finding five-month period between employee’s complaint and adverse action alone was insufficient to raise an inference of causation
How later courts described this case
- finding five-month period between employee’s complaint and adverse action alone was insufficient to raise an inference of causation
- “[W]here the temporal proximity is not so close as to be unduly suggestive, we have recognized that timing plus other evidence may be an appropriate test.” (citation modified)
- concluding over two-month gap between accommodation request and termination without more was insufficient to establish unduly suggestive temporal proximity
- “A cut in base pay is clearly such an adverse action . . . .”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-2999
_____________
JEFFREY STEIDLE,
Appellant
v.
UNITED STATES LIABILITY INSURANCE CO., INC.
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:22-cv-04972)
District Judge: Honorable Juan R. Sanchez
_______________
Argued November 12, 2025
Before: RESTREPO, McKEE, and AMBRO, Circuit
Judges.
(Filed: June 24, 2026)
_______________
Wayne A. Ely [ARGUED]
59 Andrea Drive
Richboro, PA 18954
Counsel for Appellant
John T. McDonald
Reed Smith
506 Carnegie Center
Suite 300
Princeton, NJ 08540
Counsel for Appellee
Mariah H. McGrogan [ARGUED]
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
McKEE, Circuit Judge.
Jeffrey Steidle appeals the District Court’s grant of
summary judgment in favor of United States Liability
Insurance Co., Inc. (“USLI”), his former employer. Steidle
brought claims under the Americans with Disabilities Act
(“ADA”) and the Family and Medical Leave Act (“FMLA”).
For the reasons that follow, we will vacate the District Court’s
grant of summary judgment on Steidle’s retaliation claims
arising from his lower than anticipated 2020 bonus and salary
increase and remand for further proceedings consistent with
2
this opinion. We will affirm the District Court’s grant of
summary judgment on Steidle’s retaliation claims stemming
from his lower than anticipated 2021 bonus and salary
increase.
I. Background
Shortly after his honorable discharge from the United
States Marine Corps, Steidle began struggling with his mental
health. In 2010, he was diagnosed with major depressive
disorder. In 2013, Steidle began working at USLI with the
Casualty Claims team and reported to Janet Helbig, Vice
President of Claims.
Near the end of each year, USLI awarded Steidle an
annual salary increase and bonus that would go into effect the
following calendar year. In 2015, USLI awarded Steidle a 14%
salary increase and a $5,500 bonus. In 2016, it awarded him a
4.9% salary increase and a $6,500 bonus. In 2017, it awarded
him a 4.9% salary increase and a $7,000 bonus. In 2018, it
awarded him a 4.5% salary increase and a $7,000 bonus.1
In November 2019, Steidle transferred to the Liquor
Liability team supervised by Ann Lacey. In Steidle’s 2020 First
Quarter Performance Review, Lacey praised Steidle’s
“dedication to [their] team and community” and his
“community involvement outside of his regular job
responsibilities.”2 She also noted that, “[g]iven his newness to
the position, [Steidle] ha[d] been getting acclimated to a new
1
There is no record of the bonus or percent salary increase
that USLI awarded Steidle in 2019.
2
App. 276.
3
pending list of claims” that was “lower than his peers” and
involved “lower severity general liability claims.”3 During this
time, Steidle’s mental health condition worsened; he was
diagnosed with posttraumatic stress disorder and anxiety.
In the summer of 2020, Steidle informed Lacey that he
“was struggling and working with [his] psychiatrist at the VA
for [his] mental health condition.”4 In Steidle’s 2020 Third
Quarter Performance Review, Lacey again commended Steidle
for his “remarkable” “involvement in community initiatives”
and for being a “valued team and community contributor”5
despite some issues with responsiveness and managing his
workload. She also wrote: “I would like [Steidle] to
communicate more openly about his struggles and what I can
do to support him in achieving better success with his job
specific responsibilities and service expectations . . . .”6
Shortly after his 2020 Third Quarter Performance
Review, Steidle told Helbig he wished to return to her team.
USLI approved his transfer back to Helbig’s team. Before
rejoining Helbig’s team, Steidle took approved FMLA leave
from October 1, 2020 through December 20, 2020 to treat his
mental health conditions. Lacey approved Steidle’s annual
salary adjustment while he was on leave. She awarded Steidle
a 2.5% salary increase and a $3,000 bonus (“2020 Bonus”).7
3
App. 277.
4
App. 172 (192:8–17).
5
App. 270.
6
App. 270.
7
The 2020 Bonus was approved on November 19, 2020, and
became effective on January 1, 2021.
4
This was Steidle’s smallest bonus and lowest percentage salary
increase to date.
Steidle returned to work on Helbig’s team at the end of
2020. In his 2021 First Quarter Performance Review, Helbig
applauded Steidle for “meeting [USLI’s] service promises,”
“providing good service,” and “manag[ing] his call volume.”8
She also noted she was “intentionally assigning [Steidle] a
higher number of new claims to grow his pending [claims].”9
A month after his review, Steidle requested and was granted
accommodations to “help reduce [his] stress, anxiety,
depression, [and] PTSD.”10 He was allowed to continue
working remotely if USLI reopened its office and to work
between the hours of 7 am and 3 pm.11
Two months later, on July 21, 2021, Steidle emailed
Helbig describing a situation with another employee that
caused him to take a “mental health sick day.”12 He emailed
Helbig again the next day describing how “unnecessary
stressors manufactured by USLI . . . played a role in what sent
[him] into the worst mental health episodes that [he had] ever
experienced.”13 Helbig forwarded Steidle’s email to her
supervisor, Jim Scalise. Steidle met with Scalise and Helbig to
8
App. 267.
9
App. 267. “Pending” refers to the number of claims an
examiner has received but not finalized. See App. 164
(161:6–24).
10
App. 317–19.
11
At the time, everyone was working remotely due to the
COVID-19 pandemic.
12
App. 311.
13
App. 321–22.
5
discuss his concerns the following day. According to Steidle,
“[i]t was a very combative” discussion.14 Scalise warned
Steidle that if he told others about his mental health struggles,
USLI would “be forced to take action against [him].”15 He also
told Steidle “instead of sending emails to them . . . with [his]
concerns, to scream at [his] wife.”16
Steidle received his 2021 Third Quarter Performance
Review a few months later. In it, Helbig again described
Steidle as “a valued team member”17 but observed that
“[w]orking remotely . . . ha[d] reduced some of [Steidle’s]
previous on-site opportunities to show individual
leadership.”18 She also explained that Steidle was still
“receiv[ing] an increased number of incoming claims.”19 At the
time, he had 83 pending claims and “[t]he goal [was] to get
[Steidle] to a pending of 125 claims.”20 At the end of the year,
Steidle received a 3.6% salary increase and a $3,150 bonus
(“2021 Bonus”).21
In January 2022, Steidle requested and was granted
FMLA leave through April for treatment related to his mental
health conditions. In March 2022, Steidle requested an
14
App. 168 (175:3).
15
App. 168 (174:19–22).
16
App. 168 (174:23–25).
17
App. 260.
18
App. 262.
19
App. 261.
20
App. 262.
21
This salary increase figure reflects the quotient of Steidle’s
total salary approved in late 2021 ($89,600) and his 2020
salary ($86,500).
6
extension of his medical leave and provided USLI with a letter
from his doctor noting that Steidle was “totally disabled and
unable to report to work indefinitely.”22 USLI granted the
extension. USLI received a letter from Steidle’s doctor in July
noting that Steidle was “medically stable to return to working
from home at reduced hours.”23 Steidle requested three
accommodations before returning to work: (1) a reduction in
hours to four per day, (2) a phone adapter and ability to use call
forward, and (3) permission to record meetings. USLI
approved the reduced work hours and the phone adapter, but
denied his request to record meetings due to confidentiality
concerns. Steidle never returned to work with these
accommodations.
The next month, Steidle shared a letter with USLI in
which his doctor “retract[ed] [her] previous statement
regarding [Steidle’s] medical stability” and recommended that
he remain on medical leave.24 USLI asked for clarification on
an anticipated return date, but the doctor responded that she
was unable to provide one. On September 14, 2022, USLI
informed Steidle that it could not grant his request for
indefinite leave. As a result, USLI terminated Steidle’s
employment.
Thereafter, Steidle filed suit against USLI asserting
claims of disability discrimination under the ADA and
retaliation under both the ADA and the FMLA. The District
Court granted USLI’s motion for summary judgment on all
claims. It held that Steidle failed to establish a prima facie case
22
App. 303.
23
App. 404.
24
App. 330.
7
of discrimination and retaliation. In addressing Steidle’s
retaliation claims, the District Court defined an adverse
employment action as one that “alters the employee’s
compensation, terms, conditions, or privileges of employment,
deprives him or her of employment opportunities, or adversely
affects his or her status as an employee.”25 Using this standard,
it concluded that Steidle had not suffered an adverse
employment action. It also concluded Steidle failed to establish
a causal connection between his request for accommodations
and medical leave and his receipt of smaller bonuses and lesser
percentage salary increases. This appeal followed.26
II. Standard of Review
We exercise plenary review over a district court’s grant
of summary judgment, applying the same standard as the lower
court.27 We will affirm a district court’s grant of summary
judgment only if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
25
Steidle, 2024 WL 4374110, at *6 (quoting Moore v. City of
Phila., 461 F.3d 331, 341 (3d Cir. 2006)). In its discussion of
Steidle’s discrimination claims, the District Court defined an
adverse employment action as “one that is ‘serious and
tangible enough to alter an employee’s compensation, terms,
conditions, or privileges of employment.’” Id. at *5 (quoting
Cunningham v. Nordisk, 615 F. App’x 97, 100 (3d Cir. 2015)).
26
The District Court had federal question jurisdiction over
Steidle’s ADA and FMLA claims pursuant to 28 U.S.C. §
1331. We have jurisdiction to review a district court’s final
order under 28 U.S.C. § 1291.
27
Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 317 (3d
Cir. 2014).
8
law.”28 “A factual dispute is ‘material’ if it ‘might affect the
outcome of the suit under the governing law,’”29 and “is
genuine only if the evidence at issue could permit a reasonable
jury to decide in favor of the nonmoving party.”30 Throughout
our analysis, we “view the facts in the light most favorable to
the non-moving party and [draw] all reasonable inferences in
that party’s favor.”31
III. Discussion
Steidle argues the District Court erred in granting
USLI’s motion for summary judgment as to his retaliation
claims under the ADA and FMLA.32 Federal law prohibits
28
Fed. R. Civ. P. 56(a).
29
Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
30
Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 345
(3d Cir. 2022).
31
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006).
32
Steidle has waived appeal of his disparate treatment claim.
In his Statement of Issue Presented for Review and his
Summary of Argument, Steidle only addressed his retaliation
claims. “When an issue is either not set forth in the statement
of issues presented or not pursued in the argument section of
the brief, the appellant has abandoned and waived that issue
on appeal.” Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).
Even if Steidle has not waived his disability discrimination
claim, he is unable to make out a prima facie case because he
was not a qualified individual who could perform the
essential functions of his position with or without reasonable
9
employers from retaliating against employees for exercising
their rights.33 The ADA makes it unlawful for employers to
discriminate against any employee who “has opposed any act
or practice made unlawful by [the ADA]” or has “made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under” the statute.34
Similarly, under the FMLA, an employer may not retaliate
against an employee “for having exercised or attempted to
exercise FMLA rights.”35
Retaliation claims that rely on circumstantial evidence
are subject to the burden-shifting framework36 the Supreme
Court established in McDonell Douglas Corp. v. Green.37
Under this framework, a plaintiff must first establish a prima
accommodation. See Turner v. Hershey Chocolate U.S., 440
F.3d 604, 611 (3d Cir. 2006) (explaining that in order to
establish a prima facie case of discrimination, the plaintiff
must be a “qualified individual,” which is defined as a person
“who, with or without reasonable accommodation, can
perform the essential functions of the employment position”
(quoting 42 U.S.C. § 12111(8)). This is because he requested
indefinite leave and could not return to work regardless of
accommodation.
33
See E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir.
2015).
34
42 U.S.C. § 12203(a).
35
29 C.F.R. § 825.220(c); see also 29 U.S.C. § 2615(a)(2) (“It
shall be unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing
any practice made unlawful by this subchapter.”).
36
Canada, 49 F.4th at 346.
37
411 U.S. 792, 802–03 (1973).
10
facie case of retaliation.38 Under the ADA and the FMLA, a
prima facie case of retaliation requires showing: “(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.”39 If the
plaintiff establishes a prima facie case, the burden shifts to the
defendant to offer a legitimate, nonretaliatory reason for its
action.40 If the defendant satisfies this requirement, the burden
shifts “back to the plaintiff to provide evidence from which a
factfinder could reasonably infer that the employer’s proffered
justification is merely a pretext” for retaliation.41
Steidle contends the District Court erred in holding that
he failed to establish a prima facie case of retaliation. He argues
his retaliation claims should have survived summary judgment
because he established that the reasons USLI provided for
awarding him a lower 2020 Bonus and 2021 Bonus were
pretextual. USLI contends that the District Court did not err in
38
Canada, 49 F.4th at 346.
39
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
1997) (explaining prima facie case of retaliation under the
ADA); see also Canada, 49 F.4th at 346 (applying same
standard for a prima facie case of retaliation under the FMLA
and the ADA).
40
Krouse, 126 F.3d at 500.
41
Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013);
see also Krouse, 126 F.3d at 501 (“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.”).
11
holding that Steidle failed to establish a prima facie case of
retaliation and argues that, even if it did, we should affirm the
grant of summary judgment because Steidle cannot establish
pretext.
We agree with Steidle that the District Court erred in
holding that Steidle did not suffer an adverse employment
action based on receipt of the lower 2020 Bonus and 2021
Bonus. In doing so, we hold that our definition of an adverse
employment action in Title VII retaliation cases applies equally
to ADA and FMLA retaliation cases. Additionally, we find that
the District Court erroneously concluded that Steidle failed to
establish a causal connection for the 2020 Bonus but
appropriately held that no causal connection existed for the
2021 Bonus.
Accordingly, we will affirm the District Court’s grant of
summary judgment on Steidle’s 2021 Bonus claims, but vacate
the District Court’s grant of summary judgment on his 2020
Bonus claims. Because the District Court has not yet
considered whether Steidle can establish pretext, we will
remand to the District Court to consider in the first instance
whether summary judgment is appropriate on this basis.42
A. Protected Activity
42
See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
general rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”)
12
The ADA prohibits “retaliation against an employee for
requesting an accommodation.”43 Accordingly, an employee
engages in protected activity when s/he requests
accommodations in good faith.44 An employee also engages in
protected activity when “she invoke[s] her right to FMLA-
qualifying leave.”45 Moreover, “a request for FMLA leave may
qualify, under certain circumstances, as a request for a
reasonable accommodation under the ADA.”46 It is undisputed
that Steidle’s request for FMLA leave from October 1, 2020
through December 20, 2020 qualifies as protected activity.
Steidle also engaged in protected activity in May 2021 when
he submitted a request for accommodation to work remotely
from 7 a.m. to 3 p.m. to manage his “stress, anxiety,
depression, [and] PTSD.” 47
B. Adverse Employment Action
43
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d
Cir. 2010).
44
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191
(3d Cir. 2003).
45
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256
(3d Cir. 2014) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)); Erdman v.
Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009)
(explaining that “firing an employee for a valid request for
FMLA leave may constitute . . . retaliation against the
employee”).
46
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 156–57 (3d
Cir. 2017).
47
App. 317–19.
13
A plaintiff bringing a claim of retaliation or
discrimination must show that he suffered “an adverse
employment action” as a result of a protected activity.48 In the
context of Title VII discrimination claims, an adverse
employment action is defined as one that demonstrates “some
harm respecting an identifiable term or condition of
employment.”49 However, a “more relaxed standard” applies
to retaliation claims.50 In Burlington Northern & Santa Fe
Railway Co. v. White, the Supreme Court held that a plaintiff
claiming retaliation under Title VII “must show that a
reasonable employee would have found the challenged action
materially adverse” in that “it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.”51
Two months after the Burlington decision, we applied
this standard to a Title VII retaliation claim.52 Since then, we
have not decided precedentially whether the less restrictive
standard also applies to retaliation claims under the ADA and
the FMLA.53 Today, we hold that it does. The antiretaliation
48
Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d
Cir. 2001)).
49
Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 354–
55 (2024).
50
Budhun, 765 F.3d at 257 n.6.
51
548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006) (citation modified)).
52
See Moore, 461 F.3d at 341.
53
Budhun, 765 F.3d at 257 n.6 (explaining that in the context
of an FMLA retaliation claim, “[t]his Court has not decided
whether to apply the less restrictive standard for ‘adverse
14
provision in the ADA is “nearly identical” to the one in Title
VII.54 Similarly, the antiretaliation provision of the FMLA was
“derived from [Title VII] and [was] intended to be construed in
the same manner.”55 Accordingly, Congress clarified that the
FMLA’s provision was “intended to provide the same sorts of
protection [as Title VII] to workers who oppose, protest, or
attempt to correct alleged violations of the [statute].”56 Given
their similarities, we subject retaliation claims under all three
statutes to the McDonnell Douglas burden-shifting framework,
and therefore require plaintiffs in each to establish the same
prima facie case of retaliation.57 We see no reason to apply a
different adverse employment action standard to ADA and
FMLA retaliation claims when nothing in the text of the ADA
or the FMLA suggests that we ought to apply a more restrictive
standard. Rather, the similarities between these statutes and
Title VII convinces us to apply the same analysis.
Other circuit courts of appeals agree. The same year
Burlington Northern was decided, the Court of Appeals for the
Tenth Circuit explained that, because the FMLA antiretaliation
employment action’ promulgated in the Title VII context”);
see DiCampli v. Korman Cmtys., 257 F. App’x 497, 500–01
(3d Cir. 2007) (applying less restrictive standard to an FMLA
retaliation claim); Parker v. Univ. of Pa., 239 F. App’x 773,
775–76 (3d Cir. 2007) (applying less restrictive standard to an
ADA retaliation claim).
54
Allstate, 778 F.3d at 449 (quoting Fogleman v. Mercy
Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)).
55
S. Rep. No. 103-3, at 34, (1993), as reprinted in 1993
U.S.C.C.A.N. 3, 36.
56
Id.
57
Canada, 49 F.4th at 346.
15
provision was “derived from Title VII” and was “intended to
be construed in the same manner,”58 the Burlington Northern
adverse employment action standard “applies with equal force
in the context of an FMLA retaliation case.”59 Shortly
thereafter, the Tenth Circuit announced that Burlington
Northern “applies in the ADA context as well” because “the
ADA’s anti-retaliation provision . . . contains essentially the
same language as Title VII’s provision.”60 Nearly all circuit
courts have followed suit.61 We now join our sister circuits and
58
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164,
1171 n. 2 (10th Cir. 2006) (quoting Duckworth v. Pratt &
Whitney, Inc., 152 F.3d 1, 9 n. 8 (1st Cir. 1998)).
59
Id.
60
Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 n.4
(10th Cir. 2007).
61
See Sepúlveda-Vargas v. Caribbean Restaurants, LLC, 888
F.3d 549, 555 (1st Cir. 2018) (applying Burlington Northern
adverse employment action standard to ADA retaliation
claim); Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159,
170 (2d Cir. 2024) (same); Laird v. Fairfax Cnty., Va., 978
F.3d 887, 893 (4th Cir. 2020) (same); A.C. ex rel. J.C. v.
Shelby Cnty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013)
(same); Freelain v. Vill. of Oak Park, 888 F.3d 895, 901–02
(7th Cir. 2018) (same); Stewart v. Indep. Sch. Dist. No. 196,
481 F.3d 1034, 1042 (8th Cir. 2007) (same); Grubic v. City of
Waco, 262 F. App’x 665, 666 n.6 (5th Cir. 2008) (same);
Williams-Evans v. Advance Auto Parts, 843 F. App’x 144, 148
(11th Cir. 2021) (same); Millea v. Metro-N. R.R. Co., 658 F.3d
154, 164 (2d Cir. 2011) (applying Burlington Northern
adverse employment action standard to FMLA retaliation
claim); Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 470 (5th
Cir. 2021) (same); Wyatt v. Nissan N. Am., Inc., 999 F.3d 400,
16
hold that the Supreme Court’s formulation of an adverse
employment action under Title VII applies to retaliation claims
under the ADA and the FMLA as well.
Here, the District Court relied on our decision in Moore
v. City of Philadelphia to define an adverse employment action
as one that “alters the employee’s compensation, terms,
conditions, or privileges of employment, deprives him or her
of employment opportunities, or adversely affects his or her
status as an employee.”62 However, in Moore, we clarified that
such definition was replaced by the less restrictive Burlington
Northern standard because the Supreme Court found the
discrimination and retaliation provisions in Title VII were “not
coterminous”63 given their “different statutory language and
different purposes.”64 We further explained in Moore that,
based on this reasoning, the Supreme Court “held that a
plaintiff claiming retaliation under Title VII must show that a
reasonable employee would have found the alleged retaliatory
actions ‘materially adverse’ in that they ‘well might have
dissuaded a reasonable worker from making or supporting a
419 (6th Cir. 2021) (same); Breneisen v. Motorola, Inc., 512
F.3d 972, 979 (7th Cir. 2008) (same); Garrison v.
Dolgencorp, LLC, 939 F.3d 937, 943 (8th Cir. 2019) (same);
Csicsmann v. Sallada, 211 F. App’x 163, 168 (4th Cir. 2006)
(same); Chandler v. Sheriff, Walton Cnty., No. 22-13698,
2023 WL 7297918, at *2 (11th Cir. Nov. 6, 2023) (same).
62
Steidle, 2024 WL 4374110, at *6 (quoting Moore, 461 F.3d
at 341).
63
Moore, 461 F.3d at 341 (quoting Burlington, 548 U.S. at
67).
64
Id.
17
charge of discrimination.’”65 The District Court’s reference to
Moore failed to capture our recognition of the key distinction
the Supreme Court drew between an adverse employment
action in the discrimination context as opposed to the
retaliation context.
In accordance with Burlington Northern and Moore, we
conclude that a reasonable factfinder could find that the lower
bonuses and smaller salary increases Steidle received in 2020
and 2021 could have dissuaded a reasonable worker from
requesting accommodation or FMLA leave.
We find no precedent post-Burlington Northern
establishing that receipt of lower than anticipated bonuses and
salary increases are not adverse employment actions in
retaliation claims. Appellate courts that reached such
conclusion prior to Burlington Northern relied on a distinction
between discretionary and automatic bonuses where only a
reduction in the latter could constitute an adverse employment
action.66 This distinction was necessary under the pre-
Burlington rule which required that an adverse employment
action alter “the employee’s compensation, terms, conditions,
or privileges of employment.”67 For instance, in Rabinovitz v.
Pena, the Court of Appeals for the Seventh Circuit held “that
loss of a bonus is not an adverse employment action . . . where
65
Id. (quoting Burlington, 548 U.S. at 68).
66
See Rabinovitz v. Pena, 89 F.3d 482, 488–89 (7th Cir.
1996); Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004);
Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005).
67
Moore, 461 F.3d at 341 (quoting Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)).
18
the employee is not automatically entitled to the bonus.”68 That
court also explained that “the denial of a raise can constitute a
materially adverse employment action if a raise would have
been an expected element of the employee’s salary and its
denial cuts the salary in real terms.”69 Similarly, in Turner v.
Gonzales, the Court of Appeals for the Eighth Circuit clarified
that a “performance rating downgrade qualifie[d] as an adverse
employment action” because it “directly forfeited a non-
discretionary salary increase, detrimentally altering the terms
and conditions” of employment.70
However, given the analysis in Burlington Northern, the
distinction between automatic and discretionary bonuses is no
longer tenable. In Burlington Northern, the Supreme Court
rejected the petitioner’s argument “that the employer actions
prohibited by the antiretaliation provision should similarly be
limited to conduct that affects the employee’s compensation,
terms, conditions, or privileges of employment.”71 The Court
clarified “that the antiretaliation provision, unlike the
substantive provision, is not limited to discriminatory actions
that affect the terms and conditions of employment.”72
Therefore, plaintiffs “need only show that an action is
68
Rabinovitz, 89 F.3d at 488–89.
69
Griffin, 356 F.3d at 830. Cf. Little v. Windermere
Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (“A cut in
base pay is clearly such an adverse action . . . .”).
70
Turner, 421 F.3d at 696. But see Russell v. Principi, 257
F.3d 815, 819 (D.C. Cir. 2001) (“[W]e reject the notion that a
denial of a monetary bonus is not a cognizable employment
action under Title VII.”).
71
Burlington, 548 U.S. at 61 (citation modified).
72
Id. at 64.
19
‘materially adverse’ in that it ‘well might have dissuaded a
reasonable worker from’” exercising his or her rights under the
statute.73 Receipt of a lower than anticipated bonus and salary
increase could certainly dissuade a reasonable worker from
engaging in protected activity.
Despite improperly applying a more restrictive
definition of an adverse employment action than the
Burlington Northern standard, the District Court did
acknowledge that “the receipt of a less than expected merit
increase could rise to the level of an adverse employment
action in the retaliation context.”74 Nonetheless, it concluded
that USLI did not subject Steidle to an adverse employment
action because “there [was] nothing in the record to show
Steidle’s performance . . . merited a higher discretionary bonus
and salary increase than . . . he received.”75 However, the
question at the prima facie stage is not whether Steidle’s
performance merited a higher bonus and salary but whether
receipt of a lower bonus and salary increase under the
circumstances here could constitute an adverse employment
action. In other words, would the receipt of a lower than
anticipated bonus and salary increase dissuade a reasonable
worker from making or supporting a charge of discrimination?
We also reject USLI’s argument that Steidle cannot
establish he suffered an adverse employment action because
“Steidle himself was not dissuaded or deterred from engaging
73
Moore, 461 F.3d at 348 (quoting Burlington, 548 U.S. at
68).
74
Steidle, 2024 WL 4374110, at *6 (citation modified).
75
Id.
20
in any protected activity.”76 Burlington Northern’s materiality
condition is not premised on an individual plaintiff’s response
to an allegedly retaliatory action.77 Burlington Northern
requires us to “examine the challenged conduct ‘from the
perspective of a reasonable person in the plaintiff’s
position.’”78 “[P]etty slights, minor annoyances, and simple
lack of good manners” are generally insufficient to satisfy this
standard.79 Nonetheless, “the significance of any given act of
retaliation will often depend upon the particular
circumstances.”80 The inquiry must focus on the likely impact
76
Answering Br. 27 (citing Blitman v. Ne. Treatment Ctrs.,
Inc., No. 21-4318, 2023 U.S. Dist. LEXIS 153041, at *25
(E.D. Pa. Aug. 30, 2023); Rubano v. Farrell Area Sch. Dist.,
991 F. Supp. 2d 678, 708 (W.D. Pa. 2014)).
77
See Burlington, 548 U.S. at 68–69 (“We refer to reactions
of a reasonable employee because we believe that the
provision’s standard for judging harm must be objective. An
objective standard is judicially administrable. It avoids the
uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff’s unusual subjective
feelings.”).
78
Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 195 (3d Cir.
2015) (quoting Burlington, 548 U.S. at 71).
79
Id. at 196 (quoting Burlington, 548 U.S. at 68); Burlington,
548 U.S. at 68 (“An employee’s decision to report
discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place
at work and that all employees experience.”).
80
Burlington, 548 U.S. at 69. “The real social impact of
workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the
21
an employer’s action would have on “a reasonable person in
the plaintiff’s position,”81 not on how the most intrepid and
financially secure employee would react to it.
On this record, prior to 2020, the smallest bonus Steidle
received was $5,500 and his lowest percentage salary increase
was 4.5%, but he typically received an even larger bonus, and
a higher salary increase.82 However, Steidle’s bonuses and
salary increases were significantly reduced after he engaged in
protected activity. After Steidle requested FMLA leave in
2020, USLI awarded him only a $3,000 bonus and a 2.5%
salary increase—a more than 40% reduction in bonus and
salary increase compared to previous years. Similarly, after
Steidle requested an accommodation in 2021, USLI gave him
only a $3,150 bonus and a 3.6% salary increase.83 A reasonable
jury could conclude that these reductions might well have
words used or the physical acts performed.” Id. (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–
82 (1998)).
81
Daniels, 776 F.3d at 195 (quoting Burlington, 548 U.S. at
71).
82
Prior to 2020, if Steidle received a higher percent salary
increase, then he received a lower bonus and vice versa. For
instance, in 2015, USLI awarded Steidle his highest salary
increase of 14% but his lowest bonus of $5,500. In 2018,
USLI awarded Steidle his highest bonus of $7,000 but his
lowest salary increase of 4.5%. After he engaged in protected
activity, Steidle received both lesser salary increases and
lower bonuses.
83
This salary increase percentage is the quotient of Steidle’s
salary approved in 2021 ($89,600), and his 2020 salary
($86,500).
22
dissuaded a reasonable worker from requesting FMLA leave or
an accommodation. Thus, the District Court erroneously held
that Steidle did not suffer adverse employment actions in 2020
and 2021.
C. Causation
A plaintiff must also establish “a causal connection
between the employee’s protected activity and the employer’s
adverse action.”84 To establish causation, a plaintiff may rely
on “an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action.”85
Unusually suggestive timing alone can “create an inference of
causality and defeat summary judgment.”86 When such close
temporal proximity is lacking, “we consider the circumstances
as a whole, including any intervening 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.”87
Steidle took medical leave to treat his mental health
conditions from October to December of 2020. In the middle
of his medical leave, Lacey approved a smaller bonus and
lower percentage salary increase. “[S]uch close temporal
84
Canada, 49 F.4th at 346 (quoting Daniels, 776 F.3d at 193).
85
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267
(3d Cir. 2007).
86
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217,
232 (3d Cir. 2007).
87
Daniels, 776 F.3d at 196.
23
proximity qualifies as unusually suggestive timing.”88 The
District Court concluded Steidle could not establish causation
because, although the bonus was approved while he was on
leave, “it was USLI’s common practice to make bonus
decisions late in the year.”89 The District Court also found the
evaluations did not demonstrate a pattern of antagonism
because Steidle himself acknowledged he struggled with some
of his work responsibilities. These facts, however, are not
relevant at the causation stage when unusually suggestive
timing has been established.90 Instead, they are central to the
second and third steps of the McDonnell Douglas burden-
shifting framework,91 which the District Court did not address.
88
Budhun, 765 F.3d at 258 (finding unusually suggestive
temporal proximity where the defendant replaced the plaintiff
employee while the plaintiff was on FMLA leave). See, e.g.,
Lichtenstein, 691 F.3d at 307 (concluding termination seven
days after the plaintiff invoked her right to FMLA leave was
sufficient to establish causation).
89
Steidle, 2024 WL 4374110, at *6.
90
See LeBoon, 503 F.3d at 232 (“Where the temporal
proximity between the protected activity and the adverse
action is ‘unusually suggestive,’ it is sufficient standing alone
to create an inference of causality and defeat summary
judgment.”).
91
See Canada, 49 F.4th at 346 (explaining that after the
plaintiff establishes a prima facie case, the employer at step
two then bears the burden to “present a legitimate, non-
retaliatory reason for having taken the adverse action. If the
employer meets this burden, the burden then shifts back to the
plaintiff to demonstrate that the employer’s proffered
explanation was false, and that retaliation was the real reason
for the adverse employment action.” (citation modified)).
24
Therefore, we conclude the District Court erroneously held that
Steidle failed to establish a prima facie case of retaliation for
the 2020 Bonus.92
The same cannot be said of the 2021 Bonus. In May
2021, Steidle requested accommodations to work remotely
between the hours of 7 a.m. and 3 p.m. His bonus and salary
increase were approved almost six months later. This six-
month gap alone is insufficient to establish an unusually
suggestive temporal proximity.93 “Where the temporal
proximity is not ‘unusually suggestive,’ we ask whether ‘the
92
This conclusion applies to Steidle’s claims under the ADA
and the FMLA. Although Steidle did not request work
accommodations until 2021, “a request for FMLA leave may
qualify, under certain circumstances, as a request for a
reasonable accommodation under the ADA.” Capps, 847 F.3d
at 156–57. Steidle requested medical leave to manage his
disability. Thus, he engaged in protected activity under both
statutes.
93
See LeBoon, 503 F.3d at 233 (“Although there is no bright
line rule as to what constitutes unduly suggestive temporal
proximity, a gap of three months between the protected
activity and the adverse action, without more, cannot create
an inference of causation and defeat summary judgment.”);
see also Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d
751, 760 (3d Cir. 2004) (concluding over two-month gap
between accommodation request and termination without
more was insufficient to establish unduly suggestive temporal
proximity); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.
2007) (finding five-month period between employee’s
complaint and adverse action alone was insufficient to raise
an inference of causation).
25
proffered evidence, looked at as a whole, may suffice to raise
the inference.’”94 “[A] plaintiff can establish a link between his
or her protected behavior and subsequent discharge if the
employer engaged in a pattern of antagonism in the intervening
period.”95 For instance, work conditions that set up employees
“to fail” after the employee engages in protected activity may
support finding a pattern of antagonism.96 Viewing the
evidence in the light most favorable to Steidle, he has not
presented sufficient evidence from which a jury could
reasonably make the required inference to establish a causal
link between the protected behavior in May of 2021 and the
amount of the subsequent bonus and salary increase.
Steidle argues his assignment of an increased number of
claims and his meeting with Scalise are enough to establish a
pattern of antagonism.97 The record does not support his
94
LeBoon, 503 F.3d at 232 (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)); see also
Williams, 380 F.3d at 760 (“[W]here the temporal proximity
is not so close as to be unduly suggestive, we have recognized
that timing plus other evidence may be an appropriate test.”
(citation modified)).
95
Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir.
1997). “[C]ircumstantial evidence of a ‘pattern of
antagonism’ following the protected conduct can also give
rise to [a causation] inference.” Kachmar v. SunGard Data
Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (citing Robinson
v. Se. Pa. Transp. Auth., Red Arrow Div., 982 F.2d 892, 895
(3d Cir. 1993)).
96
Woodson, 109 F.3d at 922.
97
Steidle does not argue that his lower 2021 Bonus resulted
from any ongoing hostility USLI exhibited towards him as a
26
argument. It is true that Steidle “received an increased number
of incoming claims,”98 but he began receiving them months
before he requested accommodations in May of 2021.99
Because the record lacks other evidence from which a
reasonable jury could conclude that his request for
accommodations caused the heavier workload, Steidle’s
argument fails.
result of the medical leave he took in 2020. Because no such
argument was made, we need not address whether Steidle
could have established causation based on a continuing
pattern of antagonism that began when he first requested
leave in 2020.
98
App. 261.
99
The record reflects that Steidle began receiving an
increased number of claims before his evaluation in April
2021. Steidle also appears to argue that an inconsistency
exists between his receipt of an increased number of claims
and Helbig’s conclusion that one of the reasons he received a
lower 2021 Bonus was because “his claim handling
responsibilities became less.” Opening Br. 39–40 (quoting
App. 347–48 (emphasis added)). However, these statements
are not inherently contradictory. Although Steidle received an
increased volume of claims, they were “basic” in comparison
to the “more complex and higher value claims” he worked on
before taking FMLA leave. App. 236 (292:8–16). Moreover,
Steidle does not challenge the District Court’s conclusion that
his 2021 Bonus was lower “based on Steidle working on less
complex claims, his decreased involvement in the USLI
community, and his high salary.” Steidle, 2024 WL 4374110,
at *6.
27
Moreover, Steidle’s single meeting with Scalise does
not demonstrate a pattern of antagonism. Steidle met with
Scalise on July 23, 2021. Although Scalise was “combative”
and perhaps even unprofessional and inappropriate towards
Steidle during the discussion,100 he did not initiate any
disciplinary action against Steidle. Without more, a jury could
not reasonably find that USLI engaged in a pattern of
antagonism based on Steidle’s single conversation with
Scalise. Therefore, Steidle fails to establish a causal connection
between his accommodation request and his 2021 Bonus.
IV. Conclusion
For these reasons, we will vacate the District Court’s
grant of summary judgment as to Steidle’s retaliation claims
arising from the 2020 Bonus and remand to the District Court
to consider in the first instance whether Steidle has established
pretext. We will, however, affirm the District Court’s grant of
summary judgment on Steidle’s claims arising from the 2021
Bonus.
100
App. 168 (175:3). As noted earlier, Scalise told Steidle
that rather than voicing complaints at work, he should
“scream at [his] wife.” App. 168 (174:23–25).
28