Divkovic v. The Hershey Company

| IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VELIBOR DIVKOVIC, : No. 1:21¢v1947

Plaintiff :

: (Judge Munley)

Vv. :

THE HERSHEY COMPANY, :

KRISTI UMBERGER, JOHN

and INDIVIDUAL JOHN DOE 2, :

Defendants :

| MEMORANDUM

Before the court for disposition is the motion for summary judgment filed by

Defendants The Hershey Company, Kristi Umberger, John Doe 1 and Individual

| John Doe 2 in this case alleging employment discrimination. The parties have

| briefed their respective positions and the matter is ripe for disposition.

Background

Defendant Hershey Company is a corporation headquartered in Hershey,

| Pennsylvania. (Doc. 33, Defs' Stmt. Of Mat. Facts ("SOF") 1).1 Hershey hired

| Plaintiff Velibor Divkovic on September 18, 2017 as a Production Operator in its

Reese Plant. (Id. 7 2).

| Unless otherwise noted, the court cites to the Defendants' SOF for facts that plaintiff does not

| dispute.

| Defendant Hershey had a Family and Medical Leave Act ("FMLA") policy

establishing procedures and guidelines by which employees apply for and

receive leaves of absence from employment pursuant to the FMLA.* (Id. § 4).

| From September 2018 through August 2020, plaintiff submitted various

| FMLA requests for his own heaith conditions, gout flare ups, anxiety, and

| depression. (Id. Ff 15-22). Plaintiff took personal FMLA leave on approximately

thirty-four (34) days in 2020. (id. J 23).

| Plaintiff's wife, Barbara Divkovic, began working for Defendant Hershey in

July 2020. (id. 9] 25).2 On February 10, 2021, plaintiff requested FMLA leave

related to his wife's in vitro fertility CIVF") treatments. (Id. 29-30). Defendants

approved the leave for one to four absences per week, with each absence lasting

one to twelve hours. (Doc. 33-1, Def. Exh. 21 at ECF 131-132).4 Hershey

approved this leave from January 22, 2021 through July 22, 2021. (Id.) The

details of this leave are addressed more fully where appropriate below.

An employee who requests FMLA leave must provide a medical

certification form explaining the need for the leave. (Doc. 33-1 at ECF 127-130,

Certification Forms). The employer then reviews the certification form and, if

|? The FMLA is a statute which entitles eligible employees to take unpaid, job-protected leave

for specified family and medical reasons. See 29 U.S.C. § 2601 ef seq.

3 As of the date of the filing of the motion for summary judgment materials, Barbara Divkovic

remained employed by Defendant Hershey. (Id. {| 28).

4 For clarity, the court has cited to the Electronic Case Filing (ECF) pagination where noted.

2

approved, files a "Designation Notice” which indicates the type of leave which will

be designated as FMLA-protected. (Id. at ECF 132). Generally, it appears that

defendants’ position is that the certification completed by plaintiff's healthcare

provider indicated that he would need to use the FMLA leave to drive his wife to

various doctor's appointments related to IVF treatment. Ultimately, however, the

defendants noticed that plaintiff took leave at times when his wife was working,

and she worked the same shift that plaintiff did. Defendants concluded that

plaintiff was abusing his FMLA leave in that his wife was working when he was

supposedly on FMLA leave to drive her to appointments.

Plaintiff asserts that it was his understanding that his leave covered more

than driving his wife to appointments. He indicates that he believed the FMLA

leave permitted him to prepare IVF injections of medicine at home to take to his

wife so that she could inject them while she was on break at work.® Eventually,

Defendant Hershey noticed that plaintiff's wife was working at times that plaintiff

had taken leave presumably to take her to appointments. The local Human

Relations Office contacted LaQuita Gary, the Senior Manager, Giobal Inclusion &

Employee Experience, to determine how to proceed with a case of suspected

FMLA leave abuse. (Doc. 33, J 45-46). Gary opened an investigation on April

5 Evidently, plaintif’s wife had not worked long enough for Hershey to qualify for her own

FMLA leave.

30, 2021 and assigned Tory Niceswander, Senior Specialist, Inclusion &

Employee Experience, to conduct the investigation. (ld. ] 47). Niceswander

had the role of investigating issues of employee discipline and making a

recommendation. (Id.) As part of the investigation, Niceswander held an

interview with plaintiff via teleconferencing. Also in attendance were two other

human resources representatives. (ld. 4] 49). Plaintiff objected to the questions

| Niceswancer asked at the interview. He indicated that the FMLA usage

| questions were very personal because they included inquiries into his wife's

condition, the medications they used, the dosage, how to mix the dosage, and

| where on her body she took the shots. (Doc. 34, Pl. SOF 9 49). The facts of this

investigation/meeting are addressed more fully below.

As a result of the investigation, defendants suspended plaintiff from his

employment on May 18, 2021 and terminated his employment a week later on

| May 25, 2021. Plaintiff's position is that the medical certification he submitted

| allowed for leave to prepare the |VF-related injections. [If the certification could

be construed so as not to allow such leave, plaintiff contends that he should have

been allowed an opportunity to clarify the FMLA designation.

After his termination, plaintiff instituted the instant civil rights action raising

| the following eleven (11) causes of action:

|

Count 1 - Disability Discrimination in violation of the Pennsylvania Human

Relations Act ("PHRA’) based upon plaintiffs own disabilities of gout,

anxiety, and depression;

Count 2 - PHRA Disability Discrimination/Hostile Work Environment based

upon plaintiffs own disabilities;

Count 3 - PHRA Disability Retaliation based upon plaintiff's own

disabilities:

Count 4 - Americans with Disabilities Act ("ADA") disability discrimination

based upon plaintiff's own disabilities:

Count 5 - ADA Disability Discrimination/Hostile Work Environment

regarding plaintiffs own disabilities;

Count 6 - ADA Disability Retaliation based upon plaintiff's own disabilities;

Count 7 - FMLA Interference based upon plaintiff's own disabilities and his

wife's IVF treatment:

Count 8 - FMLA Retaliation based upon plaintiff's own disabilities and his

wife's IVF treatments;

Count 9 - Genetic Information Nondiscrimination Act ("GINA") Violation

based upon plaintiff's own disabilities and his wife's IVF treatment;

Count 10 - Invasion of Privacy — Intrusion Upon Seclusion based upon IVF

treatment:

Count 11 - Negligent Supervision based upon IVF treatment.

At the close of discovery, the defendants moved for summary judgment on

ail of plaintiff's causes of action. The parties have briefed their respective

positions, bringing the case to its present posture.

Jurisdiction

As several of the counts of plaintiff's complaint are brought pursuant to the

ADA, 42 U.S.C. § 12101 et seq., and the FMLA, 29 U.S.C. § 2601, ef seq., the

court has federal question jurisdiction. See 28 U.S.C. § 1331 (“The district courts

shall have original jurisdiction of ail civil actions arising under the Constitution,

laws, or treaties of the United States.”). The court has supplemental jurisdiction

over the plaintiffs state law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

Granting summary judgment is proper “if the pleadings, depositions,

| answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” See Knabe v. Boury,

114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting Feb. R. Clv. P. 56(c)). “[T]his

standard provides that the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original).

In considering a motion for summary judgment, the court must examine

the facts in the light most favorable to the party opposing the motion. Int'l Raw

Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The

burden is on the moving party to demonstrate that the evidence is such that a

| reasonable jury could not return a verdict for the non-moving party. Anderson,

477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the

suit under the governing law. Id. Where the non-moving party will bear the

burden of proof at trial, the party moving for summary judgment may meet its

burden by showing that the evidentiary materials of record, if reduced to

admissible evidence, would be insufficient to carry the non-movant's burden of

| proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving

| party satisfies its burden, the burden then shifts to the nonmoving party, who

must go beyond its pleadings, and designate specific facts by the use of

affidavits, depositions, admissions, or answers to interrogatories showing that

| there is a genuine issue for trial. Id. at 324.

| “In employment discrimination cases, the summary judgment standard ‘is

| applied with added rigor’ because ‘intent and credibility are crucial issues.”

Walden v. St. Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) quoting

stewart v. Rutgers Univ., 120 F.3d 426, 431 (3d Cir. 1997). “Employment

discrimination cases center around a single question: why did the employer take

an adverse employment action against plaintiff? Because this ‘is clearly a factual

question,’ Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987),

summary judgment is in fact rarely appropriate in this type of case. Simply ‘by

pointing to evidence which calls into question the defendant’s intent, the plaintiff

raises an issue of material fact which, if genuine, is sufficient to preclude

summary judgment.’ Id. See Sempier v. Johnson & Higgins, 45 F.3d 724, 732-33

(3d Cir. 1995) (cases in which plaintiff attacks employer's stated reasons for

adverse employment action ‘must be resolved by a Jury and cannot be resolved

on summary judgment’).” Marzano v. Computer Science Corp., 91 F.3d 497, 509-

510 (3d Cir. 1996).

Discussion

Defendants’ motion for summary Judgment seeks judgment on all of

plaintiffis claims. The court begins its analysis with the FMLA leave issues.

The FMLA grants eligible employees the right to take up to twelve

workweeks of leave in any twelve-month period if a “serious health condition ...

makes the employee unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D). The FMLA also makes it unlawful for an

employer to interfere with, restrain, or deny an employee's exercise of or attempt

to exercise an FMLA right. 29 U.S.C. § 2615(a)}(1). Plaintiff raises issues of

FMLA retaliation and FMLA interference. The court will address each separately.

1. FMLA Retaliation Claim — Count 8

Count 8 of plaintiffs complaint alleges that defendants discriminated

against him in violation of the FMLA by disciplining him and terminating his

employment in retaliation for his attempt to use FMLA leave. (Doc. 1, Compl.

| 101-111). The court assesses such retaliation claims from the perspective of

| employment discrimination law because they require proof of the employer's

retaliatory intent. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302

| (3d Gir. 2021). Thus, the applicable analysis is provided by the burden-shifting

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

Accordingly, plaintiff must first establish a prima facie case of discrimination.

Once plaintiff does, the burden of persuasion shifts to the defendant to articulate

legitimate, nondiscriminatory reason for the adverse employment action. Then,

| if the employer does articulate such a reason, the burden shifts back to the

plaintiff to establish that the defendants’ articulated reason is merely pretext for

| discrimination. Capps v. Mondelez Global, LLC, 847 F.3d 144, 151-52 (3d Cir.

2017)

To establish a prima facie case of FMLA retaliation, a plaintiff must prove

| that: 1) he invoked a right to FMLA-qualifying leave; 2) his employer took an

adverse employment action against him; 3) a causal relation exists between the

invocation of FMLA rights and the adverse employment action. Fogelman v.

Mercy Hosp., Inc., 283 F.3d 561, 657-68 (3d Cir. 2002).

Plaintiffs FMLA retaliation claim invoives issues related to both the IVF

FMLA leave and the leave plaintiff took for his own medical concerns. The court

will address each in turn.

A. Retaliation for IVF FMLA Leave

Defendants argue that plaintiff cannot establish the third element of the

FMLA retaliation prima facie case regarding the IVF FMLA leave. This element

requires plaintiff to establish a causal relation between the invocation of his

FMLA rights and an adverse employment action. Id.

Initially, defendants argue that the undisputed evidence demonstrates that

they approved all of plaintiff's numerous FMLA leave requests over several

years, all without any negative repercussions. According to defendants, this past

history indicates that they are not hostile to an employee taking FMLA leave and

‘plaintiff cannot establish causation. Defendants’ argument, however, is

unconvincing. Although, they do cite several cases in support of their position,

every case is different factually. The most that can be derived from these cases

is that the defendants’ attitude in the past toward FMLA ieave might bolster an

employer's position that they did not engage in FMLA retaliation. However,

10

favorable FMLA treatment in the past "by no means establishes that" a

termination is not in retaliation for an FMLA leave request. Calero v. Cardon

Indus., Inc., No. 11-3192, 2012 WL 2547356 at *8 (E.D. Pa. June 29, 2012).°

Here, plaintiff's invocation of FMLA rights appears to be causally related to

the adverse employment action, at least to a certain extent. Indeed, it is

undisputed that the FMLA leave was at least part of the reason for the

termination. Defendant would argue that it is was misuse of FMLA leave that led

to plaintiff's suspension and eventual termination and piaintiff has not met his

prima facie case. The court finds, however, that whether or not plaintiff misused

| his FMLA leave is best addressed with regard to the second and third elements

| of the McDonneil Douglas framework. The court will thus assume that the

| plaintiff has established his prima facie case of FMLA retaliation and proceed to

the second step of the McDonnell Douglas analysis.

Once the plaintiff establishes a prima facie case, the burden of persuasion

| shifts to the defendants to articulate a legitimate, non-discriminatory reason for

their actions. Capps, 847 F.3d 144 at 152. Here, defendants state that they had

pan honest belief that plaintiff used his leave for reasons other than its intended

Defendants cite this case in support of their motion for summary judgment, but it is not

persuasive. In Calero, there was no evidence that the decision makers had any knowledge of

the employee's request for FMLA leave. Id. Here, it is undisputed that the decision makers

knew of plaintiff's leave requests.

11

purpose. (See Doc. 33, SOF 9 57). The law provides that an employer's honest

belief that an employee uses his leave for a reason other than its intended

purpose is a legitimate, non-discriminatory reason for an adverse employment

‘action in an FMLA retaliation case. See Capps, 847 F.3d at 152 ("Where an

employer provides evidence that the reason for the adverse employment action

taken by the employer was an honest belief that the employee was misusing

FMLA leave, that is a legitimate, nondiscriminatory justification for the

discharge.”)

The facts surrounding defendants’ alleged legitimate reason for its action

are as follows:

Defendant Hershey employed an "Absence Management Team" who were

tasked with reviewing days employees had taken as FMLA leave. (Doc. 33, SOF

q 33). In April 2021, two employees, Judy Mader and Morgan Hoak, reviewed

plaintiffs FMLA leave days. They discovered that Hershey employed both

| plaintiff and his wife. (Id. {| 39). Upon further review, Hoak came to believe that

plaintiff was not using the FMLA leave for the approved purpose of transporting

his wife to doctor's appointments. (Id. 41).’ Initially, Hershey found six days in

April 2021 during which plaintiff used FMLA leave for his wife on days that his

? Plaintiff disputes this statement, to point out that that Hoak had contempt for plaintiff. (Doc.

34, 1.41). He does not, however, dispute that Hoak in fact believed plaintiff was misusing his

FMLA leave.

12

wife reported for a full day of work. Between February 14, 2021 and May 10,

2021, plaintiff used his FMLA for at least twenty (20) full days of leave when his

wife reported for a full day of work. (Id. 4 44).°

Hoak and a co-worker notified Reese Plant's local Human Resources

representatives, Jennifer Davidick and Kristi Umberger about the leave issue.

(Id. 4] 45). Davidick contacted LaQuita Gary, Senior Manager, Global Inclusion &

Employee Experience, to determine the way to proceed with a case of suspected

FMLA leave abuse. (ld. 46). Gary opened an investigation on April 30, 2021.

(Id. | 47). She assigned Tory Niceswander, Senior Specialist, Inclusion &

Employee Experience to conduct the investigation. (Id.) Niceswander's role was

to investigate the matter and issue a recommendation on any disciplinary action.

(Id.)

To assist in the investigation, Hoak provided Niceswander with some of

plaintiffs FMLA documents and her analysis of the plaintiffs FMLA use compared

to his wife's attendance at work. (Id. 48). Hoak had no further involvement in

the investigation or in the subsequent discussions involving plaintiff's

employment. (Id.)°

8 Plaintiff again disputes these facts, but provides no counter evidence. Plaintiff merely argues

that not all days he took off were to transport his wife to appointments as he was needed to

“make" medication and deliver it to his wife at work. (Doc. 34, 7 44).

° Plaintiff disputes paragraph 48 of defendants' SOF, but only to the extent that he again points

out his belief that Hoak was contemptuous toward the plaintiff, and to highlight Hoak's

assertion that if plaintiff had any questions about what was approved as FMLA leave he could

13

Niceswander conducted an investigative interview with plaintiff on May 18,

202" via teleconference. (Doc. 34, Pl. CSOF 7 49). Also present for the

interview were Umberger of the defendants’ local Human Resources Department

| and Laura Seitchik, Senior Specialist, Inclusion and Employee Experience. (Doc.

| 33, Def. SOF ff 49).

At the interview, plaintiff indicated that he believed that his FMLA leave

certification allowed him to use leave to prepare his wife's medications at home

| and deliver them to her at Hershey, in addition to providing transportation to

| appointments, and moral support. (id, {] 50). Plaintiff's description of his FMLA

leave is not consistent with his health care provider's FMLA certification or

| Hershey's FMLA designation.

| At this point, it is important to review plaintiffs FMLA certification. The

certification form plaintiff submitted to Hershey is comprised of four pages. The

| first page appears to have been compieted by plaintiff himself and the remainder

was completed by his wife's IVF health care provider. On the first page when

asked to describe the care that his family member needed, plaintiff wrote: "for

support, going to appointments, during procedures, helping inject medications.

Driving my wife back and forth for bloodwork & ultrasound and different

have received additional information. (Doc. 34, Pl's CSOF 4] 48). Accordingly, the court

deems this fact admitted.

14

procedures during our process.” (Doc 33-1, ECF 127). Notably, "helping inject

medications” is listed as part of the care plaintiff claimed that he needed to

provide. The remainder of the form, completed by the health care provider

discusses only the need for plaintiff to drive his wife to appointments when she

could not drive due to medication. (See id. ECF 129). The health care provider

does not mention a need for plaintiff to assist in injecting medicines.

Specifically, Defendant Hershey's FMLA "Designation Notice" indicates that

plaintiffs FMLA leave was: “Approved for 1-4 absences/wk., with each absence

lasting 1-12 hours in length. Approval effective 1/22/21 — 7/22/21 (To transport

spouse to appointments)" (Doc.33-1, ECF 132). This approval is in line with the

health care provider's certification discussed above. The designation does not

mention any approval of leave for plaintiff to assist his wife with injections of

medicine. Plaintiff, however, indicated that he did take leave to assist with

injections.

When Niceswander pressed plaintiff on the details of the reasons for taking

leave, the interview became somewhat antagonistic. Plaintiff indicated that he

thought the questions were too intrusive upon his privacy and the IVF treatments.

Plaintiff became angry. (Doc. 33, 755). During the interview plaintiff said

something to the effect of: "We can go there. | am from a war zone country.”

(Doc. 35-7, Gray Dep. at ECF 28). Niceswander felt threatened by the comment

15

and Umberger and Seitchik felt plaintiff was off-putting and exhibited behavior not

expected from an employee. (Id.) Plaintiff later indicated that this statement was

not meant to be threatening, but to demonstrate that he did not come to the

United States to be disrespected. (Id.)

Before the end of the interview, plaintiff asked to speak to Niceswander's

manager regarding Niceswander's conduct. (Doc. 33, Id. 9 59). Niceswander

informed his manager, Gary, who had a conversation with plaintiff the following

day. (Id. 7 60). Plaintiff stated to Gary that his FMLA leave was for

transportation, emotional support, and preparation of medication. (Id. J 63).

Gary informed him that the leave was approved only for driving his wife to

appointments. (Id. 64).

Plaintiff admitted during the interview that not all of his thirty-two (32) leave

days, including full and partial days, were for the transportation of his wife to

appointments. (Id. 52). Additionally, plaintiff stated that he took off full shifts on

| days he allegedly helped with his wife's injections, even though he admitted that

it took only about thirty (30) minutes to mix the medicine. (Doc. 35, Niceswander

Dep. at ECF 57).

Because the medical certification/designation for plaintiffs FMLA leave only

provided leave for plaintiff to transport his wife to appointments, these

admissions and the defendants’ investigation certainly provide a basis for the

16

defendants to form an honest belief that plaintiff misused his FMLA leave. Thus,

the court finds that the defendants have provided a nondiscriminatory justification

for the adverse employment action at issue. See Capps, 847 F.3d at 152

(“Where an employer provides evidence that the reason for the adverse

| employment action taken by the employer was an honest belief that the

employee was misusing FMLA leave, that is a legitimate, nondiscriminatory

justication for the discharge.")

Once the defendanis provide a legitimate, nondiscriminatory reason for the

employment action, the burden of persuasion shifts back to the plaintiff to

establish that the defendants’ articulated reason is merely pretext for

discrimination. Id.

| Here, plaintiff attacks the defendants’ legitimate nondiscriminatory reason

in several ways. Principally, it appears that plaintiff argues that instead of

terminating his employment, the defendants had a duty to ask plaintiff to seek

clarification from his doctor regarding the FMLA certification. Defendants’

position is that plaintiff bore the responsibility of seeking clarification or re-

certification if he so desired. After a careful review, the court agrees with the

defendants that they had no duty to ask plaintiff to clarify his certification.

Here, both Gary and Niceswander indicated that plaintiff bore the

responsibility of seeking recertification. Plaintiff argues that in Capps, supra, the

17

employer had allowed the employee ample time to obtain physician clarification

prior to making its "honest belief’ decision. (Doc. 35, Pl.'s Br. at ECF 9). A

review of the Capps opinion, however, reveals that plaintiff has misstated the

| facts of that case. No indication is provided in the Capps opinion that the

employer allowed the plaintiff additional time to obtain physician clarification.

Accordingly, plaintiff's reliance on Capps is unconvincing. Capps is the sole

authority that plaintiff relies upon to support his position that he should have been

allowed to obtain physician clarification. The court thus rejects plaintiff's

| argument on this point.'°

Plaintiff also complains about Niceswander's investigation. According to

the plaintiff, Niceswander did not investigate whether he truly was providing

| medication to his wife on the FMLA leave dates as he claimed. Niceswander

| admitted that he did not try to confirm this statement as he found it unworthy of

credence. Niceswander found the plaintiff's assertion incredible because access

| to the facility where plaintiff's wife worked, the West Hershey Plant, was limited.

| (Doc. 35-10, Niceswander Dep. At 31). An employee cannot easily access that

facility unless he works there, and although plaintiff's wife worked there, plaintiff

10 Regardless, a week passed between plaintiffs suspension and his termination. Nothing in

the record indicates that during this time plaintiff sought clarification from his physician,

presented such clarification to the defendants, or indicated to the defendants that he wanted to

seek clarification.

18

himself did not. (Id. at ECF 57-58). Moreover, plaintiffs FMLA certification did

not allow plaintiff leave to bring medications to his wife. (Id.) Thus, the fact that

Niceswander did not engage in a more detailed investigation does not raise an

inference of discrimination.

| Notably, a more robust investigation would not necessarily have proved

favorable to the plaintiff. During the discovery phase of this case, the defendants

received medical records which revealed that on approximately twenty-five (25)

(of plaintiff's FMLA leave days, his wife had neither appointments nor medication

injections. (Doc. 33, SOF ¥ 85). '! Thus, plaintiff took leave for appointments,

which was appropriate, and leave to mix medication, which plaintiff understood to

| be appropriate. Additionally, plaintiff took twenty-five (25) days of leave when

| plaintiff's wife had neither appointments nor medicine injections. The reasons for

these days of leave are not explained in the record. Regrettably, for plaintiff, a

more thorough investigation may have led to additional reasons to discipline him

| for abuse of FMLA leave.

| Plaintiff also complains that Niceswander made his decision before

investigation took place and prepared a script for his interview with plaintiff.

11 Plaintiff disputes this fact, but only with general information regarding Plaintiffs wife care.

(See Doc. 34, J 85 (referring to | 75). He does not address the dates specifically set out in

defendants’ statement of facts. Accordingly, the court deems this paragraph of the □□□□□□□□□□□

statement of facts as admitted. 19

(Doc. 35-10, Niceswander Dep. at 47). Plaintiff attempts to use the script and an

alleged intent to suspend the plaintiff even before the interview as evidence that

defendants discriminated against him. Discriminatory intent cannot be inferred

merely because Niceswander prepared a script for use in the interview, including

questions and potential outcomes. Niceswander did not deny using the script

and adding notes to it during the interview. (id. at 48). The presence of this

“script" does not raise an inference of retaliatory animus.

At most, plaintiff may have established that Niceswander had decided to

suspend the plaintiff before he talked to him. That fact alone, even if proved,

does not indicate a discriminatory intent. A decision to suspend the plaintiff, even

if it came before his interview, does not equate with a decision to suspend the

plaintiff for discriminatory reasons.

Accordingly, plaintiff has not raised a genuine issue of material fact as to

whether defendants violated his rights under the FMLA concerning the leave he

had with regard to the IVF treatments. Judgment will be granted to the

defendants on this issue.

B. Retaliation Regarding FMLA Leave for Plaintiff's Own Needs

This case, however, involves two distinct FMLA claims: 1) the previously

discussed leave with regard to the IVF treatments; and 2) the FMLA leave

| 20

regarding plaintiff's own disabilities, which include gout flare-ups, anxiety and

depression, (See, e.g., Doc. 1 Compl. 43).

Plaintiff obtained certification for FMLA for his own needs from

approximately September 2018 through September 2020. (Doc. 33-1, Def. Exh.

8, ECF 93-94; Doc. 33-1, Def. Exh. 15, ECF 108-09). This series of FMLA leave

certifications expired approximately four to five months before he obtained the

| certification/designation for the leave regarding the IVF treatments and

approximately eight months before his termination. Plaintiff took leave as

needed during this period, with no evidence cited in the record to indicate that

‘defendants acted inappropriately.

Plaintiff's position is that defendants retaliated against him after he

expressed an intention to re-certify the FMLA leave for his own personal issues

| during the May 2021 interview with Niceswander. Plaintiff alleges that defendants

terminated him within seven (7) days of raising the issue of seeing his doctor

| again to recertify his FMLA and the previous accommodation. (Doc. 35, Pl.'s

| Oppo. Br. at 9). The record fails to support plaintiff's position.

As noted above to establish FMLA retaliation, plaintiff must first establish a

| prima facie case comprised of the following elements: 7) he invoked a right to

| FMLA-qualifying leave; 2) an adverse employment action by the employer

against the employee; 3) a causal relation between the invocation of FMLA rights

| and the adverse employment action. Fogelman 283 F.3d at 657-68. Plaintiff's

| FMLA retaliation claim with respect to the leave for his own needs fails at the first

step, he did not invoke a right to FMLA-qualifying leave.

Plaintiff claims that he indicated at the interview with Niceswander that he

| intended to recertify the FMLA leave he had for himself. In support of this

| position, plaintiff cites to the Niceswander's deposition. (ld.) This evidence,

however, does not support the plaintiff's position and is very circuitous.

| At the deposition, Niceswander was questioned about notes he had taken

at plaintiff's interview on May 18, 2021. Niceswandet's notes indicate that he

asked plaintiff who the FMLA leaves were for, himself or a family member and

when they were approved for coverage. (Doc. 35-10, Niceswander Dep. At ECF

22). Plaintiff responded, per the notes, that the leaves were for himself and his

wife. Plaintiff further indicated that his personal FMLA leave expired in March or

April'? and that "I don't really have any use for it anymore." (id.) When asked if

he recertified the leave for his own needs, plaintiff indicated, "] haven't seen my

doctor. | was supposed to see him in two months or so.” (Id. at ECF 23).

Plaintiff would have the court interpret this evidence to mean that plaintiff

still needed his individual leave and intended to visit his doctor about it in two

months. The court is unconvinced.

12 As noted above, this FMLA leave designation had expired in September 2020.

22

Even when viewed in the light most favorable to the plaintiff, this evidence

does not support his position that he indicated to Niceswander that he intended

to recertify the FMLA leave for his own needs. Plaintiff stated that "he really

didn't need the leave anymore" and is clearly speaking about the leave for his

own conditions, not the IVF leave. Additionally, he had at some point planned to

see his doctor in "two months", but the leave had expired approximately eight (8)

months earlier in September 2020.

Thus, the evidence plaintiff presents does not meet the first element of an

FMLA retaliation claim. He did not invoke FMLA-qualifying leave regarding the

May 2021 interview.

As further evidence that defenaants' retaliated against him for his own

leave, Plaintiff states that he believed that at the May interview he was being

retaliated against due to the leave he took months earlier for his own needs.

Such a subjective belief is insufficient to meet the plaintiff's burden of establishing

a prima facie case. See Naber v. Dover Healthcare Assocs., Inc. 765 F. Supp.

2d 622, 635 (E.D. Pa. 2011) ("[P]laintiffis belief that she was a victim of retaliation

is similarly insufficient to satisfy her burden of proof.”)

Thus, plaintiff has not met the prima facie elements of an FMLA retaliation

claim. Even if he had, and the court continued the analysis of the McDonnell

Douglas factors, plaintiff's claim would fail based upon the defendants' honest

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belief regarding FMLA leave misuse as set forth above. In other words, merely

because plaintiff indicated that he intended to attempt to recertify FMLA for his

own needs does not negate the fact that defendants possessed an honest belief

that he abused his FMLA leave. Furthermore, plaintiff has provided no evidence

to demonstrate that the reason defendants provided for his discipline/termination

is merely pretext for discrimination.

For these reasons, the court will also grant summary judgment to the

defendants on Count 8, FMLA retaliation based on the FMLA leave he took for

his own needs,

2. FMLA Interference Claim — Count 7

Count 7 of plaintiffs complaint alleges a claim for FMLA interference

against the defendants. (Doc. 1, Compl. Jf] 78-100). Plaintiff avers that the

defendants failed to provide him the FMLA leave of absence without

discrimination, harassment, and retaliation. (Id. 1/91). As alleged, "[iJnstead,

Defendants interfered with Plaintiffs FMLA once he made it known of his need

for leave and workplace accommodations, and ultimately, discharged Plaintiff

from his job.” (Id. J 92).

Defendant argues that judgment should be granted to them on the FMLA

interference claim because it is redundant to the FMLA retaliation claim. The

Third Circuit Court of Appeals, however, has held that "firing an employee for a

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valid request for FMLA leave may constitute interference with the employee's

FMLA rights as weil as retaliation against the employee." Erdman v. Nationwide

Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009). While the Third Circuit has noted

that an FMLA interference claim and an FMLA retaliation claim are not

necessarily redundant to each other, in this case, judgment will be granted to the

defendants for the same reason on both counts.

To establish an FMLA interference claim, a plaintiff must prove that “(1) [Ihe

invoked his] right to FMLA-qualifying leave, (2) [ ]he suffered an adverse

employment decision, and (3) the adverse action was causally related to h[is]

invocation of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,

301-02 (3d Cir. 2012).

Plaintiff claims that the defendant interfered with his FMLA leave rights by

discouraging him from using FMLA, by disciplining him and ultimately discharging

him after he sought to assist his and his wife's serious medical conditions. (id. J

95a). Defendants argue that because they granted all of plaintiff's requests for

FMLA leave, he cannot recover on an FMLA interference claim. Based on the

facts as set forth above, the defendants’ argument is convincing. it is undisputed

they granted all the leave plaintiff sought. While plaintiff was discharged

before his leave expired, defendants had an honest belief that he was misusing

the FMLA leave. Nothing in the FMLA or the caselaw interpreting it provides that

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an employee must be kept employed until his FMLA certification/designation-

period ends if the employer believes he is misusing the leave. Accordingly,

substantially for the same reasons that plaintiff's FMLA retaliation claim fails, his

FMLA interference claim fails. Judgment will be granted to the defendants on

plaintiffs FMLA interference claim.

ADA and PHRA Claims — Counts 1-6

Counts 1 through 3 of plaintiff's complaint assert claims for disability

discrimination under the Pennsylvania Human Relations Act, 43 PA. STAT. § 951

et seq. ("PHRA") (Doc. 1, J] 42-47). Counts 4 through 6 assert similar claims

for disability discrimination under the Americans with Disabilities Act, ("ADA"), 42

U.S.C, § 12101 et seq. Defendants seek judgment on these claims on the basis

that plaintiff has no evidence of discrimination. Disability discrimination claims

under the PHRA are treated as coextensive with ADA claims. Kelly v. Drexel

| Univ. 94 F.3d 102, 105 (3d Cir. 1996). Thus, the court will address the claims

| using ADA law and the same analysis will apply to the PHRA claims.

Count 4 alleges disability discrimination, failure to accommodate. Count 5

alleges ADA disability hostile work environment, and Count 6 alleges ADA

| disability retaliation.*? All of these counts deal with a period of FMLA leave and

13 Counts 1, 2, and 3 allege the PHRA analogues to Counts 4, 5, and 6.

26

accommodation that plaintiff sought for his own disability and not for the period of

FMLA leave discussed above regarding the FMLA related to the IVF treatments.

The court will address each cause of action separately.

A. Disability Discrimination

Count 4 of the plaintiff's complaint alleges that plaintiff had a record of

‘disability and/or was regarded as disabled by the defendants. (Doc. 1, {| 62).

| According to the complaint, instead of accommodating the plaintiffs disability as

required under the law, the defendants disciplined and fired him. (ld. 65).

Defendants argue that plaintiff has no proof of disability discrimination and that

[judgment should be granted in defendants' favor on Count 4. After a careful

review, the court agrees with the defendants.

| To state a claim for ADA discrimination, the plaintiff must establish the

following: 1) he is disabled within the meaning of the ADA; 2) he can perform the

| essential functions of his job with or without reasonable accommodations; and

3) he suffered a refusal to make reasonable accommodations. Hohider v. UPS,

Inc., 574 F.3d 169, 186 (3d Cir. 2009).

Defendants allege that plaintiff cannot establish the prima facie elements

because defendants granted his only accommodation request. Plaintiff's

complaint indicates that due to gout flare ups, anxiety, and depression, he

requested that Hershey place him on a forty-hour per week work restriction and

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Hershey did so. (Doc. 1, Compl. Jf] 15-16, 61). At his deposition, plaintiff stated

that Hershey granted this request for an accommodation. (Doc. 33, SOF J 24,

Doc. 33-1, Pl.'s Dep. ECF 19).

Plaintiff's brief in opposition to the defendants' summary judgment motion

does not address this issue. Plaintiff thus has not established the elements of a

prima facie case because he cannot demonstrate that he suffered from a refusal

to make an accommodation. Rather, the record indicates that defendants

granted his request for an accommodation regarding his disability. (Id.) The

court will grant summary judgment to the defendants on this claim.

B. ADA Retaliation

| Count 6 of plaintiff's complaint asserts an ADA retaliation claim. (Doc. 1,

Compl. fff] 72-77). This count also relates to plaintiff's own disabilities, not to the

| leave he sought to care for his wife. (id. J 75).

| To establish a prima facie case of iliegal retaliation under the ADA, a

plaintiff must prove: “(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.” Fogleman, 283 F.3d 567-68 (quoting Krouse v. Am.

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

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lf the plaintiff establishes a prima facie case of ADA retaliation, the burden

shifting analysis of McDonnell Douglas also applies. Specifically,

[T]the burden shifts to the employer to advance a legitimate, non-

retaliatory reason for its adverse employment action. The employer's

burden at this stage is relatively light: it is satisfied if the defendant

articulates any legitimate reason for the adverse employment action;

the defendant need not prove that the articulated reason actually

motivated the [action].

If the employer satisfies its burden, the plaintiff must be able to

convince the factfinder both that the employer's proffered explanation

was false, and that retaliation was the real reason for the adverse

employment action. The plaintiff must prove that retaliatory animus

played a role in the employer's decisionmaking process and that it had

a determinative effect on the outcome of that process. The burden of

proof remains at all times with the plaintiff.

| Krouse, 126 F.3d at 500-501 (internal citations, quotation marks, and editing

marks omitted).

Here, plaintiff claims that his protected ADA activity was "Plaintiff had

sought and received accommodation as to a 40-hour work week, as well as

FMLA for himself claiming he was recertifying for same in about two months.”

| (Doc. 35, Pl. Opp. Br. at 9). Plaintiff did seek a 40-hour work week

accommodation for his disabilities in July 2020, and he admitted in his deposition

that this, his only disability accommodation, was granted. (Doc. 33-1, Defs.' Exh.

Pl. Dep. ECF 43).

| The same analysis regarding the FMLA retaliation claim applies here.

| Defendants had an honest belief that plaintiff was misusing his FMLA leave and

29

disciplined/terminated him. Plaintiff has presented no evidence that the reason

provided by the defendants is false and that retaliation was the real reason for

the adverse employment actions. Accordingly, summary judgment will be

granted to the defendants on this claim.

C. Hostile Work Environment — Disability

Count 5 of plaintiffs complaint alleges an ADA disability hostile work

environment claim. Defendants move for judgment on this claim.

A plaintiff establishes a prima facie case of ADA disability hostile work

environment when he demonstrates the following:

1) he is a qualified individual with a disability under the ADA;

2) he was subjected to unwelcome harassment;

3) the harassment was based upon plaintiff's disability or a request for an

accommodation; and

4) the harassment was sufficiently severe or pervasive to alter the

conditions of his employment and to create an abusive work environment; and

5) the employer knew or should have known of the harassment and failed

to take prompt effective remedial action.

Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999). "To

prove an ‘abusive work environment’ under Title VII, the environment must be

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shown to be objectively hostile or abusive, and the plaintiff must have perceived

it as a hostile or abusive environment.” Id.

Plaintiff has not briefed this issue. He points to no evidence that he

experienced a severe or pervasive abusive work environment. In fact, at his

deposition, he indicated that he was very happy working at Hershey until he was

questioned about the leave he took to care for his wife's needs at the interview in

May 2021. (Doc. 33-1, Exh. 1, Pl.'s Dep. at 78). Accordingly, judgment will be

granted to the defendants on this claim.

4, GINA Disability Claim — Count 9

Count 9 of plaintiff's complaint asserts a cause of action under the Genetic

Information Non-Discrimination Act, ("GINA"), 42 U.S.C. § 2000ff, et seg. Next

defendants move for summary judgment on plaintiff's GINA claim on the basis

that plaintiff has no evidence of such discrimination.

GINA’'s provision against “[d]iscrimination based on genetic information,” 42

U.S.C. § 2000ff-1(a), provides that

It shall be an uniawful employment practice for an employer—

| (1) to fail or refuse to hire, or to discharge, any employee, or

otherwise to discriminate against any employee with respect to the

compensation, terms, conditions, or privileges of employment of the

employee, because of genetic information with respect to the

employee; or

(2) to limit, segregate, or classify the employees of the employer in

any way that would deprive or tend to deprive any employee of

employment opportunities or otherwise adversely affect the status of

31

the employee as an employee, because of genetic information with

| respect to the employee.

| Section 2000ff (4) (A) defines “genetic information” as “information about—(i)

| such individual's genetic tests, (ii) the genetic tests of family members of such

| individual, and (iii) the manifestation of a disease or disorder in family members

of such individual.” The court therefore “review[s] the complaint to determine

| whether Plaintiff has pleaded and plausibly supported, at least, (1) that [he] was

an employee; (2) who was discharged or deprived of employment opportunities;

| (3) because of information from Plaintiff's genetic tests.” Leone v. N. Jersey

Ortho Specialists, P.A., Civil Action No. 11-3957 (ES) 2012 WL 1535198 *5

(D.N.J. Apr. 27, 2012).

Pursuant to GINA, “genetic information” means information about the

“genetic tests” of an individual or family members, and information about the

“manifestation of a disease or disorder in family members of such individual.” Id.

| § 2000ff(4)(A). “Genetic test,” in turn, “means an analysis of human DNA, RNA,

| chromosomes, proteins, or metabolites, that detects genotypes, mutations, or

chromosomal changes.” Id. § 2000ff(7)(A).

The facts of the instant case do not give rise to a cause of action under the

| law. Plaintiff cites to no genetic information as defined by GINA. He cites to the

| IVF treatment of his wife and medications related thereto. While there may be a

| genetic component as to why the plaintiff and his wife were engaged in IVF

32

treatment, this is not the type of claim contemplated by GINA. Plaintiff has

presented no information from which a factfinder could infer that defendant

discharged him from employment based upon genetic tests. Accordingly, the

court will grant summary judgment to the defendants on Count 9.

5. Common Law Intrusion Upon Seclusion Claim — Count 10

Count 10 of the plaintiff's complaint asserts a Pennsylvania common law

claim for invasion of privacy/intrusion upon seclusion. Plaintiff claims that the

defendants intentionally entered upon his solitude and seclusion by questioning

him regarding the IVF treatments. (Doc. 1, fff 125-130). Summary judgment will

be granted to the defendants on this count.

The Third Circuit Court of Appeals has explained Pennsylvania law

regarding intrusion upon seclusion as follows:

To state a claim for intrusion upon seclusion, plaintiffs must allege

conduct demonstrating “an intentional intrusion upon the seclusion of

their private concerns which was substantial and highly offensive to a

reasonable person, and aver sufficient facts to establish that the

information disclosed would have caused mental suffering, shame or

humiliation to a person of ordinary sensibilities.”

Boring v. Google, Inc., 362 F. App'x 273, 278-79 (3d Cir. 2010) (quoting Pro Golf

Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002)).

Plaintiff here sought leave to assist his wife with IVF treatments. The

defendants questioned him about the treatments in evaluating his leave.

Because it related to the leave in question, such questioning did not

33

inappropriately intrude upon plaintiff's seclusion. Plaintiff has not pointed to any

information obtained by the defendants here that would have caused suffering,

shame or humiliation to a person of ordinary sensibilities. Accordingly, the court

grant summary Judgment to the defendants on Count 10.

6. Common Law Negligent Supervision Claim — Count 11

Plaintiff sets forth a claim for negligent supervision in Count 11 of his

complaint. (Doc. 1, 9§] 131-138). This count alleges that defendants intruded

upon plaintiff's private medical information and mental health conditions and

communicated same to human resources, corporate relations, and other

supervisors and third parties from May 18, 2021 through May 25, 2021 and

| beyond. (Id. ] 133). Defendant seeks judgment on this count on the basis that

| plaintiff cannot establish the elements of a negligent supervision claim.

The Third Circuit Court of Appeals has explained the law with regard to

negligent supervision as follows:

To recover for negligent supervision under Pennsylvania law, a

plaintiff must prove that his loss resulted from (1) a failure to exercise

ordinary care to prevent an intentional harm by an employee acting

outside the scope of his employment, (2) that is committed on the

employer's premises, (3) when the employer knows or has reason to

| know of the necessity and ability to control the employee. Dempsey v.

Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418, 420 (1968); Heller v.

Patwil Homes, Inc., 713 A.2d 105, 107-08 (Pa. Super. Ct. 1998).

Negligent supervision requires the four elements of common law

negligence, i.e., duty, breach, causation, and damages. Brezenski v.

World Truck Transfer, Inc,, 755 A.2d 36, 42 (Pa. Super. Ct. 2000)

34

(citing RESTATEMENT (SECOND) OF AGENCY § 213 cmt. a). Itis

specifically predicated on two duties of an employer: the duty to

reasonably monitor and control the activities of an employee, and the

duty to abstain from hiring an employee and placing that employee in

a situation where the employee will harm a third party. See

Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052, 1059-60 (1999)

(affirming the applicability of common law negligence and discussing

the duty of an employer articulated in Section 317 of the

Restatement).

Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 487-89 (3d Cir. 2013).

Plaintiff's negligent supervision claim deals with Niceswander's

investigation into his FMLA leave in May of 2021. (Doc. 1, Compl. Jf] 131-138).

As noted above, however, plaintiff has no claim for intrusion upon seclusion with

regard to Niceswander's investigation. No evidence has been presented that

Niceswander acted outside the scope of his employment in conducting the

investigation. Accordingly, his actions cannot support a negligent supervision

claim.

7. Damage Limitation Based Upon After-Acquired Information

Finally, defendants argue that even if their motion is denied with regard to

plaintiffs substantive claims, the court should rule that his damages are limited

pursuant to the after-acquired evidence doctrine. As the court will grant

judgment to the defendants, no need exists to address a limitation to any

damages.

35

Conclusion

After a careful review of the pleadings, the parties’ briefs, the statements of

material fact, and the evidence presented in this case, the court concludes that

defendants acted appropriately and within the bounds of the FMLA when they

terminated plaintiff with an honest belief that he had misused the FMLA leave.

Additionally, the evidence of record does not raise an issue of genuine material

fact regarding the various disability causes of action, and the state law causes of

action. Accordingly, for the reasons set forth above, the defendants' motion for

summary judgment will be granted. An appropriate order follows.

Date: / | / □□

I BUS. JUDGE JULIA K. MUNLEX”

f | United States District Zou

36