Gillis v. Lycoming-Clinton Counties Commission for Community Action (STEP), Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KELLY GILLIS, No. 4:20-CV-00424

Plaintiff, (Chief Judge Brann)

v.

LYCOMING-CLINTON COUNTIES

COMMISSION FOR COMMUNITY

ACTION (STEP), INC.,

Defendant.

MEMORANDUM OPINION

JUNE 1, 2022

Plaintiff Kelly Gillis was denied a promotion while out on approved medical

leave. After she expressed displeasure about the decision, her employer, the

Defendant, revoked her access to the organization’s network and building—

effectively preventing her from doing her job. These facts create an inference of

retaliatory discrimination. They do not, however, make a winning case. The

Defendant offers legitimate, non-discriminatory reasons for its actions—namely,

Gillis’s history of conflict with the organization’s senior management and its

concerns about the risks associated with allowing a disgruntled Gillis access to

sensitive, confidential information—that she has not rebutted. Accordingly, the

Defendant’s motion for summary judgment is granted.

I. BACKGROUND

A. The Early Days

In 2012, Gillis was hired as the Controller for Lycoming-Clinton Counties

Commission for Community Action (STEP), Inc., a publicly-funded community

organization that operates community centers and provides specialized services for

the elderly and underprivileged children and their families.1 An accountant by

trade, Gillis oversaw STEP’s legal and regulatory compliance efforts regarding the

organization’s financial functions and created and enforced STEP’s internal

accounting policies and procedures.2

After four years in that role, Gillis received a promotion—in title, if not in

responsibilities—and became the Assistant to the Chief Financial Officer.3

According to Gillis, the organization was preparing succession plans for all key

management positions, and STEP’s Chief Financial Officer (“CFO”), Staci Lowe,

informed Gillis that she would assume the CFO position when Lowe retired or

resigned.4 Gillis believed STEP’s leadership team memorialized the succession

1 See Doc. 27-2, Ex. B at 91–92 (Gillis Dep. Ex. P10 – Gillis CV); see also Doc. 27-4, Ex. D

(Apr. 26, 2021 Plankenhorn Dep.) at 19:9–23:10 (explaining STEP’s function, operations, and

funding sources).

2 Doc. 27-2, Ex. B at 91–92 (Gillis Dep. Ex. P10 – Gillis CV).

3 Id.

4 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 68:1–8 (“[Q.] What succession plan are you

referring to? A. There was succession planning being done at that time for all the key

management positions. And it was communicated to me via Traci [Lowe] that I was the

plan in writing, but she could not recall ever seeing the document.5 Regardless,

Gillis discussed the succession plan with a member of STEP’s Board of Directors,

Aaron Carter,6 and one of the accountants who reported to her, Patricia Kiessling.7

And Lowe later confirmed that “[t]he Assistant Chief Financial Officer position

was created to be an extension of the responsibilities of the [CFO], act on behalf of

the CFO when the CFO was not present, and ultimately to succeed the CFO.”8

Throughout her time at STEP, Gillis received positive performance reviews

and was consistently commended for her “expertise and work ethic.”9 For each

evaluation period on record, Gillis was given the highest possible overall

performance rating (“Exceptional” or “Exceeds Expectation,” depending on the

evaluation period).10 Relevant here, Gillis also always received strong marks on the

review category titled “Teamwork and Customer Service.”11

5 Id. at 68:9–13 (“Q. Did you ever see a succession plan that was in written form? A. I can’t

recall if I saw the written form. But I do believe it does exist, yes.”).

6 Id. at 70:6–11 (“Q. Did you ever have that conversation [regarding the succession plan] with

any board member that you can recall? A. Yes. Q. Which board member or members? A. I

would say Aaron Carter.”).

7 Doc. 27-7, Ex. G (Mar. 17, 2021 Kiessling Dep.) at 47:14–48:4 (“Q. Were you aware of any,

prior to March 6 of 2019, whether STEP had any succession planning in place for when or if

[Traci Lowe] retired or left? A. Only what I was told by Kelly [Gillis]. Q. And what were you

told? A. That her position changed from controller to assistant CFO, and that she would be the

successor to the CFO whenever she retired. Q. And when did that discussion take place? A. I

don’t recall the date, I believe when she became the assistant CFO. Q. So this would have been

prior to March 6 of 2019 when you met with Mr. Plankenhorn? A. Yes.”).

8 Doc. 27-4, Ex. D at 368 (Plankenhorn Dep. Ex. D7 – Oct. 17, 2019 Lowe Letter).

9 Doc. 27-4, Ex. D at 313–57 (Plankenhorn Dep. Ex. D3 – Gillis Performance Reviews); see,

e.g., id. at 316 (“Her expertise and work ethic is top-notch!”), 318 (“Kelly’s work ethic is

exceptional.”).

10 Id.

11 Id. at 314 (April 1, 2017 – March 31, 2018: “Teamwork and Customer Service” rating of

But these positive reviews present an incomplete picture of Gillis’s time at

STEP. Indeed, despite the praise and high marks that Gillis received in her annual

assessments, it seems that Gillis was consistently at loggerheads with her

colleagues in the finance department and, most importantly, with STEP’s senior

management.

For example, in 2016, STEP’s Human Resources Director, Jean Myers,

investigated an “[o]ngoing conflict” between Gillis and an accountant she

supervised, Barb Griffith.12 The conflict came to a head after Griffith submitted a

travel expenses invoice to Gillis, who then returned the invoice to Griffith with

written comments that made Griffith “feel like a 3rd grader.”13 Griffith emailed

Gillis (copying Myers and Lowe), “I have walked on eggshells around you for the

last two months,” explaining, “I feel like you have placed a target on my back, that

is never going to go away.”14 After completing the investigation, Myers

recommended a written warning to Griffith for “insubordination and other

disrespectful conduct,” and “management and/or leadership training” for Gillis.15

rating of “Exceptional – 5”), 318 (October 21, 2014 – October 20, 2015: “Teamwork and

Customer Service” rating of “Exceeds – 4”), 331 (October 21, 2013 – October 20, 2014:

“Teamwork and Customer Service” rating of “Exceeds – 4”), 345 (October 21, 2012 – October

20, 2013: “Teamwork and Customer Service” rating of “Exceeds – 4”).

12 Doc. 27-4, Ex. D at 362–64 (Plankenhorn Dep. Ex. D5 – Mar. 21, 2016 Summary of Fact

Finding).

13 Id. (internal quotation marks omitted).

14 Doc. 27-6, Ex. F (Mar. 16, 2016 Griffith Email).

15 Doc. 27-4, Ex. D at 362–64 (Plankenhorn Dep. Ex. D5 – Mar. 21, 2016 Summary of Fact

Myers concluded that Gillis “lacks some of the necessary skills to deal with

personnel issues.”16

Additionally, by Gillis’s telling, “[o]ver the years,” she “had multiple issues

with leadership including Terry Roller and Jean Myers.”17 Roller is STEP’s former

Chief Strategy Officer (“CSO”) and Chief Executive Officer (“CEO”); as noted,

Myers is STEP’s HR Director.18 According to Gillis, Roller “did not care for [her]

because [she] was not a ‘yes’ man.”19 Gillis asserts that because she has “never

been afraid to voice [her] opinion when it came to what [she] felt was in the best

interest of [STEP],” she experienced “harassment” by Roller through “accusations

that were unfounded and untrue.”20 Gillis claims that she “was never given the

option to defend [herself] as these were always taken to Jim Plankenhorn,” STEP’s

current CEO.21

16 Id.; see also Doc. 27-4, Ex. D at 358 (Plankenhorn Dep. Ex. D4 – Mar. 21 2016 Gillis

Performance Improvement Plan) (noting the following “Areas of Concern”: (1)

“Communication – lack of consistency when communicating with all staff”; (2) “Leadership

– lack of disciplinary actions when necessary including feedback and documentation”; and (3)

“Collaboration – lack of following through on purchasing project”).

17 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

18 Doc. 25 at 19.

19 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

20 Id.

21 Id; see also Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 30:13–31:7 (“[Q.] Any specifics

that you can give me about what Mr. Roller may have discussed with Mr. Plankenhorn that

reflected ultimately Mr. Plankenhorn’s personal feelings toward you? A. Sure. Okay. I know

that there were instances where Terry would tell Jim that he—that I was not working with him,

and I was not providing him with the information that he had requested. I know on one

particular time Traci [Lowe] came to me and asked me about it. And I was able to provide the

documentation to her that I had sent it to Terry. And he did receive everything he had asked

for. And I mean but that was—that was a common occurrence with Terry as far as his

communication with Jim that I’m aware of through Traci.”), 87:21–88:9 (“Q. How would you

Regarding Myers, Gillis asserts that “[o]ver the years, she has done a poor

job in Human Resources but has been rewarded for her lack of performance.”22

Gillis claims that “there have been multiple instances where [she] questioned the

way certain things were being done, and . . . pointed out errors or issues,” but

“[e]very time that this occurred, [Myers] retaliated against [her] or the fiscal

department.”23

As Gillis understands it, “the constant factor in this is Jim Plankenhorn.”24

Gillis explains that “[a]ll of [Myers’s] complaints/accusations were communicated

. . . to Jim Plankenhorn in private meetings, and eventually in meetings with Traci

Lowe,” and, as a result, she “never had the opportunity to defend [herself] for

anything that was said.”25 Although there were no “particular instances with Jim

Plankenhorn directly,” Gillis feels that Plankenhorn “would just take whatever

[Roller and Myers] said at face value,” and, as such, she “assumed that

[Plankenhorn] did not like [her].”26

employed at STEP? A. Difficult. Q. In what sense was it difficult? A. I wasn’t always a yes

man. I would voice my concerns, opinions and sometimes—a lot of times people don’t like

that.”), 176:24–177:17 (“Q. You had issues with Terry Roller, that you’ll acknowledge.

Correct? A. That is correct. . . . Q. And you had issues with him when he was the CEO. Correct?

A. I don’t know. I would not say that, no. I would say that he had issues with me. Q. All right.

So whether you had issues with him or he had issues with you, there were issues between you.

Correct? A. Yes.”).

22 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

23 Id.; see also Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 177:18–23 (“Q. And you had

issues with Jean Myers. Correct? A. Correct. Q. And she was the HR director? A. Yes.”).

24 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

25 Id.

26 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 31:17–24 (“Q. How did that reflect on Mr.

B. The Injury and Exit

On February 8, 2019, Gillis had surgery on her right shoulder to repair a torn

rotator cuff.27 After the surgery, Gillis was unable to perform “all the computer

work” and “handwriting.”28 Accordingly, Gillis applied for paid leave under the

Family and Medical Leave Act (“FMLA”).29 STEP approved Gillis’s FMLA leave,

with a start date of February 11, 2019, and an end date of April 1, 2019.30

While on leave, Gillis applied for a Compliance Manager position with

Woodlands Bank.31 She interviewed for the position on February 26, 2019.32

Six days later, STEP’s CFO, Traci Lowe, unexpectedly submitted her

retirement notice.33 According to Plankenhorn, Lowe’s retirement placed STEP in

a difficult position because “[w]ith her leaving, that [made] three in the Fiscal

Department (one other retirement and one to a better job) departing [STEP] during

the month of March [2019].”34 Indeed, accountant Patti Kiessling provided STEP

reflected Mr. Plankenhorn’s personal feelings toward you? A. I feel that he would just take

whatever they—whatever he said at face value.”), 178:2–24 (“Q. And you had pre-existing

issues with Jim Plankenhorn. Correct? [A.] I assumed that Jim did not like me. There weren’t

particular instances with Jim Plankenhorn directly. Q. Well, you felt that he was listening out

of school if you will to Terry Roller and Jean Myers without betting back to you and you felt

that was inappropriate. Didn’t you? A. Correct. Q. Okay. So you had an issue with that.

Correct? A. Correct.”) (objections omitted).

27 Doc. 31-1, Ex. C (Feb. 8, 2019 Gillis Operative Report).

28 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 65:7–13.

29 Doc. 31-1, Ex. D (Feb. 20, 2019 Plankenhorn Letter).

30 Id.

31 Doc. 27-2, Ex. B at 85 (Gillis Dep. Ex. P7 – Feb. 19, 2019 Gillis Email).

32 Doc. 27-2, Ex. B at 86 (Gillis Dep. Ex. P8 – Feb. 26, 2019 Karney & Gillis Emails).

33 Doc. 26 ¶ 15; Doc. 32 ¶ 15.

34 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email);

see also Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 206:3–7 (“Q. Losing 57 percent

with her resignation letter on February 19, 2019, after receiving an offer to join

Hope Enterprises as their controller.35

Plankenhorn acted quickly to fill the CFO position. Despite the existing

succession plan, Plankenhorn decided not to promote Gillis. He outlined his

reasoning in an email to outside counsel sent February 4, 2019 (i.e., the day Lowe

announced her retirement):

I want to run a scenario past you and get your

perspective. Today Traci Lowe submitted her retirement

resignation effective the end of the month. With her

leaving, that makes three in the Fiscal Department (one

other retirement and one to a better job) departing here

during the month of March!

If you recall, I have provided to you some significant

concerns I have with our current Assistant CFO, Kelly

Gillis. She is a fantastic accountant but does not project

and promote the inter-personal skills I feel . . . necessary

in her current position let alone moving forward if she

were to take on the CFO role. She has rubbed many

people the wrong way, including my HR Chief (Jean

Myers), Terry [Roller] back when he was here, as well as

quite a few program managers/directors. I have spoken

with Traci about my concerns many times over the past

several years and to be quite honest, Traci has not been

able to affect any positive change. It is parament for me

to promote, foster, and require the type of atmosphere

that has both fiscal and operations working together as a

cohesive team. Based upon all my observations, while

there are some in operations that are not the most

capable, they have good attitudes and are willing to work

35 Doc. 27-7, Ex. G (Mar. 17, 2021 Kiessling Dep.) at 39:15–40:1 (“Q. So backing up, you were

offered the job at Hope Enterprises of controller in February of 2019. Correct? A. Yes. Q. And

then did you put in your resignation letter with STEP? A, Yes. Q. And do you know the date

of that or the approximate date? A. I believe it was President’s Day, so, what, February 18, 19,

together. In my opinion, while Kelly may be highly

capable, she lacks the people skills and therefore I cannot

trust or have confidence in her ability to lead the way I

feel the department or the agency needs to be lead.

All that said, I am not planning to consider Kelly moving

into Traci’s role.

What I am thinking about doing, however, is talking with

Patti Kiessling about the position. Patti is the one person

leaving (last day at the end of this week) and of course, is

supervised by Kelly. Patti has great potential.

Do you feel I have any obligation (from a risk

management perspective) to offer the position to Kelly?

Trust me, I fully expect there could/will be more fallout

from the decision not to consider Kelly. I also expect she

will move on and try to hurt me and/or the agency in the

process. However, I feel strongly that for STEP to move

forward and have the type of respectful

culture/environment I feel is necessary, I cannot see

promoting her into a more responsible position. Bottom

line, we might take a step or two more backwards before

we go forwards. I guess I am willing to do this.36

Consistent with this email, Plankenhorn reached out to Kiessling and asked

if she was interested in the CFO position.37 Kiessling has a bachelor’s degree in

business administration / accounting and, as of March 2019, had been an

accountant at STEP for approximately six years.38 Prior to that, she served as the

Chief Financial Officer of the Hutchinson Real Estate Development Company,

Director of Finance / Assistant Treasurer of Webb Communications Inc., and VP

36 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email).

37 Doc. 26 ¶ 18; Doc. 32 ¶ 18.

of Finance and Administration at JA Webb Inc.39 That said, Gillis considered (and

considers) Kiessling unqualified for the role because “[s]he did not have any

experience with preparing the financial statements and in particular the SEFA, the

scheduled expenditures of federal awards, which is imperative in that position [i.e.,

CFO].”40 Regardless, Plankenhorn offered Kiessling the job, and she accepted.41

On the morning of March 7, 2019—unaware that Plankenhorn had already

decided to offer the CFO position to Kiessling—Gillis emailed Plankenhorn to

inquire about the opening:

Traci and I spoke about whether or not I have interest in

the CFO position. Before I decide either way, I would

like to get your perspective on what your plans are in

filling the position. If I decide that I am interested in

pursuing the position, would the succession plan that has

been in place be followed or is it your intention to

advertise the position for a third party or another

individual to fill it?

If you could let me know, I’d greatly appreciate it.42

Less than forty-five minutes later, Plankenhorn sent Gillis a separate email

informing her the job was going to Kiessling:

Sorry to be contacting you this way but I’m trying to be

respectful of your FMLA and not sure when you are or

are not working. I would prefer to speak to you in person

but the timing of this is extremely critical and it is very

39 Id.

40 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 78:16–79:2.

41 Doc. 26 ¶ 25; Doc. 32 ¶ 25; Doc. 27-4, Ex. D at 371–72 (Plankenhorn Dep. Ex. D9 – Mar. 8,

2019 Plankenhorn Email).

important to me to do things in an as appropriate and

confidential manner possible.

I just wanted to let you know that after giving it a

tremendous amount of thought and consideration, I

offered the CFO position to Patti [Kiessling]. She did

accept and will assume the role effective March 30.43

Gillis wrote back, “Wow, I’m surprised that this decision was made without even

speaking to me about it before hand. I’m not happy about this turn of events, but

ultimately it is your decision.”44 And an hour later, responding to a separate email

from Plankenhorn, Gillis emailed Plankenhorn and Lowe that “[a]s soon as I have

the final draft of the audit to the auditors, I will be using my FMLA as much as

possible and will only work when absolutely necessary so that I can concentrate on

my physical therapy and recovery from here on out.”45

Later that day, Plankenhorn sent Gillis the following text message:

Hey Kelly – I just wanted to let you know, based upon

my desire to ensure you can focus on what’s most

important, your recovery, I asked [Gene Good (STEP,

Chief of IT)] to take you off the network. You said you

need to concentrate on therapy and recovery and I agree

100% and don’t want us asking or expecting work from

you during this time. Please let HR know what

availability you have and we’ll go from there. Thanks –

Jim.46

43 Doc. 27-2, Ex. B at 96–97 (Gillis Dep. Ex. P13 – Mar. 7, 2019 J. Plankenhorn & K. Gillis

Emails).

44 Id.

45 Doc. 27-2, Ex. B at 73 (Gillis Dep. Ex. P4 – Mar. 7, 2019 Gillis & Plankenhorn Emails).

46 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019 Plankenhorn &

Gillis responded, “Jim, I appreciate that but at the same time, my FMLA

paperwork clearly states that I can answer emails, etc. If you feel this is in the best

interest for the agency, then that is fine but I can’t guarantee that many

requirements of grants, etc will be taken care of if I don’t have access to email.”47

The following morning, Plankenhorn emailed his outside counsel an update

on the situation:

I offered the CFO position to the [Kiessling], and she

accepted.

As predicted, this has made [Gillis] very upset. She is out

on FMLA and cleared to work part-time from home. She

quickly communicated to me and Traci (e-mail) that she

should only be asked to work if absolutely necessary as

she needs to focus her attention on her recovery and

therapy. She also asked Traci to come to her home and

pick up the files she was working on. With that

statement, that action, and as upset as she is to the

information, I had her locked out of the fiscal database,

including our network (e-mail, work files, etc.). I felt

(feel) there may a risk to the agency.

Couple of questions – We can lock her out of the fiscal

database but give her access to e-mails. Your thoughts on

doing that? My response to her this morning was going to

be, quite simply, I will have all her e-mails come to me

and I would monitor them for any grant announcements,

etc. This was her concern, that she wouldn’t be able to

monitor these things.

I’d like to hear your thoughts on whether I can and

should take a snapshot of her e-mail traffic before I give

her access back to them. If we do decide to give her

access. I am just wondering if that is prudent and

allowable. I am hesitant to go this route as I promote and

adhere to confidentiality and privacy as much as possible.

Just wondering your thoughts on this and maybe my next

comment/question will help you see my direction.

I am at a point where I feel very strongly that she should

not be an employee of STEP. As good of an accountant

as she is, I am not comfortable with all the many negative

aspects of her inter-personal working skills, personality,

and what I believe to be control issues. We, as an

organization, I believe, cannot move forward with her

here. I’d like to hear your thoughts on whether you feel I

am in a position to break the working relationship. I

know there is significant risk in the sense that this will

just start the next chapter of the relationship…legal.

As I mentioned she is currently out on FMLA and I really

don’t expert her back until the 12 weeks is up. It’s hard to

gauge that right now since she has been cleared to work

from home…maybe April. I am assuming anything we

are strategizing now might need to wait until she comes

back and I am fine with that.48

After speaking with his attorney, Plankenhorn sent Gillis an additional text:

Kelly – After talking with the attorney, the plan is for us

to monitor your e-mails too. And for consistency, I went

ahead and had Jeff deactivate your key fob for now too.

As you communicated, and I agree, your priority is and

should be your therapy and recovery. If anything comes

up that we consider to be absolutely necessary, we’ll

contact you through the phone. Please keep HR updated

on your situation and I look forward to you coming back

with no restrictions.49

48 Doc. 27-4, Ex. D at 371–72 (Plankenhorn Dep. Ex. D9 – Mar. 8, 2019 Plankenhorn Email).

49 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019 Plankenhorn &

Consistent with these messages, Plankenhorn revoked Gillis’s access to STEP’s

network (which included her work email address) and deactivated her office key

fob, which allowed her to enter the STEP building.50

On March 12, 2019, Woodland Bank offered Gillis the Compliance Officer

position she applied for in February.51 Gillis accepted and then promptly sent Traci

Lowe her resignation letter, explaining, “Unfortunately, fulfilling my duties to the

ethical and moral standards that are necessary has become inherently more difficult

due to Mr. Plankenhorn’s personal feelings towards me, which has resulted in

creating a hostile work environment.”52 The letter makes no mention of her

disability and does not attribute either Plankenhorn’s “personal feelings towards

[her]” or the alleged “hostile work environment” to her decision to take FMLA

leave.53

On March 19, 2019, a STEP representative contacted the regional office of

Head Start—the federal early childhood education program that provides STEP

50 Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 250:6–14 (“Q. And in response to that

e-mail that you received, you also revoked her e-mail at STEP. Correct? A. That is correct. Q.

And you also deactivated her key fob to get entry to the building. Is that correct? A. That is

correct.”), 252:1–20 (“Q. And—and what type of threat are we—are we talking about here?

So let’s—you revoked her e-mail access. So you didn’t want her communicating with anybody

at STEP. Correct? A. My understanding is I revoked her network access, which included e-

mail. So we monitored the e-mails, Ms. Lowe monitored the e-mails. So she didn’t have access

to the network, which would include, you know, the personnel pieces to the fiscal files. And

whatever—whatever information is included in that, payroll. So, yes, she had access to a lot of

sensitive information. And so revoking access to the network, I believe, was also revoked

access to the e-mail, in that sense.”).

51 Doc. 27-2, Ex. B at 88–90 (Gillis Dep. Ex. P9 – Gillis, Karney, & Farley Emails).

52 Doc. 27-2, Ex. B at 52 (Gillis Dep. Ex. P1 – Mar. 12, 2019 Gillis Resignation Letter).

funding for its educational programming54—to disclose that Lowe was set to retire

at the end of the month.55 STEP asked whether “there [is] something we need to do

or submit in the hiring process,” and Head Start responded, “Once you have a

candidate in mind, submit a key hire request to the [Regional Office].”56 The

following day, Plankenhorn sent a letter to the Head Start Regional Office

“requesting approval for the replacement of the current STEP CFO,” explaining

that Kiessling “is the person I feel is most qualified.”57 Plankenhorn attached

Kiessling’s resume and thanked Head Start for its consideration.58 Head Start

approved Kiessling as STEP’s new CFO on April 10, 201959—approximately two

weeks after Kiessling started in that role.60

According to Gillis, her doctor allowed her to work half days starting April

3, 2019.61 STEP then lifted at least some of her work restrictions,62 and Gillis

54 Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 286:15–20 (“Q. And I think you told

me earlier that the programs that STEP helps provide with the Head Start funding are for

young, early education programs? A. Correct.”).

55 Doc. 27-4, Ex. D at 387–93 (Plankenhorn Dep. Ex. D.14 – Mar. 19, 2019 Romero, Hawk,

Abbott, & Plankenhorn Email Chain).

56 Id.

57 Doc. 27-4, Ex. D at 394 (Plankenhorn Dep. Ex. D15 – Mar. 20, 2019 Plankenhorn Letter to

Romero).

58 Id.

59 Doc. 27-4, Ex. D at 383–85 (Plankenhorn Dep. Ex. D12 – Apr. 10, 2019 STEP Head Start

Policy Council Minutes).

60 See Doc. 27-2, Ex. B at 96–97 (Gillis Dep. Ex. P13 – Mar. 7, 2019 J. Plankenhorn & K. Gillis

Emails) (Plankenhorn explaining that he offered the CFO position to Patti [Kiessling], and she

“accept[ed] and will assume the role effective March 30”).

61 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

62 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 54:22–55:2 (“Q. Did you physically return to

working at STEP at STEP’s offices? A. I did. Q. And at that point in time did you have

restrictions in your access to information? A. Not at that time, no. Q. So the restrictions and

“returned to work and completed everything that was asked of [her]” before she

officially left the organization on April 9, 2019.63

C. Procedural Posture

On July 8, 2019, Gillis filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”), alleging retaliation and

disability discrimination.64 In preparation for her initial interview with the EEOC,

Gillis prepared a summary of “[i]mportant [b]ack story details” that included the

“multiple issues with [STEP] leadership” she had “[o]ver the years”—which, she

wrote, “resulted in harassment” and “retaliat[ion]”—but emphasized that “[t]he

main issue at hand is the violation by Jim Plankenhorn of [her] rights under the

Americans with Disabilities Act.”65 According to STEP, the EEOC dismissed

Gillis’s complaint on January 7, 2020, “determining that based on the information

provided it could not establish violations of the statutes.”66

physically reporting on site. Is that fair to say? A. Actually can—I do believe that my access

to the accounting system was never reinstated. I do believe that is accurate.”), 58:22–59:5 (“Q.

And then when you went back to STEP at the physical premises you were able to access at

least some of your records? A. Correct. Q. And that would have been different from the

situation when you were at home? A. Yes.”).

63 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint).

64 Doc. 27-1, Ex. A (July 8, 2019 Charge of Discrimination).

65 Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint); see

also Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 123:11–17 (“Q. And is this something that

you presented to the EEOC as part of your complaint process? A. I am not sure if I presented

[it] to the EEOC or just had it with me to summarize. I don’t know if I gave them a copy or

not. I can’t remember.”).

The EEOC then issued Gillis a Notice of Right to Sue,67 and she obliged,

filing her four-count Complaint on March 12, 2020, alleging violations of Title VII

of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the

FMLA, and the Pennsylvania Human Relations Act (“PHRA”).68 After the parties

completed discovery, STEP filed a motion for summary judgment.69 That motion

has been fully briefed and is now ripe for disposition.70

II. LAW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “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.”71 Material facts are

those “that could alter the outcome” of the litigation, “and disputes are ‘genuine’ if

evidence exists from which a rational person could conclude that the position of

the person with the burden of proof on the disputed issue is correct.”72 A defendant

“meets this standard when there is an absence of evidence that rationally supports

the plaintiff’s case.”73 Conversely, to survive summary judgment, a plaintiff must

67 Id.

68 Doc. 1 ¶¶ 47–52 (Count I – Title VII), 53–58 (Count II – ADA), 59–64 (Count III – FMLA),

65–69 (Count IV – PHRA).

69 Doc. 24.

70 Doc. 25; Doc. 31; Doc. 35.

71 Fed. R. Civ. P. 56(a).

72 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

“point to admissible evidence that would be sufficient to show all elements of a

prima facie case under applicable substantive law.”74

The party requesting summary judgment bears the initial burden of

supporting its motion with evidence from the record.75 When the movant properly

supports its motion, the nonmoving party must then show the need for a trial by

setting forth “genuine factual issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in favor of either party.”76 The

nonmoving party will not withstand summary judgment if all it has are “assertions,

conclusory allegations, or mere suspicions.”77 Instead, it must “identify those facts

of record which would contradict the facts identified by the movant.’”78

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”79 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”80 Moreover, “[i]f a party fails to properly support an assertion

of fact or fails to properly address another party’s assertion of fact as required by

Rule 56(c),” the Court may “consider the fact undisputed for purposes of the

74 Id.

75 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

76 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

77 Betts v. New Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010).

78 Port Authority of N.Y. and N.J. v. Affiliated FM Insurance Co., 311 F.3d 226, 233 (3d Cir.

2002).

79 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

442, 448 (1871)).

motion.”81 Finally, although “the court need consider only the cited materials, . . . it

may consider other materials in the record.”82

III. ANALYSIS

Gillis asserts that STEP discriminated and retaliated against her in two ways:

(1) STEP’s “refusal to promote her and/or denial of the opportunity to be

considered for the position of CFO was motivated by her exercising her FMLA

right to leave and/or her disability”; and (2) Plankenhorn, STEP’s CEO, “retaliated

against her utilizing her FMLA leave by revoking her email access, revoking her

access to financial databases, and locking her out of the building.”83 According to

Gillis, this “discriminatory and retaliatory conduct” violated the FMLA, ADA, and

PHRA.84

To prevail on her retaliation claim under the FMLA, Gillis “must show that

(1) [she] took an FMLA leave, (2) [she] suffered an adverse employment decision,

81 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613–14 (3d

Cir. 2018).

82 Fed. R. Civ. P. 56(c)(3).

83 Doc. 31 at 7.

84 As noted, Gillis’s Complaint also includes a Title VII claim. See Doc. 1 ¶¶ 47–52 (Count I –

Title VII). Title VII makes it unlawful for an employer to “discriminate against any individual

. . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §

2000e–2(a)(1). But the Complaint contains no allegations about, and discovery exposed no

evidence of, discrimination on the basis of race, color, religion, sex, or national origin. Indeed,

in her Opposition to STEP’s motion for summary judgment, Gillis makes no mention of her

Title VII claim. See Doc. 31 at 1 (“Defendant’s discriminatory and retaliatory conduct . . .

violated the Americans with Disabilities Act, the Family Medical Leave Act, and the

Pennsylvania Human Relations Act.”) (internal citations omitted). Accordingly, Count I does

and (3) the adverse decision was causally related to [her] leave.”85 For her claims

under the ADA and PHRA, Gillis needs to establish that “(1) [she] is a disabled

person within the meaning of the ADA; (2) [she] is otherwise qualified to perform

the essential functions of the job, with or without reasonable accommodations by

the employer; and (3) [she] has suffered an otherwise adverse employment

decision as a result of discrimination.”86

For claims of discrimination and retaliation under the FMLA, ADA, and

PHRA, courts apply different legal standards based on the type of evidence the

plaintiff presents. Specifically, “claims based on circumstantial evidence have been

assessed under the burden-shifting framework established in McDonnell Douglas

Corp. v. Green, while claims based on direct evidence have been assessed under

the mixed-motive framework set forth in Price Waterhouse v. Hopkins.”87 Here,

Gillis asserts that she has established direct evidence of discrimination,88 and,

alternatively, that she has presented sufficient circumstantial evidence to establish

discrimination under the more taxing McDonnell Douglas standard.89 The Court

addresses each argument in turn.

85 Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).

86 Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d Cir. 1999); see also id.

(explaining that it “will only discuss [the plaintiff’s] ADA claim because [its] analysis of an

ADA claim applies equally to a PHRA claim”).

87 Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 302 (3d Cir. 2012)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Price Waterhouse v.

Hopkins, 490 U.S. 228, 276–78 (1989) (O’Connor, J., concurring)).

88 Doc. 31 at 10–15.

A. Direct Evidence

Under the Price Waterhouse direct evidence analysis, courts assess first

whether the plaintiff presents direct evidence of discrimination “so revealing of

discriminatory animus that it is unnecessary to rely on the McDonnell Douglas

burden-shifting framework.”90 If a plaintiff produces direct evidence, “the

defendant has the burden of producing evidence to show that it would have made

the same decision in the absence of discriminatory animus.”91 A defendant’s failure

to carry this burden compels the court to conclude that it made the adverse

employment decision “because of” consideration of the illegitimate, discriminatory

factor.92

The Third Circuit holds that to qualify as direct evidence of discrimination,

the plaintiff’s proffered evidence “must be sufficient on its own to allow a

factfinder to determine that [the illegitimate factor] was the but-for cause of the

[employment] decision.”93 Put differently, direct evidence “must prove the

existence of the fact in issue without inference or presumption.”94 When the

plaintiff asks to trier of fact to “infer the discrimination . . . from an employer’s

90 Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 269 (3d Cir. 2010) (internal quotation

marks, brackets, and citation omitted).

91 Id.

92 Price Waterhouse, 490 U.S. at 277 (O’Connor, J., concurring).

93 Palmer v. Britton Industries, 662 F. App’x 147, 150 (3d Cir. 2016).

94 Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (internal quotation marks, brackets, and

remarks,” the evidence “is not direct.”95 As one might expect, this is no easy task:

the Third Circuit describes this as a “high hurdle” for plaintiffs.96

Here, Gillis asserts “there is no dispute that Mr. Plankenhorn, the decision-

maker, took adverse employment action, i.e., revoking [Gillis’s] access, in

response to her statement that she would be exercising her FMLA leave.”97

According to Gillis, “[t]he statements are also sufficiently factually and temporally

connected to the hiring of the CFO to demonstrate a discriminatory motive.”98 But

Gillis is wrong on both fronts.

As a preliminary matter, Gillis offers no direct evidence that STEP’s

decision to promote Kiessling, rather than Gillis, to CFO was motivated by either

Gillis’s decision to take FMLA leave or her disability. Gillis asks the Court to infer

discriminatory intent based on Plankenhorn’s subsequent decision to revoke

Gillis’s access to STEP’s network and building. But inferences are, by definition,

circumstantial evidence—not direct evidence.99 Accordingly, any claims of

discriminatory retaliation based on STEP’s refusal to promote Gillis must be

considered under the McDonnell Douglas burden-shifting framework.

95 Id.

96 Palmer, 662 F. App’x at 150; see also Anderson, 621 F.3d at 269 (“We have referred to these

requirements as creating a ‘high hurdle’ for plaintiffs.”).

97 Doc. 31 at 14.

98 Id.

Additionally, STEP adamantly denies Gillis’s claim that it’s decision to

revoke her access to the organization’s network and building was motivated by

discriminatory animus.100 Gillis’s assertion that STEP conceded this point is

simply disingenuous. As such, the Court must analyze the evidence presented and

determine whether it constitutes direct evidence of discriminatory intent. The Court

has done so and concludes it does not.

During his deposition, Plankenhorn testified that he revoked Gillis’s network

and building access for two reasons: (1) respect for Gillis’s request to focus solely

on her recovery; and (2) concern that Gillis, disgruntled after being denied

promotion, might retaliate against the organization.101 This explanation comports

with the relevant communications contemporaneous to Plankenhorn’s decision to

revoke Gillis’s access. Specifically, on March 8, 2019, after receiving Gillis’s

email stating that she “will be using [her] FMLA as much as possible and will only

100 See Doc. 25 at 15 (asserting that retaliation for the decision to revoke Gillis’s access to the

organization’s network and building “was business based—a concern that disgruntled Gillis

would retaliate—and not discriminatory”) (citing Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn

Dep.) 249:15–252:25.).

101 See Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) 250:6–251:5 (“Q. And in response to”

Gillis’s March 7, 2019 email stating that she will work only when absolutely necessary so she

can focus on her recovery, “you also revoked her e-mail at STEP. Correct? A. That is correct.

Q. And you also deactivated her key fob to get entry to the building. Is that correct? A. That is

correct. Q. And why did you do that? A. So based on her response when I did provide her with

the information about Ms. Kiessling being the new CFO, and when she responded back to me

that while ultimately it was my decision, she was also displeased with that. You know, I did

have concern about the materials and information that she had access to. And so really out of

respect to that, I felt like it was in the best interest of the agency. And also it gave her an

work when absolutely necessary so that [she] can concentrate on [her] physical

therapy and recovery from here on out,”102 Plankenhorn texted Gillis the following:

[B]ased upon my desire to ensure you can focus on

what’s most important, your recovery, I asked Gene to

take you off the network. You said you need to

concentrate on therapy and recovery and I agree 100%

and don’t want us asking or expecting work from you

during this time. Please let HR know what availability

you have and we’ll go from there.103

That same day, Plankenhorn described the events at issue in an email to his

attorney:

I offered the CFO position to [Kiessling], and she

accepted. As predicted, this has made [Gillis] very upset.

She is out on FMLA and cleared to work part-time from

home. She quickly communicated to me and Traci (e-

mail) that she should only be asked to work if absolutely

necessary as she needs to focus her attention on her

recovery and therapy. She also asked Traci to come to

her home and pick up the files she was working on. With

that statement, that action, and as upset as she is to the

information, I had her locked out of the fiscal database,

including our network (e-mail, work files, etc.). I felt

(feel) there may a risk to the agency.104

In none of the emails, text messages, or deposition testimony Gillis cites does

Plankenhorn provide the type of explicit acknowledgement of discriminatory intent

required to establish direct evidence under Price Waterhouse.105

102 Doc. 27-2, Ex. B at 73 (Gillis Dep. Ex. P4 – Mar. 7, 2019, Gillis & Plankenhorn Emails).

103 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019, Plankenhorn &

Gillis Text Messages).

104 Doc. 27-4, Ex. D at 371–72 (Plankenhorn Dep. Ex. D9 – Mar. 8, 2019 Plankenhorn Email).

105 Contra Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3d Cir. 1998) (holding that call

from employer’s human resources representative “terminating Deane because of her

Gillis is entitled to argue that the Court should infer from the timing of the

adverse actions and the insinuations implicit in Plankenhorn’s statements that the

actions were discriminatory. However, inferences from coincidental timing and

insinuations from arguably suggestive language are not direct evidence.106 As such,

Gillis’s claims of discrimination based on Plankenhorn’s decision to revoke her

access to STEP’s network and building must instead be considered under the

McDonnell Douglas burden-shifting framework as well.

B. Circumstantial Evidence

The McDonnell Douglas framework unfolds in three steps. The plaintiff

must first establish a prima facie case of discrimination.107 If the plaintiff makes

out a prima facie case, the evidentiary burden of production shifts to the employer

to present a legitimate, non-discriminatory reason for the adverse action.108 And if

the defendant makes this showing, “the burden shifts back to the plaintiff to

demonstrate that the employer’s proffered explanation was false, and that

retaliation was the real reason for the adverse employment action.”109 Importantly,

action because of her employer’s perception of her disability”); Deneen v. Northwest Airlines,

132 F.3d 431, 434, 436 (8th Cir. 1998) (holding that plaintiff, who prevented from returning

to work because she was pregnant, presented direct evidence of discriminatory intent by

showing that her manager explicitly stated that she could not return to work “because of her

pregnancy complication”); U.S. Equal Opportunity Commission v. Bob Evans Farms, LLC,

275 F. Supp. 3d 635, 654–55 (W.D. Pa. 2017) (holding that plaintiff presented direct evidence

of discrimination because the manager explicitly stated that the plaintiff’s pregnancy was the

reason why he took the adverse action).

106 Torre, 42 F.3d at 829.

107 Daniels v. School District of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015).

108 Id.

the shifting burden concerns only the evidentiary burden of production; “the

plaintiff has the ultimate burden of persuasion at all times.”110

Using this rubric, the Court finds that although Gillis presents a prima facie

case of discrimination, STEP offers legitimate, non-discriminatory reasons for the

alleged adverse actions that Gillis does not impugn or expose as simply pretextual.

Accordingly, summary judgment is proper.

1. Prima Facie Case

As discussed, to establish a prima facie case of retaliatory discrimination

under the FMLA, Gillis must show (1) she is protected under the FMLA, (2) she

suffered an adverse employment decision, and (3) the adverse decision was

causally related to Gillis’s exercise of her FMLA rights.111 Relatedly, to set forth a

prima facie case under the ADA and PHRA, Gillis needs to establish “(1) [she] is a

disabled person within the meaning of the ADA; (2) [she] is otherwise qualified to

perform the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) [she] has suffered an otherwise adverse

employment decision as a result of discrimination.”112 Here, STEP argues only that

Gillis fails to show (a) she suffered an adverse employment action, and (b) a causal

110 Id.

111 Capps v. Mondelez Global, LLC, 847 F.3d 144, 151 (3d Cir. 2017).

link between any such action and her disability or FMLA leave.113 But the Court

finds both arguments unconvincing.

a. Adverse Employment Action

For purposes of the FMLA, ADA, and PHRA, an employment action

qualifies as “adverse” if it is “serious and tangible enough to alter an employee’s

compensation, terms, conditions, or privileges of employment.”114 Here, STEP

argues that neither its refusal to promote Gillis nor the restrictions imposed on her

access to the organization’s network and building constitute “adverse employment

actions.”115 In response, Gillis simply pretends that STEP admits that the disputed

decisions qualify as adverse employment actions, asserting there “is no dispute that

[Gillis] was protected under the FMLA, or that the alleged discriminatory conduct

can be categorized as adverse employment decisions.”116 But that’s not true. The

Court finds this tactic (which Gillis employs repeatedly) confusing and unhelpful:

baldly stating that certain issues are not in dispute when they are, in fact, disputed

does no service to her case. Moreover, it’s unnecessary—both employment actions

are sufficiently “serious and tangible” to qualify as “adverse.”117

113 See Doc. 25 at 11–14; Doc. 35 at 4–8.

114 Cunningham v. Nordisk, 615 F. App’x 97, 100–02 (3d Cir. 2015) (citing Storey v. Burns

International Security Services, 390 F.3d 760, 764 (3d Cir. 2004)).

115 Doc. 25 at 14 n.3; Doc. 35 at 4–7.

116 Doc. 31 at 7.

First, STEP argues that Gillis fails to show that its decision to promote

Kiessling, rather than Gillis, to CFO constitutes an adverse employment action

because Gillis never applied for the position.118 According to STEP, in Gillis’s

“first inquiry with Mr. Plankenhorn about the position she was outwardly unsure if

she would apply.”119

But STEP ignores two important considerations: (1) prior to Gillis taking

FMLA leave, the organization established a “succession plan” that designated

Gillis as the intended replacement as CFO upon Staci Lowe’s retirement;120 and

(2) Plankenhorn did not inform Gillis of the CFO vacancy until after he selected

Kiessling as Lowe’s replacement.121 This is not a situation where Gillis knew of

the opening but declined to apply either because it was not publicly posted122 or

because she felt applying would be futile.123 Here, Gillis was never given a chance

to apply—a fact exacerbated by her understandable belief that she was assured the

118 Doc. 25 at 14 n.3 (citing Bates v. Tandy Corp., 186 F. App’x 288, 293–94 (3d Cir. 2006) (prima

facie case for failure to promote claim requires application and rejection to establish adverse

action)).

119 Id. (citing Doc. 27-2, Ex. B at 95 (Gillis Dep. Ex. P12 – Mar. 7, 2019, Gillis Email)).

120 Doc. 27-4, Ex. D at 368 (Plankenhorn Dep. Ex. D7 – Oct. 17, 2019 Lowe Letter) (Lowe: “The

Assistant Chief Financial Officer position was created to be an extension of the responsibilities

of the [CFO], act on behalf of the CFO when the CFO was not present, and ultimately to

succeed the CFO.”).

121 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019 Plankenhorn &

Gillis Text Messages).

122 See McLintock v. City of Philadelphia, 504 F. Supp. 3d 411, 423 (E.D. Pa. 2020) (holding that

employer’s decision not to appoint plaintiff as CFO “was not an adverse employment action”

because plaintiff “knew of the opening but declined to apply because it was not publicly

posted”).

123 See Bates, 186 F. App’x at 293–94 (affirming district court holding that plaintiffs “cannot state

a prima facie case of failure to promote” when they never applied because they felt “doing so

position due to the existing succession plan. Given these circumstances, denying

Gillis an opportunity for recovery because she did not apply for the job would be

perverse.

Second, STEP argues that Gillis cannot show that Plankenhorn’s decision to

temporarily restrict her access to the organization’s network and building was

“sufficiently severe” to constitute an adverse employment action.124 STEP explains

that its “email and facility access limitation occurred after [Gillis] had indicated

her desire (after the promotion decision was made) to restrict her work from home

while on leave,” and that “there is no evidence in this record showing that Gillis

ever reacted to, or complained about[,] this decision when it occurred, that it was

somehow preventing her from doing her job, or that she was unable to complete

work on the audit as referenced in her email.”125 Further, STEP emphasizes that

“Gillis returned to duty at STEP following her leave with continuing physical

restrictions, as she was working half-days, but she had access to all the information

she needed.”126

But the Court finds this argument unpersuasive. While Gillis was on leave,

Plankenhorn prevented her from accessing the network or entering the building,

and either directly monitored or revoked her access to her emails.127 Gillis

124 Doc. 35 at 4–7.

125 Id. at 5–6.

126 Id. at 6.

127 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019 Plankenhorn &

challenged the need for these restrictions, noting that her “FMLA paperwork

clearly states that [she] can answer emails, etc.” and expressed concern about

certain grant requirements that fell under her purview.128 But Plankenhorn

dismissed these concerns and decided to impose the restrictions.129 Although there

is a factual dispute about the extent to which these restrictions continued after

Gillis returned from FMLA leave,130 it is firmly established that STEP completely

denied Gillis access to STEP’s network and building while she was on leave

starting March 7, 2019.131 STEP cites no case law supporting its position that

completely denying an employee access to her work materials and location is

somehow not “serious and tangible enough to alter an employee’s . . . terms,

conditions, or privileges of employment.”132 That is unsurprising as this position is

patently unsupportable.

128 Id.

129 Id.

130 Compare Doc. 35 at 6 (arguing that “Gillis returned to duty at STEP following her leave with

continuing physical restrictions, as she was working half-days, but she had access to all the

information she needed”) (citing Doc. 27-2, Ex. B at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019

Gillis EEOC Complaint), with Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 58:22–59:5 (“Q.

And then when you went back to STEP at the physical premises you were able to access at

least some of your records? A. Correct. Q. And that would have been different from the

situation when you were at home? A. Yes.”).

131 See Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 250:6–14 (“Q. And in response to

that e-mail you received, you also revoked her e-mail at STEP. Correct? A. That is correct. Q.

And you also deactivated her key fob to get entry to the building. Is that correct? A. That is

correct.”), accord Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 57:25–58:6 (“Q. When you

were home on FMLA around March of 2019 when you resigned, March 12 of 2019, you talked

about an even where your access was denied. Was it completely denied? A. Yes.”).

Accordingly, the Court finds that both STEP’s refusal to promote Gillis and

its decision to revoke her network and building access constitute “adverse

employment actions” for purposes of the FMLA, ADA, and PHRA.

b. Causation

The Third Circuit instructs that “[t]o establish the requisite causal

connection a plaintiff usually 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.”133 Here, Gillis argues

that the timing of both STEP’s refusal to promote her to CFO and Plankenhorn’s

decision to revoke her access to the organization’s network and building “provides

an inference of discrimination.”134 The Court agrees.

First, there is the refusal to promote. Before Gillis suffered her injury and

took FMLA leave, STEP established a succession plan that placed Gillis first in

line to replace the organization’s CFO, Staci Lowe, upon her retirement.135 Then,

while Gillis was on FMLA leave recovering from surgery, Lowe retired and STEP

133 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

134 Doc. 31 at 8–9.

135 Doc. 27-4, Ex. D at 368 (Plankenhorn Dep. Ex. D7 – Oct. 17, 2019 Lowe Letter) (Lowe: “The

Assistant Chief Financial Officer position was created to be an extension of the responsibilities

of the [CFO], act on behalf of the CFO when the CFO was not present, and ultimately to

abandoned its successful plan, promoting Kiessling (an accountant who, at the

time, reported to Gillis) just two days after Lowe submitted her retirement letter.136

The unusually suggestive nature of the timing is further reinforced by

Plankenhorn’s actions vis-à-vis Head Start. As Gillis notes, on March 19, 2021, an

official at Head Start asked STEP to submit a “key hire” request once it had a

“candidate in mind.”137 Although STEP announced on March 7, 2019, that

Kiessling accepted the CFO position and would be starting on March 30, 2019,138

Plankenhorn wrote to Head Start on March 20, 2019, “requesting approval for the

replacement of the current STEP CFO.”139 The Head Start Policy Council

ultimately approved Kiessling as the new STEP CFO on April 10, 2019—two

weeks after she started in that role.140

STEP responds that the timing of the decision to pass over Gillis for the

CFO position “was merely coincidence,” as “the promotion only opened because

of the sudden retirement notice by the sitting CFO” and the summary judgment

136 Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 247:6–13 (“Q. And [on March 4, 2019]

Ms. Gillis was working modified duty. Is that correct? A. That is correct. Q. And was it the 6th

or the 7th when Ms. Kiessling was offered the position? A. I believe it would be the 6th.”).

137 Doc. 32-1 (Gillis’s Statement of Additional Material Facts) ¶ 90 (citing Doc. 27-4, Ex. D at

387–93 (Plankenhorn Dep. Ex. D.14 – Mar. 19, 2019 C. Romero, C. Hawk, R. Abbott, & J.

Plankenhorn Email Chain)).

138 Doc. 27-2, Ex. B at 96–97 (Gillis Dep. Ex. P13 – Mar. 7, 2019 J. Plankenhorn & K. Gillis

Emails) (Plankenhorn to Gillis: “I offered the CFO position to Patti [Kiessling]. She did accept

and will assume the role effective March 30.”).

139 Doc. 27-4, Ex. D at 394 (Plankenhorn Dep. Ex. D15 – Mar. 20, 2019 Plankenhorn Letter to

Romero).

140 Doc. 27-4, Ex. D at 383–85 (Plankenhorn Dep. Ex. D.12 – Apr. 10, 2019 STEP Head Start

record “shows no facts demonstrating that STEP’s management had any role in

[Staci] Lowe’s decision to retire when she did.”141 But on this, STEP jumps the

gun. It will have an opportunity to offer a legitimate, non-discriminatory

explanation for its action; however, this explanation for the “unusually suggestive

temporal proximity between the protected activity and the allegedly retaliatory

action” (even if true) does not negate this Court’s finding that the temporal

proximity is, in fact, unusually suggestive.142

Second, Plankenhorn revoked Gillis’s access to STEP’s network and

building immediately after she informed him that she would be taking her full

FMLA leave.143 Again, there may be a perfectly valid, non-retaliatory explanation

for this action, but that’s not the question here. At this stage in the McDonnell

Douglas analysis, Gillis needs only to show that the alleged retaliatory action

(revoking access) was sufficiently close in time to the protected activity (taking

FMLA leave) to create an inference of discrimination. Gillis has met this burden.

141 Doc. 25 at 12; see also Doc. 35 at 8 (arguing that Gillis “has only shown that someone else

received a promotion to which she felt entitled, while [she] was coincidentally on FMLA

leave,” which, according to STEP, “is not enough to meet the causation requirement of her

prima facie burden”).

142 DeFlaminis, 480 F.3d at 267.

143 See Doc. 27-2, Ex. B at 73 (Gillis Dep. Ex. P4 – Mar. 7, 2019 Gillis & Plankenhorn Emails)

(Gillis informing Plankenhorn that she “will be using her FMLA as much as possible and will

only work when absolutely necessary”); Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex.

D10 – Mar. 7–8, 2019 Plankenhorn & Gillis Text Messages) (Plankenhorn telling Gillis that

he took her “off the network,” “deactivate[d] [her] key fob,” and will be “monitor[ing] [her] e-

2. Legitimate, Non-Discriminatory Reasons

As discussed, under the McDonnell Douglas framework, once a plaintiff

establishes a prima facie case of discrimination, the burden shifts to the employer

to present evidence supporting a legitimate, non-discriminatory reason for the

adverse employment action.144 Here, STEP asserts that it promoted Kiessling,

rather than Gillis, to CFO because Kiessling possessed “superior interpersonal

skills”;145 according to Plankenhorn, Gillis “did not work well with the people she

would need to supervise or with [Plankenhorn] and the management team.”146 And,

as discussed, STEP offers two legitimate, non-discriminatory reasons for why

Plankenhorn revoked Gillis’s network and building access: (1) respect for Gillis’s

request to focus solely on her recovery; and (2) concern that Gillis, disgruntled

after being denied promotion, might retaliate against the organization.147 With that,

STEP has met its burden.

144 Daniels, 776 F.3d at 193 (2015).

145 Doc. 25 at 18.

146 Doc. 35 at 12.

147 See Doc. 27-4, Ex. D (Plankenhorn Dep.) 250:6–251:5 (“Q. And in response to” Gillis’s March

7, 2019 email stating that she will work only when absolutely necessary so she can focus on

her recovery, “you also revoked her e-mail at STEP. Correct? A. That is correct. Q. And you

also deactivated her key fob to get entry to the building. Is that correct? A. That is correct. Q.

And why did you do that? A. So based on her response when I did provide her with the

information about Ms. Kiessling being the new CFO, and when she responded back to me that

while ultimately it was my decision, she was also displeased with that. You know, I did have

concern about the materials and information that she had access to. And so really out of respect

to that, I felt like it was in the best interest of the agency. And also it gave her an opportunity

3. Pretext

Presented with these non-discriminatory reasons for refusing to promote

Gillis and revoking her access to the organization’s network and building, Gillis

assumes the burden of showing by a preponderance of the evidence that these

reasons are pretextual.148 For this, Gillis must point to “evidence of inconsistencies

and implausibilities in [STEP’s] proffered reasons for discharge which could

support an inference that [it] did not act for nondiscriminatory reasons.”149 That

said, “[t]he question is not whether [STEP] made the best, or even a sound,

business decision; it is whether the real reason is discrimination.”150 Gillis is held

to the “preponderance of the evidence” standard—that is, she must prove it is more

likely than not “that [the] defendant’s proffered reason was a pretext for

discrimination.”151 She has not met this burden.

a. Refusal to Promote

For the refusal to promote, Gillis offers a variety of arguments for why

STEP’s stated basis for this decision is pretextual. The Court addresses each

argument in turn.

First, Gillis argues that STEP’s claim about her deficient “interpersonal

skills” is contradicted by the “glowing employment evaluations” she received

148 Parker v. Verizon Pa., Inc., 309 F. App’x 551, 555 (3d Cir. 2009).

149 Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 205 (3d Cir. 1987).

150 Willis v. UPMC Children’s Hospital of Pittsburgh, 808 F.3d 638, 647 (3d Cir. 2015) (brackets

and citations omitted).

during her time at STEP, many of which “post-date” the events underlying

Plankenhorn’s concerns about her fitness for a managerial role.152 But as the Third

Circuit has long held, “[p]retext is not established by virtue of the fact that an

employee has received some favorable comments in some categories or has, in the

past, received some good evaluations.”153 Gillis’s performance reviews and the

positive remarks about her ability focus primarily on her technical skills as an

accountant and her work ethic154—attributes that STEP and Plankenhorn do not

challenge or disparage. Indeed, in emails sent contemporaneous to the adverse

action, Plankenhorn explained that concerns about Gillis’s interpersonal skills

compelled him to deny her the promotion despite her “fantastic” abilities as an

accountant.155

The performance evaluations contain only one category that arguably

concerns the character traits at issue here: “Teamwork and Customer Service.”156

But the commentary on this category does not address Gillis’s relationship with the

STEP leadership team or any of the identified conflicts that animated

152 Doc. 31 at 17; see also Doc. 27-4, Ex. D at 313–57 (Plankenhorn Dep. Ex. D3 – Gillis

Performance Reviews).

153 Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992).

154 Doc. 27-4, Ex. D at 313–57 (Plankenhorn Dep. Ex. D3 – Gillis Performance Reviews); see,

e.g., id. at 316 (“Her expertise and work ethic is top-notch!”), 318 (“Kelly’s work ethic is

exceptional.”).

155 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email)

(“[Gillis] is a fantastic accountant but does not project and promote the inter-personal skills I

feel . . . necessary in her current position let alone moving forward if she were to take on the

CFO role.”).

Plankenhorn’s concerns.157 And, as STEP asserts, the summary judgment record

contains an abundance of uncontested evidence regarding Gillis’s longstanding

tensions with other STEP employees—in particular, former CSO and CEO Terry

Roller, HR director Jean Myers, and Plankenhorn.158 Most relevant here, Gillis

herself has repeatedly acknowledged these tensions and described them as the basis

for the alleged “retaliatory harassment” she experienced.159 Gillis characterized

these tensions as an “ongoing issue” that extended over a two- to three-year

period—starting long before she went on FMLA leave.160 Additionally, in the

157 Id.

158 See Doc. 25 at 18–20.

159 Doc. 1 ¶ 23 (“During the course of her employment, [Gillis] made numerous complaints about

the way financial department and human resource issues were handled by [STEP]. As a direct

result of voicing her concerns, [Gillis] was subjected to retaliatory harassment, including the

making of false accusations against [Gillis] by two STEP employees, Terry Roller and Jean

Myers. Upon information and belief, these false accusations were communicated to CEO,

James Plankenhorn, in private, closed-door meetings and [Gillis] was deprived of the

opportunity to defend herself or otherwise respond. As a direct result of [Gillis’] legitimate

complaints and these false accusation, [Gillis] was retaliated against, which caused and/or

contributed to the hostile work environment created by [STEP].”); see also Doc. 27-2, Ex. B

at 93–94 (Gillis Dep. Ex. P11 – July 8, 2019 Gillis EEOC Complaint) (“Over the years, I have

had multiple issues with leadership including Terry Roller and Jean Myers. Terry Roller was

the President of STEP at the time I was hired. He did not care for me because I was not a ‘yes’

man. I have never been afraid to voice my opinion when it came to what I felt was in the best

interest of the agency. This resulted in harassment by Terry Roller . . . . Jean Myers was my

former employee in the Fiscal Department. Terry Roller appointed her to an HR position due

to an agency necessity, even though she wasn’t qualified. Over the years, she has done a poor

job in Human Resources but has been rewarded for her lack of performance and is now the

Chief of Human Resources. Over the years that Jean was in HR, there have been multiple

instances where I have questioned the way certain things were being done, and have pointed

out errors or issues. Every time that this occurred, Jean retaliated against me or the fiscal

department.”).

160 Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 21:11–22:1 (“Q. So there are no other reasons

that you want to cite or can cite that are indicative of what you felt Mr. Plankenhorn’s personal

feelings towards you, other than the fact that he hired somebody else for the CFO position? A.

I do believe that Jim did not care for me. And I think that that was an ongoing issue, yes. Q.

emails Plankenhorn sent to his attorney in March 2019 explaining in real time the

reason he decided against promoting Gillis to to CFO, Plankenhorn cited only

Gillis’s lack of people skills and poor relationships with other senior STEP

officials:

[Gillis] has rubbed many people the wrong way,

including my HR Chief (Jean Myers), Terry [Roller]

back when he was here, as well as quite a few program

managers/directors. I have spoken with Traci [Lowe]

about my concerns many times over the past several

years and to be quite honest, Traci has not been able to

affect any positive change. It is parament for me to

promote, foster, and require the type of atmosphere that

has both fiscal and operations working together as a

cohesive team. Based upon all my observations, while

there are some in operations that are not the most

capable, they have good attitudes and are willing to work

together. In my opinion, while Kelly may be highly

capable, she lacks the people skills and therefore I cannot

trust or have confidence in her ability to lead the way I

feel the department or the agency needs to be lead.161

Against this backdrop, Gillis’s positive performance reviews do not qualify as the

type of “inconsistencies” that could “support an inference that [STEP] did not act

for nondiscriminatory reasons.”162

Second, Gillis notes the existence of the succession plan that had her slated

to assume the CFO role upon Staci Lowe’s retirement.163 But it’s unclear why

and I don’t know if it’s longer than this, but I would say approximately three—two, three

years.”).

161 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email).

162 Sorba, 821 F.2d at 205.

Gillis considers this evidence of pretext. Accepting that Gillis was designated

Lowe’s successor as CFO, there is no dispute that STEP abandoned this plan and

elevated Kiessling instead. The question here is whether STEP’s stated reason for

refusing to promote Gillis—that is, Gillis’s poor interpersonal skills and tensions

with STEP senior management—is genuine or simply a pretext for a

discriminatory motive. Given Plankenhorn’s contemporaneous statements about

his growing concerns “over the past several years” and inability to “affect any

positive change” in Gillis’s attitude and relationship with other STEP officials,164

the existence of a prior succession plan does not contradict or undermine STEP’s

proffered basis for this adverse action.

Third, Gillis argues that Kiessling was “objectively unqualified for the CFO

position, as shown by her lack of experience,” and because she “did not possess the

minimum qualifications, and had actually quit prior to being offered the

position.”165 As proof, Gillis cites Plankenhorn’s email to STEP’s outside counsel

reporting that “he thought hiring Ms. Kiessling for the CFO position would be

taking ‘a step or two more backwards’ for the company.”166 But this argument falls

short on both the facts and the law.

164 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email).

165 Doc. 31 at 19.

166 Id.; see also Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn

Email) (“Trust me, I fully expect there could/will be more fallout from the decision not to

consider Kelly. I also expect she will move on and try to hurt me and/or the agency in the

Starting with the facts, the summary judgment record does not support

Gillis’s claim that Kiessling was “objectively unqualified for the CFO position.”167

To be sure, Gillis raises this point repeatedly,168 but as STEP notes, “Kiessling had

seven years of experience working with non-profit accounting at STEP by the time

of her promotion” and “had significant and extensive management experience in

her previous jobs as a VP of Finance, Director of Finance, and CFO at other for-

profit entities.”169

Additionally, Gillis takes Plankenhorn’s statement about moving “a step or

two more backwards” out of context to imply that Plankenhorn himself viewed

Kiessling as unqualified. Here is the relevant portion of the email in question:

I am not planning to consider Kelly [Gillis] moving into

Traci [Lowe]’s role. What I am thinking about doing,

however, is talking with Patti Kiessling about the

position. Patti is the one person leaving (last day at the

end of this week) and of course, is supervised by Kelly.

Patti has great potential. Do you feel I have any

obligation (from a risk management perspective) to offer

the position to Kelly? Trust me, I fully expect there

could/will be more fallout from the decision not to

consider Kelly. I also expect she will move on and try to

hurt me and/or the agency in the process. However, I feel

strongly that for STEP to move forward and have the

type of respectful culture/environment I feel is necessary,

culture/environment I feel is necessary, I cannot see promoting her into a more responsible

position. Bottom line, we might take a step or two more backwards before we go forwards.”).

167 Doc. 31 at 19.

168 See id.; see also Doc. 1 ¶ 32; Doc. 27-2, Ex. B (Apr. 23, 2021 Gillis Dep.) at 78:16–20 (“Q. In

paragraph 30 it says, Patti Kiessling was not qualified for the CFO position. Do you agree with

that? A. I do.”); Doc. 32-1 (Gillis’s Statement of Additional Material Facts) ¶¶ 79–80 (asserting

that Kiessling “never had any experience with non-profit accounting prior to working for

[STEP],” and “never had any experience with non-profit tax reporting”).

I cannot see promoting her into a more responsible

position. Bottom line, we might take a step or two more

backwards before we go forwards. I guess I am willing to

do this.170

Accepting Gillis’s interpretation of Plankenhorn’s statement about STEP “tak[ing]

a step or two more backwards before we go forwards” would require ignoring the

preceding three sentences regarding the expected fallout from denying Gillis the

promotion (i.e., “she will move on and try to hurt me and/or the agency”).171 When

considering STEP’s motion for summary judgment, the Court is required to

interpret the evidence in the light most favorable to Gillis; that does not, however,

permit the Court to ignore context that undermines Gillis’s position.

Moreover, as a matter of law, “[t]he question is not whether [Gillis] made

the best, or even a sound, business decision; it is whether the real reason is

discrimination.”172 Gillis may well be correct that she was “the most qualified

candidate for the position.”173 But proof that Plankenhorn made a poor business

decision does not establish that he made the decision for a discriminatory reason.

Fourth, Gillis asserts that “[t]he variance in Mr. Plankenhorn’s own hiring

practices, the speed with which the position was filled, and his contradictory

statements about whether [Gillis] was even considered for the position also provide

170 Doc. 27-4, Ex. D at 369–70 (Plankenhorn Dep. Ex. D8 – Mar. 4, 2019 Plankenhorn Email).

171 Id.

172 Willis, 808 F.3d at 647 (brackets omitted).

evidence of pretext.”174 But as with the succession plan, Gillis offers no

explanation for why the circumstances surrounding Kiessling’s promotion to CFO

are evidence of discriminatory intent. Conversely, STEP explains that “Kiessling

had already announced her departure for another position at the time then-CFO

Traci Lowe unexpectedly announced her retirement,” and, as such, “Plankenhorn

had to act quickly so as to retain Ms. Kiessling at a time when STEP’s fiscal

department was particularly short-staffed, when he had determined that Gillis was

not his choice, and before Ms. Kiessling left for the other position.”175

It is not enough to say that STEP’s actions deviated from their standard

practice. When a defendant offers a valid, non-discriminatory basis for its adverse

action, the plaintiff must point to facts in the summary judgment record that

contradict, or are at least inconsistent with, the defendant’s stated basis for the

action.176 Here, Gillis has failed to do that.

There is nothing in the summary judgment record that could lead a

reasonable jury to conclude that Plankenhorn’s concerns about Gillis’s

interpersonal skills and poor relationships with other members of the STEP

management team—stated at the time, repeatedly affirmed in discovery, and

174 Doc. 31 at 20.

175 Doc. 35 at 14–15 (citing Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 205:14–16)).

176 See Sorba, 821 F.2d at 205 (holding that at the summary judgment stage, the issue is “whether

[the plaintiff] has pointed to evidence of inconsistencies and implausibilities in the employer’s

proffered reasons [for the adverse actions] which could support an inference than the employer

corroborated by Gillis herself—are a pretext for discrimination. Accordingly, Gillis

has not carried her burden. To the extent Gillis’s claims are predicated on STEP’s

refusal to promote her, they do not survive summary judgment.

b. Revoking Access

For the second alleged adverse action—STEP’s decision to revoke Gillis’s

network and building access—Gillis contests both of STEP’s proffered legitimate,

non-discriminatory justifications. First, Gillis argues that Plankenhorn’s claim that

he revoked Gillis’s access so she could “focus on her recovery” is “discriminatory

on its face,” as Gillis “did not request to have her access curtailed and her

physician already approved her modified working schedule with

accommodation.”177 Second, Gillis dismisses as “laughable” Plankenhorn’s

concern that she posed a security risk to the organization, noting that she “was

never before accused of misusing or stealing company property” and “Plankenhorn

had never before taken similar action against any other employee.”178 Laughable or

not, Plankenhorn’s concern about Gillis’s risk to STEP appears genuine; Gillis has

not established by a preponderance of the evidence that this stated basis for the

adverse action was a pretext for discrimination.179

As a preliminary matter, Gillis is wrong that Plankenhorn’s stated concern

about her recovery is per se discriminatory. Although Gillis cites no legal authority

177 Doc. 31 at 22.

178 Id.

for this position,180 the Court presumes, based on other arguments Gillis raises in

her Opposition, that she predicates this assertion on the United States Court of

Appeals for the Eighth Circuit’s 1998 decision in Deneed v. Northwestern

Airlines.181 But that case is inapposite. In Deneed, the plaintiff took leave because

she was pregnant, and her employer then refused to allow her to return to work,

asserting that it was “concern[ed] for her own safety.”182 But the court deemed this

purported non-discriminatory rationale insufficient to overcome the direct evidence

of discrimination—namely, the manager’s statement that the plaintiff could not

return to work “because of her pregnancy complication” and unwillingness to

readmit her for work duties despite a doctor’s note that she was fit to work.183

Notably, although the court found the employer’s stated “concern for her . . .

safety” unavailing,184 it did not hold that this proffered reason for the adverse

action was “discriminatory on its face.”185

Moreover, Gillis’s claim that she “did not request to have her access

curtailed” omits facts material to the pretext inquiry.186 As STEP explains, the

decision to limit Gillis’s access to its network and building “occurred after [Gillis]

180 See Doc. 31 at 22.

181 132 F.3d 431.

182 Id. at 434.

183 Id. at 434–35.

184 Id.

185 Doc. 31 at 22.

had indicated her desire . . . to restrict her work from home while on leave.”187

Once Gillis learned that she would not be promoted to CFO, she told Plankenhorn

that “[a]s soon as I have the final draft of the audit to the auditors, I will be using

my FMLA as much as possible and will only work when absolutely necessary so

that I can concentrate on my physical therapy and recovery from here on out.”188

Given that Gillis—not Plankenhorn—first stated her desire to limit her work to

focus on her “physical therapy and recovery,” her argument that STEP’s purported

concern for her recovery is “discriminatory on its face” falls flat.189

That said, the summary judgment record indicates that this professed

concern for Gillis’s well-being was likely pretextual. But, fatal for Gillis’s claims,

the seemingly genuine reason behind this pretext is not discriminatory. Instead, the

evidence establishes that STEP was more likely than not motivated by its concern

that Gillis, angry about being denied the promotion, would retaliate against the

organization.

In the text messages Plankenhorn sent Gillis informing her that she would no

longer have access to the organization’s network and building, Plankenhorn

focused solely on her recovery.190 But after sending those text messages,

187 Doc. 35 at 5.

188 Doc. 27-2, Ex. B at 73 (Gillis Dep. Ex. P4 – Mar. 7, 2019 Gillis & Plankenhorn Emails).

189 Doc. 31 at 22.

190 Doc. 27-4, Ex. D at 373–76 (Plankenhorn Dep. Ex. D10 – Mar. 7–8, 2019 Plankenhorn &

Gillis Text Messages) (Plankenhorn writing, first, that “[y]ou said you need to concentrate on

Plankenhorn emailed his attorney that he “had [Gillis] locked out of the fiscal

database, including our network (e-mail, work files, etc.)” because he “felt (feel)

there may a risk to the agency.”191 Plankenhorn then solicited his attorney’s

“thoughts on whether [Plankenhorn] can and should take a snapshot of [Gillis’s] e-

mail traffic before [he] give[s] her access back to them,” explaining that he is

“hesitant to go this route as I promote and adhere to confidentiality and privacy as

much as possible.”192 These emails indicate that rather than focusing primarily on

Gillis’s health and recovery, Plankenhorn was mostly concerned about the risk a

disgruntled Gillis posed to the organization—a fact Plankenhorn acknowledged

during his deposition.193

during this time,” and, second, that “[a]s you communicated, and I agree, your priority is and

should be your therapy and recovery”).

191 Doc. 27-4, Ex. D at 371–72 (Plankenhorn Dep. Ex. D9 – Mar. 8, 2019 Plankenhorn Email).

192 Id.

193 See Doc. 27-4, Ex. D (Apr. 26, 2021 Plankenhorn Dep.) at 250:6–252:20 (“Q. And in response

to that e-mail that you received, you also revoked her e-mail at STEP. Correct? A. That is

correct. Q. And why did you do that? A. So based on her response when I did provide her with

the information about Ms. Kiessling being the new CFO, and when she responded back to me

that while ultimately it was my decision, she was also displeased with that. You know, I did

have concern about the materials and information that she had access to. And so really out of

respect to that, I felt like it was in the best interest of the agency. And also it gave her an

opportunity to really focus on that recovery as well. So between those two things, I guess. Q.

So she says she’s displeased that the assistant CFO wasn’t even told that you were hiring a

CFO. Right? A. I don’t recall that that was the conversation. I think she was displeased because

I had hired Ms. Kiessling, not that she wasn’t told about it. But that could be what the

communication said. Q. Okay. And because she said she was displeased, you thought she was

somehow a threat to the agency? A. I thought there was a possibility, yes. Q. And—and what

type of threat are we—are we talking about here? So let’s—you revoked her e-mail access. So

you didn’t want her communicating with anybody at STEP. Correct? A. My understanding is

I revoked her network access, which included e-mail. So we monitored the e-mails, Ms. Lowe

monitored the e-mails. So she didn’t have access to the network, which would include, you

know, the personnel pieces to the fiscal files. And whatever—whatever information is included

Gillis attempts to “laugh[]” away this concern, asserting that she “work[ed]

for [STEP] for seven years with exemplary employee evaluations and without any

discipline,” and “was never before accused of misusing or stealing company

property.”194 But the Court finds this unpersuasive for two reasons. First, new

circumstances present new concerns and demand new considerations. Never before

had Gillis been denied a major promotion she felt entitled to. As the emails from

that time make clear, Gillis was very unhappy that someone she supervised—

someone she considered (and considers) unqualified for the position—leap-frogged

her to become CFO.195 Given her history with STEP, Gillis may consider

Plankenhorn’s concerns unjustified; they were not, however, irrational.

Second, as explained, “[t]he question is not whether [Plankenhorn] made the

best, or even a sound, business decision; it is whether the real reason is

discrimination.”196 Here, all evidence in the summary judgment record—the

contemporaneous documentary evidence and the deposition testimony—supports

STEP’s claim that Plankenhorn revoked Gillis’s access to the organization’s

to the network, I believe, was also revoked access to the e-mail, in that sense.”) (objections

omitted).

194 Doc. 31 at 22.

195 See Doc. 27-2, Ex. B at 96–97 (Gillis Dep. Ex. P13 – Mar. 7, 2019 J. Plankenhorn & K. Gillis

Emails) (Gillis to Plankenhorn: “Wow, I’m surprised that this decision was made without even

speaking to me about it before hand. I’m not happy about this turn of events, but ultimately it

is your decision.”); Doc. 27-4, Ex. D at 371–72 (Plankenhorn Dep. Ex. D9 – Mar. 8, 2019

Plankenhorn Email) (“I offered the CFO position to the Accountant that was projected to leave,

and she accepted. As predicted, this has made the current Assistant CFO [i.e., Gillis] very

upset.”).

network and building “to protect STEP from an obviously disgruntled

employee.”197 Aside from her personal belief that Plankenhorn’s concerns were

unjustified, Gillis offers no evidence that the concerns were not genuinely felt.

Weighed against the evidence supporting STEP’s legitimate, non-discriminatory

reason for this adverse action, Gillis’s arguments fail to establish by a

preponderance of the evidence that this reason was pretextual.

IV. CONCLUSION

To maintain a claim of employment discrimination based on circumstantial

evidence, a plaintiff needs to show that the alleged adverse actions were more

likely than not motivated by discriminatory animus. Here, Gillis fails to do that.

STEP offers legitimate, non-discriminatory reasons for its decisions not to promote

Gillis (her poor interpersonal skills and history of conflict with STEP senior

management) and to revoke Gillis’s network and building access (risk of retaliation

by a disgruntled employee). Based on the summary judgment record, the Court

finds that these reasons are likely genuine—that is, they are not offered as a pretext

for discrimination. Accordingly, Gillis’s claims of discrimination do not survive

summary judgment.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge