff “essentially wanted to keep her job and continue
performing the same duties, but either report to a different manager or skip a level and report to a
Director.” (Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 34). It reiterates that
Plaintiff’s request to work in a “supportive” or less stressful environment was vague and
unreasonable as a matter of law. (Id.). Plaintiff responds that Bloch “shut Plaintiff down” when
she attempted to tell her about her disability and related problems and that Hettinger “simply
took the word of the business unit that it was downsizing and no other job was available to
Plaintiff,” even though it had rotated Plaintiff and other employees in the past and had hired
another associate manager approximately two months earlier. (Pl.’s Resp., ECF No. 41-1, at 21).

She contends that Defendant’s actions evidence a lack of good faith. (Id.). She also denies that
she “insisted on keeping her same job but having a different supervisor . . . .” (Id.). Instead, she
indicates that “she and her therapist made it clear that a transfer away from Ms. Smyth, wherever
that may be, was the imperative . . . .” (Id. at 22). In reply, Defendant points to Plaintiff’s
deposition testimony and request form stating that she wanted to remain in her current role.
(Def.’s Reply, ECF No. 45, at 11 (citations omitted)). It argues that in any event a transfer to
another position to avoid the stress of working with someone is unreasonable as a matter of law
and that Plaintiff has failed to introduce evidence of an open equivalent position. (Id. at 12
(citations omitted)).
The Court has already addressed Plaintiff’s requests to have no one-on-one interaction
with Smyth and to have a “supportive” workplace. (See supra § III.D.2.a). Accordingly, the
Court will focus on Plaintiff’s request for a transfer, as the parties do in their briefing.
In her May 20, 2016 Workplace Accommodation Request, Plaintiff stated: “I am seeking
a transfer from my current boss Nancy Smyth. . . . I would like to remain the Associate Manager

over the Variable Calcs function . . . [but] be[ ] moved to another manager (or Director) as I
know Associate Managers have reported to a Director in the past.” (May 20, 2016 Workplace
Accommodation Request, ECF No. 39-1, at 5). At her deposition she also responded, “Yes,” to
the question: “Did you want to keep your same job, keep your same job duties, just have
somebody else manage you?” (Pl. Dep. Tr., ECF No. 37-4, Ex. 1 at 247:7-10). In response to
Plaintiff’s request, “Hettinger spoke with Bloch in Human Resources to confirm that there were
no positions available into which Plaintiff could transfer.” (Def.’s Stmt. of Undisputed Material
Facts, ECF No. 37-2, at ¶ 112).
As noted in the preceding section, “by asking to be transferred away from individuals
who cause him prolonged and inordinate stress, [a plaintiff] is essentially asking this court to

establish the conditions of his employment, most notably, with whom he will work.” Gaul, 134
F.3d at 581; see also May 20, 2016 Workplace Accommodation Request, ECF No. 39-1, at 5
(“The environment in which I work is unsupportive and continues to be very stressful for me
working under Nancy Smyth.”). However, the ADA does not permit the Court to take this
action. Gaul, 134 F.3d at 581. “This analysis in Gaul has been applied by numerous
courts . . . which have found that a request to return to work under a different supervisor
is . . . unreasonable.” Ashelman v. Geisinger Health Sys. Found., No. 3:16-CV-1837, 2018 WL
3827155, at *4 (M.D. Pa. July 18, 2018) (citing Coulson v. Goodyear Tire & Rubber Co., 31 F.
App’x 851, 858 (6th Cir. 2002); Weiler v. Household Fin. Corp., 101 F.3d 519, 526 (7th Cir.
1996)) (internal quotations and additional citations omitted); see also Larson v. Va. Dep’t of
Transp., Civ. No. 5:10-cv-0136, 2011 WL 1296510, at *2 (W.D. Va. Apr. 5, 2011) (compiling
cases holding “that such an accommodation is unreasonable as a matter of law”).
Even if Plaintiff remained open to moving to a new position with a different supervisor,
her requested accommodation was not reasonable as a matter of law. See also Baylets-Holsinger

v. Pa. State Univ., No. 4:18-CV-0060, 2018 WL 6253981, at *7 (M.D. Pa. Oct. 30, 2018)
(plaintiff failed to state a claim based on employer’s refusal “to provide her with a different job
and a different supervisor”). Moreover, she also fails to offer evidence of an open suitable
alternative position. She contends that Defendant had a “history of rotating employees” and that
it had rotated Plaintiff herself six times over the course of her sixteen-year career with
Defendant, but she fails to show that an alternative open position existed at the time of her
request. (See Pl.’s Resp., ECF No. 41-1, at 21). She claims that Defendant had hired a new
Associate Manager in a different department two months earlier and that Defendant could have
switched Plaintiff with the new hire, but she ignores the fact that “an employer is not required to
‘bump’ other employees to create a vacancy so as to be able to reassign the disabled employee.”

Weiler, 101 F.3d at 526 (quoting Gile, 95 F.3d at 499). “Nor is an employer obligated to create a
‘new’ position for the disabled employee.” Id. (quoting Gile, 95 F.3d at 499).
In short, Defendant had no obligation under the ADA to transfer Plaintiff to a new
position or new supervisor. Rather, “that decision remains with the employer.” Id. In any event,
Plaintiff has introduced no evidence of a different open position to which Defendant could have
transferred her, had it been so inclined. Accordingly, the Court shall grant summary judgment in
Defendant’s favor on Plaintiff’s failure to accommodate claim based upon the May 20, 2016
Workplace Accommodation Request as well.
D. Hostile Work Environment
1. Background Law
The ADA expressly prohibits discrimination in the terms, conditions or privileges of
one’s employment on the basis of disability. An employer violates this prohibition “when the
workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d
295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91
L.Ed.2d 49 (1986)). A claim for hostile work environment based on disability requires a plaintiff
to establish that: (1) he is a qualified individual with a disability under the ADA; (2) he was
subject to unwelcome harassment; (3) the harassment was based on his disability or a request for
an accommodation; (4) it was sufficiently severe or pervasive to alter the conditions of his
employment and created an abusive working environment; and (5) that defendant knew or should
have known of the harassment but failed to take prompt effective remedial action. See Walton,
168 F.3d at 667.

To prove an abusive working environment, a plaintiff must show that the environment
was objectively hostile or abusive. The plaintiff must also show that she perceived the
workplace to be hostile or abusive. Walton, 168 F.3d at 668. “A recurring point in harassment
opinions is that simple teasing, offhand comments and isolated comments (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
The determination of whether a work environment is hostile or abusive is made by examining the
totality of circumstances. The totality of the circumstances includes evaluating factors such as
the “frequency of the discriminatory conduct; its severity; whether it is threatening or
humiliating or a mere offensive utterance; and whether it unreasonably interferes with an
employees work performance.” Harris, 510 U.S. at 23.
The “abusive working environment” element ensures that harassment claims do not turn
the ADA into a general civility code, and ensures that only behavior that is “so objectively
hostile as to alter the terms and conditions of one[’]s employment” will be actionable. Harris,

510 U.S. at 21. Furthermore, the inquiry into the severity of harassment requires “careful
consideration of the social context in which particular behavior occurs and is experienced by its
target.” Id.
2. Application
In its brief, Defendant challenges Plaintiff’s hostile work environment claim on two
grounds. First, it asserts that Plaintiff cannot establish that Smyth harassed her due to her
disability because Plaintiff acknowledges that Smyth subjected other employees to the same
behavior. (Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 35-36). Second, it
argues that Smyth’s conduct was not “severe or pervasive” enough to create an actionable hostile
work environment. (Id. at 37). It characterizes Smyth’s comments to Plaintiff as “insensitive”

but ultimately “isolated incidents[.]” (Id. at 38). Defendant also summarizes the facts of a few
cases in which courts held that a supervisor’s unprofessional comments and actions did not
substantiate a claim for hostile work environment. (Id. at 38-40). Defendant contends that
Smyth’s conduct in this case was “far less egregious,” thus compelling the entry of summary
judgment in its favor as to Plaintiff’s claim. (Id. at 39-40).
Plaintiff responds that even if Smyth was hostile to others as well, she demonstrated
hostility to Plaintiff based upon her disability when she told Plaintiff, “Well, maybe you don’t
belong here, maybe this isn’t the job for you,” after Plaintiff mentioned her “disability that
cause[s] auto responses with her body language” to Smyth. (Def.’s Stmt. of Undisputed Material
Facts, ECF No. 37-2, at ¶ 44; Pl.’s Resp., ECF No. 41-1, at 22). She claims that Smyth
physically threatened her by making a handgun gesture pointed at Plaintiff’s head and saying,
“I’ll give it to you straight between the eyes and you better learn how to take it,” and also by
responding to Plaintiff’s expressed concerns about retaliation with, “Oh, Abby, you’re a grown
woman, what am I going to do? Beat you up.” (Def.’s Stmt. of Undisputed Material Facts, ECF

No. 37-2, at ¶ 45; Pl.’s Resp., ECF No. 41-1, at ¶ 45; Pl.’s Resp., ECF No. 41-1, at 22-23; Pl.
Dep. Tr., ECF No. 43, Ex. A at 132:19-21). Plaintiff alleges that Smyth also mocked her about
receiving a poor evaluation and frequently laughed at her. (Pl.’s Resp., ECF No. 41-1, at 23).
She claims that a reasonable person within her protected class would have viewed Smyth’s
statements and actions as hostile. (Id. (citing THIRD CIRCUIT MODEL JURY INSTRUCTIONS – CIV.,
5.1.4 – 5.1.5 (2019))).
In reply, Defendant points to Plaintiff’s deposition testimony in which she agreed that
Smyth “create[ed] a hostile work environment . . . that impacted everyone” and cites cases
holding that “‘equal opportunity harassment’ is not actionable as a matter of law.” (Def.’s
Reply, ECF No. 45, at 14-15) (citations omitted) (emphasis in original). It argues that only one

exchange between Smyth and Plaintiff makes any reference to Plaintiff’s disability and that the
exchange does not become actionable based on this reference (in any event made by Plaintiff, not
Smyth). (Id. at 15 (citations omitted)). It points out that, in Plaintiff’s own words, she alleges
only “demeaning conduct,” which the ADA does not cover. (Id. at 15-16 (citing Pl.’s Resp.,
ECF No. 41-1, at 23 (additional citations omitted))). Defendant concludes by noting that
Plaintiff does not attempt to distinguish its cited cases holding similar supervisor conduct
insufficient as a matter of law to establish a claim for hostile work environment. (Id. at 16-17).
At her deposition, Plaintiff agreed that Smyth was “insensitive to everyone,” “was a bully
and . . . mistreated everyone,” subjected Plaintiff and others to the same behavior, and
“create[ed] a hostile work environment . . . that impacted everyone[.]” (Pl. Dep. Tr., ECF No.
37-4, at 141:21-142:3, 142:7-13, 143:2-4, 194:2-4). It appears that Smyth could have equally
directed much of the conduct about which Plaintiff complains at anyone. Smyth’s mocking
Plaintiff for receiving a poor evaluation and laughing at her, on their face, had nothing to do with
Plaintiff’s disability and could have as easily been directed at another employee. (See Pl. Dep.

Tr., ECF No. 43, Ex. A at 146:21-25). Even Smyth’s comment, “what am I going to do? Beat
you up[,]” could have been directed to another employee expressing concern about retaliation.
(Pl. Dep. Tr., ECF No. 43, Ex. A at 132:19-21). None of these comments or actions appear
motivated by Plaintiff’s disability, given Plaintiff’s own testimony that Smyth treated “everyone”
like this. (Pl. Dep. Tr., ECF No. 37-4, at 141:21-142:3, 142:7-13, 194:2-4). As such, they
cannot substantiate a claim for hostile work environment. See Betz v. Temple Health Sys., No.
15-00727, 2015 WL 4713661, at *4 (E.D. Pa. Aug. 7, 2015) (“equal opportunity offenders” who
create “an uncouth, unprofessional, and offensive workplace . . . for all . . . regardless of”
employees’ protected traits do not establish an actionable work environment); Connell v.
Principi, No. 04-1356, 2007 WL 3274185, at *11 (W.D. Pa. Nov. 5, 2007) (actions of “equal

opportunity harasser who did not discriminate” upon the basis of protected traits were not
actionable); Koschoff v. Hendeson, 109 F. Supp. 2d 332, 346 (E.D. Pa. July 13, 2000), aff’d sub
nom. Koschoff v. Runyon, 35 F. App’x 357 (3d Cir. 2002) (“seemingly discriminatory behavior
when actually motivated by personal animosity is not prohibited”) (citation omitted).
Nonetheless, even considering this conduct in conjunction with Smyth’s comments
arguably relating to Plaintiff’s disability, the Court finds that Plaintiff has failed to introduce
evidence permitting a jury to conclude that Smyth created an actionable hostile work
environment for Plaintiff. In an April 22, 2015 coaching session between Smyth and Plaintiff,
Smyth informed Plaintiff that she did not appreciate Plaintiff’s body language during a meeting
earlier that day with the other Associate Managers and Smyth. (Def.’s Stmt. of Undisputed
Material Facts, ECF No. 37-2, at ¶ 44). Plaintiff replied that she had a disability that causes
automatic bodily responses, to which Smyth responded, “Well, maybe you don’t belong here,
maybe this isn’t the job for you.” (Id.). Later in this same conversation, Smyth simulated a gun
with her hand, pointed it at Plaintiff’s head and stated, “I’m not Joanne Minor, I’ll give it to you

straight between the eyes and you better learn how to take it.” (Id. at ¶ 45).
Plaintiff contends that the handgun gesture and accompanying comment, as well Smyth’s
“beat you up” comment, were “physically threatening or humiliating” and, as such, created a
hostile work environment. (Pl.’s Resp., ECF No. 41-1, at 23). The Court disagrees. Smyth’s
simulation of a gun with her hand was, to be sure, wholly unprofessional and inappropriate.
However, her comment to Plaintiff made simultaneously with the gesture demonstrates that she
intended no physical threat, nor could someone in Plaintiff’s position perceive that a physical
threat was intended. Smyth’s reference to giving Plaintiff “it” between the eyes was clearly a
reference to the coaching or criticism that had induced Plaintiff’s automatic body language
responses that the pair had just discussed. (See Bloch Dep. Tr., ECF No. 42, Ex. I at 62:4-8

(“She mentioned giving feedback right between the eyes, and you’ll have to deal with it.”)).
This fact is evident from Smyth’s references to not being Joanne Minor and to Plaintiff’s
learning “to take it.” (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 45). It
defies logic to infer that Smyth was suggesting that, although Minor did not shoot employees,
Smyth would. Nor could anyone infer that Smyth was indicating that Plaintiff could “learn to
take” a gunshot “between the eyes . . . .” (Id.). Courts have found that similarly aggressive
actions by supervisors did not establish a hostile work environment. See, e.g., Ballard-Carter v.
Vanguard Grp., 703 F. App’x 149, 150-52 (3d Cir. 2017) (pointing finger at employee and
telling her “you just pissed me off,” plus “repeated comments about her hearing difficulty and
dyslexia” and “relentless . . . criticism” did not rise to the level of a hostile work environment);
Mercer, 26 F. Supp. 3d at 438, 445 (calling an employee “fat,” frequently cursing at him and
dropping something on the floor in front of his coworkers and telling him to “pick it the fuck up”
did not rise to the level of a hostile work environment).
Smyth’s “beat you up” comment also falls short of constituting an actual physical threat.

In a meeting between Smyth and Plaintiff, Plaintiff told Smyth she was “afraid of her and
retaliation.” (Pl. Dep. Tr., ECF No. 43, Ex. A at 132:19-20). Smyth responded, “Oh, Abby,
you’re a grown woman, what am I going to do? Beat you up.” (Id. at 132:20-21). Far from
threatening physical violence, this statement seems to have disavowed it. Smyth appears to have
been pointing out the absurdity of resorting to violence to resolve a problem with another adult
after Plaintiff raised the issue of “fearing” Smyth. In any event, and giving Plaintiff the benefit
of the doubt, this ambiguous statement did not create a hostile work environment, either on its
own or along with Smyth’s other statements and conduct. See Walton, 168 F.3d at 667 (“To
prove an ‘abusive work environment[,]’ the environment must be shown to be objectively hostile
or abusive . . . .”) (citing Harris, 510 U.S. at 22, 114 S.Ct. at 371 (1993); Medvic v. Compass

Sign Co., LLC, No. 10-5222, 2011 WL 3513499, at *12 (E.D. Pa. Aug. 10, 2011) (“only
behavior that is ‘so objectively hostile as to alter the terms and conditions of one[’]s
employment’ will be actionable”)).
The last piece of evidence Plaintiff cites in her opposition in support of her hostile work
environment claim is Smyth’s comment, “Well, maybe you don’t belong here, maybe this isn’t
the job for you.” (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 44; Pl.’s Resp.,
ECF No. 41-1, at 22). Smyth made this comment during the April 22, 2015 coaching session
after Plaintiff “told Smyth that she had a disability that caused auto responses with her body
language.” (Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 44). This comment –
effectively telling Plaintiff that if she exhibited signs of her disability she should consider finding
another job – was offensive, and Plaintiff no doubt perceived it as such. However,
“[c]onversations in which a prohibited class status is discussed, though offensive[,] are
insufficient.” Williams v. Pa. Hum. Rels. Comm’n, No. 14-1290, 2016 WL 6834612, at *22
(W.D. Pa. Nov. 21, 2016) (citing Witcher v. Sodexho, 247 F. App’x 328, 331 (3d Cir. 2007)).

Moreover, the Court finds this comment similar to those found insufficiently severe or pervasive
in Walton. See Walton v. Mental Health Ass’n of Se. Pa., No. 96-5682, at *13 (E.D. Pa. Nov. 17,
1997) (“you have to learn to manage your illness,” “you have to make a decision of either you
can work or you’re either too sick to work and you shouldn’t be working”).
Plaintiff has failed to present evidence that would permit a reasonable jury to conclude
that Smyth subjected her to a hostile work environment. Much of Smyth’s complained-of
conduct did not relate to Plaintiff’s disability and appears to have occurred because, in Plaintiff’s
words, Smyth “was a bully and she mistreated everyone.” (Pl. Dep. Tr., ECF No. 37-4, at 143:2-
4). Further, even considering all of Plaintiff’s proffered evidence, Smyth’s conduct was
insufficiently severe or pervasive to create a hostile work environment. The Court shall grant

summary judgment in Defendant’s favor as to Plaintiff’s hostile work environment claim.
E. After-Acquired Evidence Defense
1. Background Law
The after-acquired evidence defense does not preclude a defendant’s liability under the
ADA but limits the relief available to the plaintiff. See McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352, 356, 361 (1995). As the Supreme Court explained in McKennon: “Once an
employer learns about employee wrongdoing that would lead to a legitimate discharge, we
cannot require the employer to ignore the information, even if it is acquired during the course of
discovery in a suit against the employer and even if the information might have gone
undiscovered absent the suit.” Id. at 362. “[A]s a general rule in cases of this type, neither
reinstatement nor front pay is an appropriate remedy [because] [i]t would be both inequitable and
pointless to order the reinstatement of someone the employer would have terminated, and will
terminate, in any event and upon lawful grounds.” Id. at 361-62. If the defendant “proves that it
would have terminated the plaintiff’s employment for the reason revealed by the after-acquired

evidence, . . . backpay should run from the discharge to the time that the wrongdoing was
discovered . . . .”8 Mardell, 65 F.3d at 1073-74 (citing Shattuck v. Kinetic Concepts, Inc., 49
F.3d 1106, 1108-09 (5th Cir. 1995); Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150,
1154 n.5 (6th Cir. 1995)). To invoke the defense, the employer “must first establish that the
wrongdoing was of such severity that the employee in fact would have been terminated on those
grounds alone if the employer had known of it at the time of the discharge.” McKennon, 513
U.S. at 362-63.
2. Application
Defendant asserts that the court in Nesselrotte v. Allegheny Energy, Inc., 615 F. Supp. 2d
397 (W.D. Pa. Mar. 23, 2009) applied the after-acquired evidence defense on facts similar to

those here. (Def.’s Memo. in Supp. of Mot. for Summ. J., ECF No. 37-1, at 41-42). In that case,
Nesselrotte, an attorney, downloaded documents of her employer, Allegheny Energy, Inc.
(Allegheny), to a personal disk in anticipation of her termination and after receiving formal
notice of it. Id. at 399-400, 403. She had signed a Confidentiality Agreement and was also

8 In addition, “truly exceptional circumstances may be considered in fashioning
appropriate relief.” Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1074 (3d Cir. 1995) (per
curiam). The parties do not identify any such circumstances in this case.
bound by an Ethics Code. Id. at 399, 403. At least some of the documents were marked
confidential and subject to the attorney-client privilege. Id. at 400. She did not have permission
to take the documents, but she did so because she believed her employer had discriminated
against her. Id. at 400-01. Nesselrotte showed the documents to no one other than her attorneys.
Id. at 401.
Nesselrotte argued that the after-acquired evidence defense did not apply for three
reasons. First, she contended that the Confidentiality Agreement and Ethics Code did not cover

the documents at issue. Id. at 403. Second, she argued that she took the documents only after
Defendant notified her of her termination and only for purposes of proving her discrimination
claim. Id. at 404-05. Third, she asserted that a genuine issue of material fact existed regarding
whether Allegheny would have terminated her for her actions. Id. at 406.
The court rejected these arguments. It found that the attorney-client privileged
documents met the Confidentiality Agreement’s definition of “Confidential Information” and
that Nesselrotte’s downloading of these documents, removal of them from Allegheny’s premises,
and failure to return them upon her termination violated the Agreement.9 Id. at 404. Next, the
court observed that Nesselrotte’s attempted justification of her actions as necessary to support
her discrimination claim was indistinguishable from the plaintiff’s rejected justification in

McKennon. Id. (citing 513 U.S. at 355). It also concluded that Nesselrotte’s transgression of the
attorney-client relationship made “the favored and more traditional remedy of reinstatement”
“impractical” and “inequitable.” Id. (internal quotations and citations omitted). Lastly, the court

9 Because the court found that Nesselrotte’s misuse of the attorney-client privileged
documents violated the Confidentiality Agreement, it did not determine whether her actions as to
nonprivileged documents also violated the Confidentiality Agreement, nor did it determine
whether her actions violated the Ethics Code. See Nesselrotte, 615 F. Supp. 2d at 403-04, 404
n.10.
noted that Nesselrotte introduced no evidence beyond her own testimony that Allegheny would
not have terminated her for her actions, whereas Allegheny had submitted affidavits attesting that
it would have terminated her immediately had it known of her misconduct and that, in fact, it had
fired another employee who had engaged in similar conduct. Id. For these reasons, the court
granted summary judgment in Allegheny’s favor as to the after-acquired evidence defense and
limited her potential recovery to back pay from the date of her termination to the date of
Allegheny’s discovery of her misconduct. Id.

Here, the undisputed evidence shows that in the summer and fall of 2016 Plaintiff
forwarded thousands of Defendant’s documents to her personal email account. (Limsky Cert.,
ECF No. 37-9, at ¶ 5). Similar to Nesselrotte, many of the documents were proprietary and
confidential.10 (Id. at ¶ 6; see Nesselrotte, 615 F. Supp. 2d at 400). Like Nesselrotte, she took
the documents because she anticipated that her employer would terminate her. (Def.’s Stmt. of
Undisputed Material Facts, ECF No. 37-2, at ¶ 137; see also Pl.’s Resp., ECF No. 41-1, at 24;
Nesselrotte, 615 F. Supp. 2d at 405). Neither demonstrated any intention to return the
documents. (Limsky Cert., ECF No. 37-9, at ¶ 7; see Nesselrotte, 615 F. Supp. 2d at 404). Also
as in Nesselrotte, Plaintiff lacked permission to take the documents, her misappropriation of
them violated company policy, and her employer would have terminated her had it known about

the misappropriation. (Limsky Cert., ECF No. 37-9, at ¶ 8). Specifically, Defendant’s
Communications Standards permitted Plaintiff to send “confidential, privileged, proprietary or
sensitive business-related information or trade secrets . . . outside Prudential only if there is a
legitimate business need . . . .” (Limsky Cert., ECF No. 37-9, Tab 1, at 1). The Communications

10 The documents included “capacity modeling, strategy and business plans such as
forecasting and planned attrition, and employee satisfaction reporting results for herself and
other Prudential employees.” (Limsky Cert., ECF No. 37-9, at ¶ 6).
Standards expressly prohibited “[f]orwarding e-mail from your Prudential account that contains
proprietary Prudential Information to your personal e-mail . . . .” (Id.). Similarly, Defendant’s
Information Policy required Plaintiff to “safeguard,” “protect and secure” its information;
prevent its “improper use and disclosure”; and use it “for appropriate business purposes
only . . . .” (Id. Tab 2, at 1).
Notwithstanding these similarities, Plaintiff attempts to distinguish her conduct from
Nesselrotte’s on four bases. First, she points out that Nesselrotte executed a Confidentiality

Agreement with Allegheny, whereas Plaintiff “did not violate an agreement with her
employer . . . .” (Pl.’s Resp., ECF No. 41-1, at 24). But McKennon only requires “wrongdoing
that would lead to a legitimate discharge . . . .” 513 U.S. at 362. It does not require that the
wrongdoing violate an “agreement” between the employer and employee. See id.; cf.
Nesselrotte, 615 F. Supp. 2d at 405 (noting Nesselrotte admitted that she also owed a fiduciary
duty to Allegheny). Plaintiff does not dispute that the Communications Standards and
Information Policy applied to her or that violation of them constituted grounds for termination.
(Def.’s Stmt. of Undisputed Material Facts, ECF No. 37-2, at ¶ 141; Limsky Cert., ECF No. 37-
9, at ¶ 8; see also Pl.’s Resp., ECF No. 41-1, at 23-24). Whether Plaintiff violated Defendant’s
“agreement” or “standards” or “policy” is immaterial. What matters is that her malfeasance, if

known, would have resulted in a legitimate termination. See McKennon, 513 U.S. at 362.
Second, Plaintiff observes that she did not “steal attorney-client information as in
Nesselrotte.” (Pl.’s Resp., ECF No. 41-1, at 24). It is true that the court limited its consideration
to the attorney-client privileged documents taken by Nesselrotte. 615 F. Supp. 2d at 403-04.
However, it apparently did so because Nesselrotte argued that none of the documents she
misappropriated were covered by the Confidentiality Agreement, and this argument was,
according to the court, “[n]aturally” incorrect insofar as it related to attorney-client privileged
documents. Id. Plaintiff cites no authority requiring that where the employee wrongdoing is
misappropriation of documents, the documents must be subject to the attorney-client privilege
for the defense to apply. (Pl.’s Resp., ECF No. 41-1, at 23-24).
Third, Plaintiff notes that she “did not forward any documents that she did not have
access to in the normal course of her employment.” (Id. (emphasis in original)). However, it is
unclear that Nesselrotte did so. Nesselrotte, 615 F. Supp. 2d at 400 (noting that the documents
Nesselrotte downloaded were “on her work computer”). In any event, Plaintiff’s forwarding of

the documents to her personal email violated Defendant’s Communications Standards and
Information Policy and constituted grounds for termination, whether she had authorization to use
the documents for other purposes or not. (Limsky Cert., ECF No. 37-9, at ¶ 8).
Fourth, Plaintiff complains that the after-acquired evidence “defense only becomes
relevant under a scenario where something caused by proven discriminatory conduct (the
forwarding of the documents here) perversely would bar a remedy for that conduct.” (Pl.’s
Resp., ECF No. 41-1, at 24). However, the courts in both McKennon and Nesselrotte rejected
similar arguments. Nesselrotte, 615 F. Supp. 2d at 405; see also McKennon, 513 U.S. at 355.
Further, Defendant did not “cause” Plaintiff to misappropriate its documents. Plaintiff chose to
take them in violation of Defendant’s policies rather than seek them in discovery in any

subsequent litigation.
Plaintiff’s attempts to distinguish Nesselrotte do not convince this Court that a different
result should occur in this case. The undisputed evidence shows that Plaintiff forwarded
thousands of Defendant’s documents to her personal email address in violation of Defendant’s
policies. Defendant has “establish[ed] that the wrongdoing was of such severity that [Plaintiff]
in fact would have been terminated on those grounds alone if [Defendant] had known of it at the
time of the discharge.” See McKennon, 513 U.S. at 362-63. The Court shall grant summary
judgment in favor of Defendant as to its after-acquired evidence defense. Accordingly, Plaintiff
may not seek reinstatement or front pay. If Plaintiff prevails at trial, the Court shall calculate her
back pay from the date of her termination through the date Defendant learned of her misconduct.
See id. at 362.

IV. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendant’s motion.

The Court grants summary judgment in favor of Defendant on Plaintiff’s retaliation, failure to
accommodate and hostile work environment claims and on Defendant’s after-acquired evidence
defense. The Court denies summary judgment on Plaintiff’s discrimination claim.

BY THE COURT:

/s/ Lynne A. Sitarski .
LYNNE A. SITARSKI
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401391. Public record. Not legal advice.