Opinion

Rheem

Court: District Court, M.D. Pennsylvania
Filed: Oct 27, 2025
Cited by: 0 cases
Authority: More cited than 35.9%

finding in the context of sex discrimination “[a]lthough comparative evidence is often highly probative of discrimination, it is not an essential element of a plaintiff's case”

How later courts described this case

finding in the context of sex discrimination “[a]lthough comparative evidence is often highly probative of discrimination, it is not an essential element of a plaintiff's case”
applying the FHA interreference standard to the ADA
“[The plaintiff’s] testimony. . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment”
stating “[w]hile this court has not previously addressed an interference claim made pursuant to the ADA. . . guidance can be found in our application of the anti- interference provision of the Fair Housing Act”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID RHEEM,

Plaintiff, CIVIL ACTION NO. 1:23-CV-00075

v. (MEHALCHICK, J.)

UPMC PINNACLE HOSPITALS,

Defendant.

MEMORANDUM

Plaintiff David Rheem (“Rheem”) initiated this action by filing a complaint on

January 16, 2023. (Doc. 1). On January 3, 2024, Rheem filed the operative amended

complaint against Defendant UPMC Pinnacle Hospitals (“UPMC”). (Doc. 28). Before the

Court is a motion for summary judgment filed by UPMC. (Doc. 58). For the reasons provided

herein, UPMC’s motion will be GRANTED in part and DENIED in part. (Doc. 58).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from the parties’ statements of material facts and

responses thereto.1 (Doc. 60; Doc. 71). UPMC is a nonprofit entity that consists of three

hospitals operating under one license. (Doc. 60, ¶ 1; Doc. 71, ¶ 1). Rheem began working for

UPMC as a Staff Nuclear Medicine Technologist in 2000 before leaving in 2005. (Doc. 60, ¶¶

3-4; Doc. 71, ¶¶ 3-4). UPMC hired Rheem again in 2008 as a System Supervisor of Nuclear

1 Pursuant to Local Rule 56.1, the Court accepts as true all undisputed material facts

supported by the record. Where the record evinces a disputed fact, the Court will take notice.

The facts have been taken in the light most favorable to the non-moving party with respect to

the motion.

Medicine. (Doc. 60, ¶ 5; Doc. 71, ¶ 5). Around 2016, Rheem disclosed to UPMC, his

supervisor, and his coworkers that he suffers from spondylolisthesis, a spinal condition that

causes severe lower back pain. (Doc. 60, ¶¶ 8-9; Doc. 71, ¶¶ 8-9). In 2017, Rheem’s

spondylolisthesis became severe, and he required surgical intervention. (Doc. 60, ¶ 10; Doc.

71, ¶ 10). Throughout his tenure working for UPMC, Rheem requested several

accommodations, all of which were granted, including multiple leaves of absence from the

workplace as well as a modified work schedule. (Doc. 60, ¶ 11; Doc. 71, ¶ 11). UPMC

promoted Rheem to the position of Imaging Manager of Nuclear Medicine in July 2018. (Doc.

60, ¶ 6; Doc. 71; ¶ 6).

UPMC maintains a Fitness for Duy Policy which allows for UPMC to subject

employees to medical examinations, including drug and alcohol screenings, if it has a

reasonable suspicion of an employee’s lack of fitness for duty. (Doc. 60, ¶ 12; Doc. 71, ¶ 12).

UPMC also maintains a policy of allowing it to issue Last Chance Agreements, which allow

an employee to return to work after being found unfit for duty due to drug or alcohol use.

(Doc. 60, ¶ 13; Doc. 71, ¶ 13).

On or around January 25, 2021, Rheem held a nuclear medicine staff meeting at

UPMC Memorial, a hospital in York, Pennsylvania. (Doc. 60, ¶ 14; Doc. 71, ¶ 14). Three of

Rheem’s subordinate employees, Jodi Leopardi (“Leopardi”), Alexis Sauble (“Sauble”), and

Katie Winemiller (“Winemiller”) attended this meeting. (Doc. 60, ¶ 15; Doc. 71, ¶ 15).

During this meeting, Rheem sat down, put his feet up on a counter, and mentioned that he

had eaten some kind of gummy. (Doc. 60, ¶¶ 16-17; Doc. 71, ¶¶ 16-17). UPMC claims Rheem

appeared lethargic and overmedicated during the meeting. (Doc. 60, ¶¶ 16-17). UPMC also

claims that Rheem told a story about eating a gummy he obtained from a “friend of his who

had a prescription” that made him so high that he sat on the toilet for hours. (Doc. 60, ¶ 17).

UPMC further claims Rheem stated he needed to take smaller doses of the gummy in the

future and drew a picture to illustrate how much he should eat. (Doc. 60, ¶ 18). Rheem denies

UPMC’s account of the meeting and claims he was not lethargic or overmedicated. (Doc. 71,

¶ 16). Rheem also asserts that he told a story about consuming an over-the-counter CBD

gummy one night after work, which made him sick. (Doc. 71, ¶ 17). Further, Rheem states

that his doctor recommended he consume over-the-counter CBD products to relieve his pain

from his spondylolisthesis and that UPMC was aware of his CBD use. (Doc. 71, ¶ 17). Rheem

denies ever stating the CBD product made him high and denies drawing a picture of the

gummy. (Doc. 71, ¶ 17-18).

At the same meeting, Rheem mentioned that he did not want to obtain a medical

marijuana prescription and that he feared doing so might require him to surrender his firearms.

(Doc. 60, ¶ 19; Doc. 71, ¶ 19). According to UPMC, Rheem stated he did not want to get his

“own” medical marijuana card; Rheem claims he only discussed not wanting a medical

marijuana prescription in general. (Doc. 60, ¶ 19; Doc. 71, ¶ 19). After the meeting,

Winemiller, with Leopardi present, reported Rheem’s conduct to Robin Wible (“Wible”),

UPMC Memorial’s Director. (Doc. 60, ¶¶ 20-21; Doc. 71, ¶¶ 20-21). UPMC claims that

Sauble was also present for the conversation, but Rheem asserts that Sauble was not present,

and Leopardi was only present by coincidence. (Doc. 60, ¶¶ 20-21; Doc. 71, ¶¶ 20-21). On

February 3, 2021, Wible emailed Corina Hudak (“Hudak”), UPMC’s Director of Human

Resources, regarding Rheem. (Doc. 60, ¶ 22; Doc. 71, ¶ 22).

On February 4, 2021, Hudak emailed Kimberly Etter (“Etter”), UPMC’s Senior

Director of Human Resources, informing her of Rheem’s behavior during the staff meeting

and asking her how to proceed. (Doc. 60, ¶ 23; Doc. 71, ¶ 23). On or around February 8, 2021,

Etter and Karen Botts (“Botts”), UPMC’s Senior Director of Imaging, met with Rheem to

discuss his behavior during the staff meeting. (Doc. 60, ¶ 24; Doc. 71, ¶ 24). During this

meeting, Rheem denied ever having used marijuana, admitted to using CBD, and agreed to

be drug tested. (Doc. 60, ¶¶ 27-28; Doc. 71, ¶¶ 27-28). Rheem also admitted to Etter and Botts

that he discussed obtaining a marijuana prescription and told a story about eating a gummy

and sitting on the toilet for hours. (Doc. 60, ¶ 26; Doc. 71, ¶ 26). Rheem signed a

memorandum confirming he would be suspended pending drug testing, and on February 8,

2021, Rheem submitted to a drug test. (Doc. 60, ¶¶ 28-29; Doc. 71, ¶¶ 28-29). UPMC

interpreted the drug test level as reflecting 15 nanograms per milliliter per marijuana

metabolites. (Doc. 60, ¶ 30; Doc. 71, ¶ 30). Rheem contests the accuracy of UPMC’s

interpretation of the drug test. (Doc. 71, ¶ 30). According to Rheem, the drug test results show

105 nanograms per milliliter of marijuana metabolites. (Doc. 71, ¶ 30). UPMC’s Medical

Review Officer, Dr. Olusola Akindele (“Akindele”), communicated with Rheem regarding

these results, which were also communicated to UPMC’s human resources department. (Doc.

60, ¶¶ 31-32; Doc. 71, ¶¶ 31-32). The parties dispute whether CBD use could have led to these

particular test results. (Doc. 60, ¶ 33; Doc. 71, ¶ 33). Botts discussed Rheem’s actions with

Omar Terrazas (“Terrazas”), Rheem’s supervisor, and Terrazas expressed disappointment in

Rheem. (Doc. 60, ¶ 34; Doc. 71, ¶ 34). UPMC terminated Rheem on February 19, 2021. (Doc.

60, ¶ 36; Doc. 71, ¶ 36). UPMC claims both Botts and Elizabeth Ritter were involved in

terminating Rheem; Rheem asserts the decision was solely made by Botts. (Doc. 60, ¶ 36;

Doc. 71, ¶ 36).

On January 3, 2024, Rheem filed the operative second amended complaint asserting

eight counts under federal and state law. (Doc. 28). Count I alleges that UPMC violated the

Americans with Disabilities Act (“ADA”) by discriminating against Rheem on the basis of

his disability. (Doc. 28, ¶¶ 86-112). Count II alleges that UPMC violated the ADA by

retaliating against Rheem after he requested accommodations. (Doc. 28, ¶¶ 113-21). Count

III alleges that UPMC violated the ADA by interfering with Rheem exercising his rights under

the ADA. (Doc. 28, ¶¶ 122-32). Count IV alleges that UPMC violated the Pennsylvania

Human Relations Act (“PHRA”) by discriminating against Rheem on the basis of his

disability. (Doc. 28, ¶¶ 133-55). Count V alleges that UPMC violated the PHRA by retaliating

against Rheem for requesting accommodations. (Doc. 28, ¶¶ 156-62). Count VI alleges that

UPMC violated the PHRA by interfering with Rheem exercising his rights under the PHRA.

(Doc. 28, ¶¶ 163-72). Count VII alleges that UPMC violated the Family and Medical Leave

Act (“FMLA”) by retaliating against Rheem for exercising his rights under the FMLA. (Doc.

28, ¶¶ 173-81). Count VIII alleges that UPMC violated the FMLA by interfering with Rheem

exercising his rights under the FMLA. (Doc. 28, ¶¶ 182-93).

On March 12, 2025, UPMC filed a motion for summary judgment along with a

statement of facts and corresponding exhibits. (Doc. 58; Doc. 60; Doc. 60-1). On March 13,

2025, UPMC filed a brief in support. (Doc. 61). On April 2, 2025, Rheem filed a brief in

opposition, an answer to the statement of facts, and corresponding exhibits. (Doc. 70; Doc.

71; Doc. 71-1; Doc. 71-2). On April 16, 2025, UPMC filed a reply brief. (Doc. 76).

Accordingly, the motion for summary judgment is now ripe for disposition.

II. MOTION FOR SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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). A fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994). However, a party opposing a summary judgment motion must comply with Local Rule

56.1, which specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to be filed

by the movant], as to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be served

by the moving party will be deemed to be admitted.” See M.D. Pa. L.R. 56.1.

A federal court should grant summary judgment “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 a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

In deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion,” and demonstrating the absence of a genuine dispute

of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must go beyond the pleadings with affidavits or declarations,

answers to interrogatories, or the like to demonstrate specific material facts which give rise to

a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce

evidence to show the existence of every element essential to its case, which it bears the burden

of proving at trial, because “a complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in

the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment

when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389

n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is

contradicted by the record, is insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd.

v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony. . . amounts to an

unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s

burden of proof on summary judgment”).

III. DISCUSSION

UPMC moves for summary judgment on five bases. First, UPMC argues it is entitled

to summary judgment on Counts I and IV because Rheem has failed to establish a prima facie

case of disability discrimination. (Doc. 61, at 11-13). Second, UPMC avers it is entitled to

summary judgment on Counts II, V, and VII because Rheem has failed to establish a prima

facie case of retaliation. (Doc. 61, at 24-27). Third, UPMC contends that it is entitled to

summary judgment on Counts I, II, IV, V, and VII because it had non-discriminatory reasons

for terminating Rheem. (Doc. 61, at 13-24, 27). Fourth, UPMC asserts it is entitled to

summary judgment on Counts III and VI because Rheem has failed to provide any evidence

that UPMC interfered with Rheem’s attempts to request accommodations under the ADA

and the PHRA. (Doc. 61, at 27-29). Fifth, UPMC claims it is entitled to summary judgment

on Count VIII because Rheem has failed to provide any evidence that UPMC interfered with

his attempts to request leave under the FMLA. (Doc. 61, at 29-31). Finally, UPMC concludes

that Rheem should be precluded from asserting any claims for damages related to UPMC’s

alleged ADA and PHRA violations after February 2021 because Rheem was no longer a

qualified person with a disability after that time. (Doc. 61, at 31-33).

The Court will begin its analysis with Counts I, II, IV, V, and VII, Rheem’s

discrimination and retaliation claims. (Doc. 28, ¶¶ 86-121, 133-62, 173-81). Discrimination

claims under the ADA and PHRA and retaliation claims under the ADA, PHRA, and FMLA

are analyzed through the McDonnell Douglas2 burden shifting standard under which Rheem

2 This standard was first established by the United States Supreme Court in McDonnell

Douglas Corp. v. Green, in which the Court held that when analyzing discriminatory hiring

claims, courts first must consider whether a plaintiff has established a prima facie case that an

employer’s decision not to hire them was discriminatory. 411 U.S. 792, 802 (1973), holding

modified by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701 (1993). The Court further

found that once a plaintiff establishes a prima facie case, the burden shifts to the employer to

provide a non-discriminatory reason for its decision not to hire the plaintiff. McDonnell Douglas

Corp., 411 U.S. at 802-03. The Court concluded that if the employer establishes a non-

discriminatory reason for not hiring the plaintiff, the burden shifts back to the plaintiff to

must first establish a prima facie case of discrimination and retaliation. See Thimons v. PNC

Bank, N.A., 254 F. App'x 896, 897 (3d Cir. 2007) (nonprecedential); see also Cullen v. Select Med.

Corp., 779 F. App'x 929, 931 (3d Cir. 2019) (nonprecedential). For the reasons discussed infra

Sections III.A, III.B, there are genuine disputes of material fact which preclude summary

judgment on Rheem’s prima facie cases of discrimination and retaliation, and as such, the

Court will continue its analysis under the McDonnell Douglas standard. See Thimons, 254 F.

App'x at 897; see also Cullen, 779 F. App'x at 931. Under that standard, the Court will next

analyze whether UPMC has provided non-discriminatory reasons for terminating Rheem and

whether Rheem has presented evidence from which a reasonable jury may infer that UPMC’s

proposed reasons were pretextual. See Thimons, 254 F. App'x at 897; see also Cullen, 779 F.

App'x at 931. As discussed infra Section III.C, the Court finds UPMC has presented

nondiscriminatory reasons for terminating Rheem, but Rheem has presented evidence from

which a reasonable jury may infer that those reasons were pretextual. Accordingly, the Court

will DENY UPMC’s motion for summary judgment on Counts I, II, IV, V, VII. (Doc. 58).

After discussing Rheem’s discrimination and retaliation claims, the Court will turn to

Counts III, VI, and VIII, Rheem’s interference claims. (Doc. 28, ¶¶ 122-32, 163-72, 182-93).

For the reasons discussed infra Sections III.D, III.E, the Court finds that Rheem has failed to

present evidence from which a reasonable jury may infer UPMC interfered with Rheem

exercising his rights under the ADA, PHRA, or FMLA. Accordingly, the Court will GRANT

UPMC’s motion for summary judgment on Counts III, VI, and VIII. (Doc. 58). Finally, the

Court will assess UPMC’s assertion that Rheem has failed to establish he remained qualified

establish that the employer’s proposed non-discriminatory reason is pretextual or

“discriminatory in its application.” McDonnell Douglas Corp., 411 U.S. at 807.

to perform the essential duties of his job after February 2021. (Doc. 61, at 31-33). For the

reasons discussed infra Section III.F, the Court finds that Rheem has presented evidence from

which a reasonable jury may infer that Rheem remained qualified to perform the essential

duties of his job after February 2021 and the Court will DENY UPMC’s motion for summary

judgment that basis. (Doc. 58).

A. THERE ARE MATERIAL ISSUES OF FACT THAT PRECLUDE SUMMARY

JUDGMENT ON RHEEM’S PRIMA FACIE CASE OF DISABILITY DISCRIMINATION.

Counts I and IV allege that UPMC violated the ADA and the PHRA by discriminating

against Rheem on the basis of his disability. (Doc. 28, ¶¶ 86-112, 133-55). UPMC contends

that Rheem has failed to establish a prima facie case of disability discrimination because

Rheem has failed to provide evidence from which a reasonable jury may conclude that

discrimination was the cause of Rheem’s termination. (Doc. 61, at 11-13). Rheem avers that

he has made a prima facie case of discrimination, and there is a genuine dispute of material

fact regarding whether his termination was caused by disability discrimination. (Doc. 70, at

14-29).

The ADA provides that employers “shall [not] discriminate against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.” 42 U.S.C.A. § 12112 (a). Similarly, the

PHRA provides that it is unlawful “[f]or any employer because of. . . disability. . . to discharge

from employment such individual. . . or to otherwise discriminate against such individual. . .

with respect to compensation, hire, tenure, terms, conditions or privileges of employment.”

43 Pa. Stat. Ann. § 955 (a). Courts apply the same standards for both PHRA and ADA claims.

See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (stating “our analysis of

an ADA claim applies equally to a PHRA claim”); see also Kocher v. Municipality of Kingston,

400 F. Supp. 3d 138, 151 (M.D. Pa. 2019).

To survive a motion for summary judgment, a plaintiff must provide evidence from

which a reasonable jury may conclude that the plaintiff has established a prima facie case for

discrimination under the ADA and the PHRA. See Thimons., 254 F. App'x at 897. To make a

prima facie case, a plaintiff “must demonstrate: ‘(1) he is a disabled person within the meaning

of the ADA; (2) he is otherwise qualified to perform the essential functions of the job with or

without reasonable accommodations by the employer; and (3) he has suffered an otherwise

adverse employment decision as a result of discrimination.’” Thimons, 254 F. App'x at 897

(quoting Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)). “The burden of proving

the prima facie case ‘is not intended to be onerous.’” Hollingsworth v. R. Home Prop. Mgmt., LLC,

498 F. Supp. 3d 590, 603 (E.D. Pa. 2020) (quoting Sempier v. Johnson & Higgins, 45 F.3d 724,

728 (3d Cir. 1995)). Once the plaintiff meets their initial burden to establish a prima facie case,

courts apply the McDonnell Douglas burden-shifting standard, and the “burden then shifts to

the employer to present a non-discriminatory reason for the adverse decision.” Thimons, 254

F. App'x at 897.

UPMC moves for summary judgment on the third element of a prima facie case,

discriminatory causation. (Doc. 61, at 11-13). To meet the discriminatory causation

requirement, the plaintiff must provide evidence “sufficient to create an inference that a

causative link exists between his disability and his termination.” See Hollingsworth, 498 F.

Supp. 3d at 603. A plaintiff may rely on both direct and circumstantial evidence to show a

genuine dispute of material fact regarding discriminatory causation. See Decker v. Alliant Techs.,

LLC, 871 F. Supp. 2d 413, 428 (E.D. Pa. 2012). For example, evidence that a defendant

subjected a plaintiff to unusually harsh treatment or unjustified punishment shortly after the

plaintiff requested accommodations or took medical leave may provide circumstantial

evidence from which a reasonable jury could infer discriminatory causation. See Jakomas v.

City of Pittsburgh, 342 F. Supp. 3d 632, 651 (W.D. Pa. 2018). Comparator evidence from which

a reasonable jury may conclude that similarly situated non-disabled employees were treated

more favorably than the plaintiff may establish a genuine dispute of material fact regarding

discriminatory causation, however, a plaintiff is not required to present comparator evidence

to survive a motion for summary judgment. See Anderson v. Wachovia Mortg. Corp., 621 F.3d

261, 268–69 (3d Cir. 2010) (finding in the context of sex discrimination “[a]lthough

comparative evidence is often highly probative of discrimination, it is not an essential element

of a plaintiff's case”); see also Ward v. City Lighting Prods. Co., No. CV 20-208, 2021 WL

1720661, at *6 (W.D. Pa. Apr. 30, 2021) (finding comparator evidence is not required to prove

disability discrimination). To show a genuine dispute of material fact regarding

discriminatory causation, a plaintiff only needs to provide an “adequate evidentiary basis [for

a reasonable jury] to infer” that the plaintiff’s disability was “a determinative factor in [the

defendant’s] decision to terminate him.” Decker, 871 F. Supp. 2d at 428.

UPMC argues that there is no evidence in the record that would support a jury finding

that discrimination caused Rheem’s termination. (Doc. 61, at 11-13). Rheem presents

adequate evidence to create a genuine dispute of material fact regarding causation because

Rheem presents evidence from which a reasonable jury may infer that UPMC treated Rheem

unusually harshly after management at UPMC noticed his disability worsening and after

Rheem began to miss work to attend full-day physical therapy sessions. (Doc. 70, at 18-19,

32, 51; Doc. 71, ¶¶ 52-58, 64-67, 127-30, 138-44; Doc. 71-2, at 27-31, 167, 285, 310-40, 663-

68; Doc. 75-1, at 27-31). First, Rheem presents testimony from Botts, who was part of the

decision to terminate Rheem, stating that in the months leading up to Rheem’s termination,

she was aware that Rheem’s condition was worsening. (Doc. 70, at 32; Doc. 71, ¶¶ 64-67;

Doc. 71-2, at 167). Rheem further presents medical records showing he needed to miss work

several times in the month before his termination to attend full-day physical therapy sessions.

(Doc. 70, at 51; Doc. 71, ¶¶ 52-58; Doc. 71-2, at 310-40). Rheem also presents testimony from

Terrazas, Rheem’s supervisor, stating that Terrazas was aware Rheem was attending physical

therapy immediately prior to his termination. (Doc. 70, at 51; Doc. 71, ¶¶ 52-58; Doc. 71-2,

at 285). Based on this evidence, a reasonable jury may infer that a month prior to his

termination, those who made the decision to terminate Rheem were aware that Rheem’s

disability was worsening, and Rheem was required to miss full days of work to attend physical

therapy.

Rheem next points to evidence from which a reasonable jury may infer that UPMC’s

policies typically allow an employee who tests positive for marijuana to return to work under

a Last Chance Agreement. (Doc. 70, at 17-18; Doc. 71, ¶ 13; Doc. 71-2, at 8). Rheem provides

emails and messages from caseworkers at LifeSolutions, an entity that aids UPMC in its

fitness for duty inquiries, expressing disbelief and outrage that Rheem was terminated without

first being offered the opportunity to return under a Last Chance Agreement. (Doc. 70, at 18;

Doc. 71, ¶¶ 138-44; Doc. 71-2, at 663-68). UPMC avers this evidence is irrelevant because the

caseworkers from LifeSolutions do not work for UPMC. (Doc. 76, at 6-12). However, Rheem

presents UPMC’s Fitness for Duty Policy which specifically states that LifeSolutions consults

with UPMC during fitness for duty inquiries and presents testimony from Etter, who testified

in both her personal capacity and as a 30(b)(6) witness, stating that LifeSolutions “support[s]

[UPMC’s] fitness for duty process,” evaluates UPMC employees’ circumstances, and makes

recommendations to UPMC. (Doc. 71-2, at 8, 28). From this, a reasonable jury may infer that

LifeSolutions caseworkers would be familiar with UPMC’s Fitness for Duty Policy and

whether Rheem’s treatment was out of the ordinary, unusually harsh, or in conflict with

UPMC’s policies. (Doc. 71-2, at 8, 28). Rheem also presents deposition testimony from Etter

stating that she was unaware of any other non-probationary employees being terminated for

a first-time marijuana offense. (Doc. 70, at 18-19; Doc. 71, ¶¶ 127-30; Doc. 75-1, at 27-31).

Rheem further points to HR records and communications regarding individuals who were

not terminated after drug and alcohol offenses from which a reasonable jury may infer that

UPMC regularly offered individuals who committed drug and alcohol offenses more serious

than Rheem’s alleged offense the opportunity to return to work under Last Chance

Agreements. (Doc. 74, at 19-22; Doc. 75, ¶¶ 134-35; Doc. 75-11; Doc. 75-12; Doc. 75-13; Doc.

75-18; Doc. 75-19; Doc. 75-20; Doc. 75-21; Doc. 75-22; Doc. 75-23; Doc. 75-24).

UPMC avers that the Court should not consider evidence of other employees returning

to work under Last Chance Agreements because Rheem has failed to provide comparator

evidence. (Doc. 76, at 6-12). According to UPMC, Rheem has failed to present any employees

who are similarly situated to Rheem in that they share a managerial role. (Doc. 76, at 6-12).

While the Court recognizes that comparator evidence would strengthen Rheem’s claim, a

plaintiff is not required to present comparator evidence to make a prima facie case for

discrimination. See Anderson, 621 F.3d at 268–69; see also Ward, 2021 WL 1720661, at *6-7

(stating “though [plaintiff] lacks a sufficient comparator, she has submitted circumstantial

evidence that, when viewed in the light most favorable to her as the non-moving party, raises

an inference of discrimination surrounding her termination”). Rather, a plaintiff is required

to present evidence from which a reasonable jury may infer that his disability was a

determinative factor in his termination. See Decker, 871 F. Supp. 2d at 428. Based on the record

before the Court, a reasonable jury may infer that caseworkers familiar with UPMC’s human

resources procedures and norms believed UPMC’s treatment of Rheem was unusually harsh

and that Rheem was the only employee UPMC subjected to such harsh treatment. (Doc. 70,

at 18-19; Doc. 71, ¶¶ 127-30, 138-44; Doc. 71-2, at 27-31, 663-68; Doc. 75-1, at 27-31). A

reasonable jury may also infer that UPMC subjected Rheem to this unusually harsh treatment

shortly after Rheem began to miss work to attend full-day physical therapy sessions and after

UPMC management noticed Rheem’s disability was worsening. (Doc. 70, at 32; Doc. 71, ¶¶

64-67; Doc. 71-2, at 167, 285, 310-40).

The Court finds Rheem has met his burden of presenting sufficient circumstantial

evidence from which a reasonable jury may infer that Rheem’s disability was a determinative

factor in his termination. See Hollingsworth, 498 F. Supp. 3d at 603, see also Decker, 871 F. Supp.

2d at 428; see also Jakomas, 342 F. Supp. 3d at 651; see also Ward, 2021 WL 1720661, at *6-7.

Accordingly, there is a genuine dispute of material fact regarding Rheem’s prima facie case of

discrimination. The burden shifts to UPMC to provide a nondiscriminatory reason for

terminating Rheem, and as discussed infra Section III.C, UPMC has provided three

nondiscriminatory reasons for terminating Rheem. However, as discussed infra Section III.C,

Rheem has presented evidence from which a reasonable jury may infer that those reasons

were pretextual, and UPMC’s motion for summary judgment on Counts I and IV is DENIED.

(Doc. 58).

B. THERE ARE MATERIAL ISSUES OF FACT THAT PRECLUDE SUMMARY

JUDGMENT ON RHEEM’S PRIMA FACIE CASE OF RETALIATION.

Counts II, V, and VII allege that UPMC violated the ADA, the PHRA, and the FMLA

by retaliating against Rheem for exercising his rights under each respective act. (Doc. 28, ¶¶

113-21, 156-62, 173-81). UPMC moves for summary judgment on these claims, asserting that

Rheem has failed to establish a prima facie case of retaliation. (Doc. 61, at 24-27). According

to UPMC, Rheem has not presented any evidence of suspicious timing between his requests

for accommodations and his termination from which a reasonable jury may infer that

retaliation caused his termination. (Doc. 61, at 24-27). Rheem counters that he presents

sufficient evidence of suspicious timing and discrimination to create a genuine dispute of

material fact regarding causation. (Doc. 70, at 49-55).

The ADA, the PHRA, and the FMLA prohibit employers from retaliating against

employees for engaging in protected activity under each respective act. 42 U.S.C.A. § 12203

(a); 43 Pa. Stat. Ann. § 955 (d); 29 U.S.C.A. § 2615 (a)(2). Retaliation claims under the ADA,

PHRA, and the FMLA are all analyzed under the same standard. See Hatch v. Franklin Cnty.,

755 F. App'x 194, 201 (3d Cir. 2018) (nonprecedential) (applying the same standard to assess

ADA, PHRA, and FMLA claims). For a retaliation claim to survive a motion for summary

judgment, a plaintiff “must establish a prima facie case by showing ‘(1) [that she engaged in]

protected employee activity; (2) adverse action by the employer either after or

contemporaneous with the employee's protected activity; and (3) a causal connection between

the employee's protected activity and the employer's adverse action.’” Daniels v. Sch. Dist. of

Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (quoting Marra v. Philadelphia Hous. Auth., 497

F.3d 286, 300 (3d Cir. 2007), as amended (Aug. 28, 2007)). Once a plaintiff establishes a prima

facie case, courts apply the McDonnell Douglas burden-shifting standard, and the burden shifts

to the defendant to present a non-discriminatory reason for termination. See Cullen, 779 F.

App'x at 931; see also Sloat v. Off. of Info. Tech., No. 1:19-CV-01595, 2021 WL 5565855, at *4

(M.D. Pa. Nov. 29, 2021).

UPMC argues it is entitled to summary judgment on Rheem’s retaliation claims

because Rheem fails under the third prima facie requirement of causation. (Doc. 61, at 24-27).

There are “two main factors in finding the causal link necessary for retaliation: timing and

evidence of ongoing antagonism.” Abramson v. William Paterson Coll. of New Jersey, 260 F.3d

265, 288 (3d Cir. 2001). While the timing of an adverse action is highly probative of retaliation,

a plaintiff may rely on other evidence absent suspicious timing. See Abramson, 260 F.3d at 288;

see also Sexton v. Cmty. Life Team, Inc., No. 1:22-CV-02018, 2024 WL 4311484, at *9 (M.D. Pa.

Sept. 26, 2024), reconsideration denied, No. 1:22-CV-02018, 2024 WL 4905976 (M.D. Pa. Nov.

27, 2024). Further, absent suspicious timing, a plaintiff may rely on circumstantial evidence

such as evidence of discriminatory treatment. See Farrell, 206 F.3d at 280-81 (overturning a

grant of summary judgment because the district court was too limited in the circumstantial

evidence it considered while evaluating retaliation). Like with discrimination, establishing a

prima facie case of retaliation is not an onerous burden. See Neiderlander v. Am. Video Glass Co.,

80 F. App'x 256, 261 (3d Cir. 2003); see also Polen v. Pottstown Hosp. -Tower Health, No. CV 18-

4025, 2019 WL 6841496, at *5 (E.D. Pa. Dec. 16, 2019).

UPMC avers that there is no evidence that retaliation was the cause of Rheem’s

termination. (Doc. 61, at 24-27). According to UPMC, Rheem’s last protected activity was in

August 2020, over six months before his termination, and no reasonable jury may infer

causation due to the lack of proximity between Rheem’s protected activity and termination.

(Doc. 61, at 26). However, as discussed supra Section III.A, Rheem points to evidence in the

record from which a reasonable jury may conclude that Rheem required accommodations in

January 2021, a month before he was terminated, to attend full-day physical therapy sessions.

(Doc. 70, at 51; Doc. 71, ¶¶ 52-5; Doc. 71-2, at 285, 310-40). Further, a jury may reasonably

infer causation based on circumstantial evidence such as evidence of discrimination. See

Abramson, 260 F.3d at 288; see also Farrell, 206 F.3d at 280-81; see also Sexton, 2024 WL

4311484, at *9. As discussed supra Section III.A, Rheem presents evidence from which a

reasonable jury could conclude that Rheem was discriminated against on the basis of his

worsening disability. (Doc. 70, at 18-19, 32; Doc. 71, ¶¶ 64-67, 127-30, 138-44; Doc. 71-2, at

27-31, 167, 285, 310-40, 663-68; Doc. 75-1, at 27-31). A reasonable jury may conclude that

Rheem was discriminated against and terminated shortly after he requested accommodations

to attend full-day physical therapy sessions. (Doc. 70, at 51; Doc. 71, ¶¶ 52-5; Doc. 71-2, at

57-58, 285, 310, 318, 320-40). Based on this, a reasonable jury may infer that there was a

causative link between Rheem’s requests for accommodations and his termination. See

Abramson, 260 F.3d at 288; see also Farrell, 206 F.3d at 280-81; see also Sexton, 2024 WL

4311484, at *9. Accordingly, there is a genuine dispute of material fact regarding whether

Rheem has made a prima facie case of retaliation. The burden shifts then to UPMC to provide

a nondiscriminatory reason for terminating Rheem, and as discussed infra Section III.C,

UPMC has provided three nondiscriminatory reasons for terminating Rheem. However, as

discussed infra Section III.C, Rheem has presented evidence from which a reasonable jury

may infer that those reasons were pretextual, and therefore UPMC’s motion for summary

judgment on Counts II, V, and VII is DENIED. (Doc. 58).

C. THERE ARE MATERIAL ISSUES OF FACT THAT PRECLUDE SUMMARY

JUDGMENT BASED ON UPMC’S PROPOSED NON-DISCRIMINATORY REASONS

FOR TERMINATION.

UPMC avers it is entitled to summary judgment on Counts I, II, IV, V, and VII

because it had non-discriminatory reasons for terminating Rheem and no reasonable jury

could conclude that these reasons are pretextual. (Doc. 61, at 13-24, 27). Rheem counters that

there is a genuine dispute of material fact regarding whether UPMC’s stated reasons for

terminating Rheem are pretextual because a reasonable jury may infer that the proposed

reasons were based on fabrications and inconsistent facts. (Doc. 70, at 32-49, 55).

Once a plaintiff meets their initial burden to establish a prima facie case of

discrimination and/or retaliation, courts apply the McDonnell Douglas burden-shifting

standard and the “burden then shifts to the employer to present a non-discriminatory reason

for the adverse decision.” Thimons, 254 F. App'x at 897; see also Cullen, 779 F. App'x at 931;

see also Sloat, 2021 WL 5565855, at *4. The McDonnell Douglas standard is the same for both

discrimination and retaliation claims. See Cullen, 779 F. App'x at 931; see also Sloat, 2021 WL

5565855, at *4. “Once an employer presents a non-discriminatory reason for termination. . .

the employee must ‘present evidence contradicting the core facts put forward by the employer

as the legitimate reason for its decision.’” Thimons, 254 F. App'x at 898 (quoting Kautz v. Met-

Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005)). The plaintiff must present evidence from which

a reasonable jury may conclude that the defendant’s non-discriminatory reasons for

termination “[were] post hoc fabrication[s], or pretext[ual]. ‘[T]he plaintiff must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause.’”

Thimons, 254 F. App'x at 898 (citations omitted).

It is insufficient for a plaintiff to only present evidence “that the employment decision

was wrong or mistaken. Rather, the plaintiff must show that the reasons for the employment

decision are beset by ‘weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions’ such that a reasonable factfinder could find the justification ‘unworthy of

credence.’” Showers v. Endoscopy Ctr. of Cent. Pennsylvania, LLC, 58 F. Supp. 3d 446, 466 (M.D.

Pa. 2014) (citations omitted). To survive summary judgment, a plaintiff needs to show a

“genuine dispute of fact regarding the credibility of [the defendant]’s proffered reason for her

discharge.’” Burton v. Teleflex Inc., 707 F.3d 417, 431 (3d Cir. 2013) (quoting Fuentes v. Perskie,

32 F.3d 759, 765 (3d Cir. 1994)). Summary judgment is not warranted where a plaintiff

presents evidence of factual inconsistencies in a defendant’s stated non-discriminatory reasons

for termination from which a reasonable jury may conclude that the non-discriminatory

reasons lack credibility. See Cullen, 779 F. App'x at 932; see also Beck v. Brookville Behav. Health,

Inc., No. 2:19-CV-01348, 2021 WL 1238918, at *8 (W.D. Pa. Apr. 2, 2021).

UPMC asserts that Rheem was fired due to his conduct at a staff meeting, his positive

marijuana test, and his dishonesty about marijuana use. (Doc. 60-1, at 466-67; Doc. 61, at 13-

24). UPMC has asserted non-discriminatory reasons for terminating Rheem. See Parrotta v.

PECO Energy Co., 363 F. Supp. 3d 577, 595 (E.D. Pa. 2019) (finding a positive drug test is a

non-discriminatory reason for termination). Accordingly, the burden shifts back to Rheem to

show a “genuine dispute of fact regarding the credibility of [UPMC]’s proffered reason for

her discharge.” Burton, 707 F.3d at 431.

Here, summary judgment is not warranted because there is a genuine dispute of

material fact as to the credibility of UPMC’s stated reasons for terminating Rheem. See Burton,

707 F.3d at 431. Rheem presents factual disputes and inconsistencies regarding UPMC’s

reasons for terminating him from which a reasonable jury may disbelieve UPMC’s assertion

that Rheem was terminated for nondiscriminatory reasons. For example, UPMC’s response

to interrogatories states that Rheem was terminated, in part, because at a staff meeting,

Rheem appeared lethargic and overmedicated and discussed obtaining medical-grade THC

gummies. (Doc. 71-2, at 776). However, Rheem points to testimony from Leopardi, who

attended the meeting, stating that Rheem did not appear lethargic and overmedicated at the

meeting and did not discuss obtaining medical-grade THC gummies. (Doc. 70, at 40; Doc.

71, ¶ 76; Doc. 71-2, at 131-32).

Further, Rheem presents testimony from Botts, who was part of the decision to

terminate Rheem, stating that while she was making her decision to terminate Rheem, she

considered a picture of a gummy Rheem allegedly drew. (Doc. 70, at 45; Doc. 71, ¶¶ 183-84;

Doc. 71-2, at 175). However, Rheem presents testimony from Etter stating that nobody in

UPMC management or human resources saw this picture until after Rheem was terminated,

so a reasonable jury may conclude that Botts could not have considered it. (Doc. 70, at 45;

Doc. 71, ¶¶ 183-84; Doc. 71-2, at 42). Rheem further presents testimony from Botts and Etter

stating that Rheem was not terminated due to his drug test results, but also presents Rheem’s

termination letter and UPMC’s response to interrogatories stating that Rheem’s drug test was

a reason for his termination. (Doc. 70, at 37-38, 46; Doc. 71, ¶ 33, 177-82; Doc. 71-2, at 22,

33-34, 205, 407-08, 776). Further, Rheem presents handwritten notes from Etter which a

reasonable jury may interpret to mean that Etter was informed CBD oil could cause a positive

drug test result, particularly where the CBD oil was not “free of impurities.” (Doc. 70, at 37-

38; Doc. 71, ¶ 33; Doc. 71-2, at 205). Rheem also states that he intends to present expert

testimony at trial that his CBD usage could have caused his drug test results. (Doc. 70, at 38-

39).

Finally, Rheem provides testimony from Botts claiming that Rheem admitted to

Terrazas, his supervisor, that he had used marijuana, and provides an HR memo written by

Botts claiming that Rheem discussed using THC with Cami Bingaman (“Bingaman”), a

former coworker. (Doc. 70, at 35-37; Doc. 71, ¶¶ 78-87; Doc. 71-2, at 174, 374). Rheem

presents deposition testimony from Terrazas and Bingaman in which both deny that Rheem

ever told them that he used marijuana or THC, and both deny that they told Botts that Rheem

admitted to using marijuana or THC. (Doc. 70, at 35-37; Doc. 71, ¶¶ 78-87; Doc. 71-2, at 291-

92, 386). Based on these factual disputes and inconsistencies, a reasonable jury may conclude

that UPMC’s reasons for terminating Rheem lack credibility. See Cullen, 779 F. App'x at 932;