# Divkovic v. The Hershey Company

> District Court, M.D. Pennsylvania · March 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10827857

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 21, 2025
- **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 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

23

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

24

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

25

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

27

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)).

28

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

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10827857. Public record. Not legal advice.