BURNS v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN BURNS,

, Case No. 2:24-cv-01822-JDW

v.

CITY OF PHILADELPHIA,

MEMORANDUM

What’s legal isn’t always the same as what’s fair. An employer can treat an

employee in ways that many people would consider unfair as long as the employer

doesn’t violate antidiscrimination laws. In this case, the City of Philadelphia terminated

John Burns after he took an 18-month leave of absence without proper authorization. If

that were the whole story, this would be an easy case. But accepting Mr. Burns’s version

of events as true, some of his superiors told him it was “fine” that he remained out on an

extended, unpaid leave. Understandably, that created some confusion when he tried to

return to work. While Mr. Burns has reason to feel misled, he does not have evidence to

show that the City’s reason for refusing to return him to restricted duty after his

unapproved leave, or for terminating him, was a pretext to hide discrimination or

retaliation. The City is entitled to summary judgment on each of Mr. Burns’s claims.

I. BACKGROUND

A. Factual History

1. Mr. Burns’s restricted duty

Mr. Burns joined the Philadelphia Police Department in September 2007. The

Department maintains directives designed to serve as a standard of conduct for all

personnel. Among other things, the directives include the Department’s rules, policies,

and procedures relating to reporting on-duty injuries, use of leave time, and employee

timekeeping. They carry the same weight as an order from the Police Commissioner.

Every employee receives a copy of the directives at the start of his employment, and the

directives are available to all employees electronically. During his employment, Mr. Burns

was aware of the Department’s directives, had access to them, and knew that all police

officers must review and understand them.

Pennsylvania law governs how the Department deals with an officer when the

officer is injured on the job. For non-work-related injuries or conditions, the Department

has developed a practice of providing police officers who are temporarily disabled with

“restricted duty” assignments. Pursuant to this practice, the Department attempts to find

light-duty or modified-duty work suitable to the employee’s physical capabilities instead

of placing these employees in an unpaid, non-work status. An officer assigned to

restricted duty must report to a particular police district or unit. While an officer is

assigned to restricted duty, the commanding officer of the assigned police district or

unit, who might differ from his permanent district or unit, serves as his commanding

officer. Officers must request restricted duty, and only the Police Commissioner or the

Department’s Safety Office may approve restricted duty assignments. Absent approval

from the Police Commissioner, restricted duty assignments are not to exceed six months.

Over the course of Mr. Burns’s employment, the Department approved him for

restricted duty at various times due to non-work-related injuries or conditions. Mr. Burns

worked on restricted duty status in 2008, 2013, 2015, and 2016-2017. In January 2021,

Mr. Burns requested restricted duty due to a back injury. At the time of his request, Mr.

Burns’s permanent assignment was with the 35th Police District. The Department

approved his request and detailed him to work at the Court Liaison Unit on restricted

duty status for up to six months. On April 27, 2021, Mr. Burns claimed that he suffered a

workplace injury in the Court Liaison Unit when a fellow police officer struck him in the

back, aggravating his pre-existing injury. Three days later, Mr. Burns stopped reporting

to work at the Court Liaison Unit and started using his paid sick leave. “Shortly after” this

incident, Mr. Burns went back to the 35th District (his permanent duty station) and asked

if he could “continue to use [his] sick leave” for his injury. (ECF No. 19-4 at 29:3-18.)

Corporal Jennifer Bryan-Ferguson and other unidentified staff told Mr. Burns: “[J]ust keep

us posted. That’s fine. We’ll keep you on sick leave.” ( at 29:8-9.)

On May 11, 2021, Mr. Burns notified the Department about his injury and sought

work-related benefits. On May 25, 2021, a representative from the Department’s Human

Resources sent a letter to Mr. Burns, advising him that the Department was denying his

request for benefits because it determined that his injury was not work-related. The letter

also advised Mr. Burns that his “absence from duty will be charged against your accrued

personal leave [and that i]n the event that this leave is exhausted, it will be necessary for

you to apply for a Medical Leave of Absence” until he could return to duty. (ECF No. 19-

43 at 1.)

The Department’s directives instruct officers how to request an unpaid medical

leave of absence and require that officers “do so in accordance with the procedures

outlined” in the directive. (ECF No. 19-38 at 11.5.1.B.) The applicable directive provides

that employees requesting a leave of absence for medical reasons, whether paid or

unpaid, must “prepare a memorandum in triplicate, and upon the approval of the

District/Unit Commanding Officer, the memorandum, along with a doctor’s report, will

be forwarded to Police Human Resources.” ( at 11.5.A, 11.5.5.A.)

Mr. Burns continued to use his accrued leave until it ran out on August 20, 2021.

The City stopped paying Mr. Burns after he exhausted his paid leave. At that point, Mr.

Burns did not return to work at the 35th District or the Court Liaison Unit. Nor did he

submit a memo to request an unpaid medical leave of absence. Instead, he went to the

35th District and spoke with Cpl. Bryan-Ferguson, Lieutenant Bizworade, and “other

people” about what was going on. (ECF No. 19-4 at 31:1-2.) He asked them if he was still

on medical sick leave, and they confirmed that he was and told him to keep them posted.

At that time, Captain Michael Zimmerman was the commanding officer at the

35th District. In December 2021, Captain Myesha Massey took over as commanding

officer of the District. According to Mr. Burns, throughout 2021 and 2022, he was

“constantly communicating” with management at the 35th District, including Capt.

Massey. (ECF No. 19-4 at 35:18-19.) He saw his doctor “every month” and would bring

his doctor’s notes to the city medical unit.1 ( at 75:23.) He also informed management

and asked if he could continue taking medical leave, and “they said it was fine. Just keep

them posted.” ( at 76:1-2.) Mr. Burns contends that these conversations took place, in

person, with Cpl. Bryan-Ferguson and Capt. Massey. Capt. Massey denies ever having

these conversations with Mr. Burns. In fact, she testified that she does not even know

who Mr. Burns is. However, Cpl. Bryan-Ferguson testified that she would “guide [Mr.

Burns] as to what the policy is, the procedures are with the Police Department as far as

with the Safety Office and Personnel to assist him in the direction he needs to go as far

as what his options are for leave of absence and returning to work.” (ECF No. 19-24 at

11:17-21.) Mr. Burns was under the impression that he could continue to use “medical

sick leave” until 2023. (ECF No. 19-4 at 34:11.) He remained unpaid during this time.

1 Based on the record, it appears that the official name of this unit is the Employee

Medical Services Unit or EMS.

2. Mr. Burns’s attempted return to work

In January 2023, Mr. Burns attempted to return to work on restricted duty status.

First, he went to the 35th District and met with Capt. Massey and Cpl. Bryan-Ferguson.

He told them that his doctor said he was able to work on a restricted duty basis and that

he intended to go to the city medical unit to get cleared to return to work. Capt. Massey

and Cpl. Bryan-Ferguson said that was fine and to keep them posted. On February 15,

2023, Mr. Burns went to the EMS Unit with a note from his doctor, seeking medical

clearance for a restricted duty assignment. He wanted a restricted duty assignment

because he was not physically able to perform the duties of police officer at the time.

EMS signed off on Mr. Burns’s request. The next day, an employee in the Police

Department’s Safety Office approved Mr. Burns for a restricted duty assignment and told

him to report to work at the 35th District.

On February 23, 2023, Mr. Burns reported to work at the 35th District. The

assignment sheet for that day indicated that Mr. Burns would be working in the Body

Worn Camera room. However, after he arrived, the administrative staff at the District

realized that Mr. Burns did not have the proper return-to-duty paperwork, and his name

was no longer in the Department’s Daily Attendance Report (“DAR”) system. They alerted

the Safety Office.

The head of the Safety Office, Molly O’Neill, investigated the matter and realized

that Mr. Burns had not been on the Department’s payroll since September 2021. That

same day, she rescinded Mr. Burns’s assignment to restricted duty and shared this

information with the 35th District. Capt. Massey and Cpl. Bryan-Ferguson told Mr. Burns

that none of his information or certifications were in the DAR system and that he would

have to leave. Then, Mr. Burns came back to the 35th District, and Cpl. Bryan-Ferguson

helped him draft a memo to HR to try to resolve the issue so that he could return to

work.

On March 3, 2013, Mr. Burns submitted a memo to the Police Commissioner at

the time, Danielle Outlaw, seeking retroactive approval for a leave of absence from

September 5, 2021, through February 16, 2023.2 That same day, he submitted a separate

memo to Commissioner Outlaw, seeking permission to return to work on restricted duty

upon returning from his yet-to-be-approved medical leave. Mr. Burns then reached out

to Cpl. Bryan-Ferguson regarding the status of his requests, but she did not have any

updates to provide him. She suggested that he reach out to the Safety Office or Heather

McCaffrey, who was the Director of HR.

On April 27, 2023, Capt. Massey issued a memo, recommending that the City

terminate Mr. Burns. Her memo reported that “[f]rom September 5, 2021 to February 16,

2023, P/O Burns remained on an unapproved leave of absence. He failed to notify his

supervisors regarding his leave status and did not request a leave of absence prior to

2 The memo was addressed to the Commanding Officer of the 35th District, which

would have been Capt. Massey at the time.

starting his leave.” (ECF No. 19-13 at ¶ 2.) She explained that the Safety Office overturned

the decision to approve Mr. Burns's return to work on restricted duty status because he

“was never approved for a leave of absence.” ( at ¶ 3.) She recommended that he be

terminated “for failing to comply with Directive 11.5 Leave of Absence and Separation

and Civil Service Regulation 22.02.” ( at ¶ 1.)

While this memo made its way up the chain of command, Mr. Burns was still trying

to get clarity about if and when he could return to work. He made several phone calls to

Ms. McCaffrey in HR and left voicemails for her, but she never called him back. He also

sent her emails, but she did not respond. At some point in May 2023, after receiving no

response from Ms. McCaffrey, Mr. Burns sent a memo to Deputy Commissioner John

Stanford via email, asking for assistance to figure out his job status.3 Deputy

Commissioner Stanford never responded.

On June 21, 2023, the Deputy Commissioner approved Capt. Massey’s

recommendation to terminate Mr. Burns. Two days later, Commissioner Outlaw

approved the same recommendation and terminated him. On July 3, 2023, Ms. McCaffrey

sent a letter to Mr. Burns, advising him that the City terminated him on June 23, 2023.

Her letter advised Mr. Burns that he would be separated from the Department under the

designation of “Terminated — Abandoned Position,” in accordance with Civil Service

3 It is not clear whether this memo is part of the record. There is an undated memo

from Mr. Burns addressed to the “Police Commissioner,” requesting a three-month

extension of restricted duty status beyond August 16, 2023.

Regulations. (ECF No. 19-12.) After receiving this letter, Mr. Burns went to the HR office

and spoke with Ms. McCaffrey in person in an attempt to get his job back. Ms. McCaffrey

claimed that she was not familiar with his situation but that she would look into it. Once

he left, she asked a colleague to let her know what was happening, and the colleague

advised her that HR was “requesting his termination for failure to return from a leave.”

(ECF No. 25 at 11-13.) Ms. McCaffrey had no further contact with Mr. Burns.

B. Procedural History

On April 30, 2024, Mr. Burns filed this lawsuit against the City, asserting that in

revoking his restricted duty status on February 23, 2023, and terminating him on June

23, 2023, the City discriminated against him based on his disability and retaliated against

him because he sought accommodations. He also alleges that the City is liable for failing

to accommodate him. As a result, he brought claims against the City for violations of the

Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the

Philadelphia Fair Practices Ordinance. The City has moved for summary judgment on all

of Mr. Burns’s claims, and that motion is ripe for disposition.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to enter,

summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In ruling on a summary judgment motion, a court must “view the facts and draw

reasonable inferences ‘in the light most favorable to the party opposing the [summary

judgment] motion.’” , 550 U.S. 372, 378 (2007) (quotation omitted).

In opposing summary judgment, “[t]he non-moving party may not merely deny

the allegations in the moving party’s pleadings” and “must do more than simply show

that there is some metaphysical doubt as to the material facts.” (quotation omitted).

“[I]nstead, he must show where in the record there exists a genuine dispute over a

material fact.” , 480 F.3d 252, 256 (3d Cir. 2007) (citation

omitted). If he fails to make this showing, then the Court may “consider the fact

undisputed for purposes of the motion” and/or “grant summary judgment if the motion

and supporting materials — including the facts considered undisputed — show that the

movant is entitled to it[.]” Fed. R. Civ. P. 56(e)(2), (3).

III. ANALYSIS

A. Failure To Accommodate

Although Mr. Burns claims otherwise, there is no question that the City moved for

summary judgment on his failure to accommodate claim. The City made its arguments

as to that claim in the same section of its opening brief in which it argued that Mr. Burns

is not a qualified individual under the ADA. ( ECF No. 19 at 6-9.) Admittedly, the City

could have avoided confusion by separating its failure to accommodate arguments from

its disparate treatment discussion with a separate heading, but no rule required it to do

so. And to consider the issue waived for this reason would elevate form over substance,

especially when Mr. Burns had a full opportunity to respond to each of the City’s

arguments. Thus, I will evaluate whether the City is entitled to summary judgment on the

failure to accommodate claims.

A plaintiff asserting a failure-to-accommodate claim under the ADA, PHRA, or

PFPO4 must establish: “(1) he was disabled and his employer knew it; (2) he requested

an accommodation or assistance; (3) his employer did not make a good faith effort to

assist; and (4) he could have been reasonably accommodated.”

, 847 F.3d 144, 157 (3d Cir. 2017) (quotation omitted). There is no dispute as to the

first three elements. However, Mr. Burns cannot prevail on his failure to accommodate

claim because he cannot establish that the City could have reasonably accommodated

him.

Initially, “the plaintiff bears only the burden of identifying an accommodation, the

costs of which, facially, do not clearly exceed its benefits.”

, 168 F.3d 661, 670 (3d Cir. 1999) (quotation omitted). Mr. Burns has

met this burden. There is no dispute that the City has a practice of accommodating

uniformed police officers who are temporarily disabled due to a non-work-related injury

4 The “analysis of an ADA [failure to accommodate] claim applies equally to a PHRA

claim.” , 184 F.3d 296, 306 (3d Cir. 1999). Likewise, “[c]ourts

typically apply the same framework … claims to PFPO claims.”

, No. 17-cv-5637, 2019 WL 2640060, at *11 (E.D. Pa. June 27, 2019).

by placing them on restricted duty status. In fact, there is evidence in the record that the

City permitted Mr. Burns to work on restricted duty status at various times.

Because Mr. Burns has made a showing that an accommodation exists

that would have qualified him to return to work as of February 2023, “the burden shifts

to the [City] to prove either that the accommodation is unreasonable or that it creates

an undue hardship ….” The City has met that burden.

“The ADA does not mandate that an employer excuse an employee's previous

misconduct, even if it was precipitated by his or her disability.”

, 131 F. Supp.3d 331, 351 (E.D. Pa. 2015) (citation omitted).5 An employer

need not ignore “evidence of an employee's inappropriate or unprofessional conduct

which is uncovered during an investigation into” the employee’s complaint about other

matters. , 474 F. Supp.2d 577, 585 (D. Del. 2007), ,

267 F. App'x 167 (3d Cir. 2008). That means a plaintiff cannot prevail on a failure to

accommodate claim where the requested accommodation would necessarily require that

the employer excuse misconduct, because such a request is inherently unreasonable.6

5 Mr. Burns does not address this argument, even though the City made it in its

opening brief.

6 , , No. 18-cv-209, 2020 WL 13190244, at *10 (M.D.

Pa. July 28, 2020), , 2022 WL 1110323 (M.D. Pa. Apr.

13, 2022); , No. 15-cv-563, 2017 WL 839465, at *14 (M.D. Pa.

Mar. 3, 2017); , 2 F. Supp. 3d 597, 607-09 (E.D. Pa. 2014).

There is no genuine dispute that Mr. Burns failed to follow the City’s policy for

requesting an unpaid medical leave of absence once his paid sick time ran out. The City’s

Civil Service Regulations provide that “[a]n employee who is absent from the service

without a valid leave of absence … shall be deemed to have abandoned his position and

to have resigned from the service ….” Phil. Civ. Serv. Reg. 22.01. The Police Department’s

directives state the same. ( ECF No. 19-38 at Directive 11.6.2.C.) Therefore, absent a

valid unpaid leave of absence, Mr. Burns abandoned his position.

To request an unpaid medical leave of absence from the Police Department,

officers must “do so in accordance with the procedures outlined” in the applicable

Directive. (ECF No. 19-38 at 11.5.1.B.) The applicable Directive, in turn, requires officers

seeking a medical leave of absence to “prepare a memorandum in triplicate, and upon

the approval of the District/Unit Commanding Officer, the memorandum, along with a

doctor’s report, will be forwarded to Police Human Resources.” (ECF No. 19-38 at

11.5.5.A.) Consistent with these Directives, Human Resources advised Mr. Burns via a

letter dated May 25, 2021, that if he exhausted his accrued personal leave while

recovering from his back injury, then it would be “necessary” for him to “apply for a

Medical Leave of Absence” until he was capable of returning to duty. (ECF No. 19-43.)

Mr. Burns did not request a leave of absence pursuant to the City’s policy, even

though it’s undisputed that he had access to the policies, knew that he had to review

and understand them, and knew that they carry the same weight as an order from the

Police Commissioner. He does not offer any evidence that Capt. Massey, Cpl. Bryan-

Ferguson, Lt. Bizworade, Capt. Zimmerman, or anyone else had the authority to grant

him a medical leave of absence outside the prescribed process. Thus, pursuant to the

applicable policies, the City deemed him to have abandoned his position. No reasonable

jury could conclude that it would have been reasonable for the City to accommodate Mr.

Burns with a restricted duty assignment after that abandonment. So, the City cannot be

liable for failing to accommodate him and is entitled to summary judgment on this claim.

B. Disparate Treatment Discrimination And Retaliation

Mr. Burns’s claims of disparate treatment discrimination and retaliation under the

ADA, PHRA, and PFPO are subject to the familiar burden-shifting

framework. , 49 F.4th 340, 346 (3d Cir. 2022);

, 19 F.4th 292, 298 (3d Cir. 2021).7 To prevail, Mr. Burns must first

establish a case. , 49 F.4th at 346. If he makes that showing, then

the burden shifts to the City to articulate a legitimate, non-retaliatory reason for taking

the adverse actions against him. If the City meets that burden, the burden shifts

back to Mr. Burns to establish that the City’s “explanation was false, and that

7 Like the failure to accommodate claims, I analyze the disparate treatment and

retaliation claims under the various statutes in the same way.

, 900 F.3d 104, 126 (3d Cir. 2018) (“[T]he liability standard for

the PHRA and the ADA is the same[.]”); , No. 16-cv-3652, 2017 WL

2423794, at *3 n.1 (E.D. Pa. June 2, 2017) (“Claims arising under the ADA and the PFPO are

analyzed under the same legal framework.”).

[discrimination or] retaliation was the real reason for the adverse employment action[s].”

(quotation omitted).

1. case

a. Disparate treatment

To establish a case of disparate treatment discrimination, Mr. Burns

must prove: (i) he has a disability within the meaning of the ADA; (ii) he is “otherwise

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

accommodations …;” and (iii) he has “suffered an otherwise adverse employment

decision as a result of discrimination.” , 114 F.4th

214, 220–21 (3d Cir. 2024) (quotation omitted). “The burden of proving the

case ‘is not intended to be onerous.’” , 498 F.

Supp. 3d 590, 603 (E.D. Pa. 2020) (same). However, Mr. Burns cannot establish a

case of disability discrimination because he cannot show that he was qualified to

perform the essential functions of his job with a reasonable accommodation.

Mr. Burns cannot establish that he was a “qualified individual” under the ADA for

the same reason he cannot prevail on his failure to accommodate claim. A qualified

individual is “an individual who, with or without accommodation, can

perform the essential functions of the employment position that such individual holds

or desires.” 42 U.S.C. § 12111 (emphasis added). “The City does not dispute that [Mr.

Burns] possessed the requisite skills, experience, and education of a police officer.” (ECF

No. 19 at 5.) However, as set forth above, Mr. Burns has shown only that he could perform

the job of a police officer with an accommodation—returning to work on

restricted duty status after taking an unapproved leave of absence for nearly eighteen

months in violation of the City’s policies. Because Mr. Burns cannot show that a

reasonable accommodation would have permitted him to perform the essential

functions of a police officer as of February 2023, he cannot establish a necessary element

of his case, and the City is entitled to summary judgment on his disparate

treatment claims.

b. Retaliation

To make out a case of retaliation, Mr. Burns must prove: (i) he engaged

in protected employee activity; (ii) adverse action by the City either after or

contemporaneous with the protected activity; and (iii) a causal connection between the

protected activity and the adverse action. , 49 F.4th at 346. Again, this

standard is not meant to be onerous. , 498 F. Supp. 3d at 603. In this

case, only the causation prong is in dispute.

The causation element of a retaliation claim “is highly context-specific” because

it “necessarily involves an inquiry into the motives of an employer.”

, 109 F.3d 173, 178 (3d Cir. 1997). Thus, Mr. Burns “may rely on ‘a broad

array of evidence’ to demonstrate the causal link between” his protected activity— ,

requesting an accommodation—and the adverse employment actions at issue.

, 851 F.3d 249, 260 (3d Cir. 2017) (quotation omitted).

For example, he can “meet this burden by proffering evidence of [the City’s] inconsistent

explanation for taking an adverse employment action, a pattern of antagonism, or

temporal proximity ‘unusually suggestive of retaliatory motive[.]’” (citations and

quotation omitted). “These are not the exclusive ways to show causation, as the proffered

evidence, looked at as a whole, may suffice to raise the inference.” (quotation

omitted). Mr. Burns has come forward with sufficient evidence to create an inference that

his requests for an accommodation in early 2023 caused the City to revoke his restricted

duty status and terminate him.

i. Revocation of restricted duty status

There is no dispute that Mr. Burns engaged in protected employee activity when

he presented himself to the EMS unit on February 15, 2023, seeking medical clearance

to return to work on restricted duty status. And the City does not dispute that it took an

adverse action against him when it revoked his restricted duty status after an employee

in the Safety Office had approved it. The relevant decisionmaker for this adverse action

is Ms. O’Neill, who learned about Mr. Burns’s request for an accommodation and his

unapproved leave of absence at the same time—on February 23, 2023. That same day,

she decided to revoke his restricted duty status. Given the same-day nature of Ms.

O’Neill’s decision, a jury could determine that this timing is unduly suggestive of a

retaliatory motive. Just as a jury could conclude that Ms. O’Neill made her decision

because she learned that Mr. Burns had taken an unapproved leave of absence, a jury

could also conclude that she revoked Mr. Burns’s restricted duty status because she

learned that he had engaged in protected activity. Thus, Mr. Burns has come forward

with enough evidence to establish a causal link between his protected activity and this

adverse action.

ii. Termination

Mr. Burns also has evidence to support an inference that his requests for an

accommodation in early 2023 caused the various decisionmakers8 to decide to terminate

him. He testified that he went to the 35th District in January 2023 and advised Capt.

Massey and Cpl. Bryan-Ferguson that he wanted to return to work on restricted duty

status. He also appeared for work at the 35th District on February 23, 2023, before Ms.

O’Neill revoked his restricted duty status. On April 27, 2023, Capt. Massey recommended

termination. Mr. Burns also has evidence that he submitted a memo to former

Commissioner Outlaw on March 3, 2023, requesting that the Department permit him to

return to work on restricted duty status, and he testified that he sent a similar memo to

Deputy Commissioner Stanford in May 2023. On their own, the temporal proximity of

8 Based on the record before me, it appears that at least three individual

decisionmakers played a role Mr. Burns’s termination: Capt. Massey; Deputy

Commissioner Stanford; and Commissioner Outlaw. None of the Parties’ summary

judgment briefing indicated whether Mr. Burns intends to pursue a cat’s paw theory of

liability. Thus, I have considered whether there is evidence that each individual

decisionmaker acted with a retaliatory motive.

these events may not be unusually suggestive of a retaliatory motive because a “gap of

three months between the protected activity and the adverse action, without more,

cannot create an inference of causation and defeat summary judgment.”

, 503 F.3d 217, 233 (3d Cir. 2007)

Mr. Burns, however, has offered additional evidence that the City subjected him

to a pattern of antagonism during the first half of 2023, while the termination process

was ongoing. There is no dispute that after the City revoked Mr. Burns’s restricted duty

status on February 23, 2023, Mr. Burns submitted memos requesting accommodations

and made numerous inquiries about the status of his requests (and his employment in

general), but no one from the Police Department responded to him or provided him with

any updates. Primarily, he contacted Ms. McCaffrey, the Department’s director of HR,

numerous times, but she never responded to his calls or emails. In fact, because he could

not get Ms. McCaffrey to return his calls, Mr. Burns went to the HR office to speak with

her in person (albeit after his termination). In addition, Deputy Commissioner Stanford

never responded to the memo that Mr. Burns sent, “asking him for help” after not

receiving any response from Ms. McCaffrey. (ECF No. 19-4 at 66:17.)

Though the City’s failure to respond to Mr. Burns’s repeated inquiries is different

than the more common patterns of antagonism that courts have found sufficient to

establish causation,9 judges within the Third Circuit have determined that an employer’s

9 Typical patterns of antagonism include evidence of: “unusually close supervision or

dismissiveness or refusal to engage with an employee can constitute a pattern of

antagonism.10 For example, Judge Bartle found sufficient evidence of a pattern of

antagonism where the plaintiff’s supervisors “refused to accept” his documentation

“[e]ach time he attempted to inform [them] of his disability[.]”

, No. 23-cv-5016, 2024 WL 4980791, at *4 (E.D. Pa. Dec. 3, 2024). When I

construe this activity in the light most favorable to Mr. Burns, it creates an inference of a

pattern of ignoring Mr. Burns’s inquiries and refusing to provide him any updates (good

or bad) about his employment status. A reasonable jury could conclude that that pattern

of conduct until his termination was antagonistic. Thus, Mr. Burns has evidence to satisfy

the causation element of his case of retaliation.

2. Legitimate nondiscriminatory reason

There is no dispute that the City has evidence that it determined that Mr. Burns

abandoned his position with the Police Department when he failed to return to work

after exhausting his accrued paid leave as of August 20, 2021, without having requested

aggressive discipline[,]” , 503 F. Supp. 3d 276, 313 (W.D.

Pa. 2020), “condoned harassment[,]” , No. 19-cv-1580, 2021

WL 3553522, at *7 (W.D. Pa. July 27, 2021), , 2021

WL 3549325 (W.D. Pa. Aug. 11, 2021), and a “constant barrage of written and verbal

warnings” for “minor matters.” ,

982 F.2d 892, 895 (3d Cir. 1993).

10 , , No. 19-cv-5901, 2020 WL 2128472, at

*6 (E.D. Pa. May 5, 2020); , No. 16-cv-4741, 2017 WL 3494219,

at *5 (E.D. Pa. Aug. 11, 2017); , No. 13-cv-2755, 2014 WL 6633195,

at *11 (E.D. Pa. Nov. 24, 2014).

approval to take an unpaid medical leave of absence. Thus, the burden shifts back to Mr.

Burns to prove that this reason was pretextual.

3. Pretext

To overcome summary judgment, Mr. Burns “must point to some evidence, direct

or circumstantial, from which a factfinder could reasonably either (1) disbelieve the

[City’s] articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the [City’s]

action.” , 49 F.4th at 347 (quotation omitted). To discredit the City’s proffered

reason, Mr. Burns “cannot simply show that the [City’s] decision was wrong or mistaken,

since the factual dispute at issue is whether discriminatory animus motivated the [City],

not whether the [City] is wise, shrewd, prudent, or competent.” , 32 F.3d

759, 765 (3d Cir. 1994). Instead, he “must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the [City’s] proffered legitimate

reasons for its action that a reasonable factfinder rationally find them ‘unworthy

of credence[.]’” (quotation omitted) (original emphasis). In contrast to the

case, this is a difficult burden to meet. In determining whether Mr. Burns has

sufficient evidence to establish pretext, I consider “a broad array of evidence, including

antagonism by the employer, inconsistencies in the reasons the employer gives for its

adverse action, and any other evidence suggesting that the employer had a retaliatory

animus when taking the adverse action.” , 49 F.4th at 347 (quotations omitted).

As an initial matter, judges “look at the totality of the circumstances to determine

whether an employer's proffered nondiscriminatory reason is pretext for a discriminatory

motive.” , 49 F.4th at 347. In this case, that means that I must also consider the

undisputed fact that the City permitted Mr. Burns to work on restricted duty status to

accommodate various medical issues several times over the course of his employment.

Thus, there is a documented—and undisputed—history of the City accommodating Mr.

Burns’s health issues. It was not until the City realized that Mr. Burns had abandoned his

position that the City denied one of his requests to work on restricted duty status.11

Because I consider the totality of the circumstances when determining whether Mr. Burns

can establish pretext, I view his evidence against this backdrop. In this case, Mr. Burns’s

evidence falls short.

, as set forth above, Mr. Burns cannot prevail on his claim that the City failed

to accommodate him, and the same reasoning dooms his pretext argument. In short, Mr.

Burns was “not entitled to special treatment or accommodations simply because” he had

engaged in protected conduct. , 657 F. Supp.2d 564, 624

(W.D. Pa. 2009). And “[a]n employer's attempts to manage an employee's pre-existing

performance deficiencies after the employee has engaged in protected activity do not

necessarily raise an inference of retaliatory animus.” , 503

11 On some prior occasions, the City denied Mr. Burns’s requests to extend his

restricted duty status, but the City granted his initial requests each time he asked to work

on a restricted duty basis.

F. Supp. 3d 276, 314 (W.D. Pa. 2020). On February 23, 2023, when the City learned about

Mr. Burns’s 18-month unapproved leave of absence, it started taking steps to formalize

his termination, and the bureaucratic process did not conclude until July 3, 2023. The

fact that the City did not engage in an interactive process with Mr. Burns or offer him

any accommodations during that time would not lead a reasonable jury to disbelieve the

City’s reason for terminating him. And given the City’s history of accommodating Mr.

Burns’s various health issues, this evidence also would not permit a reasonable jury to

conclude that it was more likely than not that Mr. Burns’s disability or his requests for an

accommodation caused the City to revoke his restricted duty status and terminate him.

, the pattern of antagonism on which Mr. Burns relies to help establish his

causation prong is not sufficient to establish pretext. In contrast to a case of

discrimination or retaliation, the “standard to demonstrate pretext places a difficult

burden on the plaintiff[.]” , 32 F.3d at 765. Certainly, there is no dispute that

between February 2023 and Mr. Burns’s termination, Ms. McCaffrey ignored Mr. Burns’s

repeated inquiries for information. While this pattern of antagonism helped establish

causation, the lack of response from Ms. McCaffrey “is of limited probative value as far

as [the decisionmakers’] motivation is concerned.” , 351

F.3d 108, 114 (3d Cir. 2003). The fact that Deputy Commissioner Stanford did not respond

to Mr. Burns’s memo also does not help establish pretext. Nothing in the record would

permit a jury to infer that Deputy Commissioner Stanford ignored the memo due to a

discriminatory or retaliatory animus.

, even if some of Capt. Massey’s testimony is incredible, that does not

necessarily establish that the reason for terminating Mr. Burns was pretextual. Mr.

Burns has evidence that throughout 2022, he had regular conversations with Capt.

Massey and Cpl. Bryan-Ferguson about his medical issues, including in-person visits to

the 35th District “at least once a month” to update them about the status of his medical

condition.12 (ECF No. 19-4 at 76:10.) According to Mr. Burns, Capt. Massey told him he

could continue taking medical leave and to keep them (meaning she and Cpt. Bryan-

Ferguson) posted. Certainly, if a jury believes Mr. Burns, then it would have reason to

disbelieve Capt. Massey’s assertions that (a) she had no idea who he was when he

showed up to the 35th District in early 2023; (b) she did not recall having any

conversations with him about his medical issues or leave status; and (c) “[h]e failed to

notify his supervisors regarding his leave status.” (ECF No. 19-13 at ¶ 2.)

But even if Capt. Massey’s assertions are untrue, that does not tell a jury anything

about her reasons for recommending Mr. Burns’s termination. In other words, those

falsehoods do not make it more likely than not that Capt. Massey recommended

12 Mr. Burns provided conflicting testimony on this issue. He also testified that the

first time he encountered Capt. Massey in person while she was the commanding officer

at the 35th District was when he went there in 2023 and told her that he was trying to

return to work on restricted duty. ( ECF No. 19-4 at 40:16-42:15.) However, I have given

Mr. Burns the benefit of the doubt regarding this conflicting testimony and assumed that

Capt. Massey was one of the people he updated over many months beginning in

December 2021, when she became the commanding officer at the 35th District.

termination due to a discriminatory or retaliatory motive. To the contrary, if a jury

believes Mr. Burns’s testimony, then it would have little reason to conclude that Capt.

Massey acted out of impermissible animus. According to him, he was “constantly

communicating” with Capt. Massey throughout 202213 about his need to be out on

medical leave, and month after month—for over a year—Capt. Massey

Mr. Burns by permitting him to remain on an unpaid medical leave of absence until he

was ready to return to work. If that’s true, then it makes no sense to conclude that in

early 2023, Capt. Massey had a change of heart and developed an animus or hostility

against Mr. Burns based upon his disability or because he requested an accommodation.

Likewise, even if Capt. Massey’s testimony is not credible, it is not a reason to

disbelieve the City’s reason for revoking Mr. Burns’s restricted duty status and

terminating him. Capt. Massey’s assurances to Mr. Burns throughout 2022 that it was

“fine” that he remained on a medical leave of absence are not inconsistent with the City’s

conclusion that Mr. Burns had abandoned his position. As set forth above, there is no

dispute that Mr. Burns failed to request a medical leave of absence in accordance with

the City’s policies. But there is no evidence in the record that Capt. Massey was aware of

that fact.

When Mr. Burns ran out of paid sick leave in August 2021, the commanding officer

13 Capt. Massey did not become the commanding officer at the 35th District until

December 2021. This fact is not in dispute. ( ECF No. 19-2 at 15, ¶ 51; 19, ¶ 64.)

of the 35th District was Capt. Zimmerman, so it would not be reasonable for a jury to

infer that Capt. Massey—who did not take over until December 2021—knew that Mr.

Burns failed to submit a proper leave request. Thus, when Mr. Burns came to the District

each month and asked whether he could on leave, Capt. Massey had no reason

to assume that his leave was unapproved.14 In fact, she testified that it’s not a

commanding officer’s responsibility to know an officer’s status when he is out on medical

leave, and Mr. Burns has no evidence to the contrary. Because Mr. Burns does not have

evidence that Capt. Massey knew that he had not followed the necessary procedures for

seeking an unpaid leave of absence, he has no evidence that the Department failed to

follow its directives or otherwise granted him an exception.

That Capt. Massey may have been wrong, mistaken, or unaware of the true nature

of Mr. Burns’s leave status does not call into question the City’s proffered reason for

terminating him. There is still no dispute that Mr. Burns did not follow the City’s required

procedures for obtaining an approved leave of absence, and the evidence in the record

reveals that the City remained consistent about the need do so. Thus, even if Capt.

Massey or some of her testimony has credibility problems, those issues do not provide

a reason to disbelieve the City and cannot establish pretext.

14 By the same token, Capt. Massey had no reason to correct Mr. Burns’s

misunderstanding or advise him of the proper procedures for requesting a leave of

absence. And, in any event, Mr. Burns was responsible for reviewing and complying with

Police Department’s Directives.

, the temporal proximity between various decisionmakers’ knowledge of

Mr. Burns’s disability/accommodation request and their decisions to take adverse actions

against him does not enable a factfinder to find prejudice. That is true even of Ms.

O’Neill’s same-day decision to revoke Mr. Burns’s restricted duty status. In a case with

similar timing,15 the Third Circuit emphasized that the causation and pretext inquiries are

“highly context-specific,” such that the factual context could undermine causation even

if the temporal proximity might appear unusually suggestive.

, 851 F.3d 249, 260 (3d Cir. 2017). “Here, in the context of the record

as a whole, the chronology of events does not provide substantial support for [Mr.

Burns’s] position.” , 351 F.3d at 114.

The City’s policies required Mr. Burns to seek a medical leave of absence once he

exhausted his paid sick time. Mr. Burns was responsible for being aware of those policies

and complying with them, but HR nevertheless reminded him of this requirement in its

letter from May 25, 2021—well before Mr. Burns exhausted his sick leave. Once that

happened, Mr. Burns needed to apply for a medical leave of absence according to the

City’s policies. He never did, so his failure to return to work constituted abandonment.

He argues that the City’s version of events is too implausible to believe, but he

offers no explanation why a Department consisting of thousands of employees would

15 In , the plaintiff received a notice that her term as chairperson

would end early on the same day she met with HR to discuss a sexual harassment

complaint she had lodged against her supervisor. , 851 F.3d at 260.

chase down a single officer who never came back to work after the City stopped paying

him his accrued time. And he offers nothing to rebut Ms. McCaffrey’s testimony that

given the size of the Department, “stuff falls through the cracks” on occasion. (ECF No.

23-1 at 40:4-5.) That is not implausible—as a general matter—and it is not implausible

given Mr. Burns’s unique circumstances. When he first started using his sick time in April

2021, Mr. Burns had not been reporting to the 35th District. Instead, he had been detailed

to the Court Liaison Unit due to his restricted duty status. Thus, it is not inconceivable

that either one, or both, of those units assumed that the other was responsible for

reporting on Mr. Burns’s status while he was out.

It was only after Mr. Burns received a restricted duty clearance from the EMS unit

and appeared for work at the 35th District on February 23, 2023 that Ms. O’Neill realized

that he had abandoned his position after his sick time ran out eighteen months prior.

Once that information came to light, she revoked his restricted duty status, and HR

began the termination process. Given the City’s history of accommodating Mr. Burns’s

prior health issues, the record leaves no meaningful doubt that the City terminated him

due to his unapproved absence as opposed to his disability or his request for an

accommodation.

That said, not all the fault rests with Mr. Burns. Construing the undisputed facts in

a light most favorable to him, Mr. Burns can establish that multiple people in different

units across the Police Department were not proactive, shirked responsibility, made

mistakes, gave Mr. Burns incorrect information, and were unprofessional.

Understandably, that is frustrating for Mr. Burns, but that doesn’t make the City’s conduct

illegal. And Mr. Burns cannot prevail at trial by showing that the City was wrong, sloppy,

or incompetent. Because his evidence would not permit a reasonable jury to disbelieve

the City’s reason for terminating him or to conclude that it is more likely than not that

his disability or protected conduct caused the City to terminate him, he cannot show

pretext. Therefore, the City is entitled to summary judgment on his claims of retaliation,

and the lack of pretext is fatal to his disparate treatment claims as well.

IV. CONCLUSION

Mr. Burns cannot show that the City’s reason for revoking his restricted duty status

and terminating him was pretextual, dooming both his claims of retaliation and disparate

treatment (which also fails at the stage). Because the City could not

reasonably accommodate him after he took an extended, unauthorized leave of absence,

he cannot prove that the City failed to accommodate him. Mr. Burns might think the City

treated him unfairly, but I’m not a member of the Justice League, and I can’t rectify every

wrong.16 Because there’s no evidence of a violation of any law, I will grant summary

judgment in the City’s favor on each of his claims. An appropriate Order follows.

16 No. 3:23-cv-0230, 2025 WL

5317777, at * 9 & n. 90 (N.D. Tex. Feb. 18, 2025) (collecting cases that make the point that

a “federal court is not the Justice League. It cannot swoop in and address wrongs, real or

perceived, wherever they appear.”).

BY THE COURT:

JOSHUA D. WOLSON, J.

July 9, 2025