Ganczarski v. Ollie's Bargain Outlet, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER GANCZARSKI No. 3:19-CV-1723

Plaintiff, (Chief Judge Brann)

v.

OLLIE’S BARGAIN OUTLET, INC.,

Defendant.

MEMORANDUM OPINION

OCTOBER 20, 2022

Plaintiff Jennifer Ganczarski took a job with Defendant Ollie’s Bargain

Outlet, Inc. as an assistant manager. She was later promoted to store manager of the

Scranton, Pennsylvania branch of Ollie’s. Ollie’s continually reviews its store

managers’ performance, evaluating their stores’ compliance with Ollie’s standards

through a system of operational assessments. Ganczarski struggled as manager of

the store and the assessments reflected her poor performance.

After Ganczarski’s store failed two consecutive assessments, she took leave

pursuant to the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) due

to preexisting health conditions. Ollie’s approved her leave and extended it on her

request. About twenty days after her return, Ganczarski’s store underwent another

assessment, and again failed. Ganczarski was subsequently terminated from Ollie’s.

Ganczarski now brings this employment discrimination action against Ollie’s.

She sues for several violations of federal and state law arising from her termination.

But all Ganczarski marshals in her favor is the fact that she was fired about twenty

days after she returned to work from FMLA leave. That is insufficient to raise the

inference of discrimination. Nor does it establish any causal link between

Ganczarski’s termination and any of her protected characteristics or activities.

Moreover, Ollie’s maintains that it fired Ganczarski for her poor performance,

namely her store’s repeated failures on the operational assessments for which she is

responsible as manager—an argument that Ganczarski fails to rebut. Therefore,

Ollie’s Motion for Summary Judgment will be granted.

I. BACKGROUND

A. Ganczarski Begins Her Employment at Ollie’s

In December 2016, Ganczarski applied for a Co-Team Lead position in Ollie’s

Scranton store, which she received.1 She was later promoted to a Store Team Lead

of the Scranton store in May 2017.2 Store Team Leads manage their designated

stores and are accordingly responsible for “all aspects of financial and operational

results, merchandising, associate development, and customer service.”3

1 Doc. 32-1 at 8 (Ganczarski Dep. 42:1-8).

2 Id. at 10 (Ganczarski Dep. 52:4-25).

3 Id. at 20 (Ganczarski Dep. 69:13-21); see also id. at 75-76 (Ex. 5, Store Team Lead Job

Ganczarski was hesitant to take on the role.4 She cited as concerns staffing

issues, the high volume of merchandise coming into the Scranton store, and her

perceived lack of support from management.5 But she accepted the position anyway

for its increased pay. Upon accepting, Ganczarski signed a document indicating that

she felt “comfortable completing the tasks associated with each area of responsibility

assigned to store managers.”6

Ganczarski began training with her soon-to-be supervisor, Lucas Guise, on

Ollie’s procedures.7 One aspect of her training was Ollie’s use of Operational Risk

Assessments (“ORAs”), which are continuing evaluations of a store’s compliance

with Ollie’s protocols—and a “critical part of the store manager role.”8 ORAs were

performed in each of the first three quarters of the year by an Ollie’s loss prevention

team member, which was James Stayer for the Scranton store.9 Stayer also trained

Ganczarski on the ORA process.10 Additionally, Ganczarski, as store manager, was

responsible for performing less intensive weekly ORAs of her store to anticipate

areas that required improvement.11

4 Id. at 11-12 (Ganczarski Dep. 53:12-54:9).

5 Id. at 12 (Ganczarski Dep. 54:10-55:4).

6 Id. at 21 (Ganczarski Dep. 70:6-17), 77-78 (Ex. 6, Job Skills Checklist—Team Leader).

7 Id. at 15 (Ganczarski Dep. 63:2-9).

8 Id. at 15 (Ganczarski Dep. 63:10-21), 197-98 (Stayer Dep. 22:23-23:11).

9 Id. at 198-99 (Stayer Dep. 23:12-24:7).

10 Id. at 200-202 (Stayer Dep. 37:22-39:21).

To pass an ORA, a store must receive above a ninety-percent aggregate

score.12 Anything below eighty-five percent aggregate score was a failure.13 If a store

failed, another follow-up ORA would be completed within thirty days, unless the

store scored between eighty-five and ninety percent, in which case the manager

would need to devise an action plan to improve performance, but there would be no

follow-up ORA.14 The next ORA would not assess anything that happened preceding

the prior ORA, i.e., if a store failed an ORA on the first of the month, the follow-up

ORA would not consider anything that happened on or before the first.15

An ORA tests five different areas: operations, internal risk, external risk,

human resources, and safety.16 The aggregate score is calculated by comparing the

points earned to the points possible in each area.17 The first ORA for a new store

manager was considered a “training ORA” and did not count against them.18 But if

a store received three consecutive failing ORAs, the store manager would be

terminated.19 The ORA results were sent to the Ollie’s human resources department,

which would in turn determine the appropriate level of discipline.20 Ollie’s also used

12 Id. at 203 (Stayer Dep. 69:9-13).

13 Id. at 203 (Stayer Dep. 69:9-13).

14 Id. at 203-04 (Stayer Dep. 69:14-70:4).

15 Id. at 217-18 (Stayer Dep. 115:9-116:3).

16 Id. at 79 (Ex. 9, June 30, 2017 ORA).

17 Id. (Ex. 9, June 30, 2017 ORA).

18 Id. at 204-05 (Stayer Dep. 70:16-71:10).

19 Id. at 221-22 (Stayer Dep. 124:15-125:8); Doc 37-2 at 21 (Guise Dep. 49:3-19).

performance reviews, but the ORAs were the primary consideration for managerial

performance.21

B. The First ORA

Ganczarski’s store received its first ORA on June 30, 2017, about six months

after she began working for Ollie’s and one month after her promotion to manager.22

Her store’s aggregate score was sixty percent, indicating a failure.23 The ORA found

Ganczarski’s store to be “noncompliant” in twenty-four different areas, including

the fact that the store was behind in unloading merchandise, merchandise was not

marked with price tickets, loose price tickets found inside and outside the store,

merchandise was not safely displayed, and merchandise blocking several fire

extinguishers.24 But this ORA did not count against Ganczarski, as it was her first as

manager.25

Normally, the loss prevention team member would sit with the store manager

to go over the results with them.26 This was to allow Ganczarski to create a plan to

improve the store’s performance, which was largely her responsibility, save any

issues that required approval from Guise, such as hiring management staff.27

21 See id. at 22 (Guise Dep. 54:25-56:8).

22 Id. at 24 (Ganczarski Dep. 92:7-19).

23 Id. at 24 (Ganczarski Dep. 92:20-25), 79 (Ex. 9, June 30, 2017 ORA).

24 Id. at 26 (Ganczarski Dep. 96:9-14), 86 (Ex. 9, June 30, 2017 ORA).

25 Id. at 205 (Stayer Dep. 71:11-17).

26 Id. at 26-27 (Ganczarski Dep. 96:15-24), 206-07 (Stayer Dep. 76:22-77:29). Ganczarski does

not specifically recall whether she had such a conversation following the first ORA. Stayer

maintains that he always had a conversation with a store manager following an ORA, whether

in person or by phone. See id.

C. The Second ORA

Ganczarski’s store received its second ORA on August 4, 2017.28 The store

again failed, this time with an improved, yet still deficient, aggregate score of

eighty-two percent.29 Compared to its first ORA, Ganczarski’s store received a much

higher score in operations, internal risk, external risk, and human resource, but a

lower score on safety.30 However, the operations and safety scores were the lowest

of the five.31 Additionally, there were twelve noncompliance issues, a decrease from

the twenty-four found in the first ORA, but eight issues from the first ORA were

identified again in the second.32

Ganczarski disputes some of the noncompliance issues noted in the second

ORA but admits she has no reason to believe that any of the issues from the first or

second ORAs were “fabricated.”33 She explains that in response to the failed ORA,

she requested additional staff.34 Guise recalls sending in in partial “support teams”

to assist Ganczarski in managing the store from early on in her tenure as store

manager.35 But after November, Guise sent in “full teams” to assist the Scranton

store for the holiday season.36 Specifically, he sent in teams of six or seven people

28 Id. at 29-30 (Ganczarski Dep. 104:12-105:11), 87 (Ex. 10, Aug. 4, 2017 ORA).

29 Id. (Ganczarski Dep. 104:12-105:11), 87 (Ex. 10, Aug. 4, 2017 ORA).

30 Id. at 30-31 (Ganczarski Dep. 105:12-106:7), 87 (Ex. 10, Aug. 4, 2017 ORA).

31 Id. at 87 (Ex. 10, Aug. 4, 2017 ORA).

32 Id. at 31-32 (Ganczarski Dep. 106:11-107:21), 90 (Ex. 10, Aug. 4, 2017 ORA).

33 Id. at 33 (Ganczarski Dep. 112:5-12).

34 Id. (Ganczarski Dep. 112:13-25).

35 Doc. 37-2 at 37 (Guise Dep. 116:7-14).

for a full day when the volume of merchandise in the store’s storage area was so

high that no additional merchandise could be brought into the store.37 He also

allowed Ganczarski extra payroll to accommodate additional staff-hours to move

merchandise.38 However, Ganczarski denies receiving any assistance.39

D. Ganczarski’s Performance Review

Ganczarski had a yearly performance review on April 7, 2018, completed by

Guise.40 Guise explains that it is a “rule of thumb” that a reviewer would not grade

an employee lower than “meets expectations” unless they had first received a “final

writeup.”41 This enabled the review to facilitate a conversation on improving the

employee’s performance.42 Aside from the second failing ORA—the first ORA to

count against her—Ganczarski had not received any negative feedback at the time.43

Although Ganczarski received the evaluation in April, Guise prepared it in the

second week of January and accordingly “d[id] [not] take into account anything after

January.”44 The reason that Ollie’s gave reviews to its employees in April was so

they would coincide with annual wage increases.45 Accordingly, the review covered

37 Id. at 37-38 (Guise Dep. 116:20-117:11).

38 Id. (Guise Dep. 116:20-117:11).

39 Id. at 54 (Ganczarski Dep. 236:6-10).

40 Id. at 21 (Guise Dep. 52:4-15); Doc. 32-1 at 96-98 (Ex. 13, Apr. 7, 2018 Ganczarski

Performance Review).

41 Doc. 37-2 at 21, 27 (Guise Dep. 51:11-20, 76:2-12).

42 See id. at 21 (Guise Dep. 51:11-20).

43 Id. (Guise Dep. 52:4-18).

44 Id. (Guise Dep. 52:19-25).

both Ganczarski’s time as a Co-Team Lead and as the Scranton store manager, but

it also considered her ORA performance as manager.46

In her review, Ganczarski was found to “meet expectations” overall.47

Specifically, Guise found Ganczarski met expectations in decision-making, being

results focused, managing others, and customer service, but needed improvement in

communication as well as planning and organizing.48 The review further noted that

“[t]here h[ad] been numerous multiple request emails and deadlines missed” as well

as “several occurrences” when the store was behind on moving merchandise.49

Elaborating on her communications issues at his deposition, Guise recalls several

instances when he would visit Ganczarski’s store only to come back two weeks later

and find it in a “complete backtrack from the previous visit.”50 He further recalls that

most of the times he walked into Ganczarski’s store, it was a “911”: the aisles were

“badly merchandised for the customers,” and the “backroom [was] overflowing with

a truck on the way.”51

Guise explains that Ganczarski failed to communicate that she needed

assistance, sometimes misrepresenting the state of affairs at the Scranton store.52 But

46 See id. at 21 (Guise Dep. 50:24-51:10), 50 (Guise Dep. 166:5-167:20).

47 Id. at 21 (Guise Dep. 52:16-17).

48 Doc. 32-1 at 97 (Ex. 13, Apr. 7, 2018 Ganczarski Performance Review).

49 Id. (Ex. 13, Apr. 7, 2018 Ganczarski Performance Review).

50 Doc. 32-7 at 25 (Guise Dep. 65:15-66:14).

51 Id. (Guise Dep. 67:5-20).

he acknowledges that the store had staffing issues.53 He recalls responding to those

issues by sending in several managers and support teams to assist the Scranton

store.54 Stayer similarly recalls support teams and managers going to the store to

assist.55 He also explains that it was company policy to have fill-in managers present

when the store manager could not be, as a management-level employee was required

to open and close the store.56

E. The Third ORA

Ganczarski’s store received its third ORA—the second to count against her—

on March 30, 2018.57 As Stayer recalls, the nine-month delay between the August

2017 ORA and this one was likely caused by the company’s busy fourth quarter,

which encompassed the winter holiday season, during which several new store

openings required Stayer’s presence.58 On this ORA, the Scranton store failed with

an aggregate score of seventy-seven percent, with failing sub-scores in operations,

internal risk, and safety, as well as sixteen noncompliance issues.59 Guise recalls

sending in several teams of employees from other Ollie’s stores as well as personally

visiting the Scranton store himself to assist following this ORA.60

53 Id. at 26 (Guise Dep. 70:3-72:3).

54 Id. at 26-27 (Guise Dep. 72:3-73:20).

55 Doc. 32-1 at 212-15 (Stayer Dep. 89:21-92:4).

56 Id. at 215-16 (Stayer Dep. 92:5-93:21).

57 Id. at 91-95 (Ex. 12, Mar. 30, 2018 ORA).

58 Doc. 32-1 at 208-09 (Stayer Dep. 78:13-79:9).

59 Id. (Ex. 13, Mar. 30, 2018 ORA); see id. at 35 (Ganczarski Dep. 142:6-20); id. at 207-08

(Stayer Dep. 77:20-78:10); Doc. 37-2 at 29 (Guise Dep. 81:25-4).

F. Ganczarski Takes FMLA Leave

Ganczarski requested and received FMLA leave on April 12, 2018, to address

her generalized anxiety disorder and hypertension.61 However, she did not explain

that she was taking leave because she suffered from generalized anxiety disorder and

hypertension; nor did she request any accommodations for those conditions.62

Neither Stayer nor Guise was aware of her conditions or that she took leave pursuant

to the FMLA.63 On her further request, Ollie’s extended her leave.64

On April 13, the day after Ganczarski took leave, Guise contacted her asking

if she would be putting together an employee schedule and offering to have another

store manager complete it.65 Ganczarski refused and said she would complete the

schedule herself.66 She does not recall whether she completed the schedule.67 During

the week Ganczarski took leave, Guise recalls contacting her to schedule another

ORA.68 While Ganczarski was out, Guise recalls bringing in support teams to ensure

that the storage area of her store was emptied for incoming merchandise.69 The exact

date is unclear, but Ganczarski returned to work on May 12 or 13, 2018.70 She

61 See Doc. 32-1 at 102-03 (Ex. 17, Apr. 19, 2018 FMLA Ltr. from Nick Pawlush to Ganczarski),

106 (Ex. 18, Approved Leave Form).

62 See Doc. 32-1 at 36 (Ganczarski Dep. 174:2-19).

63 Id. at 220-21 (Stayer Dep. 123:24-124:14); Doc. 37-2 at 27-28 (Guise Dep. 76:13-77:22).

64 Doc. 32-1 at 37 (Ganczarski Dep. 185:12-16).

65 Doc. 37-5 at 199 (Ganczarski Dep. 334:12-335:8)

66 Id. at 199-200 (Ganczarski Dep. 335:9-336:6).

67 Id. (Ganczarski Dep. 335:9-336:6).

68 Doc. 37-2 at 27-28 (Guise Dep. 76:13-80:22).

69 Id. at 48 (Guise Dep. 157:2-158:23).

returned to her role as the Scranton store manager at the same pay and with the same

benefits.71

G. Ganczarski’s Final Written Warning

Ganczarski received a final written warning from Guise on May 14, 2018, as

a consequence of the three failed ORAs, only two of which actually counted against

her.72 Guise prepared the warning following the third ORA on March 30, 2018, but

could not discuss it with Ganczarski then because she was already out on FMLA

leave.73 Guise claims it was company “policy” to issue a warning after a manager’s

second failed ORA.74 He explains that the timing was likely the result of his schedule

and other responsibilities as a district manager; Ollie’s was opening new stores and

assessing the inventory of its existing stores, both of which required Guise’s

presence.75

As for its content, the warning specifically referred to the ORA scores on the

first, second, and third ORAs, explained that it was a final written warning, advising

Ganczarski that “[f]urther performance issues” or “any violation of Ollie’s policies

w[ould] result in [her] termination.”76 Ganczarski acknowledged that the warning

was her last and that further violations could result in her termination, but she refused

71 Id. at 42-43 (Ganczarski Dep. 195:20-196:4).

72 Id. at 125 (Ex. 25, Final Writeup).

73 Doc. 32-7 at 34-35 (Guise Dep. 104:25-105:5).

74 Id. at 35 (Guise Dep. 106:20-107:6).

75 Id. (Guise Dep. 107:6-108:6).

to sign the document when Guise gave it to her.77 She argues that her performance

improved when she was fully staffed and her failing scores were primarily the result

of staffing issues.78 Although both Stayer and Guise referenced a “three-strikes”

policy when it came to failing ORAs, the warning explains that Ollie’s “may

terminate an associate for any reason, with or without notice. Advance notice is not

required, nor is there any requirement that Ollie’s impose progressive discipline

prior to termination.”79

H. Ganczarski’s Fourth ORA and Termination

The fourth and final ORA of the Scranton store during Ganczarski’s tenure

took place on May 30, 2018.80 The store scored a seventy-four percent, three percent

lower than the last ORA, with failing sub-scores in the same three categories,

operations, internal risk, and safety, as well as sixteen noncompliance issues.81 The

ORA assessed only the conditions of the store following Ganczarski’s return and

therefore did not consider anything that occurred while she was on leave.82 As with

the other ORAs, Ganczarski agrees that all the noncompliance issues were

“legitimate.”83

77 See id. at 45 (Ganczarski Dep. 214:7-21), 125 (Ex. 25, Final Writeup).

78 See id. at 45-46 (Ganczarski Dep. 214:22-215:7).

79 Doc. 32-1 at 125 (Ex. 25, Final Writeup).

80 Id. at 126-30 (Ex. 27, May 30, 2018 ORA).

81 Id. at 49-50 (Ganczarski Dep. 228:24-229:4), 126-30 (Ex. 27, May 30, 2018 ORA).

82 Doc. 37-2 at 32 (Guise Dep. 94:9-96:9).

Guise could not recall another manager in his district who failed an ORA three

times.84 Stayer explains that he believed that there was a “reasonable opportunity”

for Ganczarski to improve her scores from the day she came back from FMLA leave

and the fourth ORA.85 He further believed that the lack of assistant managers would

not have been a mitigating factor for Ganczarski, as she was trained to complete the

responsibilities for every employee.86

Ollie’s terminated Ganczarski the following day, May 31, 2018.87 The notice

of her termination referenced the failing ORAs and the repeated issues found in

each.88 Stayer and Guise both maintain that they had no input into Ganczarski’s

termination, which was controlled entirely by Ollie’s human resources department.89

Stayer did share his opinion with the human resources department, however.90

Ganczarski was replaced with Kevin Smith, a man who was then working at the

Scranton store awaiting an assignment to be a store manager.91

I. Procedural History

Ganczarski filed suit against Ollie’s alleging sex discrimination under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”) (Count I)

84 Doc. 37-2 at 50 (Guise Dep. 165:8-166:4).

85 Doc. 32-1 at 217-18 (Stayer Dep. 115:9-116:3).

86 Id. at 218 (Stayer Dep. 116:4-8).

87 Id. at 50-51 (Ganczarski Dep. 232:19-233:9); Doc. 32-1 at 131 (Ex. 28, Termination Notice).

88 Doc. 32-1 at 131 (Ex. 28, Termination Notice).

89 Id. at 196 (Stayer Dep. 19:20-25); Doc. 37-2 at 30 (Guise Dep. 87:16-88:8).

90 Doc. 32-1 at 195-96 (Stayer Dep. 19:20-20:10). It is unclear what Stayer’s opinion was or to

whom he expressed said opinion.

and the Pennsylvania Human Relations Act, 43 P.S. § 955 et seq. (“PHRA”) (Count

II), disability discrimination under Americans with Disabilities Act 42 U.S.C. §

12101 et seq. (“ADA”) (Count III) and the PHRA (Count IV), discriminatory

retaliation under the ADA (Count V) and PHRA (Count VI), failure to restore to

former employment in violation of the FMLA (Count VII), and retaliation in

violation of the FMLA (Count VIII).92 Ollie’s now moves for summary judgment.93

Its motion has been fully briefed and is ripe for disposition.

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.”94 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.”95 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”96 Conversely, to survive summary judgment, a plaintiff must “point to

92 Compl. Doc. 1.

93 Def.’s Mot. for Summary Judgment, Doc. 32.

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

95 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)).

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”97

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.98 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.”99 The United States Court

of Appeals for the Third Circuit explains that the nonmoving party will not withstand

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”100 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”101

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

proceed to find a verdict for the [nonmoving] party,”102 the Court “must view the

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

nonmoving party.”103 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

97 Id.

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

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

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

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

2002) (quoting Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

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

442, 448 (1871)).

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

motion.”104 Finally, although “the court need consider only the cited materials, . . .

it may consider other materials in the record.”105

III. ANALYSIS

The Court will first address Ganczarski’s discrimination and retaliation claims

(Counts I through VI and VIII), as they are all analyzed under the same

burden-shifting framework espoused in McDonnell Douglas Corp. v. Green.106 It

will then discuss Ganczarski’s FMLA interference claim (Count VIII).

A. McDonnell Douglas Burden-Shifting Framework

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

PHRA,107 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.108 Here,

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

Cir. 2018).

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

106 411 U.S. 792 (1973).

107 “The proper analysis under Title VII and the [PHRA] is identical, as Pennsylvania courts have

construed the protections of the two acts interchangeably.” Weston v. Pennsylvania, 251 F.3d

420, 425 n.3 (3d Cir. 2001), overruled in part on other grounds by Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53 (2006); see also Jones v. Sch. Dist. of Philadelphia, 198 F.3d

403, 410 (3d Cir. 1999).

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

(citing McDonnell Douglas Corp., 411 U.S. 792; Price Waterhouse v. Hopkins, 490 U.S. 228,

Ganczarski does not appear to be alleging a mixed motive case.109 Indeed, she relies

purely on inferential evidence. Inferences are, by definition, circumstantial

evidence.110 Therefore, the McDonnell Douglas framework governs Ganczarski’s

discrimination and retaliation claims.

Under that framework, Ganczarski “bears the initial burden of establishing a

prima facie case by a preponderance of the evidence.”111 The “central focus” of

the prima facie case in this context “is always whether the employer is treating

‘some people less favorably than others because of their race, color, religion, sex, or

national origin.’”112

The parties only dispute whether Ganczarski can show a causal nexus between

her protected activities or characteristics and her termination. To prove causation in

the discrimination context, Ganczarski must “(1) introduce evidence of comparators

(i.e., similarly situated employees who (a) were not members of the same protected

class and (b) were treated more favorably under similar circumstances); or (2) rely

on circumstantial evidence that otherwise shows a causal nexus between his

membership in a protected class and the adverse employment action.”113

109 Plf.’s Opp. Br., Doc. 9 at 9 (applying the McDonnell Douglas analysis).

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

111 Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003) (citing St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 506 (1993)).

112 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Furnco Const.

Corp. v. Waters, 438 U.S. 567, 577 (1978)).

113 Greene v. Virgin Islands Water & Power Auth., 557 F. App’x 189, 195 (3d Cir. 2014) (citing

Similarly, in the retaliation context, “[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.”114

If Ganczarski presents a prima facie case, the burden then shifts to Ollie’s to

“articulate some legitimate, nondiscriminatory reason for [her termination].”115

Importantly, the shifting burden concerns only the evidentiary burden of production;

“[Ganczarski] has the ultimate burden of persuasion at all times.”116 Specifically,

Ollie’s must “clearly set forth, through the introduction of admissible evidence,

reasons for its actions which, if believed by the trier of fact, would support a finding

that unlawful discrimination was not the cause of the employment action.”117

If Ollie’s meets that burden, “the presumption of discriminatory action raised

by the prima facie case is rebutted” and the burden shifts back to the Ganczarski.118

To sustain her claim, “[Ganczarski] then must establish by a preponderance of the

evidence that [Ollie’s] proffered reasons were merely a pretext for discrimination,

and not the real motivation for the unfavorable job action.”119 Specifically,

Ganczarski must “provid[e] evidence that would allow a fact finder reasonably to

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

115 Sarullo, 352 F.3d 797 (citing McDonnell Douglas, 411 U.S. at 802).

116 Lichtenstein, 691 F.3d at 302.

117 St. Mary’s Honor Center, 509 U.S. at 507 (internal quotation marks and emphasis omitted).

118 Sarullo, 352 F.3d at 797 (citing Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 255 (1981)).

(1) disbelieve [the company’s] articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not the motivating or

determinative cause of [her termination].”120

B. Prima Facie Case

1. Sex Discrimination (Counts I and II)

As noted above, to present a prima facie case on her sex discrimination claim

under Title VII and the PHRA (Counts I and II), Ganczarski must show that she

“(1) is a member of a protected class; (2) was qualified for the position she held; (3)

was fired from that position; and (4) suffered adverse action under circumstances

that give rise to an inference of discrimination.”121

Ganczarski was replaced by someone outside of her protected class, a male

named Kevin Smith.122 She argues that her replacement by a male establishes a

prima facie case of sex discrimination. In support, she cites an unpublished decision

from the United States District Court for the Eastern District of Pennsylvania that in

turn cites a published decision from the United States Court of Appeals for the

Eighth Circuit.123 Both are Title VII cases involving sex discrimination claims, and

120 Id. at 800 (internal quotation marks and citation omitted).

121 Johnson v. St. Luke’s Hosp., 307 F. App’x 670, 671 (3d Cir. 2009) (citing Jones, 198 F.3d at

410-11).

122 Doc. 32-1 at 237 (Smith Dep. 40:8-22).

123 Plf.’s Opp. Br., Doc. 35 at 9 (citing Gardner-Lozada v. SEPTA, 2014 WL 6633195, at *9 (E.D.

Pa. Nov. 24, 2014) (citing Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944-45

both conclude that replacing a Title VII plaintiff with someone of a different sex is

sufficient to show a prima facie case.124

The Court is skeptical that replacement by someone outside of the protected

class alone is sufficient for a prima facie case. In the race discrimination context,

also governed by Title VII, the Third Circuit seems to require more, specifically that

the plaintiff’s employer replace the plaintiff with an individual outside the plaintiff’s

protect class and “treat[] [the replacement] more favorably.”125 More favorable

treatment of someone outside the plaintiff’s protected class can assuredly raise the

inference of discrimination.

Here, it is unclear whether Ollie’s treated Smith more favorably than

Ganczarski, as he also failed his first two ORAs but passed the rest.126 Nonetheless,

the Court will give Ganczarski the benefit of any doubt and conclude that she meets

her light burden of showing a prima facie case of sex discrimination.

124 Davenport, 30 F.3d at 944 (“While proof of replacement by a person outside the protected

class will satisfy the fourth element, it is now well-settled that such proof is not required.”);

Gardner-Lozada, 2014 WL 6633195, at *9 (“Nevertheless, under the circumstances, the fact

that SEPTA promoted male employees instead of [the female plaintiff] is enough to create

a prima facie case of discrimination.”).

125 Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993) (emphasis added); see

also Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F. App’x 209, 214 n.3 (3d Cir. 2011)

(rejecting a plaintiff’s argument that replacement by an individual outside of her protected

classes is independently sufficient to show causal nexus).

2. Disability Discrimination and Retaliation Claims (Counts III

through VI)

Similar to the standard laid out above, to present a prima facie case of

disability discrimination under the ADA and PHRA (Counts III and IV), Ganczarski

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 [Ollie’s]; and (3) [she] has suffered an

otherwise adverse employment decision as a result of discrimination.”127

As for her disability retaliation claims (Counts V and VI), Ganczarski must

show (1) she engaged in “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.”128 As discussed below, with respect to both her FMLA

and disability claims, Ganczarski fails to demonstrate a causal nexus between her

FMLA leave or disability and her termination.

Ganczarski has no comparator evidence. She is unaware of or could not recall

any disabled store managers who kept their jobs despite failing three consecutive

ORAs.129 Although the lack of comparator evidence is not fatal to her claims, she

must present other compelling circumstantial evidence to establish a causal nexus

127 Taylor, 184 F.3d at 306.

128 Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002) (quoting Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)).

between her termination and her disability as well as her taking leave for that

disability.

To do so, Ganczarski relies on the twenty-one days between her return from

FMLA leave and her termination and Ollie’s failure to support her as a manager. She

argues that this evidence supports her prima facie case as well as her pretext

allegation.130 However, none of her arguments raise an inference of discrimination

once put into the factual context of this case.

As an initial matter, “[t]o the extent that [Ganczarski] relies upon the brevity

of the time periods between the protected activity and alleged retaliatory actions to

prove causation, [s]he will have to show as well that the decision maker had

knowledge of the protected activity.”131 She “cannot establish that there was a causal

connection without some evidence that the individuals responsible for the adverse

action knew of [her] protected conduct at the time they acted.”132

It appears that no one at Ollie’s was aware of Ganczarski’s anxiety or

hypertension. Stayer was not.133 Nor was Guise.134 She never communicated her

conditions to Ollie’s HR personnel.135 Nor did her leave request or doctor’s note

130 See Plf.’s Opp. Br., Doc. 35 at 9 (citing Young v. Builders Steel Co., 754 F.3d 573, 578 (8th

Cir. 2014)).

131 Moore v. City of Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006), as amended (Sept. 13, 2006)

(citations omitted) (citing Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005); Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989)).

132 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015)

133 Doc. 32-1 at 220-21 (Stayer Dep. 123:24-124:14).

134 Doc. 37-2 at 27 (Guise Dep. 76:13-25).

indicate her conditions or that she had a disability.136 It appears that Guise was under

the impression she took general “medical leave.”137

Additionally, the FMLA allows employees to take protected leave for a

variety of reasons,138 so the mere fact that Ganczarski took FMLA leave would not

put anyone at Ollie’s on notice that she had a disability. Therefore, the temporal

proximity between Ganczarski’s termination and her taking leave for her disability

cannot establish a causal link between the two.

Even assuming that Ollie’s knew of her disability, twenty-one days is

substantially longer than most periods considered sufficiently short to independently

raise the inference of discrimination.139 In any event, the Court must “review the

whole record and not merely the length of time between protected activity and

adverse action.”140 During the relevant period, the Court may “consider ‘intervening

antagonism or retaliatory animus, inconsistencies in the employer’s articulated

reasons for terminating the employee, or any other evidence in the record sufficient

136 See id. at 99 (Ex. 15, Ganczarski’s Leave Request Form), 102 (Ex. 17, Apr. 19, 2018 FMLA

Ltr. from Nick Pawlush to Ganczarski), 106 (Ex. 18, Approved Leave Form), 107 (Ex. 19,

Doctor’s Note).

137 Doc. 37-2 at 27 (Guise Dep. 76:13-25).

138 See 29 U.S.C. § 2612(a)(1) (listing the various reasons for which an employee can take FMLA

leave).

139 See, e.g., Lichtenstein, 691 F.3d at 307 (seven days); Jalil, 873 F.2d at 708 (two days); Seeger

v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012) (three weeks); Wierman v.

Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (four days); McCann v. Tillman, 526

F.3d 1370, 1376 (11th Cir. 2008) (five days); see also Harrison-Harper v. Nike Inc., 788 F.

App’x 846, 849 (3d Cir. 2019) (concluding that three weeks was a “short period” but still

insufficient to show causation in light of other circumstances disproving discriminatory

motive).

to support the inference of retaliatory animus,’ but also relevant to the analysis is

whether employment-related issues are documented prior to the protected

activity.”141

As to the timing itself, Ganczarski was well aware of Ollie’s practice of doing

another ORA in the thirty days following a failing ORA, having already gone

through a follow-up ORA.142 Her third failing ORA (but only the second that counted

against her) took place on March 30, 2018, meaning it was likely—if not certain—

that the store would undergo another ORA. But she took leave from April 12, 2018,

to May 10, 2018. Upon her return, she was given twenty days until the next ORA.

Ganczarski points out that following her second failing ORA on August 4,

2017 (the first ORA to count against her), she was not assessed again for almost nine

months, in violation of Ollie’s purported policy requiring a follow-up ORA within

thirty days. Ollie’s responds that the holiday season and inventorying stores explains

the delay.

But even taking an inference in Ganczarski’s favor here, it is unclear how

additional time to acclimate to the responsibilities of store manager prejudiced her.

If anything, her failure to pass the same assessment after nine months is a stronger

showing of her poor performance. And undisputed evidence indicates that Ollie’s

141 Id. (emphasis in original) (quoting LeBoon v. Lancaster Jewish Community Ctr. Ass’n, 503

F.3d 217, 232 (3d Cir. 2007)).

142 See Doc. 32-1 at 126 (Ex. 25, Final Writeup) (“The policy for Operational Risk Assessment

vacillation from its follow-up-ORA policy was not specific to the Scranton store or

Ganczarski. Stayer, who was responsible for doing the ORAs was occupied with the

holiday season and completed no ORAs during that period for any store.143 Aside

from the timing, there is no suggestion of intervening animus related to Ganczarski’s

disability.

Ganczarski also points to the final warning given to her on May 14, 2018, only

about two weeks before she was terminated. But she does not dispute that Guise was

unable to give her the warning sooner because she had taken FMLA leave.144 Indeed,

Guise gave her the review the week she returned.

Ganczarski last argues that Guise and Stayer’s self-serving assertions that her

FMLA leave was not considered during the ORA process and the decision to

terminate her cannot be the basis for summary judgment.145 But it is her burden to

show that there is a causal connection between her leave for disability and her

termination, not the company’s.

The Court finds the ORAs strong evidence of Ganczarski’s poor performance

prior to her FMLA leave. The first three ORAs described her consistent failures to

follow Ollie’s policies in detail, including her continuing failure to resolve issues in

the operations, internal risk, and safety categories, as well as many of the same

143 See id. at 207-09 (Stayer Dep. 77:20-79:20).

144 Def.’s Statement of Undisputed Material Facts (“SUMF”), Doc. 33 ¶ 76; Plf.’s Resp. to

Statement of Undisputed Material Facts (“RSUMF”), Doc. 37 ¶ 76.

noncompliance issues.146 The last ORA, following Ganczarski’s return, was no

exception, with failing scores in the same three areas and similar noncompliance

issues.147 A pattern of consistent negative criticism both before and after Ganczarski

took leave undermines any causal link between her leave and or disability and her

subsequent termination.148

Ganczarski next argues that she was not given the necessary support to

succeed and categorically denies Stayer and Guise’s detailed recollections of the

support they provided to the Scranton store.149 But it is immaterial whether Ollie’s

provided Ganczarski with the support she desired because she has not established

that Ollie’s discriminated with respect to which managers it supported. She does not

identify any managers who received the support that she desired. She does not

dispute that as Scranton store manager, she was responsible for all aspects of the

store’s operation, staffing, and ORA compliance.150 Nor does she not dispute that

she was trained on all those aspects.151 And to the extent she required Guise’s

approval with hiring assistant managers, she does not dispute that Guise “never

delayed or held up the hiring process when [she] requested approval.”152

146 See Doc. 32-1 at 87-90 (Ex. 10, June 30, 2017 ORA), 91-95 (Ex. 12, Aug. 30, 2017 ORA).

147 Id. at 126-30 (Ex. 27, Mar. 30, 2018 ORA).

148 See Shaner v. Synthes, 204 F.3d 494, 504-05 (3d Cir. 2000) (concluding that performance

evaluations were not causally linked to protected activity where they “contained similar

criticisms both before and after he made the company aware that he [was disabled] and before

and after he [engaged in a protected activity]”).

149 See Plf.’s Opp. Br., Doc. 35 at 13-16.

150 SUMF, Doc. 33 ¶¶ 17-18; RSUMF, Doc. 37 ¶¶ 17-18.

151 SUMF, Doc. 33 ¶¶ 12-15; RSUMF, Doc. 37 ¶¶ 12-15.

Aside from Ollie’s seemingly justified concerns over her performance,

Ganczarski does not present any evidence of antagonism, much less a pattern of it.

For these reasons, the Court concludes that Ganczarski has not presented a prima

facie case of disability discrimination or retaliation.

3. FMLA Retaliation Claim (Count VIII)

To present a prima facie case of retaliatory discrimination under the FMLA,

Ganczarski 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

her exercise of her FMLA rights.153 Her burden to show a causal nexus is lower on

her FMLA claim is lower than her burden on her other claims—she need only prove

that her use of FMLA leave was a “negative factor” in the company’s decision to

terminate her.154 But even with that lower threshold, Ganczarski still fails to establish

a prima facie case.

As an initial matter, the Court notes that its above analysis on Ganczarski’s

disability claims applies with equal force to her FMLA retaliation claim. Both claims

share a factual predicate: Ganczarski took FMLA leave because of her disability.

Once again, Ganczarski again does not present any comparator evidence.155

Additionally, as discussed above, the timing of her termination is not independently

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

154 Lichtenstein, 691 F.3d at 301.

unduly suggestive of discrimination, and she provides no additional evidence of

discriminatory animus.

As for Ollie’s awareness of the protected nature of Ganczarski’s FMLA leave,

although Guise was generally aware that Ganczarski took medical leave, he did not

know that it was FMLA leave.156 Ollie’s HR personnel were obviously aware, as

they approved her FMLA leave. Yet it is unclear who made the ultimate decision to

terminate Ganczarski.157 As noted above, Guise denies any involvement in that

decision.158

But here Ganczarski faces a problem. She disputes Guise’s assertion of

noninvolvement, relying on Ollie’s answers to interrogatories that identify Guise as

a “decision-maker” and as a “person who participated” in the decision to terminate

her.159 Her dispute does not advance her cause. If Guise played a role in the decision

to terminate Ganczarski, then one of the decisionmakers had no knowledge that

Ganczarski took FMLA leave when Ollie’s decided to terminate her. Therefore,

Guise’s involvement weakens any causal link between her FMLA leave and her

termination.160

156 Doc. 37-2 at 27 (Guise Dep. 76:13-25), 31 (Guise Dep. 90:2-91:6).

157 See id. at 13 (Gusie Dep. 19:2-17).

158 Id. at 30 (Guise Dep. 87:16-88:17); Doc. 32-1 at 195-97 (Stayer Dep. 19:20-20:10, 22:6-18).

159 Def.’s Answers to Plf.’s Interrogatories, Doc. 37-5 at 3-4.

160 See Harrison-Harper, 768 F. App’x at 850 (affirming summary judgment in favor of employer

where only “one of the four [decisionmakers] had any knowledge of [the plaintiff’s] report of

But even looking at the HR team alone and assuming Guise was not involved,

the HR team approved Ganczarski’s FMLA leave without question, and extended it

without question. She identifies no act, remark, or practice that raises the inference

of discrimination on their part either. Although Ganczarski raises a factual dispute

here, the Court concludes it is not material and summary judgment is accordingly

appropriate.161

C. Legitimate, Non-Discriminatory Reasons

As discussed, under the McDonnell Douglas framework, now that Ganczarski

has established a prima facie case of sex discrimination, the burden shifts to Ollie’s

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

termination.162 Ollie’s asserts that it fired Ganczarski for her poor performance,

namely her three consecutive failing ORAs. The Court is satisfied that Ollie’s has

met its burden to show a legitimate reason for Ganczarski’s termination.

D. Pretext

As Ollie’s has met its burden, the burden shifts back to Ganczarski to show

that Ollie’s reason for terminating her—her poor performance—is pretextual. To do

so, she must point to “evidence of inconsistencies and implausibilities in [Ollie’s]

proffered reasons for discharge which could support an inference that [it] did not act

for nondiscriminatory reasons.”163 That said, “[t]he question is not whether [Ollie’s]

161 See EBC, 618 F.3d at 262.

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

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

discrimination.”164 Ganczarksi is held to the “preponderance of the evidence”

standard—that is, she must prove it is more likely than not “that [the company’s]

proffered reason was a pretext for discrimination.”165

The analysis above on Ganczarski’s disability discrimination claims applies

in large part to her sex discrimination claims because she relies on the same

evidence.166 But that evidence is even less probative of sex discrimination than it is

of disability discrimination or FMLA retaliation. She cannot anchor the timing of

her termination, the final warning, or the ORAs to any action indicative of sex

discrimination.

Furthermore, Ganczarski again fails to provide any comparator evidence

beyond her replacement being a male.167 During her deposition, she was asked to

identify potential comparators. Specifically, she was asked to identify any male

managers, non-disabled managers, or managers that did not take FMLA leave who

also failed three consecutive ORAs yet kept their jobs at Ollie’s.168

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

omitted).

165 Parker, 309 F. App’x at 555.

166 See Plf.’s Opp. Br., Doc. 35 at 9 (referencing Ganczarski’s evidence of pretext in her argument

on her sex discrimination claim).

167 Doc. 32-1 at 47-49 (Ganczarski Dep. 226:7-22). Guise recalled a store manager at a different

store who was fired after three failing ORAs but could not recall whether she had received a

performance review indicating that she met expectations. Doc. 32-7 at 27 (Guise Dep. 73:23-

75:20).

Ganczarski remembers “seeing” one such male manager whom she believed

worked “near the Reading store.”169 Pressed further, she stated that she had the

“feeling and interpretation” that there was a male manager who failed three

consecutive ORAs based on “general conversations with different store managers at

different times through [her] time with Ollie’s.”170 By contrast, Guise recalls a

female manager who was fired after failing her third ORA in 2010.171

Ganczarski was later asked to identify the “store managers who [she]

believe[s] were treated more favorably, meaning they failed multiple ORAs

consecutively and were not terminated.”172 She responded that she “know[s] males

were favored more favorably in [Guise’s] eyes and [Stayer’s] eyes than females. So

to answer that question, I can’t give you a definite but I just know.”173 But

Ganczarski’s “generalized, subjective beliefs” that Guise and Stayer treated men

more favorably “are insufficient to maintain an unlawful discrimination claim.”174

Furthermore, Ganczarski does not dispute the ORA results, which indicate her

continued poor performance in the role of manager.175 Nor does she dispute that

169 Id. at 48 (Ganczarski Dep. 226:19-227:9).

170 Id. at 48 (Ganczarski Dep. 227:10-23).

171 Doc. 37-2 (Guise Dep. 74:14-75:10).

172 Doc. 32-1 at 55-56 (Ganczarski Dep. 237:24-238:4).

173 Id. at 56 (Ganczarski Dep. 238:5-18).

174 Dinnerstein v. Burlington Cnty. College, 764 F. App’x 214, 217 (3d Cir. 2019) (citing

Mlynczak v. Bodman, 442 F.3d 1050, 1058 (7th Cir. 2006)).

ORAs are “a key aspect of [Ollie’s] audit process and a critical part of [her] role” as

store manager.176

As for the alleged inconsistency between her performance review and her

subsequent termination, “[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.”177

Ganczarski does not dispute that the review considers both her performance

as store manager and as a Co-Team Lead, the latter of which is not responsible for

ORAs.178 She also does not dispute that the review expressed that she needed

improvement in areas directly assessed by the ORAs: ensuring that merchandise was

moved from storage to the salesfloor and that the salesfloor was kept clear.179 Nor

does she dispute that Guise prepared the review in January, three months before her

termination, and that that the reason the review was given in April—the month

before she was terminated—was because April is when Ollie’s gave its employees

176 SUMF, Doc. 24 ¶ 20; RSUMF, Doc. 37 ¶ 24. Ganczarski also points to photos of her store that

show compliance with Ollie’s procedures. She suggests that these photos contradict Guise and

Stayer’s criticisms. Plf.’s Opp. Br., Doc. 35 at 15. In reviewing the photos, Guise recognizes

most of them as his work or the work of the support teams he sent in; on others, he still has

some critiques. See Doc. 37-2 at 38-43 (Guise Dep. 118:2-138:9). It is unclear how these

photos contradict anything. Although she denies Guise ever helped her, Ganczarski does not

suggest that the photos are her handiwork.

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

178 SUMF, Doc. 35 ¶ 69; RSUMF, Doc. 33 ¶ 69.

raises.180 In this context, the review does not demonstrate the kind of inconsistency

needed to demonstrate pretext.181

Moving on to the three-strikes ORA policy, even assuming that Stayer applied

the policy inconsistently, was overly subjective in his assessments, or that the policy

did not exist at all, Ganczarski provides no evidence to connect the policy’s alleged

failings to her disability beyond the timing of the ORAs, which the Court has already

addressed. “[She] has the burden of casting doubt on [Ollie’s] articulated reasons for

[its] employment decision. Without some evidence to cast this doubt, this [C]ourt

will not interfere in an otherwise valid management decision. To require less would

be to expose to litigation every management decision impacting on a protected

party.”182 The undisputed facts explain and contextualize the timing of each action

Ollie’s took. The timing alone cannot save her claims from summary judgment.

For similar reasons discussed in this section and above, Ganczarski fails to

meet her burden to show pretext on her sex discrimination claims under Title VII

and the PHRA (Counts I and II). Had she presented a prima facie case on Counts III

(ADA disability discrimination), IV (PHRA disability discrimination), V (ADA

retaliation), VI (PHRA disability retaliation), and VIII (FMLA retaliation), the Court

180 SUMF, Doc. 35 ¶ 70-71; RSUMF, Doc. 33 ¶ 70-71.

181 Cf. Wyatt v. Nissan N.A., Inc., 999 F.3d 400, 425 (6th Cir. 2021) (concluding that poor

performance review did not undermine causal link in discrimination action where employee’s

performance was exemplary).

182 Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991), overruled in part on other grounds

concludes that she does not meet her burden to show pretext on those claims either.

Therefore, summary judgment is appropriate on Counts I through VI and VIII.

E. FMLA Interference Claim (Count VII)

This leaves only Count VII, which alleges Ollie’s failed to restore Ganczarski

to her former position in violation of the FMLA. That claim is best understood as an

FMLA interference cause of action.183 “Unlike an FMLA retaliation claim, ‘[a]n

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

provided the employee with the entitlements guaranteed by the FMLA.’”184

Accordingly, “a McDonnell-Douglas burden-shifting analysis is not required.”185

To make out a prima facie case of FMLA interference, Ganczarski must show

(1) she was an eligible employee under the FMLA; (2) Ollie’s was an employer

subject to the FMLA’s requirements; (3) she was entitled to FMLA leave; (4) she

gave notice to the defendant of his or her intention to take FMLA leave; and (5) she

was denied benefits to which she was entitled under the FMLA.186

At the outset, it does not appear that Ganczarski was denied any benefit under

the FMLA. She was restored to the same position with the same pay and benefits.

Of course, she was terminated shortly after. But the termination seems a more

183 See 29 C.F.R. § 825.215 (requiring that employers place an employee who took FMLA leave

in an “equivalent position”); 29 C.F.R. § 825.220(b) (equating any violations of federal

regulations interpreting the FMLA as “interfering with . . . exercise of rights provided by [the

FMLA]”).

184 Capps, 847 F.3d at 155 (alterations in original) (quoting Callison v. City of Philadelphia, 430

F.3d 117, 120 (3d Cir. 2005)).

185 Id. (quoting Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006)).

appropriate predicate for her retaliation claim than an interference claim. Even so,

“the FMLA does not provide employees with a right against termination for a reason

other than interference with rights under the FMLA.”187 Accordingly, “[Ganczarski]

[can]not prevail on h[er] interference claim if [Ollie’s] can establish that it

terminated [her] for a reason unrelated to h[er] intention to exercise his rights under

the FMLA.”188

As discussed above, Ganczarski fails to establish a causal link between Ollie’s

decision to terminate her to her approved FMLA leave. Even if she could connect

the two, case law suggests that termination that follows the restoration of an

employee to their former position is grounds for a retaliation claim rather than an

interference claim, although there is overlap.189 As the Court concludes that

Ganczarski was terminated for performance issues, it also concludes that Ollie’s did

not interfere with her FMLA rights by terminating her. Therefore, Ganczarski

presents no genuine issue of material fact on her interference claim. Summary

judgment is accordingly appropriate on Count VII.

187 Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007).

188 Id.

189 See Capps, 847 F.3d at 150-51, 156 n.11 (affirming summary judgment for employer on

employee’s FMLA interference claim because employee was not denied any FMLA benefit

after being terminated following approved leave).

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, Ganczarski fails to do that.

Ollie’s offers legitimate, non-discriminatory reasons for its decisions to terminate

her, namely her consistently poor performance as store manager. 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,

Ganczarski’s claims of discrimination do not survive summary judgment, as well.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge