# KING v. MICHAEL BAKER INTERNATIONAL

> District Court, W.D. Pennsylvania · July 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10417858

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

DENISE KING, )
) No. 2:20-cv-01032
Plaintiff, )
)
vs. ) Judge Robert J. Colville
)
MICHAEL BAKER INTERNATIONAL, )
)
Defendant. )

OPINION
Robert J. Colville, United States District Judge,
Plaintiff Denise King initiated this action after Defendant Michael Baker International
(“MBI”) terminated her from her position in MBI’s tax department. King asserts that MBI
terminated her for taking protected medical leave due to her disability in violation of the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), the Americans with Disabilities Act
Amendments Act, 42 U.S.C. § 12101 et seq. (“ADA”), and the Pennsylvania Human Relations
Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”), and due to her age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the PHRA.
Before the Court is MBI’s Motion for Summary Judgment (ECF No. 38). The motion is
fully briefed and ripe for decision. As discussed below, I find that there are no disputed issues of
material fact suitable for trial. Accordingly, I will GRANT MBI’s motion and enter judgment as
a matter of law in favor of MBI.
I. BACKGROUND
A. Factual Background1
1. MBI Hires King as a Tax Manager
In November of 2015, MBI hired King as a Tax Manager in its tax department. Def.’s
Concise Statement of Material Facts in Supp. of Mot. for Summ. J. ¶ 44 (ECF No. 40) (“Def.’s
SOMF”). At that time, the tax department included two employees: an Associate Vice President
and Tax Director, Gregory Smay; and another Tax Manager, George Heron. Id. ¶¶ 35, 38, 45.
Smay joined MBI in 2000 and began overseeing the tax department as director in 2009 or 2010.
Id. ¶¶ 37–38. Heron joined the tax department in 2007 and was primarily responsible for the
corporate tax returns. Id. ¶ 40.
At some point, although the record does not specify, King began experiencing symptoms
including fatigue and dizziness due to sarcoidosis. Because she was experiencing these symptoms,
at some point in early 2016, King requested the ability to work from home. Id. ¶¶ 156–57. Her
request was granted, and King worked from home one to two days per week from early 2016 until

her termination in August 2019. Id.
In addition to other duties, King was responsible for the completion of tax returns for pass-
through entities that were owned or controlled by MBI. Id. ¶¶ 47–48; Pl.’s Response to Def.’s
Concise Stmt. Of Material Facts and Counterstatement of Material Facts ¶¶ 47–48 (“Pl.’s SOMF”).
King testified that, when she started at MBI, she “prepared the tax returns for the pass-through
entities, prepared quarterly estimated tax payments,” performed “other projects,” and “would help
with the tax provision calculations and anything else that Greg [Smay] needed help with.” Def.’s
App’x in Supp. of Mot. for Summ. J., Ex. B at 52:20–53:3 (ECF No. 41) (“Def.’s App’x”). Indeed,
Smay testified that he interviewed King and found that she “was a good fit” at least in part based

1 Unless otherwise noted, these facts are not in dispute.
on her “LLC experience.” Def.’s App’x, Ex. A at 14:18–15:5. Heron, the other Tax Manager,
was responsible for the tax returns for incorporated entities. Def’s App’x, Ex. B at 53:9–15.
When King was hired, MBI had approximately 8 operating pass-through entities bringing
in close to $300 million in revenue annually. Def.’s SOMF ¶ 51. However, after MBI sold several
of its businesses, the amount of pass-through revenue decreased from $300 million to nearer $3

million. Id. ¶ 52. By the end of 2018, because of this decrease in pass-through revenue, King’s
existing responsibilities were no longer full-time. Id. ¶¶ 53–54; Pl.’s SOMF ¶ 53.
In January 2019, King was told that she would be given additional responsibilities,
including responsibility for what the parties call “indirect taxes.” Def.’s SOMF ¶¶ 54–55; Pl.’s
SOMF ¶ 55. These indirect taxes included sales and use taxes, personal property taxes, business
privilege taxes, and business licenses. Def.’s SOMF ¶ 55. Several people in different, non-tax
departments within MBI had previously handled the indirect taxes. Id. ¶ 59–60. Additionally,
King was tasked with monthly sales tax reports and monthly accruals. Id. ¶ 56. King began
handling these additional responsibilities on March 1, 2019 and continued to do so until she was

terminated. Id. ¶¶ 57.
2. MBI Begins Exploring Opportunities to Restructure the Tax Department
In September or October 2018, MBI hired Amy Davis as Senior Vice President, Chief
Accounting Officer, and Treasurer. Id. ¶ 3. From the beginning of her tenure, MBI tasked Davis
with evaluating the finance department. Id. ¶¶ 6, 103. As part of that process, Davis began
interviewing accounting firms to review and assess MBI’s tax returns and identify opportunities
for greater efficiency. Id. ¶ 107. In a December 6, 2018, email to Carl Grande, a partner at the
firm Ernst & Young (“E&Y”), Davis indicated that she was ultimately looking to “assess whether
[her] current structure is cost effective and whether [MBI] would be better served to utilize a firm
to do some or all of our work.” Id. ¶ 106; see also Def.’s App’x, Ex. I.
MBI hired E&Y to conduct a review of MBI’s finance department in December 2018.
Def.’s SOMF ¶ 108. Shortly thereafter, MBI set up a SharePoint site to collect documents for the
review, which commenced in late January and took approximately four weeks. Id. ¶¶ 109, 111.
As part of this review, King submitted information to E&Y, including an estimation of the time
she spent on the various aspects of her job Id. ¶ 110. King asserts that she was not aware of the

purpose of E&Y’s assessment.
E&Y presented its findings to MBI on February 20, 2019. Id. ¶ 111. In E&Y’s
presentation, it identified the opportunity for MBI to save $1.3 million in taxes by filing amended
returns. Id. ¶ 110. The parties agree that this $1.3 million in savings was attributable to the
corporate returns that were being prepared by Heron, although they take divergent positions on
whether the savings were possible because Heron made mistakes on the corporate returns or
because E&Y had merely identified different positions that MBI could take on the returns. Davis
met with E&Y partner Carl Grande in late March and asked him to put together proposals for a
co-sourcing arrangement. Id. ¶ 113. Grande emailed Davis on April 7 to inform her that he was

“pulling everything together” and that he “should have an update to share with” her in two days.
Id. ¶ 114; see also Def.’s App’x, Ex. H at 1.
On April 9, Grande sent a PowerPoint outlining a new “Proposed Tax Operating Model”
which would restructure the tax department to include Davis as Chief Accounting Officer and
Treasurer, Smay as Vice President and Global Tax Director, and an unidentified Tax Analyst who
would report to Smay. Def.’s SOMF ¶ 115; Def.’s App’x, Ex. H at 19. In the presentation, E&Y
observed that: (1) MBI’s “[o]rganization and responsibility [had] changed significantly over [the]
prior three years;” (2) “[s]ignificant time” was being “spent on data gathering and data
transformation by manager level personnel;” and (3) “[c]o-sourcing compliance and provision can
result in savings in software costs, overall tax function costs, and result in a redeployment of
resources providing more value to” MBI. Def.’s App’x, Ex. H at 19. E&Y also observed that a
transition could “occur quickly” and that MBI had the opportunity “to recognize process changes
in 2019.” Id. According to E&Y, the new structure would result in substantial cost savings. Def.’s
SOMF ¶ 116. Davis and Smay each testified that the decision to restructure the tax department,

including by eliminating the two Tax Manager positions, was made in “March/April 2019.” Id.
¶ 117.
On June 13, 2019, Davis sought approval from MBI’s ownership, DC Capital, of the
restructuring and co-sourcing arrangement proposed by E&Y. Id. ¶ 120. In an email to Doug
Lake of DC Capital, Davis explained the potential efficiency-gains of E&Y’s proposal:
After several discussions with [E&Y] we have landed on a
co-source arrangement whereby they will provide assistance with
ongoing tax planning, provision streamlining and all compliance
work and our team will consist of a smaller group who will work on
indirect taxes and quarterly/annual provision process and ad hoc
research projects, as well as, work closely with [E&Y] on tax
planning opportunities. The overall impact of the proposal was we
will add the additional strength of [E&Y] at our fingertips and save
~$130–$160k/year over our current costs.

In addition, the state lookback review identified $1.3M of
cash tax savings opportunities through positions we were able to
take and are supported by [E&Y]. These positions will be filed on
amended returns no later than June 30, 2019 (some amended returns
have already been filed) and we expect to receive the refunds
starting in Q4 2019-Ql 2020. The ability to identify these savings
in a short lookback review underscores the importance of having
bench strength to work in tandem with a smaller team at Baker to be
more effective in our approach on a regular basis, and not just when
periodic lookbacks are performed.

The co-source arrangement will require eliminating two of
our senior tax accountants and hiring a staff tax analyst to support
Greg. Our internal group will then consist of two full time people
with [E&Y] providing all other support. I anticipate that the
transition will be complete by mid-August.
Def.’s App’x, Ex. C at Ex. 14.
As a result of the proposed restructuring, MBI planned to eliminate both King’s and
Heron’s positions as Tax Managers. Id. ¶ 123. The restructuring would leave only lower-level
tax work (i.e., the indirect taxes) to be handled by the remaining tax analyst. Id. King was never
given notice of the plan to eliminate her position.
3. MBI Hires William Pirilla into a Hybrid Tax/Government Compliance
Position
In early May 2019 (although the parties dispute the exact date) someone at MBI posted a
position for a senior government compliance analyst to work in the government compliance
department. Def.’s SOMF ¶ 70; Pl.’s SOMF ¶ 70. The following month, as part of the
restructuring efforts, Smay posted a position for a tax analyst in the tax department. Def.’s SOMF
¶ 73. On June 18, Smay sent five resumes that had been submitted for the tax analyst position to
King and Heron for their review. Def.’s App’x, Ex. A at 53:2–12; Supplemental App’x in Supp.
of Def.’s Mot. for Summ. J., Ex. H (ECF No. 54) (“Def.’s Supplemental App’x”). King responded
by identifying three potential candidates for the position. Def.’s Supplemental App’x, Ex. I.
William Pirilla became aware of the opening in MBI’s government compliance department
that had been posted sometime in early May through his brother, an employee at MBI. Def.’s

App’x, Ex. D at 10:20–11:5. Pirilla, who then worked at E&Y, sent a resume to his brother to
“feel out” the position. Id. at 12:3–9. However, before he could apply, Pirilla was informed that
MBI’s needs had changed, and a hybrid position had been created that would include both tax and
government compliance responsibilities. Id. at 10:20–11:5. After expressing his interest in the
hybrid position, Pirilla was interviewed by Smay and MBI’s Controller, Adam Phillips. Def.’s
SOMF ¶ 77.
Davis testified that Pirilla’s interest in government compliance and experience in tax
presented MBI with “an opportunity to get even more efficient” by combining the open tax and
compliance positions. Def.’s App’x, Ex. C at 20:24–22:8. She did not consider either of the Tax
Managers for the position because “their skill set and background was primarily in [tax]
compliance” (i.e., filing tax returns) and the new role would not include compliance. Id. at 19:2–

21. Smay testified that the hybrid position was an “entry level” position for which King would
have been “overqualified.” Id., Ex. A at 25:4–8, 33:10–12. Davis also testified that, “absent
[Pirilla’s] specific desires to expand his skill set and to apply for that government compliance
role,” MBI would probably not have combined the tax and government compliance roles. Id., Ex.
C at 22:4–8; see also id. at 55:10–19; Def.’s SOMF ¶ 78.
In July, MBI hired William Pirilla as a Senior Tax and Government Compliance Analyst.
Pirilla began working in the hybrid tax and government compliance position in August. Def.’s
SOMF ¶ 80. When he started, his salary was $95,000 per year and was divided roughly evenly
between the tax and government compliance departments. Id. ¶ 81, 85–86. Pirilla testified that

his initial direct supervisors were Smay and a government compliance manager named Milton
Detty. Def.’s App’x, Ex. D at 12:20–24.
Pirilla understood that his position would be approximately a “50/50 split” between tax and
government compliance work. Id. at 15:22–16:1. When wearing his tax hat, Pirilla worked on the
indirect taxes. Def.’s App’x, Ex. A at 68:21–22. Pirilla was not responsible for preparing tax
returns for pass-through entities, as MBI’s tax compliance work had been outsourced to E&Y.
Def.’s SOMF ¶ 82. When wearing his government compliance hat, Pirilla explained that his
primary responsibility was categorizing different company expenses that might be permissible to
be charged to MBI’s government clients as part of MBI’s “overhead rate.” Def.’s App’x, Ex. D
at 16:2–18. The government compliance work that Pirilla performed also required some “very
low-level legal research.” Id. at 16:23–17:1.
4. King’s Use of FMLA Leave
On March 28, 2019, King applied for intermittent FMLA leave. Davis and Smay became
aware that she had applied for intermittent FMLA leave when they received an email from HR on
August 4, 2019. Def.’s SOMF ¶ 149. Unum, an insurance provider, had sent a notice of King’s
intermittent leave “from March 29th, 2019, through October 4th, 2019.” Def.’s App’x, Ex. A at
50:1–7. Smay testified that he could not recall King taking intermittent leave, but that “she could

take off when she needed to.” Id. at 50:11–15.
In July of 2019, Smay sent an email to Davis expressing his frustration that King was not
further along with a specific tax return. Pl.’s App’x, Ex. 17 at 1–2. Smay noted that, because the
department was behind, he had worked on the return himself. Id. at 2. He suggested that the
situation “may present an opportunity to get [E&Y] in the door” early and noted that he had
reached out to Carl Grande to ask that a staff person be made available. Id. Davis approved
Smay’s plan to bring in a staff person from E&Y. Id. at 1. Regarding King, Davis wrote that
“[w]e need to transition to [E&Y] as soon as possible” because she did not “see things getting
better with [King].” Id. Davis testified that she was concerned that the department would continue

to fall behind, that the decision to transfer the compliance work to E&Y had already been made,
and that there was “really no reason to delay it and put [MBI] at any risk[.]” Def.’s App’x, Ex. C
at 44:6–45:14.
Sometime during the summer of 2019, Debbie Bridgman (an employee in the government
compliance group) was brought in and asked to assist with the indirect taxes. Def.’s SOMF ¶ 90.
King testified that Smay told her to show Bridgman “everything you do.” Pl.’s App’x, Ex. 1 at
129:16–22. However, King understood that Bridgman would only be taking over the indirect tax
function because Bridgman lacked the experience and qualifications necessary to complete the
more complex pass-through tax returns. Id. at 129:23–130:18. King trained Bridgman over one
or two partial days by showing her how to complete journal entries and discussing the business
licenses with her. Def.’s SOMF ¶¶ 96–97. Although Bridgman completed journal entries and
filled out paperwork for the business licenses, she remained a government compliance employee

throughout her tenure with MBI. Id. ¶¶ 94, 100. Pirilla joined the tax and government compliance
departments in August.
On August 14, 2019, King notified Smay and Davis in an email that she would be taking
FMLA leave indefinitely. Id. ¶ 150. In response, Smay asked her about the status of the indirect
tax filings due later that month and about the location of the “P-Card” (a card that MBI used to
pay the indirect taxes). Pl.’s App’x, Ex. 19; Def.’s App’x, Ex. A at 62:20–23. Davis replied only
to Smay, in the same thread, suggesting that they “talk to Balanti [(the Vice President of Human
Resources)] in the morning.” Pl.’s App’x, Ex. 19; Pl.’s SOMF ¶ 248. Smay testified that, given
that MBI was planning to let King and Heron go, they needed to discuss how to handle letting

King go if she was not going to be in the office. Def.’s App’x, Ex. A at 63:2–14.
On August 21, 2019, MBI terminated King and Heron. Def.’s SOMF ¶¶ 130, 132. King
received a call from Smay and an HR representative informing her that her position was being
eliminated. Id. ¶ 129. King also received a letter outlining MBI’s policy and informing her that
she was being terminated in accordance with that policy. Id. ¶ 130.
B. Procedural History
King initiated this action against MBI on July 10, 2020. See Compl. (ECF No. 1). The
operative Second Amended Complaint (ECF No. 29) includes four counts: disability
discrimination under the ADAA and the PHRA (Count 1); interference with FMLA rights (Count
2); age discrimination under the ADEA (Count 3); and retaliation under the ADAA, the PHRA,
and the FMLA (Count 4).
On August 30, 2021, MBI filed the pending motion, along with a brief in support (ECF
No. 39), a concise statement of facts (ECF No. 40), and an appendix (ECF No. 41). King filed a
brief in opposition (ECF No. 45), a response to MBI’s concise statement of facts and

counterstatement of facts (ECF No. 46), and an appendix (ECF Nos. 47, 48, 49, 50, 51). MBI filed
a reply (ECF No. 52), a response to King’s counterstatement of facts (ECF No. 53) and a
supplemental appendix (ECF No. 54).
II. LEGAL STANDARD
Summary judgment may be granted where the moving party shows that there is no genuine
dispute about any material fact, and that judgment as a matter of law is warranted. Fed. R. Civ. P.
56(a). Under Federal Rule of Civil Procedure 56, the court must enter summary judgment against
a party who fails to make a showing sufficient to establish an element essential to his or her case,
and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In evaluating the evidence, the court must interpret the facts in the light most
favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson
v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).

In ruling on a motion for summary judgment, the court’s function is not to weigh the
evidence, make credibility determinations, or determine the truth of the matter; rather, its function
is to determine whether the evidence of record is such that a reasonable jury could return a verdict
for the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51
(2000) (citing decisions); Anderson v. Liberty Lobby, 477 U.S. 242, 248–49 (1986); Simpson v.
Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998).
The mere existence of a factual dispute, however, will not necessarily defeat a motion for
summary judgment. See Liberty Lobby, 477 U.S. at 247–48. Only a dispute over a material fact—
that is, a fact that would “affect the outcome of the suit under the governing substantive law”—
will preclude the entry of summary judgment. Id. at 248.
III. DISCUSSION
A. King’s FMLA Claims
King brings two claims under the FMLA: a claim for interference with her rights (Count
2) and a claim for retaliation for invoking her rights (Count 4).
1. FMLA Retaliation Claim
I begin with King’s retaliation claim under the FMLA because its disposition has
consequences for the remainder of King’s claims. “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.” Lichtenstein v. Univ. of Pittsburgh Med. Center, 691 F.3d 294, 301–02 (3d

Cir. 2012). “Because FMLA retaliation claims require proof of the employer’s retaliatory intent,
courts have assessed these claims through the lens of employment discrimination law.” Id. at 302.
“Accordingly, claims based on circumstantial evidence have been assessed under the burden-
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct.
1817, 36 L.Ed.2d 668] (1973), while 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 [109
S.Ct. 1775, 104 L.Ed.2d 268] (1989) (O'Connor, J., concurring).” Ross v. Gilhuly, 755 F.3d 185,
193 (3d Cir. 2014) (quoting Lichtenstein, 691 F.3d at 302) (alterations in original).
King concedes that the burden shifting analysis prescribed by McDonnell Douglas is the
appropriate framework to assess her claims. Mem. of Law in Opp. of Def.’s Mot. for Summ. J. at
9 (ECF No. 45) (“Pl.’s Opp.”). Under that framework:
a plaintiff must first establish a prima facie case of discrimination.
If the plaintiff succeeds, the defendant must articulate a legitimate,
non-discriminatory reason for the adverse employment action. The
burden then shifts back to the plaintiff to prove, by a preponderance
of the evidence, that the articulated reason was a mere pretext for
discrimination.

Ross, 755 F.3d at 193 (internal citations omitted). “The only question . . . is whether [King] is able
to meet the shifting burdens of McDonnell Douglas.” Id.
a. Plaintiff’s prima facie case of retaliation.
At the first step, MBI argues that King has no evidence of causation and therefore cannot
establish the third element of her prima facie case. As a threshold matter, MBI complains that it
is unclear whether King is arguing that she was retaliated against for her first invocation of FMLA
leave in March/April, her second invocation in August, or both. MBI argues that, using either
date, King cannot establish causation because she was terminated as part of a reduction in force
that preceded even her first invocation of the FMLA. That reduction in force not only began before
King first invoked the FMLA, but also eliminated both Tax Manager positions. And it is
undisputed that Heron, the other Tax Manager, was more senior than King, had never taken FMLA
leave, and was also terminated at the same time as King.
King responds by pointing to several facts that she asserts raise an inference of causation.
Chief among these, King urges that the purportedly conspicuous timing between her first
invocation of FMLA leave on March 28 (or April 4, from the perspectives of Davis and Smay)
and the early April decision to eliminate her position raises an inference of causation.
I find that a reasonable juror could conclude that King has made out a prima facie case of
causation based on the timing of the decision to eliminate her position. The Third Circuit has
instructed that, in some circumstances, the timing of an adverse employment action (such as MBI’s
termination of King) can be suggestive of causation. See LeBoon v. Lancaster Jewish Comm.
Center Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (“Where the temporal proximity between the

protected activity and the adverse action is ‘unusually suggestive,’ it is sufficient standing alone
to create an inference of causality and defeat summary judgment.”); see also Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that the line of cases “that accept mere
temporal proximity between an employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie case uniformly
hold that the temporal proximity must be ‘very close’”) (quoting O’Neal v. Ferguson Constr. Co.,
237 F.3d 1248, 1253 (10th Cir. 2001)). “Although there is no bright line rule as to what constitutes
unduly suggestive temporal proximity, a gap of three months between the protected activity and
the adverse action, without more, cannot create an inference of causation and defeat summary

judgment.” LeBoon, 503 F.3d at 233. On the other hand, the Third Circuit has reversed a district
court’s grant of summary judgment where the plaintiff showed that he was discharged two days
after his employer received notice of his EEOC claim. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
Cir. 1998).
Here, a reasonable juror could conclude, based on this record, that MBI decided to
terminate King sometime shortly after her March 28 request to go on intermittent FMLA leave.
Moreover, the gap of seven days between King’s August 14 decision to take indefinite FMLA
leave and her August 21 termination could further support an inference of causation. Accordingly,
I conclude that King can carry her burden and make a prima facie case of retaliation.
b. Defendant’s Legitimate, Non-Discriminatory Reason and Plaintiff’s
Evidence of Pretext.
But clearing the first hurdle does not mean that King must succeed in defeating MBI’s
motion. Having made a prima facie showing, the burden shifts from King to MBI, which must
point to a legitimate, non-discriminatory reason for its decision. MBI offers the restructuring of
its tax department, which resulted in the elimination of both Tax Managers, one of whom was
more senior and had never taken FMLA leave. The wheels of that restructuring had begun to turn
as early as December of the previous year—long before King first took FMLA leave—when Davis
began her review of the finance department. E&Y, who Davis brought in to assess options for a
potential restructuring of MBI’s finance department, suggested a new structure that included
outsourcing a large portion of MBI’s tax compliance work (i.e., tax returns, including the pass-
through returns) to E&Y and eliminating the two tax managers.
King does not contest that MBI has proffered a legitimate, non-discriminatory reason for

its decision to terminate her, so the burden shifts back to King to show that MBI’s proffered reason
is pretextual. “[T]o defeat summary judgment when the defendant answers the plaintiff’s prima
facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to
some evidence, direct or circumstantial, from which a factfinder could reasonably either (1)
disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). “[H]owever, the plaintiff
cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute
at issue is whether discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent.” Id. at 765. “Rather, the non-moving plaintiff must

demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them ‘unworthy of credence,’ and hence infer ‘that the employer did not act for [the asserted]
non-discriminatory reasons.’” Id. (internal citations omitted) (alterations and emphasis in
original).
As evidence of pretext, King refers to her evidence of causation, i.e., the timing of her

termination and her argument that MBI concealed the hybrid position from her and hired Pirilla in
her stead. I begin with King’s argument regarding the timing of her termination. I concluded that
King could make out a prima facie case of causation on this basis. However, King has failed to
show that MBI’s decision to eliminate both Tax Managers as part of a reduction in force is afflicted
with “such weaknesses, implausibilities, inconsistencies, or contradictions . . . that a reasonable
factfinder could rationally find them ‘unworthy of credence[.]’” Fuentes, 32 F.3d at 765 (emphasis
in original).
The record shows that Davis had begun that process as early as December, nine months
before King was terminated and over four months before she first took FMLA leave. From the

outset, Davis indicated that she was interested in the possibility of outsourcing MBI’s tax
compliance work. King makes much of the temporal proximity between her first invocation of
FMLA leave and the decision to eliminate her position, and at step one of the McDonnell Douglas
analysis that argument carried weight. But further inspection reveals that the early April
recommendation to eliminate the two Tax Managers came from E&Y, the third party that was
assessing MBI’s tax department. E&Y noted the possibility for substantial cost-savings that would
result from its proposed restructuring.
Looking to the temporal proximity between King’s second request for FMLA leave and
her termination supports King’s argument no better. Her termination was the result of a
restructuring process that had been set in motion months earlier. And, in June, Davis indicated to
MBI’s owner DC Capital that the restructuring process would be completed in mid-August. There
is not indication that King’s decision to take indefinite FMLA leave altered the calculus.
King does point to Smay’s July email expressing frustration with King’s progress on the
July pass-through returns as indicating that he was frustrated with King’s absence. But that email

does not, on its own, support a finding of pretext. Rather, Smay was complaining that the July
pass-through returns were delayed. Nothing in the email or in the record calls that understanding
into question. Indeed, the email does not mention King’s leave at all. Nor does Davis’s response
raise an inference that Davis and Smay sped up the clock on King’s termination, particularly where
Davis had indicated to DC Capital a month earlier that she thought the transition would be
complete by mid-August.
Second, reviewing the record, I find no evidence supporting King’s contention that MBI
concealed the senior tax and government compliance analyst position from her. Nor do I find
support for her speculation that she was not offered the position because Smay did not want to

have a single direct report who required FMLA leave. There is unrebutted evidence in the record
that the position was created only after Pirilla, who had experience in tax from his time at E&Y,
expressed interest in an available government compliance analyst job. The parties agree that the
government compliance job was posted internally sometime in early May. After the tax analyst
job was likewise posted, a decision was made that it would be more efficient to hire Pirilla to fill
both roles. Significantly, Davis testified that the hybrid position likely would not have been
created absent Pirilla, who she believed presented MBI with a unique opportunity for added
efficiency.
Moreover, there is evidence that King was involved in the search for a tax analyst. Indeed,
she reviewed resumes for that position for Smay and identified three candidates she believed were
qualified. King argues now that she would not have hired Pirilla for the role because he lacked
experience and was not a CPA. But this argument is belied by the fact that none of the candidates
she selected when asked to review resumes for the tax analyst position was a CPA. Further, Smay

testified that King would have been overqualified for the position as a tax analyst and Davis
testified similarly that the tax analyst role would not be suitable for either King or Heron because
it would not include tax compliance work. There is simply no evidence supporting an inference
that MBI conspired to conceal the hybrid position from King.
The tenor of King’s argument is that she had better qualifications and much more
experience than Pirilla, and thus should have been given the opportunity to apply for the lower-
level tax manager job. But “[a] plaintiff’s subjective belief that his qualifications should have been
accorded more weight is not probative of pretext.” Jackson v. Trump Entertainment Resorts, Inc.,
149 F. Supp. 3d 502, 508 (D.N.J. 2015). “Of course, a decision foolish, imprudent, or incompetent

by comparison to the employer’s usual mode of operation can render it implausible, inconsistent,
contradictory, or weak.” Fuentes, 32 F.3d at 765 n.8. But King has proffered no evidence that the
decision to eliminate her position was the result of anything other than MBI’s effort to increase its
efficiency by paring down its tax department, a decision made after consultation with a third party.
Nor has she pointed to evidence in the record supporting an inference that MBI concealed the
hybrid position from her. She has thus failed to show pretext as required at step three of the
McDonnell Douglas analysis. Accordingly, summary judgment must be granted in favor of MBI
on King’s FMLA retaliation claim.
2. FMLA Interference Claim
Next, I consider King’s FMLA interference claim. To prevail on an interference claim
under the FMLA, a plaintiff must prove that “(1) he or she was an eligible employee under the
FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff
was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to
take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under
the FMLA.” Ross, 755 F.3d at 191–92 (3d Cir. 2014). “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.’” Capps v. Mondelez Global, LLC, 847
F.3d 144, 155–56 (3d Cir. 2017) (quoting Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir.
2005)) (alteration in original). “Because the FMLA is not about discrimination, a McDonnell–
Douglas burden-shifting analysis is not required.” Sommer v. Vanguard Grp., 461 F.3d 397, 99
(3d Cir. 2006).
MBI argues that King cannot establish that she was denied any benefit under the FMLA
because MBI would have terminated her regardless of her leave as part of the restructuring of the
tax department proposed by E&Y. In response, King points to the April 9 proposal from E&Y,
which recommended the elimination of both Tax Manager positions, and the June 13 email from

Davis, in which Davis sought approval of the restructuring plan from MBI’s ownership. Both
events occurred after King applied for intermittent FMLA leave on March 28. Therefore,
according to King, the decision to terminate her occurred after she had applied for intermittent
FMLA leave and had the effect of denying her right to that intermittent leave under the FMLA.
I find that King’s interference claim fails for two reasons. First, King’s reliance on her
first use of FMLA leave in March to predate the decision to terminate her position creates a logical
problem for her argument. King relies on March 28, the date that she requested intermittent FMLA
leave, as the relevant date that she invoked her rights under the FMLA. She does so, presumably,
because this date preceded the April 9 E&Y proposal that recommended the elimination of the two
Tax Managers. But King then requested indefinite FMLA leave on August 14 and was terminated
while on that indefinite leave. King does not explain how she was denied the benefit that she
requested on March 28, intermittent leave, when she had requested and begun a separate benefit,

indefinite leave, and by necessary implication was no longer taking the intermittent leave she
requested in March.
Using either the March or August date on which King invoked her rights under the FMLA,
she cannot prevail on her interference claim because she cannot show that she was denied a benefit
to which she was entitled. An employee who takes FMLA leave does not have an absolute right
to return to their former (or an equivalent) position where they have been terminated for reasons
unrelated to their leave. The FMLA does provide eligible employees with a right to restoration to
their previous position (or an equivalent position) upon their return from FMLA leave:
(a) Restoration to position

(1) In general

Except as provided in subsection (b), any eligible employee
who takes leave under section 2612 of this title for the intended
purpose of the leave shall be entitled, on return from such leave—

(A) to be restored by the employer to the position of
employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of
employment.

29 U.S.C. § 2614(a)(1). But that guarantee is cabined by an express statutory limitation that the
FMLA does not grant employees on leave additional rights that they would not have had absent
the leave:
(3) Limitations

Nothing in this section shall be construed to entitle any
restored employee to . . .

(B) any right, benefit, or position of employment other than
any right, benefit, or position to which the employee would have
been entitled had the employee not taken the leave.

Id. § 2614(a)(3).
“Thus, for example, if an employee is discharged during or at the end of a protected leave
for a reason unrelated to the leave, there is no right to reinstatement.” Conoshenti, 364 F.3d at 141
(citing 29 C.F.R. § 825.216(a)(1)). Of course, the burden remains on the employer to prove “that
an employee would have been laid off during the FMLA leave period and, therefore, would not be
entitled to restoration.” 29 C.F.R. § 825.216(a)(1). But, while an “employer cannot justify its
actions by establishing a legitimate business purpose for its decision” to prevail on an interference
theory, Callison, 430 F.3d at 120, an employer may nonetheless prevail by showing that an
employee was “discharged . . . for a reason unrelated to the leave[.]” Conoshenti, 364 F.3d at 141.
Here, as discussed in more detail supra, MBI has shown that King was terminated because
her position was eliminated as part of a restructuring of MBI’s tax department. That restructuring
began long before King first invoked the FMLA and resulted in the termination of both Tax
Managers. The record shows that MBI discharged King as part of the restructuring, a reason
unrelated to her leave. Accordingly, summary judgment must be granted in favor of MBI on
King’s FMLA interference claim. 2

2 MBI also urges that I should grant judgment in its favor on King’s interference claim
because it is duplicative of her retaliation claim. The Third Circuit has indicated that plaintiffs
may not “have an automatic right to claim interference where . . . the claim is so clearly redundant
to the retaliation claim.” Lichtenstein, 691 F.3d at 312 n.25. And some courts in the Third Circuit
have analyzed claims for interference as retaliation claims notwithstanding the plaintiff’s choice
of frame. See, e.g., Atchison v. Sears, 666 F. Supp. 2d 477, 489 (E.D. Pa. 2009) (finding that the
B. ADA Claims
Next, I must address King’s retaliation, discrimination, and failure to accommodate claims
under the ADA.
1. ADA Retaliation Claim
I begin with King’s ADA retaliation claim because it calls for a substantially identical
analysis to that of her FMLA retaliation claim. “A prima facie case of illegal retaliation requires
a showing of ‘(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.’” E.E.O.C. v. Allstate Ins. Co.,
778 F.3d 444, 449 (3d Cir. 2015). The burden-shifting framework of McDonnell Douglas applies
with equal force to retaliation claims under the ADA. See Krouse v. Am. Sterilizer Co., 126 F.3d

494, 500–01 (3d Cir. 1997) (extending the burden-shifting analysis applied to discrimination
claims under Title VII to retaliation claims under the ADA).
King states in her brief that MBI has failed to address her “ADA[] retaliation count,” Pl.’s
Opp. at 16, but I disagree. The SAC includes only four counts, and King’s retaliation claims under
the FMLA, the ADA, and the PHRA are all found in Count 4. The conduct underlying the

plaintiff’s “interference claim is identical to his retaliation claim” and that plaintiff “cannot escape
the McDonnell Douglas analysis to prove his case merely by affixing an ‘interference’ label to one
of his duplicative claims”); Mascioli v. Arby’s Rest. Grp., Inc., 610 F. Supp. 2d 419, 433 (“Since
plaintiff’s interference claim should be properly characterized as a retaliation claim, the
interference claim will be denied as moot in light of the assertion by plaintiff of her retaliation
claim.”).
There is wisdom in the approach taken by the courts that have treated claims as moot or
duplicative when confronted with interference claims that parrot a plaintiff’s retaliation claims.
That approach would simplify the analysis I have conducted here. However, the Third Circuit has
explicitly held that “firing an employee for a valid request for FMLA leave may constitute
interference with the employee's FMLA rights as well as retaliation against the employee.”
Erdman, 582 F.3d at 509. In the absence of clearer instruction from the Third Circuit, and because
King’s interference claim cannot survive summary judgment on its merits, I choose to heed that
command. I therefore decline to grant MBI’s motion on this basis.
retaliation claims, as recited in the complaint, appears to be identical. See SAC ¶¶ 46–50. The
best read of the briefs before me, therefore, is that MBI’s arguments respecting King’s FMLA
retaliation claim apply with equal force to King’s identical claim under the ADA. Indeed, King
seems to assume as much. See Pl.’s Opp. at 16 (noting that “Defendant then seems to concede that
there was a protected activity and adverse employment action, and the only issue is establishing a

causal connection between the protected activity and the adverse employment action”). Moreover,
King clarifies in her brief that “[t]he evidence establishing causal connection” for purposes of her
ADA retaliation claim is that “discussed earlier in [her] brief on causation and pretext,” i.e., the
evidence she cited in support of her FMLA claim. Id.
I find that summary judgment is appropriate on King’s ADA retaliation claim for the same
reasons as stated for King’s FMLA retaliation claim. The two claims rest on the same conduct
and require the same analysis. MBI’s arguments respecting the FMLA retaliation claim apply with
equal force to the ADA retaliation claim and King relies on the same evidence of causation and
pretext. Accordingly, summary judgment must be granted in MBI’s favor on King’s ADA

retaliation claim.
2. ADA Discrimination Claim
I next address King’s ADA discrimination claim. “In order to make out a prima facie case
of disability discrimination under the ADA, [a plaintiff] must establish that she (1) has a
‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered an adverse employment action
because of that disability.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006).
ADA discrimination claims are analyzed using the McDonnell Douglas burden-shifting
framework. See Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661, 667–68 (3d
Cir. 1999) (“The McDonnell Douglas Title VII burden shifting rules apply to claims of
discriminatory treatment under the ADA.”).
MBI urges that King cannot set forth a prima facie case of discrimination because she
cannot show that her disability was the cause of her termination. MBI points out that King testified
that she informed individuals at MBI of her disability as early as 2016. Def.’s App’x, Ex. B at
33:1–12. And MBI points out that Heron, the other Tax Manager, was also terminated at the same
time as King and as part of the same restructuring effort. MBI also contends that King cannot

point to evidence of pretext sufficient to overcome MBI’s proffered legitimate, non-discriminatory
reason for her termination: the restructuring.
King does not renew her argument regarding the timing of the decision to terminate her
position. Instead, King responds by reiterating her argument regarding Smay. In her telling, Smay
was frustrated with King’s disability. Knowing that he would be going from two direct reports to
only one and because of his frustration with her disability, King contends that Smay therefore
concealed the restructuring from her, created the hybrid position, and filled that position with
Pirilla after posting it for only one day and conducting only one interview.
While the chain of inferences is compelling, none of those inferences are supported by the

evidence of record. As discussed supra, the record is clear that in July 2019, Smay expressed
frustration with delays to King’s completion of the pass-through tax returns. While Smay’s
frustration may have been expressed while King was taking intermittent FMLA leave, King offers
nothing to support an inference that Smay was frustrated because of her leave (or her disability),
rather than the delays that he cited. Further, as discussed above, the hybrid position was created
by combining two positions that had each been posted for some time. King herself had reviewed
resumes for the lower-level tax analyst position in June. The hybrid position was not concealed
from King but was created only after Pirilla applied to one of the open positions, and the record
reflects that it was created for him.
Ultimately, I find that King can establish neither a prima facie case of discrimination under
the ADA, nor that MBI’s proffered legitimate non-discriminatory reason was pretextual. A
reasonable juror, reviewing the record before me, could not find that King was terminated because
of her disability. Nor could a reasonable juror find that MBI’s decision to eliminate King’s
position—along with that of her non-disabled fellow Tax Manager—was pretextual. Accordingly,

I must grant summary judgment in favor of MBI on King’s ADA discrimination claim.
3. ADA Failure to Accommodate Claim
Finally, I address King’s claim for failure to accommodate her disability under the ADA.
“A plaintiff bringing an ADA failure-to-accommodate claim must establish: ‘(1) [s]he was
disabled and [her] employer knew it; (2) [s]he requested an accommodation or assistance; (3) [her]
employer did not make a good faith effort to assist; and (4) [s]he could have been reasonably
accommodated.’” Capps, 847 F.3d at 157 (quoting Armstrong v. Burdette Tomlin Mem’l Hosp.,
438 F.3d 240, 246 (3d Cir. 2006)).
MBI argues that plaintiff was given the only accommodation that she required, the ability
to work from home. I agree. As MBI points out, King testified that she required “the ability to
work from home” and that she was working from home two days per week in her current position.
Def.’s App’x, Ex. B at 44:1–8. King also testified that she had been working from home one or

two days per week since some time in 2016 and that she continued to do so until she was
terminated. Id. at 36:2–18, 38:1–8. And King testified that she was never denied the ability to
work from home when she needed. Id. at 144:15–18. Because the record reflects that King was
never denied an accommodation, no reasonable juror could conclude that MBI failed to
accommodate King’s disability.
Nonetheless, King asserts two theories to support her claim for failure to accommodate.
First, although not developed (or even mentioned) in her brief, she asserts that she required and
was denied a reasonable leave under the FMLA. Pl.’s SOMF ¶¶ 165–66. The Third Circuit has
indicated that a request for leave under the FMLA may qualify as a request for a reasonable
accommodation, at least in some circumstances. Capps, 847 F.3d at 156–57 (“We recognize that
a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable
accommodation under the ADA, see 29 C.F.R. § 825.702(c)(2), and to the extent that the District

Court held otherwise, that was error.”) However, because she cannot establish that she was denied
any benefit to which she was entitled under the FMLA, see supra, I find that this theory is
unavailing.
Second, King asserts that MBI failed to accommodate her disability by “interfering with
her ability to seek reassignment to the senior tax and government compliance analyst position.”
Pl.’s Opp. at 17. Again, King does not develop this theory, which she raises in two sentences in
her brief. King cites Shapiro v. Township of Lakewood, 292 F.3d 356 (3d Cir. 2002) for the
proposition that “reassignment to an open position that a Plaintiff is otherwise qualified to perform
is a form of accommodation[.]” Pl.’s Opp. at 17. It is true that Shapiro found that an employer’s

failure to engage in an “interactive process” to reassign a disabled employee to a vacant position
may constitute a failure to accommodate in violation of the ADA. Shapiro, 292 F.3d at 359–61.
But Shapiro also set forth a two-step analysis requiring a threshold showing by the employee that
“the accommodation is a type that is reasonable in the run of cases.” Id. at 361. Here, King has
not even attempted to make such a showing. Therefore, I find that this theory is also unavailing.
Accordingly, I must grant summary judgment in favor of MBI.
C. Age Discrimination Claim
In her brief, King abandoned her claim for age discrimination under the ADEA. Pl.’s Opp.
at 17. Accordingly, I must grant summary judgment in favor of MBI on King’s age discrimination
claim under the ADEA.
D. State Law Claims
The Third Circuit has instructed that “where the claim over which the district has original
jurisdiction is dismissed before trial, the district court must decline to decide the pendent state
claims unless considerations of judicial economy, convenience, and fairness to the parties provide
an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)
(quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). Neither party
has advanced an argument as to why supplemental jurisdiction over King’s state law claims is
proper here in the absence of King’s federal claims. Accordingly, those claims will be dismissed

without prejudice for lack of subject-matter jurisdiction.
IV. CONCLUSION
For the reasons discussed above, Defendant’s Motion for Summary Judgment (ECF No.
38) will be GRANTED and judgment will be entered in favor of the defendant, MBI, on King’s
claims under the FMLA, the ADA, and the ADEA. Further, King’s claims under the PHRA will
be dismissed without prejudice. An appropriate Order follows.
BY THE COURT:
s/__R_o_b_e_r_t _J._ C__o_lv_i_ll_e_ ______
Robert J. Colville
United States District Judge
DATED: July 8, 2022
cc: All counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417858. Public record. Not legal advice.