McCall v. Carbon Schuylkill Community Hospital, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TERRANCE MCCALL, :

Plaintiff : CIVIL ACTION NO. 3:19-2052

v. : (JUDGE MANNION)

CARBON SCHUYKILL :

COMMUNITY HOSPITAL, INC.,

d/b/a ST. LUKE’S UNIVERSITY :

HEALTH NETWORK,

:

Defendant

MEMORANDUM

Before the court is defendant, Carbon Schuylkill Community Hospital,

Inc. d/b/a St. Luke’s University Health Network’s (“St. Luke”) motion for

summary judgment. (Doc. 43). For the following reasons, the motion will be

GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiff Terrance McCall (“McCall”) was hired by St. Luke’s on

November 21, 1994, and during the timeframe relevant to this matter, held

the position of Skilled Nursing Account Representative. (Doc. 55-1 at ¶1,

Doc. 55-4; Doc. 55-2). In this position, McCall was responsible for assisting

St. Luke’s long-term care patients with managing their finances. Id.; (Doc. 22

at 14:11-24).

In June of 2017, McCall sustained a non-work-related injury to his right

ankle. Id. at ¶3. McCall testified that around July of 2017, he performed his

duties as a Skilled Nursing Account Representative from a wheelchair. (Doc.

55-2 at 17:19-18:3). St. Luke’s Director of Human Resources, Jennifer

Stehman (“Stehman”), in an email dated October 19, 2017, noted that St.

Luke’s had “permitted him to come to work for 4 months in a wheel chair”

and expressed “concerns regarding his performance upon his return for his

last hospitalization.” (Doc. 55-10). On November 20, 2017, McCall came

under the care of Dr. Kathryn O’Connor (“Dr. O’Connor”) of Penn Medicine

Orthopaedics (“Penn Medicine”) for the treatment of his injury. Id. at ¶4.

On November 20, 2017, McCall requested leave under the Family and

Medical Leave Act (“FMLA”) due to anticipated surgeries on his right ankle.

In a Leave of Absence Request Form, Dr. O’Connor indicated that McCall

would be incapacitated from “November 21, 2017 through May 21, 2018”

although he would be “able to work from home or office from 11/21/17-

5/21/18 sedentary work only non weight bearing.” Id. at ¶5; (Doc. 44-3 at 5).

In a letter dated November 29, 2017, St. Luke’s informed McCall that he was

eligible for FMLA leave. Id. at ¶6. The hospital further noted that if McCall

exhausted his FMLA leave, he may be eligible for a medical leave of absence

under St. Luke’s Medical Disability Policy. Id.

Under the Medical Disability Policy, eligible employees are permitted

to take medical leave of absence up to a maximum of 270 consecutive days

due to any injury, illness, or other disability. (Doc. 44-6). Such medical leave

of absence ran concurrently with FMLA leave. (Doc. 55-1 at ¶8; Doc. 44-1 at

13:6-10). The Medical Disability Policy provides that an employee on a

medical leave of absence who wishes to return to work must provide a return

to work note from his provider, and the “note must list the date the employee

is able to return to work [and] any accommodations that may be required to

safely return to work.” (Doc. 44-6). Separately, St. Luke’s Leave of Absence

Policy provides that once FMLA leave is exhausted, St. Luke’s “cannot

guarantee the employee a position, but whenever possible, will attempt to

allow the employee’s job to remain open so that the employee may return to

it.” (Doc. 55-26 at 4). In the event that the employee’s position is no longer

available when an employee is cleared to return to work, “the employee will

have an additional 30 days beyond their medical release date to look for

another position within the network.” Id. at 6.

On December 13, 2017, Dr. O’Connor indicated in a medical note that

McCall was “in the midst of a limb salvage procedure” and that she “would

like to keep him out for the next 3 weeks.” (Doc. 55-15). Weeks later, on

December 28, 2017, Dr. O’Connor wrote in a medical note that McCall would

be “out of work for several months” due to an ankle fusion. (Doc. 55-16).

On February 20, 2018, Stehman informed McCall that his FMLA

entitlement expired on February 10, 2018, and that he may be eligible for the

270-day medical leave of absence, which would expire on August 18, 2018.

(Doc. 44-8). She further stated that St. Luke’s would be seeking a

replacement for McCall and observed that while St. Luke’s “make[s] every

effort to hold the employee’s position during a medical leave of absence, the

employee’s position may be filled when…a replacement is necessary to

continue normal operations.” Id. She also noted that McCall’s employment

status would remain active and there would be no change to his benefit

package during his medical leave of absence. Id. McCall was aware that his

FMLA leave expired on February 20, 2018. (Doc. 55-1 at ¶12).

On March 6, 2018, Dr. O’Connor wrote in a medical note that McCall

“is on course for his recovery at this time” and that his physicians “hope for

him to return to work on 5/21/18, but he could possibly return to work later

than that date.” (Doc. 55-1 at ¶15; Doc. 44-10).

McCall testified at his deposition that Dr. O’Connor provided verbal

clearance for him to return to work in April 2018 and written clearance in May

2018. (Doc. 55-1 at ¶18; Doc. 55-2 at 82:11-83:10). During discovery in this

instant action, McCall and St. Luke’s were unable to produce a medical

record of Dr. O’Connor’s clearance for McCall to return to work in April or

May 2018. (Doc. 55-1 at ¶20).

On August 18, 2018, McCall’s medical leave expired. (Doc. 55-21). On

the August 23, 2018, Dr. Lauren McGarrity (“Dr. McGarrity”) indicated in a

medical note that McCall underwent right ankle surgery on 8/10/18, and that

“[d]ue to his recovery he is able to work sedentary duty at this time only.”

(Doc. 55-20 at 2). By a letter dated the same date, St. Luke’s notified McCall

that his employment with the hospital is terminated effective August 23,

2018. Id. at 2. Later, around fall of 2018, McCall’s ankle bone became

reinfected, and his right leg underwent amputation. (Doc. 55-1 at ¶27).

In connection with the events underlying the instant case, McCall filed

two Charges of Discrimination under the Americans with Disabilities Act

(“ADA”) with the U.S. Equal Employment Opportunities Commission

(“EEOC”). (Doc. 58-2). In response to the Charges of Discrimination, the

EEOC issued Dismissals and Notices of Rights on March 20, 2019 and

November 4, 2019, each of which indicated that the EEOC was unable to

conclude a statutory violation. Id. at 2, 6. On November 3, 2019, St. Luke’s

entered into a Settlement Agreement with the EEOC (the “EEOC Settlement

Agreement”), wherein it agreed to modify its Medical Disability Policy and

Leave of Absence Policy to “reflect that employees may request, as a

reasonable accommodation under the ADA, a reasonable extension to any

medical leave of absence.” (Doc. 55-27).

McCall commenced this suit on December 2, 2019. (Doc. 1). On March

6, 2020, McCall filed an amended complaint asserting against St. Luke’s

claims of disability discrimination and retaliation under the ADA, 42 U.S.C.

§12101 et seq., (Count I), disability discrimination and retaliation under the

Pennsylvania Human Relations Act, 43 P.S. §951 et seq., (“PHRA”) (Count

II), and retaliation under the Family Medical Leave Act, 29 U.S.C.A. §2601

et seq. (“FMLA”) (Count III). (Doc. 12). St. Luke’s filed a motion to dismiss

McCall’s amended complaint on March 20, 2020, which this court denied by

a memorandum and order dated September 2, 2020. (Doc. 26, 27).

On October 7, 2021, St. Luke’s filed the instant motion for summary

judgment, (Doc. 43). As the parties have fully briefed St. Luke’s instant

motion, it is ripe for the court’s review. (Docs. 47, 55, 58, 61).

II. STANDARD OF REVIEW

The defendant has moved for summary judgment pursuant to Federal

Rule of Civil Procedure 56(c). Summary judgment is appropriate when the

pleadings and any supporting materials, such as affidavits and other

documentation, show that there are no material issues of fact to be resolved

and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c); see Turner v. Schering–Plough Corp., 901 F.2d 335, 340 (3d Cir.

1990). Federal Rule of Civil Procedure 56(c) “mandates the entry of

summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317 (1986). Furthermore, “Rule 56(e) ... requires the nonmoving party to go

beyond the pleadings and by [its] own affidavits, or by depositions, answers

to interrogatories, and admissions on file, designate specific facts showing

that there is a genuine issue for trial.” Id. at 324; Lujan v. National Wildlife

Fed'n, 497 U.S. 871, 888, (1990); Pastore v. Bell Tel. Co. of Pennsylvania,

24 F.3d 508, 511 (3d Cir. 1994) (quoting Harter v. GAF Corp., 967 F.2d 846,

852 (3d Cir. 1992)). The party moving for summary judgment bears the

burden of showing the absence of a genuine issue of any material fact, but

the nonmoving party must adduce more than a mere scintilla of evidence in

its favor and cannot simply reassert factually unsupported allegations

contained in the pleadings. Celotex Corp., 477 U.S. at 323, 325; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248–52, (1986); Young v. Quinlan, 960

F.2d 351, 357 (3d Cir. 1992).

To determine whether the nonmoving party has met its burden, the

court must focus on both the genuineness and the materiality of the factual

issues raised by the nonmovant. “[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson, 477 U.S. at 242, 247–48

(emphasis in original). A dispute is genuine if the evidence would allow a

reasonable jury to return a verdict for the nonmoving party. Id. at 250. A

disputed fact is material when it could affect the outcome of the suit under

the governing substantive law. Id. at 248. If the court determines that “the

record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank

of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, (1968)). All inferences,

however, “should be drawn in the light most favorable to the non-moving

party, and where the nonmoving party's evidence contradicts the movant's,

then the non-movant's must be taken as true.” Pastore, 24 F.3d at 512

(quoting Big Apple BMW, Inc. v. BMW of N. America, Inc., 974 F.2d 1358,

1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d

659 (1993)).

“In considering a motion for summary judgment, a district court may

not make credibility determinations or engage in any weighing of the

evidence.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004);

see also Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n.1

(3d Cir. 1995) (“Summary judgment is inappropriate when a case will turn on

credibility determinations.”). “[T]he non-moving party's evidence ‘is to be

believed and all justifiable inferences are to be drawn in his favor.’” Marino

v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

III. DISCUSSION

a. ADA Discrimination and Retaliation Claims (Count I)

i. McDonnell-Douglas Framework is the Applicable Legal

Standard

The ADA prohibits discrimination “against a qualified individual on the

basis of disability” as it relates to his or her employment. 42 U.S.C.

§12112(a). Further, under the ADA’s prohibition against retaliation provision,

the statute provides that “[n]o person shall discriminate against any individual

because such individual has opposed any act or practice made unlawful by

this chapter or because such individual made a charge…under this chapter.”

42 USCA §12203(a).

ADA discrimination and retaliation claims may be established through

direct or circumstantial evidence. “Direct evidence means evidence sufficient

to allow the jury to find that the decision makers placed substantial negative

reliance on [the protected activity] in reaching their decision.” Conoshenti v.

Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 147 n.10 (3d Cir.

2004) (alterations in the original) (internal quotations marks and citation

omitted). “[E]vidence is not direct when the trier of fact must infer the

discrimination…” Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994)

(citations omitted) (emphasis in original). Absent direct evidence, ADA

discrimination and retaliation claims are evaluated under the McDonnell

Douglas burden-shifting framework. Gavurnik v. Home Properties, L.P., 227

F.Supp.3d 410, 416 (E.D. Pa. 2017), aff'd. 712 Fed.Appx. 170 (3d Cir. 2017);

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In the present case, McCall asserts that his ADA claims prevail under

a theory of direct evidence. (Doc. 55 at 15-16). Specifically, he argues that

St. Luke’s Medical Disability and Leave of Absence Policies (together, the

“Policies”) constitute direct evidence of discrimination, as they “did not allow

for an extension of job-protected leave as a reasonable accommodation” and

thus “violated the ADA”. Id. In support of his position, McCall asserts that the

EEOC had previously found the Policies to be in violation of the ADA by way

of the EEOC Settlement Agreement, wherein St. Luke’s agreed to modify its

Policy to reflect that “employees may request, as a reasonable

accommodation under the ADA, a reasonable extension to any medical

leave of absence.” (Doc. 55-27).

The court does not find that the Policies present direct evidence of

discrimination under the ADA. Initially, insofar McCall argues that a “no-fault”

leave policy violates the ADA, he fails to provide any support for his

assertion. Instead, McCall appears to allude to an EEOC enforcement

guideline from 2002, which provides in relevant part:

May an employer apply a “no-fault” leave policy,

under which employees are automatically

terminated after they have been on leave for a

certain period of time, to an employee with a

disability who needs leave beyond the set period?

No. If an employee with a disability needs

additional unpaid leave as a reasonable

accommodation, the employer must modify its

“no-fault” leave policy to provide the employee

with the additional leave, unless it can show that:

(1) there is another effective accommodation that

would enable the person to perform the essential

functions of his/her position, or (2) granting

additional leave would cause an undue hardship.

Modifying workplace policies, including leave

policies, is a form of reasonable accommodation.

See EEOC Enforcement Guidance: Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act, 2002 WL

31994335, *15, 19 (Oct. 17, 2002). However, such guideline does not

provide that “no-fault” leave policies necessarily violate the ADA, but rather

that they must be modified if a disabled employee needs additional leave

and meets certain conditions.

Furthermore, the EEOC Settlement Agreement does not by itself

demonstrate that the EEOC has found the Policy to be in violation of the ADA

as it does not go so far as to state such a violation. To the contrary, the

EEOC, in response to McCall’s Charges of Discrimination under the ADA,

stated that it was unable to conclude a statutory violation. (Doc. 58-2).

Accordingly, the court does not find that the Policies prove, without

further inference, the existence of discriminatory or retaliatory conduct on the

part of St. Luke’s. McCall, moreover, has not pointed to any evidence that is

‘so revealing of discriminatory animus that it is not necessary to rely on any

presumption from the prima facie case to shift the burden of production.’”

Buchsbaum v. Univeresity Physicians Plan, 55 F.App'x 40, 45 (3d Cir. 2002)

(describing direct evidence that an employee must produce at summary

judgment stage to warrant a “mixed-motive” analysis).

As such, McCall does not present any direct evidence of

discrimination. His discrimination and retaliation claims will thus be evaluated

under the McDonnell Douglas framework.

The McDonnell Douglas burden-shifting framework proceeds in three

stages. Speer v. Norfolk Southern Ry. Corp, 121 Fed.Appx. 475, at 446-7

(3d Cir. 2005). First, the plaintiff must establish a prima facie case of

discrimination. Id. “If the plaintiff succeeds in establishing a prima facie case,

the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” Id. (internal

quotations omitted). If the defendant employer satisfies this burden, “the

plaintiff then has the opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.” Id. (citations omitted).

The “ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” Williams, 380 F.3d at 759 n. 3.

i. Prima Facie Case for ADA Discrimination

To establish a prima facie case of disability discrimination under the

ADA, the plaintiff must show that he: “(1) is disabled; (2) is otherwise qualified

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

accommodations by her employer; and (3) has suffered an adverse

employment action as a result of her disability, including her employer's

refusal to make reasonable accommodation for her disability.” Petti v. Ocean

County Board of Health, 831 Fed.Appx. 59, 63 (3d Cir. 2020) (citation

omitted). The ADA defines a “disability” with respect to an individual as: “(a)

a physical or mental impairment that substantially limits one or more major

life activities of such individual; (b) a record of such impairment; or (c) being

regarded as having such an impairment.” 42 U.S.C. §12102(1).

St. Luke’s asserts that McCall cannot establish a prima facie case of

disability discrimination because he was not an “otherwise qualified

individual” under the ADA. The court disagrees and finds that such a

determination cannot be made on St. Luke’s summary judgment motion.

An employee is an otherwise qualified individual under the ADA if he

satisfies the following requirements: (1) “[that he] has the requisite skill,

experience, education and other job-related requirements” and (2) “[that]

with or without reasonable accommodation, [he] can perform the essential

functions of that position.” Turner v. Hershey Chocolate U.S., 440 F.3d 604,

612 (3d Cir. 2006) (citing 29 C.F.R. §1630.2(n)). “[T]he plaintiff bears the

burden of proving that…he is otherwise qualified; if an accommodation is

needed, the plaintiff must show, as part of h[is] burden of persuasion, that an

effective accommodation exists that would render h[im] otherwise

qualified.” Walton v. Mental Health Ass'n. of Se. Pennsylvania, 168 F.3d 661,

670 (3d Cir. 1999) (citation omitted).

“The determination of whether an individual with a disability is qualified

is made at the time of the employment decision.” Gaul v. Lucent

Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998) (quoting 29 C.F.R. pt.

1630, App. at 353–54). “To qualify as an adverse employment action in the

discrimination context, an action must create ‘a significant change in

employment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant

change in benefits.’” Oguejiofo v. Bank of Tokyo Mitsubishi UFJ Ltd., 704 F.

App'x 164, 168 (3d Cir. 2017) (quoting Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761 (1998)).

Here, it is undisputed that McCall possessed the requisite skill,

experience, or education for the job. The court thus proceeds to consider

whether there is a genuine material factual issue regarding his ability to

perform the essential functions of his job with or without reasonable

accommodation. Upon review of the record, the court finds that such a

factual dispute exists.

McCall asserts that he was a qualified individual during each of the

following times: on February 20, 2018, when St. Luke’s formally began to

seek a replacement for his position, in May 2018, when his position was

allegedly filled and no longer available, and on August 23, 2018, when he

was officially terminated.

While St. Luke’s formally began to seek a replacement for McCall on

February 20, 2018, the posting of McCall’s position did not result in a change

to his employment status or benefits. (Doc. 55-17). McCall fails to point to

evidence suggesting the posting of his position in February 2018 was

sufficiently “severe and concrete to affect the compensation, terms,

conditions, or privileges of employment.” Sconfienza v. Verizon

Pennsylvania Inc., 307 F. App'x 619, 621-22 (3d Cir. 2008) (citation omitted).

However, the court finds a triable factual issue as to whether the relevant

employment decision occurred as early as in May 2018. Stehman testified at

deposition that McCall’s position was filled in May 2018. (Doc. 55-24 at

80:20-24). McCall’s supervisor Deborah Holmberg (“Holmberg”) testified

that, as of August 2018, she and another coworker were filling in for McCall’s

responsibilities. (Doc. 55-25 at 87:4-22). A reasonable jury could conclude

on the basis of Holmberg’s testimony that McCall’s position had not yet been

formally filled in August 2018. Consequently, there is a triable factual issue

as to whether McCall’s position was filled, and a significant change to

McCall’s employment status had occurred, in May 2018. Thus, the pertinent

inquiry is whether McCall was a qualified individual either in May 2018 when

his position was allegedly filled, or on August 23, 2018 when he was formally

terminated.

St. Luke’s contends that McCall cannot establish that he was able to

perform the essential functions of his job because he failed to produce

evidence of medical clearance to return to work before the expiration of his

medical leave of absence. Specifically, St. Luke’s points out that two

discovery requests for McCall’s medical records from Penn Medicine

Orthopedics produced over one thousand responsive documents, none of

which indicates that a physician cleared McCall to return to work in April 2018

or May 2018, as McCall claims. (Doc. 44-12). McCall contends that a lack of

documentary proof of McCall’s medical clearance to return to work in April

2018 or May 2018 is not conclusive of whether he was actually cleared or

able to return to work during those months. In support of his position, McCall

points to his own deposition testimony wherein he testified that his physician

verbally cleared him to return to work in April 2018 and gave him written

clearance to return in May 2018.

The court finds sufficient evidence to preclude summary judgment on

whether McCall was able to perform the essential functions of his job in May

or August 2018. As an initial matter, because the parties contest whether

being able to perform non-sedentary tasks constitutes an essential function

of McCall’s job as a Skilled Nursing Account Representative and the relevant

job description is ambiguous as to this point, there is a triable issue as to the

essential functions of McCall’s position. (Doc. 55-4).

The court observes that there is a material factual dispute as to

whether McCall was able to perform the essential functions of his position at

the time of his termination on August 23, 2018, as it is undisputed that Dr.

O’Connor, by a medical note dated August 23, 2018, indicated that McCall

was “able to work sedentary duty at this time.” (Doc. 55-20).

Further, there appears to be triable issue as to whether McCall was

able to perform the essential functions of his job in May 2018. In reaching

this determination, the court recognizes that McCall’s theory of this case

depends in part upon inadmissible evidence. Countryside Oil Co., Inc. v.

Travelers Ins. Co., 928 F.Supp. 474, 482 (D. N.J. 1995) (“It is well settled

that only evidence which is admissible at trial may be considered in ruling on

a motion for summary judgment”) (citing Fed.R.Civ.P. 56(e); Williams v.

Borough of West Chester, Pa., 891 F.2d 458, 471 (3d Cir. 1989)).

Specifically, McCall’s deposition testimonies that he received verbal

clearance from his physician to return to work in April 2018 and written

clearance in May 2018 run afoul of the Federal Rules of Evidence insofar

they are offered to prove his medical clearance. First, McCall’s testimony

regarding receiving verbal clearance in April 2018 constitutes a hearsay

statement. “In this circuit, hearsay statements can be considered on a

motion for summary judgment [only] if they are capable of admission at

trial.” Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220,

223, n. 2 (3d Cir. 2000) (citation omitted). “[A] party must respond to

a hearsay objection by demonstrating that the material would be admissible

at trial under an exception to the hearsay rule, or that the material is

not hearsay.” Damiano v. Scranton Sch. Dist., 2016 WL 3227254, *3 (M.D.

Pa. June 13, 2016) (citations omitted). “It is not the burden of the court, but

the plaintiff, to identify which hearsay exceptions apply to each of the

combined statements provided by the plaintiff in her affidavit.” Id. Here,

McCall has failed to identify any exceptions applicable to his hearsay

averment and thus it will not be considered regarding St. Luke’s motion for

summary judgment.

Second, McCall’s deposition testimony that he received written

clearance from his physician to return to work in May 2018 is inadmissible

under the best evidence rule, as codified at Fed.R.Evid.1002. “[A] party

[must] produce original documents if a witness testifies to the actual content

of a writing.” United States v. Miller, 248 F. App'x 426, 429 (3d Cir. 2007).

Federal Rule of Evidence 1004 provides an exception to this original

document requirement where “all the originals are lost or destroyed, and not

by the proponent acting in bad faith.” Fed.R.Evid. 1004; Fed. R. Evid.

1004 Adv. Comm. Notes on Proposed Rules (“…if failure to produce the

original is satisfactorily explained, secondary evidence is admissible.”). Here,

the only explanation that McCall offers in addressing his failure to produce

the original letter, or even a copy of such letter, is that he has lost it and “has

no idea where it could be.” (Doc. 55-3 at 52:11-15). He fails to point to any

evidence which could explain why the letter was lost or destroyed and the

court could not locate any such evidence in the record.1 Thus, McCall fails to

satisfactorily explain why “all the originals are lost or destroyed, and not by

the proponent acting in bad faith” and the court will not consider McCall’s

testimony regarding his receipt of written clearance in May 2018, insofar it is

offered to prove the contents of the writing, for the purposes of this summary

judgment motion. Fed.R.Evid. 1004(a).

1 Furthermore, we note that neither of the litigants has deposed any of

McCall’s physicians and has made no indication of an intention to examine

his physician as a witness at trial.

Nonetheless, there appears to be sufficient evidence to preclude

summary judgment on the basis of McCall’s ability to perform the essential

functions of his job in May 2018. Initially, McCall has testified to providing St.

Luke’s medical clearance to return to work in May 2018. (Doc. 55-3 at 62:11-

19). Further, the record contains evidence suggestive of McCall’s ability to

return to work in May 2018. A medical indicated that, as of March 6, 2018

McCall was on course to return to work on May 21, 2018, as originally

scheduled. (Docs. 55-15; 55-16, 44-10). Holmberg testified that based upon

her knowledge as a nurse and the progression of McCall’s ankle condition,

she believed that McCall was “medically stable” enough to return to work in

May 2018. (Doc 55-25 at 82:18-83:1). Moreover, McCall testified that, in

June to August of 2018 and at the time of his deposition, he had worked as

a tax collector, a position he performed for approximately 25 to 30 hours per

week in an office. (Doc. 55-3 at 47:2-19, 67:23-69:9). He further testified that,

as of his deposition, he had not applied for social security disability benefits

as he was able to perform paid work as a tax collector. Id. at 46:12-22.

St. Luke’s argues that McCall’s failure to produce record evidence of

clearance from his physician to return to work in May 2018 is conclusive of

his inability to return to work at that time. The court is not so persuaded. In

support of its argument, St. Luke’s cites to Williams v. Pinnacle Health Family

Care Middletown, No. 18-CV-00722, 2020 WL 8991688 (M.D.Pa. March 18,

2020), aff’d, 852 Fed.Appx. 678 and Krensavage v. Bayer Corp., No.

02:04cv1476, 2006 WL 2794562 (W.D.Pa. Sept. 27, 2006), aff’d, 314

F.App’x 421. In Krensavage v. Bayer Corp., the district court found that the

plaintiff was not qualified under the ADA based upon her admission to being

completely disabled, as well as the fact that several doctors certified that she

was totally disabled and unable to return to work. Krensavage, 2006 WL

2794562, at *10. Similarly, in Williams v. Pinnacle, the district court found

that the plaintiff was not qualified under the ADA on the grounds that the

plaintiff did not receive medical clearance to return to work and that her

health indisputably continued to decline, rendering her totally disabled and

eligible for disability benefits. Williams, 2020 WL 8991688, at *10-12. Neither

Williams nor Krensavage goes so far as to conclude that a lack of medical

clearance to return to work alone is sufficient to demonstrate that an

employee is not a qualified individual under the ADA.

Moreover, in contrast to the facts presented in Williams and

Krensavage, the present record indicates that while McCall’s ankle condition

ultimately deteriorated, McCall did not become completely disabled. The

record contains evidence which suggests that McCall’s ankle condition

improved between May to August 2018. (Doc. 55-3 at 47:2-19, 67:23-69:9).

Given the aforementioned evidence, the court finds the existence of a

genuine factual dispute as to whether McCall was able to perform the

essential functions of his job in May 2018 or August 2018. As such, McCall

has raised a material factual dispute as to whether he was a qualified

individual under the ADA.

ii. Prima Facie Case for ADA Retaliation

In Count I of the amended complaint, McCall also claims that St. Luke’s

retaliated against him for requesting a reasonable accommodation for his

disability in violation of the ADA.

“To establish a prima facie case of retaliation under the ADA, a plaintiff

must show: (1) protected employee activity; (2) adverse action by the

employer either after or contemporaneous with the employee's protected

activity; and (3) a causal connection between the employee's protected

activity and the employer's adverse action.” Krouse v. Am. Sterilizer Co., 126

F.3d 494, 500 (3d Cir. 1997).

Initially, McCall does not specify a protected employee activity for the

purpose of his ADA retaliation claim. To the extent that Dr. McGarrity’s

December 23, 2017 medical note amounted to a request for an

accommodation under the ADA, as McCall alleges under his reasonable

accommodation claim, such a request constitutes a protected employee

activity. Allen v. Lackawanna Cty. Bd. of Commissioners, 2019 WL 4621276,

at *6 (M.D. Pa. Aug. 23, 2019) (“With respect to the first element of a prima

facie retaliation claim, a good-faith request for an accommodation constitutes

protected employee activity under the ADA”), adopted as modified, 2019 WL

4644244 (M.D. Pa. Sept. 23, 2019) (citing Shellenberger, 318 F.3d 183, 191

(3d Cir. 2003)).

However, even if the December 23, 2017 medical note constituted a

request for accommodation, McCall cannot establish a causal connection

between his request and the adverse employment actions. The time between

Dr. McGarrity’s December 23, 2017 medical note and the alleged filling of

McCall’s position in May 2018, approximately five months later, is too great

to allow a reasonable inference of causality. See Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (“[T]emporal proximity

alone will be insufficient to establish the necessary causal connection when

the temporal relationship is not ‘unusually suggestive.’”) (citing Krouse, 126

F.3d at 503); Krouse, 126 F.3d at 503 (discussing that mere fact that

adverse action occurs after protected activity does not establish causal link

without more and collecting cases); Jalil v. Avdel Corp., 873 F.2d 701, 708

(3d Cir. 1989) (causal link established where “discharge followed rapidly,

only two days later, upon Avdel's receipt of notice of Jalil's EEOC claim”). It

thus follows that he also cannot establish temporal proximity between his

alleged request and his termination on August 23, 2018.

Moreover, McCall does not point to any evidence of retaliatory animus

during the intervening period upon which a retaliatory motive may be

inferred, and the court does not find any such evidence in the record.

Krouse, 126 F.3d at 503 (“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.”).

Consequently, the court finds that McCall has failed to establish a

genuine issue of fact as to St. Luke’s alleged retaliation against the exercise

of his rights under the ADA because he cannot show a causal relationship

between his alleged request for accommodation made on December 23,

2017 and St. Luke’s adverse actions. Accordingly, the court will grant St.

Luke’s motion for summary judgment with respect to McCall’s ADA

retaliation claim in Count I of the amended complaint.

iii. Legitimate, Non-Discriminatory Reason; Pretext

For the reasons previously discussed, McCall has made a prima facie

case for his ADA discrimination claim. Under the McDonnell Douglas burden-

shifting framework, after a plaintiff has met its burden in establishing a prima

facie case, "the burden shifts to the employer to provide a legitimate non-

retaliatory reason for its conduct." Carvalho-Grevious, 851 F.3d 249, 257 (3d

Cir. 2017).

If the employer meets its burden, the burden of production shifts back

to the plaintiff to establish that the reason proffered by the employer is a

pretext for discrimination. In other words, the plaintiff must point to evidence

from which a factfinder could reasonably “either (1) disbelieve the employer's

articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating factor or determinative cause

of the employer's action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.

1994). “This is ordinarily done by demonstrating such weaknesses,

implausibilities, inconsistencies, incoherences, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence.” Krouse v.

American Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997) (internal quotation

marks and citations omitted).

St. Luke’ contends that it provided legitimate non-discriminatory

reasons for McCall’s termination and McCall cannot show pretext. The court

disagrees.

Initially, St. Luke’s has met its burden of providing a legitimate, non-

discriminatory reason for terminating McCall, specifically that McCall

“exhausted his FMLA leave, exhausted his 270 days of medical leave, did

not have medical clearance to return at the expiration of same, and failed to

take any steps to identify a position at St. Luke’s that he was qualified and

able to perform.” (Doc. 47 at 17). St. Luke’s further argues that McCall’s

position was filled in May 2018 because St. Luke’s needed to find a

replacement for McCall in order to maintain normal business operations.

However, it appears that McCall has pointed to evidence from which a

factfinder could reasonably disbelieve St. Luke’s articulated non-

discriminatory reasons. Regarding St. Luke’s allegation that McCall could not

have returned to his position in May 2018 because it was filled, McCall has

pointed to sufficient inconsistencies in the record to cast doubt on whether

his position remained open at the time of his termination on August 23, 2018.

Namely, Stehman and Holmberg provided contradicting testimonies as to

whether McCall’s position was actually filled and no longer available prior to

September 2018. (Doc. 55-24 at 80:20-24; Doc. 55-25 at 87:4-10).

McCall also points to evidence on the record which would allow a

reasonable jury to disbelieve that McCall’s alleged failure to produce medical

clearance and identify another position for which he was qualified were non-

pretextual reasons for McCall’s termination. McCall points to Stehman’s

deposition testimony, wherein she affirmed that, after McCall’s 270 days of

medical leave was exhausted in August 2018, she told McCall that she would

hold off on separating his employment so that he could attain updated

documentation from his physician. (Doc. 55-24 at 4-8). It is undisputed that

McCall was able to provide medical clearance to perform sedentary work on

August 23, 2018 and was terminated on the same day. Given sufficient

evidence casts doubt to whether McCall’s position remained available in

August 2018 and Stehman’s representation to McCall that his employment

would not be separated so that he could attain an updated medical

prognosis, a jury could reasonably disbelieve St. Luke’s proffered reasons

for terminating McCall.

Further, McCall contends that he did provide proof of his medical

clearance and identified a position at St. Luke’s for which he was qualified in

May 2018. In support of his claim, McCall relies upon his own testimony that

he had provided St. Luke’s medical clearance from Dr. O’Connor in May

2018. (Doc. 55-3 at 62:11-19). McCall further testified that on May 17, 2018,

upon telling Stehman that he was able to return to work, Stehman told him

that there was no position for him to return to, advised him to not worry about

his job, and assured him that St. Luke’s would find another position for him.

Id. at 54:17-55:7. McCall testified that, during the same conversation with

Stehman, he indicated that he would be able to work at St. Luke’s new

Lansford campus, which he believed was anticipated to begin training

employees in July 2018. Id. at 59:20-60:4.

Although St. Luke’s insists that it had legitimate reasons for terminating

McCall, at this stage the court is constrained to consider the evidence in the

light most favorable to the plaintiff. In light of the record, McCall appears to

have carried his burden of presenting enough evidence which could allow a

factfinder to disbelieve St. Luke’s regarding its reasons for terminating

McCall, or believe that it is more likely than not that the decision was

motivated by McCall’s alleged disability. As such, the court finds that

summary judgment under this step of the McDonnell Douglas framework to

be inappropriate and thus St. Luke’s motion for summary judgment on

McCall’s discrimination claim under the ADA will be denied.

b. ADA Failure to Accommodate Claim (Count I)

Under Count I of the amended complaint plaintiff also asserts that St.

Luke’s failed to accommodate his disability pursuant to the ADA. McCall

claims that he requested a reasonable accommodation by way of Dr.

McGarrity’s December 28, 2017 medical note, which stated that McCall

would be out of work for “several months” due to his ankle condition. (Doc.

55-16). McCall argues that St. Luke’s failed to accommodate his disability

because it failed to engage in the interactive process and eventually

terminated him. Having reviewed the evidence and the parties’ arguments,

the court finds that summary judgment on this claim is inappropriate.

An employer can be liable for discrimination under the ADA if it does

not make “reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability” unless the

employer “can demonstrate that the accommodation would impose an undue

hardship.” 42 U.S.C. §12112(b)(5)(A). Failure to accommodate claims under

the ADA are not evaluated using the McDonnell Douglas framework since

such claims do not require any evidence or inference of intentional

discrimination. Walton v. Mental Health Assn. of Southeastern Pennsylvania,

No. CIV.A. 96–5682, 1997 WL 717053, at *10 (E.D.Pa. Nov. 17, 1997) (citing

Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1283 (7th Cir.

1996); Brown v. Lankenau Hosp., 1997 WL 277354, at *8 (E.D.Pa. May 19,

1997)). “Instead, for the purposes of summary judgment, the court must

evaluate whether the facts presented by the nonmoving party, if taken as

true, could establish failure to accommodate in violation of the ADA.” Id.

“‘An employee can demonstrate that an employer breached its duty to

provide reasonable accommodations because it failed to engage in good

faith in the interactive process by showing that: 1) the employer knew about

the employee's disability; 2) the employee requested accommodations or

assistance for his or her disability; 3) the employer did not make a good faith

effort to assist the employee in seeking accommodations; and 4) the

employee could have been reasonably accommodated but for the

employer's lack of good faith.’” Moore v. CVS Rx Servs., Inc., 142 F.Supp.3d

321, 335 (M.D. Pa. 2015) (quoting Williams v. Philadelphia Hous. Auth.

Police Dep't, 380 F.3d 751, 772 (3d Cir. 2004)).

The parties do not dispute that St. Luke’s knew about McCall’s

disability. Rather, at dispute is whether McCall requested an accommodation

and if he could have been reasonably accommodated. St. Luke’s argues that

McCall never gave notice of a request, and even if he did, his alleged request

was not reasonable because it constituted a request for indefinite leave and

that McCall had failed to establish the existence of an appropriate position

into which he could have been transferred.2

2 St. Luke’s further argues that it was not obligated to engage in the

interactive process because McCall was not a “qualified individual” under the

ADA. Hohider v. United Parcel Serv., Inc., 570 F.3d 169, 193 (3d Cir. 2009)

(“if the employee is not a qualified individual under the ADA, ... [the

employer's] alleged failure to investigate into reasonable accommodation is

unimportant.”) (citations and internal quotations omitted). For the reasons

previously discussed herein, the court finds a triable issue of fact as to

whether McCall was a qualified individual for the purpose of the ADA.

i. Accommodation Request

McCall asserts that Dr. McGarrity’s December 28, 2017 medical note,

which stated that McCall would be out of work for “several months,”

constitutes a request for accommodation, as it had made St. Luke’s “aware

that Plaintiff could perform the essential functions of his position with the

reasonable accommodation of a brief extension of job protected medical

leave.” (Doc. 55 at 27). St. Luke’s, in seeking summary judgment, argues

that McCall’s Dr. McGarrity’s medical note does not constitute a request for

accommodation.

“A leave of absence for medical treatment may constitute a reasonable

accommodation under the ADA.” Bernhard v. Brown & Brown of Lehigh

Valley, Inc., 720 F.Supp.2d 694, 700 (E.D.Pa. 2010) (citing Conoshenti v.

Public Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004)); see also

Shannon v. City of Philadelphia, No. 98–5277, 1999 WL 1065210, at *6

(E.D.Pa. Nov. 23, 1999) (“the court finds that a reasonable jury could

conclude that [plaintiff's] request for an additional three months of unpaid

leave for medical treatment was a reasonable accommodation.”).

An employee’s request for accommodation need not be formal, invoke

the ADA or mention the words “reasonable accommodation.” Taylor v.

Phoenixville School Dist., 184 F.3d 296, 313 (3d Cir. 1999). Rather, what

matters under the ADA is whether the employee “provides the employer with

enough information that, under the circumstances, the employer can be fairly

said to know of both the disability and desire for an accommodation.” Id.

Circumstances thus may require “the employer…to meet the employee half-

way, and if it appears that the employee may need an accommodation but

doesn't know how to ask for it, the employer should do what it can to help.”

Conneen, 334 F.3d at 332 (citing Bultemeyer v. Fort Wayne Cmty. Sch., 100

F.3d 1281, 1285 (7th Cir. 1996)). However, “either by direct communication

or other appropriate means, the employee must make clear that the

employee wants assistance for his or her disability.” Jones v. United Parcel

Serv., 214 F.3d 402, 408 (3d Cir. 2000) (quotations and citations omitted).

There is “nothing in the ADA [that] mandates an employer to speculate as to

the extent of [an employee's] disability or [his] need or desire for an

accommodation simply because it is aware that he is ill.” Conneen v. MBNA

America Bank, N.A., 182 F.Supp.2d 370, 378 (D.Del. 2002) (internal

quotations and citation omitted).

Viewing in the light most favorable to McCall, the record raises a triable

issue of fact as to whether Dr. McGarrity’s medical note dated December 28,

2017 constituted a request for accommodation. Here, it is undisputed that

St. Luke’s was aware of McCall’s ankle condition prior to receipt of Dr.

McGarrity’s letter. Further, Dr. McGarrity’s medical note attributed McCall’s

needing to be out of work for several months to his ankle issue, which

McCall’s Leave of Absence Request Form dated November 20, 2017 had

indicated would require a reduced work schedule for four to six months. (Doc.

55-1 at ¶15; Doc. 44-10). On the basis of Dr. McGarrity’s December 28, 2017

medical note and McCall’s Leave of Absence Request Form, the court

cannot conclude as a matter of law that McCall did not request an

accommodation in the form of job-protected leave. McCall v. City of

Philadelphia, 629 Fed.Appx. 419, 421 (3d Cir. 2015) (indicating constructive

notice of a desire for accommodation can be inferred from record evidence);

Penson v. Philadelphia Presbytery Homes, Inc., NO. 17-1981, 2018 WL

4561614, at *7 (E.D.Pa. Sept. 12, 2018) (factual dispute existed as to

whether plaintiff requested an accommodation where plaintiff testified to not

having requested an accommodation but also provided testimony which

“either specifically or by strong implication, would allow a jury to find that he

did request an accommodation”); Bernhard, 720 F.Supp.2d at 701-02

(finding employee provided sufficient evidence of request for

accommodation where he notified his employer that he would be “unable to

return to work for at least three more months,” and needed to “be on long

term disability for a minimum of three months”); Jones v. United Parcel Serv.,

214 F.3d 402, 408 (3d Cir. 2000) (finding employee did not request an

accommodation where the employer was only aware of employee’s belief

that he could not return to his former job and his disability precluded him from

returning to work at employer).

St. Luke’s next argues that even if McGarrity’s medical note constituted

a request for leave, it reasonably construed his request for leave as a request

for indefinite leave. To the extent Dr. McGarrity’s December 28, 2017 letter

constituted a request for accommodation, the court cannot determine at

summary judgment stage whether the request was for indefinite leave. While

courts have found that an extended leave of absence may constitute a

reasonable accommodation, a request for an open-ended and indefinite

leave is not a reasonable accommodation. Fogleman v. Greater Hazleton

Health Alliance, 122 F. App'x 581, 58 (citing Conoshenti v. Pub. Serv. Elec.

& Gas Co., 364 F.3d 135, 151 (3d Cir. 2004). Courts have found a request

for leave to be indefinite where the employee presents no evidence of the

expected duration of the requested leave and no indication of a favorable

medical prognosis. Shannon v. City of Philadelphia, No. CIV.A.98–5277,

1999 WL 1065210 (E.D.Pa. Nov. 23, 1999); Hudson v. MCI

Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996).

Here, there is a triable issue of fact as to whether McCall’s December

28, 2017 notice of needing to be out of work for “several months” constitutes

a request for indefinite leave and thus was not a reasonable request for

accommodation. Evidence indicates that St. Luke’s was informed that

McCall was operating under the expectation that his medical condition would

last until May 21, 2018. (Doc. 44-10). Under these circumstances, whether

McCall’s leave request was “indefinite” is premature to rule on as a matter of

law and is a question for the jury. Compare Bernhard v. Brown & Brown of

Lehigh Valley, Inc., 720 F.Supp.2d 694 (E.D.Pa. 2010) (whether employee’s

request for “at least three months” of leave was reasonable rather than

indefinite is a “quintessential jury question”); Gibson v. Lafayette Manor, Inc.,

No. 05–1082, 2007 WL 951473, at *7 (E.D.Pa. March 27, 2007) (noting an

employer may have “put the cart before the horse” where it assumed a

physician’s letter stating employee could not work for six to eight weeks

constituted an indefinite request for leave and thereafter failed to participate

in the interactive process).

The record also appears to raise a material factual dispute as to

whether St. Luke’s participated in the interactive process in good faith. Both

employer and employee have a duty to act in good faith in searching for an

appropriate reasonable accommodation.3 Mengine v. Runyon, 114 F.3d 415,

420 (3d Cir. 1997). McCall claims that, rather than engaging in the interactive

process upon receiving Dr. McGarrity’s December 28, 2017 letter, St. Luke’s

failed to request from him any additional information about his prognosis for

recovery or length of extended leave requested. Stehman testified that, prior

to making the decision to post McCall’s employment in February 2018, she

did not reach out to McCall for any additional information about when he was

anticipating clearance to return to work. (Doc. 55-24 at 73:10-15). St. Luke’s

Human Resources Specialist Carol Evans (“Evans”) also testified she did not

reach out to McCall regarding the status of his return to work or medical

condition between December 28, 2017 and the posting of his position in

February 2018. (Doc. 55-23 at 65:25-4). McCall further testified that in May

2018, Stehman informed him that his job was filled and that there were no

other positions available for him. (Doc. 55-3 at 55:5-20).

3 The Third Circuit has held that employers can demonstrate “good faith” by

taking steps such as “meet[ing] with the employee who requests an

accommodation, request[ing] information about the condition and what

limitations the employee has, ask[ing] the employee what he or she

specifically wants, show[ing] some signs of having considered employee's

request, and offer[ing] to discuss available alternatives when the request is

too burdensome.” Taylor, 184 F.3d at 317 (alterations added).

In light of such evidence, a reasonable fact-finder could conclude that

McCall requested an accommodation and St. Luke’s in turn failed to engage

in the interactive process in good faith.

ii. Reasonably Accommodated

St. Luke’s argues that even if McCall had requested an

accommodation, there were no reasonable accommodations that would

have enabled McCall to return to work because he did not receive medical

clearance to return to work prior to exhausting his medical leave and failed

to identify another position for which he was qualified at any point prior to his

termination.

For the reasons previously discussed in connection with McCall’s claim

for discrimination under the ADA, there appears to be a triable issue of fact

as to whether McCall received medical clearance to return to work,4 and

whether McCall identified another position for which he was qualified prior to

his termination.5

4 McCall testified to having given St. Luke’s medical clearance to return

to work in May 2018. (Doc. 55-3 at 62:11-19).

5 The court notes that “[i]f the employee cannot be reasonably

accommodated in her previous position, []he must identify another position

that is vacant and funded, at or below h[is] level, for which []he is qualified to

perform the essential functions.” Castellani v. Bucks Cty. Municipality, 351

F.App’x, 774, 777 (3d Cir. 2009) (citation omitted). While “an employee need

not identify an open position before the employer’s duty to engage in the

interactive process attaches,” if following an opportunity for discovery, “the

Accordingly, the court will deny St. Luke’s motion for summary

judgment as to McCall’s reasonable accommodation claim under the ADA.

c. PHRA Discrimination and Retaliation (Count II)

Because the PHRA is generally interpreted “in accord with its federal

counterparts,” the legal analysis of McCall’s ADA claims applies to

his PHRA claims. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.

1996) (citations omitted). Accordingly, for the reasons previously discussed

in connection with McCall’s ADA claims, the court will grant St. Luke’s

summary judgment motion with respect to McCall’s PHRA claims of

retaliation and deny the motion with respect to McCall’s PHRA claims of

discrimination and accommodation.

employee has still not identified a position into which []he could have

transferred, the court must grant summary judgment in favor of the

defendant.” Id. (citation omitted).

Here, McCall testified that, in May 2018, he told Stehman that could be

transferred to St. Luke’s campus at Lansford, Pennsylvania. (Doc. 55-3 at

59:20-60:4). He further testified that while the Lansford campus was not yet

open in May 2018, employee training was anticipated to start in July 2018.

Id. Given McCall’s testimony, there appears to be a triable factual issue as

to whether there was another position which McCall was qualified for on or

before his termination.

d. FMLA retaliation (Count III)

In Count III of his amended complaint, McCall asserts that St. Luke’s

filling of his position and termination of his employment was in retaliation for

exercising his FMLA rights.

“Because FMLA retaliation claims require proof of the employer’s

retaliatory intent, courts have assessed these claims through the lens of

employment discrimination law.” Lichtenstein, 691 F.3d at 302. “To prevail

on a retaliation claim under the FMLA, the plaintiff must prove that (1) she

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

employment decision, and (3) the adverse action was causally related to her

invocation of rights.” Lichentenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d

294, 301-302 (3d Cir. 2012).

Claims based on direct evidence have been assessed under the

mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S.

228, 276–77 (1989), and claims based on circumstantial evidence have been

assessed under the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To the extent that

McCall argues that the Policy constitutes direct evidence of discrimination

for the purposes of his FMLA retaliation claim, the court is not so persuaded

for the reasons discussed in connection with McCall’s ADA claims. Because

McCall presents no other direct evidence, the court proceeds to assess his

FMLA claim under the McDonnell Douglas burden-shifting framework.

Under the McDonnell Douglas’ framework, the employee must first

establish a prima facie case before any burden shifts to the employer. Id. To

state a prima facie case of FMLA retaliation, a plaintiff must “show that (1)

he took an FMLA leave, (2) he suffered an adverse employment decision,

and (3) the adverse decision was causally related to his leave.” Conoshenti

v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). If the plaintiff

establishes a prima facie case of retaliation, “the burden of production shifts

to [the employer] to articulate some legitimate, nondiscriminatory reason for

its decision. If [the employer] meets this minimal burden, [the employee]

must point to some evidence, direct or circumstantial, from which a factfinder

could reasonably... disbelieve [the employer's] articulated reasons.”

Lichentenstein, 691 F.3d at 302-03).

St. Luke’s does not dispute the first two elements of a prima facie case.

Instead, it contends McCall cannot show a temporal proximity to establish

causation because St. Luke’s did not formally terminate McCall until August

28, 2018, approximately six months after McCall exhausted his FMLA leave

on February 20, 2018. St. Luke’s further argues the record is devoid of

evidence suggesting either that it engaged in a pattern of antagonism against

McCall or that an inference of causation could otherwise be raised. The court

agrees and finds that McCall cannot establish that an adverse decision was

causally related to his FMLA leave.

Courts generally focus on “two main factors in finding the causal link

necessary for retaliation: timing and evidence of ongoing antagonism.”

See Abramson v. William Paterson College of N.J., 260 F.3d 265, 288 (3d

Cir. 2001). “If the timing of the alleged retaliatory action is ‘unusually

suggestive of retaliatory motive’ a causal link will be inferred.” Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). Courts have found a period

of two days to three weeks constitutes unusually suggestive temporary

proximity. See Lichtenstein, 691 F.3d at 307 (summarizing cases). Courts

may also infer causation where an employer engages in a pattern of

antagonism between the protected behavior and subsequent adverse

employment action. Abramson, 260 F.3d at 288. Further, temporal proximity

and evidence of antagonism “are not the exclusive ways to show causation,

as the proffered evidence, looked at as a whole, may suffice to raise the

inference.” Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d

Cir. 1997) (citation omitted).

Here, McCall’s FMLA leave was exhausted on February 10, 2018.

(Doc. 55-17). Ten days later, St. Luke’s wrote to McCall that it would “make

every effort to hold the employee’s position” during his medical leave of

absence but will nevertheless seek a replacement for his position. Id. For the

reasons previously discussed in connection with McCall’s ADA claim, the

earliest adverse action that McCall has established is the alleged filling of

McCall’s position in May 2018. However, the approximately three-month

period between the exhaustion of McCall’s FMLA leave in February 2018

and the alleged filling of his position in May 2018 is not indicative of an

unusually suggestive temporal proximity. See, e.g. Lichtenstein, 691 F.3d at

307 (collecting cases). Accordingly, McCall has produced insufficient

evidence to demonstrate timing that is “unusually suggestive of retaliatory

motive.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 n.9 (3d

Cir. 2003).

Further, considering the record in the light most favorable to McCall, a

factfinder could not reasonably find that St. Luke’s engaged in a “pattern of

antagonism” from which causation can be inferred. Abramson, 260 F.3d at

288. McCall does not specifically argue that there is a pattern of antagonism.

It moreover appears to the court that the only evidence of antagonism

present in the record is an email from Evans to Stehman dated August 17,

2017, in which Evans informed Stehman that McCall was scheduled for

surgery. (Doc. 55-8); Fed.R.Civ.P. 56(c)(3). Evans wrote, “I did make him

aware if it was related to his FMLA, we would need updated restrictions.

Seems McCall is trying to be a problem child.” (Doc. 55-8). While the content

of this letter could be reasonably construed as an instance of antagonism on

the part of St. Luke’s, in the absence of additional circumstantial evidence of

antagonistic conduct, the record does not suggest a “pattern of antagonism.”

Moreover, the proffered evidence, when considered as a whole, is not

suggestive of causation.

Lastly, while McCall does not specifically assert a claim of FMLA

interference, St. Luke’s opposes such a claim to the extent it is asserted. To

establish an interference claim under the FMLA, the “employee need only

show that he was entitled to benefits under the FMLA and that he was denied

them.” Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)

(citations and quotations omitted). “An interference action is not about

discrimination, it is only about whether the employer provided the employee

with the entitlements guaranteed by the FMLA.” Commer v. The Vanguard

Group, 461 F.3d 397 (3d Cir. 2006) (internal quotations and citations

omitted). The U.S. Department of Labor has stated that FMLA interference

includes “not only refusing to authorize FMLA leave, but discouraging an

employee from using such leave” and “manipulation by a covered employer

to avoid responsibilities under FMLA.” 29 C.F.R. §825.220(b). Because the

FMLA is not about discrimination, a McDonnell–Douglas burden-shifting

analysis is not required.” Id. (citations omitted).

St. Luke’s is entitled to summary judgment here because the undisputed

record indicates that St. Luke’s was not denied any FMLA benefits. McCall

does not point to, and the court does not find, any evidence indicating that

St. Luke’s refused to authorize McCall’s requests for FMLA leave,

discouraged McCall from using his FMLA leave, or attempted to avoid its

responsibilities under the FMLA. On the contrary, McCall exhausted his

FMLA leave entitlement. As a result, to the extent McCall assert a claim for

FMLA interference, such a claim cannot survive summary judgment.

IV. CONCLUSION

For the foregoing reasons, St. Luke’s motion for summary judgment,

(Doc. 43), is GRANTED with respect to McCall’s retaliation claim under the

ADA and PHRA in Counts I and II, as well as McCall’s FMLA claims in Count

III of the amended complaint. St. Luke’s motion for summary judgment is

otherwise DENIED in all other respects.

An appropriate order follows.

s/Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: August 23, 2022

19-2052-02