BROWN v. THE VANGUARD GROUP, INC. et al

Filing 18

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 1/30/17. 1/31/17 ENTERED AND COPIES E-MAILED AND FAXED BY CHAMBERS.(mbh, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JENNIFER BROWN

:
:
v.
:
:
THE VANGUARD GROUP, INC., ET AL. :

CIVIL ACTION
NO. 16-946

MEMORANDUM
SURRICK, J.

JANUARY 30 , 2017

Presently before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 10.)
For the following reasons, the Motion will be granted.
I.

BACKGROUND
In this disability discrimination action, Plaintiff complains that she was disciplined and

terminated because of her depression, social anxiety, and agoraphobia. She asserts claims for
discrimination, retaliation, and harassment under the ADA, the PHRA, and the FMLA against
both her former employer, Vanguard, and her former supervisor. After a review of the
voluminous summary judgment record—which reveals a protracted history of performance
concerns that began prior to Plaintiff’s disclosure of her disabilities—we are satisfied that no
reasonable juror would conclude that Plaintiff’s discipline and ultimate termination were the
result of discriminatory animus based upon Plaintiff’s disabilities.
A.

Factual Background

Plaintiff worked as an information designer at Vanguard from October 2011 until her
termination in August 2014. (Compl. ¶¶ 16, 18, ECF No. 1; Brown Dep. 41, 52, Pl.’s Resp. Ex.
A, ECF No. 11.) Plaintiff worked on the “User Interface” or UI Design Team, which designed
internal websites and software used by Vanguard employees. (Brown Dep. 52-53.) In this

position, Plaintiff dealt with computer programmers and clients, who were internal Vanguard
department heads that requested web or software projects. (Id. at 53.) Work done by the UI
Design Team requires collaboration both with clients and with teammates. (Id. at 81-82.)
When Plaintiff began at Vanguard, her direct supervisor was Marcia Morelli. (Id. at 52.) In
March or April of 2013, Morelli was transferred to another department within Vanguard, and
Srinath Chigullapalli became Plaintiff’s supervisor. (Morelli Dep. 19, Pl.’s Resp. Ex. E;
Chigullapalli Dep. 8, Pl.’s Resp. Ex. C; Brown Dep. 52, 215.)
1.

Plaintiff’s Work at Vanguard Under Morelli as Supervisor

Plaintiff did “high quality” design work when she began working at Vanguard. (Morelli
Dep. 29.) In June 2012, Plaintiff received a Midyear Update from Morelli. (Id. at 52-53.) The
evaluation was positive overall. (June 2012 Midyear Update, Pl.’s Resp. Ex. F.) Morelli noted
that Plaintiff was “a very skilled and knowledgeable designer,” who “stays on schedule, and
organizes her work well.” (Id.) Morelli also indicated that “[w]orking in such a collaborative
environment, with so much feedback coming in was a challenge to [Plaintiff] at first,” but that
she was “starting to adapt and find ways to work effectively with her colleagues, and with our
clients.” (Id.)
Morelli noticed that Plaintiff’s performance began to change as time progressed. Plaintiff
began to say more negative things during meetings. (Morelli Dep. 30.) Clients complained that
Plaintiff had not produced design concepts in time for client meetings, and that she occasionally
skipped the meetings. (Id. at 31.) When Morelli confronted Plaintiff with these complaints,
Plaintiff made excuses, such as that she was unaware of what was expected of her, or did not
know there was a deadline that she had to meet. (Id. at 31-32.) Morelli also noticed that Plaintiff
had attendance issues. (Id. at 39.) Plaintiff often arrived at the office later in the day, or did not

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come into the office at all. She also frequently failed to communicate her whereabouts with her
supervisor or her team. (Id. at 39-40.) Morelli testified that these attendance issues “happened
pretty consistently,” starting in the beginning of 2012. (Id. at 40.) Morelli recognized that
Vanguard permitted flexible schedules, but as it applied to Plaintiff, “that didn’t mean you could
just totally come and go as you pleased.” (Id. at 46.) 1 Morelli addressed Plaintiff’s attendance
issues with her. (Id. at 39.) Morelli also stated that Plaintiff did not like receiving feedback from
her teammates or from her clients, even though Morelli had expressed to Plaintiff that receiving
feedback was “a core part” of her job. (Id. at 42-44.)
At the end of 2012, Morelli submitted a year-end Appraisal of Plaintiff’s performance.
(2012 Appraisal, Pl.’s Resp. Ex. G.) Morelli confirmed that Plaintiff was a “skilled and
knowledgeable designer,” who “has great attention to detail.” (Id.) Her overall rating on this
Appraisal, however, was “further development needed.” (Id.) At the time of the Appraisal,
Vanguard’s rating system ranked performance levels, from highest to lowest, as follows:
“distinguished”; “fully successful”; “further development needed”; and “does not meet
expectations.” (Sabin Decl. ¶ 2, Defs.’ Mem. Ex. SS.) Morelli noted that Plaintiff does not
always give the project teams “enough awareness of her status.” (2012 Appraisal 6.) Morelli
also noted that “others would like to know when she is going to miss a session. This lack of
information sometimes gives the impression that she is not as reliable or responsive as others
would like.” (Id.) Finally, Morelli noted Plaintiff’s continued difficulty in receiving feedback in
a collaborative environment, and that she at times appeared “overly defensive or sensitive.” (Id.)
Within the first three months of her employment at Vanguard, Plaintiff confided in
Morelli that she suffers from depression. (Brown Dep. 153.) Morelli understood the
1

Members of the design teams could request flexible work schedules. Flexible work
schedules were subject to approval by the employee’s supervisor. (Brown Dep. 267.)
3

conversation to mean that Plaintiff had suffered from depression in the past, but was not at that
time suffering from depression. (Morelli Dep. 32.) Plaintiff did not mention any other medical
issue or disability to Morelli. (Id. at 33.) Nor did Plaintiff state that any condition interfered
with her work. (Id. at 37.) Plaintiff did not request any accommodation or present a doctor’s
note. (Id. at 34.)
Prior to transferring departments, Morelli had a “turnover meeting” with Chigullapalli,
where they discussed all the employees Chigullapalli would be supervising. (Morelli Dep. 4446; Chigullapalli Dep. 11.) At the meeting, Morelli expressed concerns she had about Plaintiff’s
performance. Specifically, Morelli shared that Plaintiff needed to communicate her whereabouts
with teammates and clients, and needed to create a more consistent schedule. (Morelli Dep. 46.)
Morelli also shared that Plaintiff had been working from home without using the tools necessary
to remotely log into the network, as was required by Vanguard. (Id. at 47.) 2 Morelli did not
share with Chigullapalli that Plaintiff had confided in her about prior bouts of depression,
because she did not believe it was work-related. (Id. at 51.)
2.

Plaintiff’s Work at Vanguard Under Chigullapalli as Supervisor

Shortly after becoming Plaintiff’s supervisor, Chigullapalli began to see performance
deficiencies. In May 2013, Chigullapalli learned from two managers of the United Way project
team that Plaintiff never attends meetings, is very quiet if she calls into meetings by telephone, is
not timely with her design deliverables, and is not open to feedback on her project designs.
(Chigullapalli Dep. 30.) Chigullapalli shared the managers’ feedback with Plaintiff, and Plaintiff
denied being untimely with her work. (Id.) Chigullapalli also expressed concerns about
2

When working from home, employees are required to use the option “Remote from your
PC,” which permits them access to the software and databases that they would have if they
worked at their computer at the office. Plaintiff would instead dial in through “Citrix,” and as a
result “would not have the tools to do her job” from home. (Counselling Session Note 69909.)
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Plaintiff’s lack of communication with regard to her whereabouts. As her supervisor, he found it
difficult to determine Plaintiff’s schedule: “Sometimes she came in at noon. Sometimes she
came in at nine-thirty. Sometimes she came in the afternoon. Sometimes she just worked from
home.” (Id. at 17.) When she would miss meetings, she would not follow up with anybody who
attended the meeting. (Id. at 24.)
In June 2013, Chigullapalli gave Plaintiff a Midyear Update. (2013 Midyear Update,
Pl.’s Resp. Ex. H.) In the evaluation, Chigullapalli noted certain strengths in Plaintiff’s
performance, such as her creativity and design skills. (Id.) Chigullapalli also noted some
“developmental areas,” which were areas where Plaintiff’s performance needed improvement.
(Id.) In the comments section, Chigullapalli stated that Plaintiff “should keep team members and
various stakeholders in her project updated with her availability status including when working
from home with appropriate communication.” (Id.) Chigullapalli met with Plaintiff to discuss
the Midyear Update. (Chigullapalli Dep. 62.) He reiterated to Plaintiff that she needed to let
everybody know when she was working from home, and needed to keep her teammates better
informed about the status of projects. (Id.) He also advised Plaintiff about the requirements
associated with working from home, such as having tools on her computer that would provide
her complete remote access to all Vanguard software, and that would allow her to communicate
with her teammates. (Id. at 63.) Chigullapalli instructed her not to work from home until those
tools were in place. (Id.) It took Plaintiff at least six to eight weeks before gaining access to the
tools; nevertheless, she continued to work from home a couple times per week without complete
remote access. (Id.)

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3.

Open Channel Message and Vanguard Response

In October 2013, Plaintiff sent an anonymous message through Vanguard’s Open
Channel communication system. (Open Channel Message, Pl.’s Resp. Ex. I.) Open Channel is
an electronic communication system that permits Vanguard employees to write anonymous
messages to senior management. (Sabin Dep. 61, Pl.’s Resp. Ex. L.) Open Channel is meant to
be a vehicle for employees to express concerns or suggestions, and is intended to be completely
anonymous. (Id. at 61.)
In Plaintiff’s Open Channel Message, which spanned three-and-a-half pages, singlespaced, Plaintiff complained about her experience at Vanguard, including her teammates and
supervisors, and shared some of the medical conditions from which she suffered. (Open Channel
Message.) She stated that she felt bullied or ignored by members of her team, and not supported
by her supervisors. She acknowledged that her supervisor—Chigullapalli at the time—expressed
concerns about her availability. (Id. at 1 (“I am constantly told that I am not available to answer
my co-workers questions.”).) Plaintiff denied being unavailable and stated that her work is great.
(Id.) She complained that she was frustrated, was not treated like an adult professional, felt like
she was “at a breaking point,” and that “all of these workplace factors have caused me to have a
very serious depression.” (Id. at 2.) In addition to depression, she indicated that she suffers from
severe social anxiety and a mild case of Asperger’s Syndrome, which complicates her ability to
communicate with others. (Id.) Plaintiff further stated that she “is not yet suicidal” but “is
angry” because “[i]t’s not right to treat a human being this way.” (Id.) Plaintiff requested a
flexible schedule because she “is not so good with 9-5 because of [her] depression.” (Id.)
Kathy Gubanich, the Managing Director of Human Resources, sent Plaintiff a response to
her Open Channel Message. (Id. at 3.) Gubanich shared various Vanguard resources available

6

to Plaintiff, including the Crew Assistance Program (“CAP”), which provides external
counseling services free-of-charge to handle work-life issues, wellness matters, and life
management support. (Id.) Gubanich also suggested that Plaintiff contact Mike Sabin, who is a
member of the Human Resources Department, and a Crew Relations Specialist supporting the IT
Department. (Id.) 3
On October 18, 2013, Sabin met with Plaintiff about her Open Channel message. (Sabin
Dep. 63; Crew Relations Session 69434, Defs.’ Mem. Ex. F.) 4 Plaintiff expressed to Sabin that
she was depressed, but was not suicidal. (Sabin Dep. 66.) In response, Sabin told Plaintiff about
various Vanguard resources available to her, such as the CAP, short-term disability, and family
medical leave. (Id.) Plaintiff told Sabin that she felt bullied by members of her team. (Crew
Relations Session 69343.) Specifically, she indicated that Michelle Jones was “snippy” with her
on one occasion and questioned her design knowledge, and Ann Gibson “ripped apart” one of
Plaintiff’s designs. (Id.) When Sabin inquired about Plaintiff’s relationship with her supervisor,
Plaintiff mentioned that Chigullapalli questioned her availability and threatened to remove her
work-from-home privileges. (Id.) Sabin also provided Plaintiff with his personal cell phone
number, and told her she could call him anytime. (Sabin Dep. 68-69.) Plaintiff did call Sabin on
his cell phone on one occasion. (Id.)

3

Crew Relations is a “team of employee relations specialists in Human Resources” who
“provide guidance and support on personal and professional matters and can help resolve workrelated issues.” (Open Channel Message 3-4.)
4

Although Open Channel communications are meant to be anonymous, exceptions are
made when situations become threatening. (Sabin Dep. 61.) Sabin decided that Plaintiff’s
mention of suicide in her Open Channel Message was an instance that warranted making an
exception to the anonymity policy. (Id.)
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In light of Plaintiff’s complaints about bullying, Sabin conducted an investigation.
(Sabin Dep. 64-65.) As part of that investigation, Sabin interviewed four of Plaintiff’s
teammates, as well as her current and former supervisor. (Crew Relations Session 69343.)
Sabin testified that Plaintiff’s teammates “were frustrated with her” because “she was never
around,” and that she was a “poor performer.” (Sabin Dep. 66, 95.) One teammate told Sabin
that Plaintiff gets defensive when receiving feedback, and is often not in the office. (Crew
Relations Session 69343.) Another teammate stated that Plaintiff is “passive aggressive and
rude” and that the team is frustrated with her because she often doesn’t show up for meetings, or
calls in and drops the call. (Id.) Another teammate shared that Plaintiff works from home often,
is not engaged, and that people cannot find her. (Id.)
On October 22, 2013, Sabin met with Chigullapalli as part of the investigation.
(Investigation Plan, Pl.’s Resp. Ex. K.) Chigullapalli shared with Sabin Plaintiff’s various
performance issues. (Id.) For example, Plaintiff failed to complete an assignment before leaving
for vacation, and Chigullapalli had to pull someone from another project to complete the task on
time. (Id.) Chigullapalli received complaints from teammates about Plaintiff’s lack of
attendance at meetings, her poor communication skills, and the fact that she has worked from
home several days a week without updating her team on when she would be out of the office.
Some teammates requested that she not attend their meetings in the future. (Id.) Chigullapalli
shared that Plaintiff routinely arrived to work between 10:30 and 11:30, missed three status
reports despite multiple reminders, worked from home without remote access, and abused her
work-from-home privileges. (Id.) Chigullapalli believed Plaintiff had the skills to be successful,
but that she lacked initiative. (Id.) It was at this meeting that Chigullapalli first learned from

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Sabin that Plaintiff suffered from depression and other medical conditions. (Chigullapalli Dep.
9-10.) 5 Sabin learned about the disabilities from the Open Channel Message.
On October 29, 2013, Sabin again met with Plaintiff to explain Chigullapalli’s concerns
about her performance, attendance, and availability. (Crew Relations Session 70142, Pl.’s Resp.
Ex. R.) For each of Chigullapalli’s concerns, Plaintiff “had an excuse or blamed others.” (Id.)
She denied working from home three or four days a week, claimed she was unaware of the
software requisites to work from home, and stated that she only missed one status report, not
three. (Id.) 6
On November 6, 2013, Plaintiff met with Sabin and Chigulapalli for one-and-a-half hours
to discuss the issues raised in her Open Channel Message, and to outline performance
expectations moving forward. (Crew Relations Session 69686, Pl.’s Resp. Ex. T.) Sabin stated
that, during the meeting, Plaintiff “took no accountability for her performance, behavior, or lack
of availability.” (Id.) As a follow-up to that meeting, Chigullapalli sent Plaintiff an e-mail
detailing clear expectations with respect to her presence and availability. (Id.) Plaintiff was told
she would have to be at work by 9:30 a.m. every day, and that if she was late, she must let
everyone she was working with know, including her supervisor. (Id.) Chigullapalli gave
examples of where she fell short of this requirement. (Id.) 7 In addition, Chigullapalli explained

5

Plaintiff did not remember when she first told Chigullapalli about her conditions.
(Brown Dep. 154-158.)
6

Chigullapalli had explained the work-from-home requirements to Plaintiff in June
during the Midyear Update, and told Plaintiff that she was not allowed to work from home until
those tools were in place. (Crew Relations Session 69909.) Plaintiff continued to work from
home despite not having the proper tools. (Id.)
7

For example, Chigullapalli wrote: “on 9/20 when you were not on vacation but you did
not let anybody know if you were [working from home] or not and you were not available all day
at your desk or on crewchat. Similarly on 9/9 when you sent an email to the team saying you
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his expectations for Plaintiff’s submission of weekly status reports. He also offered to be
available by phone, email, or text message if she had questions or concerns. (Id.)
On November 12, 2013, Plaintiff e-mailed Sabin and Chigullapalli concerning a panic
attack that she was having at a meeting. (Crew Relations Session 69790, Pl.’s Resp. Ex. U.)
Plaintiff was advised that she could go home for the day. (Id.)
On December 4, 2013, Sabin e-mailed Plaintiff, advising her that he had completed the
investigation into allegations of bullying, and that he concluded that no harassment or unfair
treatment had occurred. (Crew Relations Session 70192, Defs.’ Mem.. Ex. S.) After the
investigation, Vanguard decided that Plaintiff would be required to use CAP for counseling in
light of her mentioning suicide in her Open Channel Message. (Counselling Session Note
69909.)
4.

Year-End Appraisal 2013

On December 12, 2013, Plaintiff received her 2013 year-end Appraisal from
Chigullapalli. (2013 Appraisal, Pl.’s Resp. Ex. V.) Plaintiff received the same rating that she
had received from Morelli in her 2012 year-end Appraisal: “further development needed.” (Id.)
Chigullapalli noted, among other things, that Plaintiff: “is a very skilled and knowledgeable
designer,” but that she “struggles to understand the roles and responsibilities of each individual
assignment.” (Id.) Chigullapalli noted that Plaintiff turned in poor quality designs on one
project, which required multiple changes and intervention by her supervisor. (Id.) Chigullapalli
stated the following in the Appraisal:
[Plaintiff] received feedback during the mid-year review that she needed to keep
everybody working with her updated on the status of her work and to make
herself available for communicating during core business hours 9 AM - 4 PM.

will be in around 11 AM but did not come into work or let anybody know if you were [Work
From Home] after that.” (Crew Relations Session 69686.)
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Despite multiple reminders she was consistently late to work (frequently past
noon) and also frequently missed out on communicating her correct availability.
She also worked from home multiple times a week despite the feedback about her
lack of availability. During midyear she informed me that she did not have
remote access to her PC when working from home. I advised her to review the
flexibility policy on the prerequisites of working from home – call forwarding,
availability at core hours, access to all the tools needed to perform tasks and
present via email/crewchat. She had been working from home for almost two
years without any of these and I suggested to her to not work from home till the
PC remote access issues were resolved as an information designer cannot be
productive without access to the tools on the work PC as citix gives access only to
emails and none of the design tools. Despite that warning, she continued to work
from home multiple times a week for the next six weeks.
(Id.) When Plaintiff did sign in from home with the proper remote access, her availability was
“erratic at best.” (Id.) She would often set her status to “in a meeting” even when she did not
have meetings scheduled. (Id.)
Plaintiff was unhappy with the Appraisal. On December 12, 2013, she expressed to
Sabin that she believed that Chigullapalli was trying to have her fired. (Crew Relations Session
70384, Pl.’s Resp. Ex. W.) She accused Chigullapalli of basing his evaluation of her
performance on “several flat out lies.” (Id.) Plaintiff alleged that she “even showed this review
to [her] peers and they agreed that [Chigullapalli’s] characterization doesn’t sound like [her] at
all.” (Id.) In response, Sabin sent Brown the forms to request an accommodation. (Brown Dep.
297; Defs.’ Mem. Ex. U.) 8 When she met with Chigullapalli to discuss the review, Plaintiff
denied any performance deficiencies. According to Chigullapalli, Plaintiff never agreed to the
performance gaps and was not open to feedback from him. (Chigullapalli Dep. 53.) This was
surprising to Chigullapalli, since he and Plaintiff “had been constantly in communication” about
her performance gaps and areas where she needed to improve. (Id.)

8

Plaintiff saw Dr. Alan Keller for the first time on December 23 or 24, 2013. (Brown
Dep. 136, 297.) However, Plaintiff did not submit a request for an accommodation until over a
month later. (Jan. 2014 Accommodation Request, Pl.’s Resp. Ex. SS.)
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5.

Plaintiff Receives a Written Alert

After her 2013 year-end Appraisal, Plaintiff’s performance issues persisted. During the
first week of January 2014, Chigullapalli called Sabin to discuss Plaintiff’s continued
performance issues. (Crew Relations Session 70893, Pl.’s Resp. Ex. X.) Chigullapalli reported
that Plaintiff continued to (1) not submit status reports; (2) arrive to work later than the agreed
upon 9:30 a.m. start time; (3) “work from home whenever she wants without prior manager
approval”; and (4) not inform the team when she called out of work. (Id.) Based on these
continued performance issues, Chigullapalli decided to revoke Plaintiff’s work-from-home
privileges. (Id.) Chigullapalli testified that he did this because, despite repeated warnings,
Plaintiff was simply not being productive while working from home. (Chigullapalli Dep. 17-18.)
Sabin asked the IT department to run activity reports to determine Plaintiff’s productivity during
days she worked from home. (Sabin Dep. 101.) He discovered that when Plaintiff worked from
home, she rarely logged in, did not attend meetings, did not produce work, and sent only a few emails during those days, some of which were merely advising her supervisor that she was
working from home. (Id. at 101-02.)
On January 24, 2014, Plaintiff received a Written Alert due to deficient performance.
(Written Alert, Pl.’s Resp. Ex. Y; Chigullapalli Dep. 38.) The Written Alert provided that
Plaintiff had sixty days to improve her performance, and set forth in detail the performance gaps
that needed improvement. (Written Alert.) In particular, it noted Plaintiff’s failure to complete
assignments on time, failure to communicate with her peers when asked to, failure to submit
status reports, failure to honor the previously agreed-upon availability times, and her poor quality
designs. (Id.) The Written Alert also specifically outlined the action steps Plaintiff needed to
take to close these performance gaps. (Id.) During the sixty-day period of the Written Alert,

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Plaintiff was required to meet with her management team weekly to discuss progress on closing
the performance gaps. (Id.) Sabin attended many of the meetings with Plaintiff and
Chigullapalli. (Sabin Dep. 69-70.) At one meeting, Sabin discussed with Plaintiff that members
of the SM Web Team felt uncomfortable after Plaintiff asked them why they provided
performance feedback about her to Chigullapalli. Sabin advised Plaintiff that this behavior was
unprofessional, and that if it continued, it could result in a Formal Warning. (Crew Relations
Session 71415.)
After receiving the Written Alert, Plaintiff met with Rob Cook, Chigullapalli’s direct
supervisor, who encouraged Plaintiff to follow through with the action items on the Written
Alert. (Brown Dep. 290-91.) Plaintiff told Cook that she felt as though she was being
discriminated against. (Id.) Both Cook and Sabin encouraged Plaintiff to submit a request for an
accommodation. (Id. at 296-98.)
6.

Request for Accommodation

Plaintiff submitted a request for an accommodation signed by her doctor, Dr. Alan Keller,
on January 27, 2014. (Jan. 2014 Accommodation Request; Sabin Dep. 107.) Dr. Keller stated in
the Accommodation Request that Plaintiff “has severe depression which makes her sleep
impaired and makes it difficult to get up in the a.m.” (Jan. 2014 Accommodation Request.) Dr.
Keller requested that Plaintiff be provided “flexible work hours.” (Id.) With Plaintiff’s
permission, Sabin contacted Dr. Keller to gain clarity on the accommodation request because he
felt that “flexible work hours” was vague. (Sabin Dep. 109.) At the time that Plaintiff submitted
the Accommodation Request, her start time was 9:30 a.m. (Id. at 108.) Sabin testified that Dr.
Keller was surprised to learn that Plaintiff had already had a 9:30 start time, and that Dr. Keller
believed that a 9:30 start time was a reasonable accommodation. (Id. at 111-12.) Vanguard

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believed that Plaintiff’s request for an accommodation was granted because she already had been
permitted a 9:30 start time, even though core business hours begin at 8 a.m. (Chigullapalli Dep.
55; Sabin Dep. 95.)
7.

Request for Family Medical Leave Act (“FMLA”) Leave

Plaintiff continued to meet with Chigullapalli weekly throughout February to discuss
progress on closing the performance gaps in the Written Alert. After Plaintiff complained that
she believed Chigullapalli scheduled their meetings on Fridays intentionally “to ruin her
weekends,” Sabin requested that Chigullapalli move the meetings to Monday, and he did. (Crew
Relations Session 71536.) On February 12, 2014, Plaintiff called out of work because she was
not feeling well. (Crew Relations Session 71535, Pl.’s Resp. Ex. FF.) In her e-mail to
Chigullapalli and Sabin, she stated, “[j]ust because you scold me, it doesn’t make my medical
conditions go away.” (Id.) Sabin responded to the e-mail, “I’m sorry you are not feeling well.
As we discussed when we met on January 31, 2014, you may apply for intermittent FMLA if you
feel that you have a medical condition that limits your ability to come to work.” (Id.) Sabin
provided her with contact information for applying for intermittent FMLA. (Id.)
On March 5, 2014, Plaintiff met with Chigullapalli and Sabin. Plaintiff had just returned
from a planned vacation on February 22 through February 28, 2014. (Crew Relations Session
71979, Defs.’ Ex. CC.) Chigullapalli provided feedback on her performance under the Written
Alert. (Id.) After the meeting, Sabin noted that Plaintiff “argued each point and said his facts
were not accurate.” (Id.) Sabin also noted that Plaintiff made inappropriate comments during
the meetings, such as: “Talking to you is like talking to the wall”; “I didn’t ask for approval to
work from home because I don’t want to talk to you”; “I don’t want to talk to you now”; “I’m

14

not your slave”; “Why does it matter if I turn my status reports on Tuesday instead of Friday?”;
and “You gave me a ridiculous timeframe for the project – you are setting me up to fail.” (Id.)
The day after the meeting, Chigullapalli e-mailed Plaintiff to summarize their
conversations. (Crew Relations Session 71978, Pl.’s Resp. Ex. GG.) He highlighted one project
where Plaintiff had made progress, but also noted that Plaintiff still needs to improve in
availability during core hours, sending weekly updates, and communicating availability with
everybody on the team. He provided examples of areas where Plaintiff failed to report time off,
request to work from home, or failed to submit a status report. (Id.) In a response e-mail,
Plaintiff disputed all of the concerns raised by her supervisor. (Id.) Plaintiff also stated “my
illness and the requests my doctor had made have also been ignored.” (Id.) Sabin responded to
Plaintiff’s e-mail with words of encouragement:
Jennifer, I’m sorry you are upset. I will schedule a meeting for us next week. I
recommend discussing this with your doctor. Vanguard has benefits to support
crew. If you and your doctor feel a medical leave would help you let me know
how I can help. We discussed FMLA and [short term disability] and I thought I
helped you understand the process. Let me know how I can help. As
[Chigullapalli] stated yesterday, him providing performance feedback is to help
you be successful and is his responsibility. Thanks.
(Id.) The next day, Plaintiff responded to Sabin’s e-mail, stating that “[t]here is a clear
difference between providing feedback for improvement and distorting events in order to create a
paper trail for the outcome you desire.” (Crew Relations Session 71084, Pl.’s Resp. Ex. HH.)
Plaintiff further stated that “[w]eek after week any progress I have made towards ‘closing
performance gaps’ has been completely ignored because any success I have does not support the
agenda [to terminate me].” (Id.)
On March 12, 2014, Chigullapalli contacted Sabin to provide him an “assessment of the
impact of [Plaintiff’s] lack of engagement with the design and project teams.” (Crew Relations

15

Session 72101, Pl.’s Resp. Ex. II.) Chigullapalli explained that Plaintiff does not communicate
with her team, and does not take time to understand the goals of her assignments. (Id.) He
provided two examples where Plaintiff failed to communicate with the team until the end of the
deadline for the project, at which time it was too late to incorporate changes and feedback.
Chigullapalli also advised that Plaintiff continues to not provide correct and timely updates on
her availability, and fails to submit status reports and PTO requests. (Id.) He provided
examples for these performance gaps, including that Plaintiff was out of the office for an entire
week without letting her team know, and continues to arrive to work past the agreed-upon time
of 9:30 a.m. “on most occasions.” (Id.)
On March 12, 2013, Plaintiff met with Sabin and Sharron Patton, another HR
representative, to discuss FMLA and short term disability. (Crew Relations Session 72099, Pl.’s
Resp. Ex. JJ.) During the meeting, Plaintiff stated that Vanguard has discriminated against her
due to her illness. (Id.) Plaintiff explained that she believed her health issues were ignored, and
that ever since she made Vanguard aware of her disabilities, she has had things taken away, such
as assignments, work flexibility, and her work-from-home privileges. (Id.) Later that day,
Plaintiff requested, and was granted, FMLA leave. She took just under the six months of
maximum time permitted under the FMLA. (Crew Relations Session 72017, Defs.’ Mem. Ex.
FF.)
8.

Plaintiff’s Return from FMLA Leave and Subsequent Termination

Plaintiff returned from FMLA leave on June 2, 2014. (Brown Dep. 318.) Upon
returning, she presented Vanguard with a Return to Work Certificate, which was signed by Dr.
Keller. (Return to Work Cert., Pl.’s Resp. Ex. MM.) The Certificate indicated that Plaintiff
could return to work with restrictions. (Id.) Specifically, Dr. Keller requested that Plaintiff be

16

granted a “[f]lexible work schedule allowing [her] to work from home some mornings each week
as necessary due to her medical issues.” (Id.) Vanguard agreed to the restriction that Plaintiff
could work from home “a couple of hours during the morning a couple of days each week,” so
long as Plaintiff let people know, and that she was available on all Vanguard channels. (Crew
Relations Session 73759, Defs.’ Mem. Ex. M.) Plaintiff testified that she believed that this
accommodation was consistent with Dr. Keller’s Return to Work Certificate. (Brown Dep. 320.)
She also testified that the accommodation “certainly helped with the depression issues and . . .
symptoms.” (Id. at 324.)
When Plaintiff returned from FMLA leave, she had approximately one week left on her
sixty-day written alert. (Id. at 321.) Sabin recommended that the written alert be reinstated for
another sixty days so that Plaintiff had additional time to improve on her performance.
(Chigullapalli Dep. 39-40.) Plaintiff did not want to reset the sixty-day time period. (Id. at 40;
Brown Dep. 321.) As a compromise, Plaintiff was given approximately three to four weeks after
returning from FMLA leave to demonstrate improvement. (Chigullapalli Dep. 40, 43) During
this time, Plaintiff was provided weekly evaluations and performance expectations.
(Chigullapalli Dep. 41.)
Plaintiff believed that her work was excellent when she returned from FMLA leave.
(Brown Dep. 324.) Chigullapalli did not agree. Plaintiff was evaluated at the end of the two-tothree week period remaining on the Written Alert. Chigullapalli stated that her performance
remained “significantly below par.” (Chigullapalli 40.) On June 13, 2014, Chigullapalli and his
supervisor, Cook, called Sabin to advise him that since returning from leave, Plaintiff had only
been in the office approximately three to four hours per day and had not completed any of the

17

tasks assigned to her. (Crew Relations Session 73924, Pl.’s Resp. Ex. OO.) Plaintiff also
skipped a meeting. (Id.)
On June 17, 2014, Plaintiff was issued a Formal Warning for “deficient performance.”
(Formal Warning, Pl.’s Resp. Ex. PP; Brown Dep. 327.) Plaintiff was advised that if she did not
improve her performance, she could be terminated. (Brown Dep. 327.) The Formal Warning
stated, among other things, that Plaintiff “has continued to struggle to understand the roles and
responsibilities of her assignments.” (Formal Warning.) Numerous examples were provided to
support her deficiency in this category, such as failing to seek feedback on assignments from
team members in a timely manner, and unnecessarily spending time on a design icon that failed
to meet brand standards. (Id.) The Formal Warning also stated that Plaintiff missed submitting
weekly status reports in a timely matter, has been frequently late to work and to team meetings,
and continues to be unavailable on all avenues when working from home. (Id.) Plaintiff refused
to sign the Formal Warning. (Id.) On June 23, 2017, Chigullapalli sent Plaintiff an e-mail
which provided a detailed outline of his expectations of her in the next two weeks. (Crew
Relations Session 74846, Defs.’ Mem. Ex. O.)
On June 27, 2014, Plaintiff was provided a Midyear Update. (2013 Midyear Update,
Pl.’s Resp. Ex. QQ.) She was rated as “proficient” in the area of technical or subject matter
expertise, but rated as “further development needed” in all other categories. (Id.) Similar to the
statements made in the Formal Warning, the Midyear Update noted that Plaintiff fails to provide
feedback to other team members, is not open to receiving feedback, has not demonstrated an
ability to influence design decisions, has “struggled to build strategic and working relationships,”
and lacks an understanding about the short and long term goals of the business. (Id.) It was
specifically noted that although Plaintiff “was able to turn around the required deliverables in

18

time, her lack of understanding of the design standards or the best practices followed by the team
meant that the quality of the work was not good.” (Id.)
On July 2, 2014, Plaintiff met with Lisa McCann, who is the direct supervisor of Cook, to
discuss her midyear review. (Crew Relations Session 74838, Pl.’s Resp. Ex. RR.) After the
meeting, Plaintiff sent e-mails to McCann to share what she believed to be performance
achievements, despite her midyear review. (Id.) She complained to McCann that her
evaluations had always been good until she reported her medical issues to her supervisor. (Id.)
Not seeing any improvement after multiple periods of reviews and multiple mentoring
sessions and coaching, Chigullapalli discussed terminating Plaintiff with his leadership team.
(Chigullapalli Dep. 34; Cook Dep. 26.) Chigullapalli testified that he tried to help Plaintiff be as
successful as she could be, and provided her with the accommodations she requested, while still
holding her to performance standards. (Chigullapalli Dep. 35.) The decision to terminate
Plaintiff was made by Chigullapalli and his leadership team, which included Cook and McCann.
(Cook Dep. 25-26.) Cook believed that Chigullapalli “took every action necessary to help
[Plaintiff], coaching her through the performance deficiencies” and that her failure to improve
was “certainly not a lack of effort on [Chigullapalli’s] part.” (Id. at 45.) Cook further testified
that “it got to a point that, despite our best efforts [to help Plaintiff], there was not going to be a
willingness on the other side to close those gaps. We did not see results that we needed to see
for the expectations of that job.” (Id. at 46.)
On August 1, 2014, Plaintiff was terminated from her position at Vanguard. (Crew
Relations Session 74955, Pl.’s Resp. Ex. TT.) On January 28, 2015, Plaintiff dual-filed a charge
of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the
Pennsylvania Human Relations Commission (“PHRC”). (Compl. ¶ 5.)

19

B.

Procedural History

On February 29, 2016, Plaintiff filed a Complaint in this Court. (Compl., ECF No. 1.)
The Complaint contains three counts: (1) discrimination, harassment, retaliation, and failure to
accommodate under the ADA, asserted against Vanguard (Count I); (2) discrimination,
harassment, retaliation, and failure to accommodate under the PHRA, asserted against Vanguard
and Chigullapalli (Count II); and retaliation under the FMLA, asserted against Vanguard (Count
III).
On September 9, 2016, Defendants filed a Motion for Summary Judgment. (Defs.’ Mot.,
ECF No. 10.) On September 30, 2016, Plaintiff filed a Response in Opposition to Defendants’
Motion. (Pl.’s Resp., ECF No. 11.) Trial is scheduled to commence on February 6, 2017.
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “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.” A dispute is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “[A] factual dispute is material only if it might affect the outcome of the suit under
governing law.” Id. The court must view the evidence in the light most favorable to the nonmoving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported
assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for
summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D.
Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)).

20

Where the nonmoving party bears the burden of proof at trial, the moving party may
identify an absence of a genuine issue of material fact by showing the court that there is no
evidence in the record supporting the nonmoving party’s case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.
2004). If the moving party carries this initial burden, the nonmoving party must set forth specific
facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c) (“A party asserting
that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record . . . .”); see also Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (noting that the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts”). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue
for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
III.

DISCUSSION
Plaintiff asserts claims for discrimination, harassment, retaliation, and failure to

accommodate under the ADA (Count I) and under the PHRA (Count II). Plaintiff also asserts a
claim for retaliation under the FMLA (Count III). Defendants seek summary judgment with
respect to all claims asserted by Plaintiff. Defendants contend that even when viewing the facts
in the light most favorable to Plaintiff, no reasonable factfinder could conclude that Vanguard’s
discipline and ultimate termination of Plaintiff was retaliatory or was in any way based on
discriminatory animus.

21

A.

Disability Discrimination Claim Under ADA and PHRA 9

Defendants argue that summary judgment is appropriate because Plaintiff’s termination
was based on a history of poor performance, and not because of her disabilities. Plaintiff
responds that complaints about her performance and reprimand were made in response to her
notifying Vanguard about her disabilities. Plaintiff contends that this raises an inference that the
reprimand and subsequent termination were motivated by unlawful discriminatory intent.
Under the ADA, employers are prohibited from discriminating 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. § 12112(a). A plaintiff asserting an ADA
claim proceeds using the three-step burden-shifting framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973). See Walton v. Mental Health Ass’n
of Se. Penn., 168 F.3d 661, 667-68 (3d Cir. 1999) (applying the McDonnell Douglas burden
shifting rules to ADA claims). Under McDonnell Douglas, the plaintiff must first establish a
prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If a plaintiff
successfully establishes a prima facie case, the burden then shifts to the defendant to articulate
some legitimate non-discriminatory reason for its employment decision. Id. If the defendant
succeeds, the burden then shifts back to the plaintiff to show that the employer’s stated reason
for the employment action was merely a pretext for intentional discrimination. Id. at 804.

9

The legal standards and analysis applicable to ADA claims is substantively identical to
discrimination claims under the PHRA. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d
Cir. 2002) (noting that the statutes are interpreted in accord with one another, and “[t]herefore,
our disposition of [the plaintiff’s] ADA claim applies with equal force to his PHRA claim.”);
Kelly v. Drexel Univ., 94 F.3d 102, 105-06 (3d Cir. 1996). The parties combined their arguments
in their briefing and do not dispute that the standards are the same. We will therefore address
Plaintiff’s ADA and PHRA claims collectively.
22

1.

Prima Facie Case

To establish a prima facie case of discrimination under the ADA, “a plaintiff must show
(1) that [s]he is disabled within the meaning of the ADA, (2) that [s]he is otherwise qualified for
the job, with or without reasonable accommodations, and (3) that [s]he was subjected to an
adverse employment decision as a result of the discrimination.” Sulima v. Tobyhanna Army
Depot, 602 F.3d 177, 185 (3d Cir. 2010). Defendants do not dispute that Plaintiff has established
the first and second elements in that she is disabled within the meaning of the ADA, and that she
is qualified for her position, with or without reasonable accommodations. Our focus is on the
third element of Plaintiff’s prima facie case. 10

10

We note, however, that Plaintiff’s claim that she was disabled by depression is open to
serious question, based upon the evidence in the record. A “disability” under the ADA may be
found in one of three ways. A plaintiff is disabled if she shows: “(A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). Disabilities that are caused solely by work-related stress or strained relationships
with supervisors often do not meet the standard of disability under the ADA. See, e.g., Maslanka
v. Johnson & Johnson, Inc., 305 F. App’x 848, 852 (3d Cir. 2008) (affirming district court’s
finding that the plaintiff was not disabled where his “anxiety and depression was expected to last
only so long as Fronius remained his supervisor or continued to give him bad evaluations.”);
Anderson v. Radio One, Inc., No. 09-194, 2010 U.S. Dist. LEXIS 99713, at *25 (E.D. Pa. Sept.
20, 2010) (noting that “[c]ognitive limitations that lack long term impact and that stem from poor
evaluations from a supervisor do not exhibit the severity, permanence, and longevity necessary
to establish a substantial impairment”). The record in this case is replete with admissions by
Plaintiff that her depression was caused by work-related stress, and in particular, by the strained
relationship that she had with her supervisor, Chigullapalli. For example, in a letter Plaintiff
wrote notifying her employer she was taking FMLA leave, she stated that her “job and work
environment have been causing [her] to have severe depression, social anxiety, insomnia,
physical pain, along with other symptoms that coincide with depression.” (Crew Relations
Session 72069, Pl.’s Resp. Ex. KK.) In that same letter, she stated that her supervisor—
Chigullapalli—is the “cause of these problems.” (Id.) Plaintiff made numerous statements
during her deposition that her issues were caused by work-related issues. (See, e.g., Brown Dep.
315 (“I took [FMLA] leave because the situation with [Chigullapalli] was untenable.”); id.
(noting that the fact that her performance was being reported incorrectly was “causing a
tremendous amount of depression”).)
23

Defendants argue that the record contains no evidence supporting an inference that
Plaintiff was terminated because of her disabilities. They argue that the record shows the
opposite: that “Vanguard responded positively, generously, and compassionately to the notice of
[Plaintiff’s] disabilities, her requests for accommodation and leave, and her performance
deficiencies.” (Defs.’ Mem. 36.) Plaintiff responds that the evidence supports a discrimination
claim because “almost immediately following [her] informing her supervisors of her disability
and requesting accommodations, she received counseling, negative reviews and discipline.”
(Pl.’s Resp. 34.) 11
Plaintiff has presented no direct evidence of discriminatory bias. She concedes that no
supervisor, HR representative, or member of senior management ever said anything derogatory
to her about her disability. Plaintiff instead relies on circumstantial evidence, and in particular,
the timing of her notifying Vanguard about her disabilities and the subsequent discipline and
negative performance evaluations to make out her case. Specifically, Plaintiff points to the
following circumstantial evidence: (1) she received an overall rating of “further development
needed” from Morelli in her 2012 year-end performance evaluation, which occurred after she
had disclosed to Morelli that she suffered from depression; (2) she was placed on a performance
improvement plan on October 31, 2013, which was just two weeks after disclosing that she
11

The discrimination claim is based on Vanguard’s termination of Plaintiff. Although it
is not entirely clear from her Response, to the extent that Plaintiff bases her discrimination
claims on Vanguard’s discipline, such claims would fail. An adverse employment action is “an
action by an employer that is ‘serious and tangible enough to alter an employee’s compensation,
terms, conditions, or privileges of employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760,
764 (3d Cir. 2004). Vanguard’s decisions to issue discipline, negative performance evaluations,
or written warnings do not constitute adverse employment actions. See Tucker v. Merck & Co.,
131 F. App’x 852, 857 (3d Cir. 2005) (“A negative evaluation, by itself, is not an adverse
employment action.”); Reynolds v. Dep’t of the Army, 439 F. App’x 150, 153 (3d Cir. 2011)
(holding that a performance improvement plan “is not an adverse employment action absent
accompanying changes to pay, benefits, or employment status”). Plaintiff has not shown that
any of the disciplinary actions she received altered the terms or conditions of her employment.
24

suffers from depression in her Open Channel Message; (3) her work-from-home privileges were
revoked weeks after disclosing her disability, despite the fact that “every other employee on [her]
team” had the ability to work from home; (4) her flexible hours were changed, requiring her to
report to work at 9:30 a.m., just weeks after reporting her depression; and (5) she received a
negative performance evaluation from Chigullapalli in her 2013 Appraisal, just weeks after
disclosing that she had suffered a panic attack. (Pl.’s Resp. 34-35.)
A review of the evidence does not support Plaintiff’s position. The record reflects that
Morelli switched departments in March 2013, and took no part in the decision to terminate
Plaintiff. Therefore, Morelli’s negative performance evaluation of Plaintiff in late 2012 in no
way raises an inference of discrimination as to Vanguard’s decision to terminate Plaintiff. In
addition, there is no evidence in the record that Plaintiff was placed on a “performance
improvement plan” in October 2013. In response to Plaintiff’s Open Channel Message, Human
Resources conducted an extensive investigation into Plaintiff’s allegations that she felt “bullied”
and “harassed” at work. During the course of that investigation, Human Resources learned the
extent of Plaintiff’s performance issues, not just from her current and former supervisors, but
also from her co-workers. To help Plaintiff moving forward, Chigullapalli set out clear
performance expectations, and offered to make himself available and assist in any way he could.
Also in response to the Open Channel Message, Vanguard repeatedly offered Plaintiff support,
encouraged her to take advantage of Vanguard’s counseling services, and informed her about her
options to take FMLA or short term disability leave.
The revocation of Plaintiff’s work-from-home privileges and the change in her flexible
work schedule just weeks after disclosing her disabilities also do not establish an inference of
discrimination. Those changes directly correlate with complaints made by supervisors and co-

25

workers about her availability and lack of communication. There can be no dispute that
Plaintiff’s general availability during core working hours had been a concern of her supervisors
since early on in her employment at Vanguard. These concerns arose long before Vanguard was
notified about Plaintiff’s disabilities. Morelli noted that Plaintiff had attendance issues, which
happened consistently since the beginning of 2012. Chigullapalli shared Morelli’s concerns
about Plaintiff’s availability and attendance, and expressed his concerns to Plaintiff during
meetings and in formal evaluations prior to being made aware of Plaintiff’s disabilities.
Chigullapalli did not learn about Plaintiff’s depression until October 2013. However, in
Plaintiff’s June 2013 Midyear Update, Plaintiff received several “developmental areas,” which
included availability and communication of availability to stakeholders. In June, Chigullapalli
instructed Plaintiff to not work from home until she gained access to the necessary remote
access. Nevertheless, Plaintiff continued to work from home a couple days per week without
those tools despite her supervisor’s instructions. The IT activity report corroborates
Chigullapalli’s concerns, and shows that Plaintiff was neither productive nor available when she
worked from home.
Finally, the fact that Plaintiff received a negative evaluation in her 2013 Appraisal just
weeks after disclosing to Chigullapalli that she suffered a panic attack does not support her prima
facie case. Many of the performance gaps noted in the 2013 Appraisal were carried over from
the Midyear Update. Taken together, all of this evidence fails to show that Plaintiff’s disabilities
were a “determinative factor” in Vanguard’s decision to terminate her. Decker v. Alliant Techs.,
LLC, 871 F. Supp. 2d 413, 428 (E.D. Pa. 2012) (citing Watson v. SEPTA, 207 F.3d 207, 214-15
(3d Cir. 2000)). Accordingly, we are compelled to conclude that Plaintiff has failed to establish
a prima facie case of discrimination by Vanguard on the basis of a disability. Notwithstanding

26

Plaintiff’s failure to establish a prima facie case, we will assume for the purpose of argument that
a prima facie case was established and will consider her claims under the balance of the
McDonnell Douglas framework.
2.

Legitimate Non-Discriminatory Reason for Adverse Employment Action
and Pretext

Defendants have articulated a legitimate non-discriminatory reason for terminating
Plaintiff’s employment with Vanguard. As stated above, Defendants contend that Plaintiff’s
termination was the result of Plaintiff’s consistent and notable performance deficiencies during
the course of her employment. The multiple negative performance evaluations—at least one of
which was issued prior to her supervisor even knowing about her disability—and the multiple
meetings and e-mails where these performance deficiencies were explained in detail, support this
proffered reason. The burden shifts back to Plaintiff to establish that Defendants’ stated reason
is merely a pretext for discrimination.
In order to establish pretext, Plaintiff must point to evidence that: 1) “casts sufficient
doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could
reasonably conclude that each reason was a fabrication”; or that 2) permits the factfinder to
reasonably conclude “that discrimination was more likely than not a motivating or determinative
cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
With respect to the first way to show pretext, a plaintiff
cannot simply show that the employer’s decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent.
Rather, the nonmoving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence . . . .

27

Id. at 765 (internal quotation marks and citations omitted). “‘[F]ederal courts are not arbitral
boards ruling on the strength of ‘cause’ for discharge. The question is not whether the employer
made the best, or even a sound, business decision; it is whether the real reason is
[discrimination].’” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997)
(quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)); see also Coulton v.
Univ. of Pa., 237 F. App’x 741, 747 (3d Cir. 2007).
In her Response, Plaintiff does not offer any arguments that Defendants’ proffered reason
was merely pretext for discrimination. Instead, she incorporates the pretext arguments that she
made in defense of her retaliation claims. In her retaliation claims, Plaintiff points to two
categories of circumstantial evidence to establish pretext: evidence of unusually suggestive
timing, and evidence of antagonism. The types of evidence that support a showing of pretext for
retaliation claims differs from the evidence used to support pretext for discrimination claims.
For example, with respect to retaliation claims, evidence of unusually suggestive timing
measures the temporal proximity between the protected activity and the retaliatory action. See
Blakney v. City of Philadelphia, 559 F. App’x 183, 186 (3d Cir. 2014). In contrast, evidence of
timing in discrimination claims is measured from the disclosure of the disability and the adverse
employment action—here, termination. See Walton, 168 F.3d at 669. Plaintiff has failed to
point to relevant evidence or make any substantive arguments to demonstrate pretext in relation
to her discrimination claims. We will nevertheless view the record as a whole to determine if
pretext exists. As set forth below, when viewing the record in the light most favorable to
Plaintiff, the evidence does not show any weaknesses, implausibilities, or inconsistencies in
Vanguard’s reasons for terminating her.

28

In evaluating whether Vanguard’s decision to terminate Plaintiff was pretext for
discrimination, we may consider the temporal proximity between when Plaintiff disclosed her
disabilities to Vanguard and when she was terminated. Walton, 168 F.3d at 669. However, there
must be “some logical connection between the timing . . . and the possibility of the particular
discrimination at issue.” Id. Here, Plaintiff maintains that she disclosed her depression to
Morelli in the first few months of her employment at Vanguard. Therefore, Morelli became
aware of Plaintiff’s disability, at the latest, in December 2011 or January 2012. Chigullapalli
first became aware of Plaintiff’s disabilities in October 2013. Plaintiff was terminated on August
1, 2014. The relative timeframe between disclosure and termination was two-and-a-half years
with respect to Morelli, and just under ten months with respect to Chigullapalli. Without more,
these time frames do not show a logical connection between Plaintiff’s disability and her
termination.
Nor does evidence of a pattern of antagonism establish an inference of discrimination.
Plaintiff asserts that the “constant barrage of written and verbal warnings, close observations,
refusals to accommodate, etc., are severe and are alone sufficient to show pretext.” However, the
evidence shows that the very criticisms about her performance that ultimately led to her
termination were the same criticisms that she had received throughout the tenure of her
employment at Vanguard. More importantly, these same criticisms arose prior to Vanguard
being put on notice of her disabilities. The evidence shows that Plaintiff failed to sufficiently
make herself available to, communicate with, incorporate comments from, and produce timely
work product to her supervisors, her clients, and her teammates. Despite numerous attempts by
multiple Vanguard employees to offer constructive feedback and specific measures to improve,
Plaintiff never held herself accountable. Instead, Plaintiff denied that she had any performance

29

gaps. She believed that she was an excellent designer that produced high quality work.
However, Plaintiff’s focus on one aspect of her performance—an aspect that was not the basis of
Vanguard’s decision to terminate—is not relevant to analyzing pretext. See Steward v. Sears,
Roebuck & Co., 231 F. App’x 201, 210 (3d Cir. 2007) (“A plaintiff does not establish pretext by
pointing to commendation[s] . . . in categories the defendant says it did not rely upon in making
the employment decision at issue.”). Instead, we must consider Plaintiff’s “performance in the
categories that [Vanguard] deemed relevant to the employment decision” to terminate her. Id.
(citation omitted). In this regard, the record shows that Plaintiff’s termination was based not on
whether she was a skilled and capable designer—a fact that Vanguard does not dispute—but
rather on the fact that she was chronically late to work; that she was unavailable on all channels
when she worked from home; that she worked from home without prior authorization; that she
missed project meetings, project deadlines, and status reports; and that she did not welcome and
incorporate feedback from teammates.
Plaintiff argues that her negative evaluations and discipline was merely Vanguard’s
attempt to create a “fake paper trial” of performance issues to substantiate its discriminatory
motive. This argument is not persuasive for a number of reasons. First, Plaintiff points to no
facts to refute Vanguard’s evidence of performance gaps. She simply states that Chigullapalli
lied about them and that he was on a mission to see her fail. Plaintiff’s bald statements are
insufficient to establish pretext. See Grove v. Admiral Peary Area Vocational-Technical Sch.,
221 F. App’x 101, 104 n.2 (3d Cir. 2007) (affirming grant of summary judgment where the
plaintiff’s proof that demotion was pretext for discrimination “consist[ed] solely of self-serving
speculation”); Cooper v. PricewaterhouseCoopers, No. 07-1399, 2008 U.S. Dist. LEXIS 76041,

30

at *12 (E.D. Pa. Sept. 30, 2008) (“Plaintiff’s beliefs, without more, are insufficient to support a
claim of pretext.”).
Next, Plaintiff’s “fake paper trail” argument ignores the fact that Plaintiff’s performance
issues arose months prior to Chigullapalli first learning about her disability in October 2013.
“Where there is a documented history of performance issues in an employee’s job history prior
to disclosure of an impairment, courts have hesitated to find a discriminatory motive in
subsequent terminations.” Anderson, 2010 U.S. Dist. LEXIS 99713, at *32 (rejecting the
plaintiff’s claim that her termination, which took place three weeks after disclosing her
disability, raised an inference of discrimination because performance concerns were raised prior
to the disclosure of disability). Chigullapalli began noticing performance gaps as early as May
2013 when managers on the United Way Project complained to him that Plaintiff did not timely
produce design deliverables, was not open to feedback on her performance designs, and failed to
attend project meetings. Chigullapalli shared these concerns with Plaintiff. In addition, during
Plaintiff’s Midyear Update in June 2013, performance issues were again shared with Plaintiff.
Plaintiff was put on notice that she needed to improve her communication with clients and
teammates with regard to her whereabouts and the status of her projects. Plaintiff also continued
to work from home despite being told that she should not do so without the tools to permit
complete remote access. Evidence showing that performance issues arose prior to Vanguard’s
knowledge of Plaintiff’s disabilities undercuts a finding that her termination was a pretext for
discrimination. See Shaner v. Synthes (USA), 204 F.3d 494, 504 (3d Cir. 2000) (rejecting
argument that termination was motivated by discriminatory intent where the plaintiff’s
performance evaluations “contained similar criticisms both before and after he made the
company aware that he suffered” from a disability).

31

Plaintiff has also failed to set forth evidence under the second approach to establishing
pretext. Under this approach, Plaintiff must point to evidence “with sufficient probative force”
that permits the factfinder to reasonably conclude that discrimination was “more likely than not a
motivating or determinative cause” of the adverse employment action. Willis v. UPMC
Children’s Hosp. of Pittsburgh, 808 F.3d 638, 645 (3d Cir. 2015) (quoting Fuentes, 32 F.3d at
762, 764). Plaintiff can accomplish this by pointing to evidence showing that: (1) Defendants
previously discriminated against Plaintiff; (2) Defendants discriminated against others within
Plaintiff’s protected class; or (3) Defendants treated similarly situated individuals more
favorably. Id. (citing Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998)). The record
contains no evidence showing that Defendants previously discriminated against Plaintiff or
discriminated against other employees with disabilities. With respect to the third category,
Plaintiff makes passing references to the unfair treatment she received because her co-workers
were permitted flexible work schedules and work-from-home privileges, while she was not.
However, there is no evidence in the record about other employees’ work schedules or workfrom-home privileges. More importantly, Plaintiff has pointed to no evidence showing that these
individuals were similarly situated in that they had received the same performance complaints as
had Plaintiff, but were nevertheless treated more favorably by having flexible work schedules
and work-from-home privileges.
Even viewing the evidence in the light most favorable to Plaintiff, there is simply no
evidence—either direct or circumstantial—from which a factfinder could either disbelieve
Vanguard’s articulated non-discriminatory reasons or conclude that discrimination because of
her disability was a motivating or determinative factor in her termination. Accordingly,
summary judgment will be granted with respect to Plaintiff’s discrimination claims.

32

B.

Failure to Accommodate Claim Under ADA and PHRA

Defendants also seek summary judgment on Plaintiff’s claims that they failed to provide
reasonable accommodations. The ADA provides a remedy when an employer fails to make
“reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an . . . employee,” unless the employer “can
demonstrate that the accommodation would impose an undue hardship on the operation of the
business.” 42 U.S.C. § 12112(b)(5)(A).
Plaintiff made two requests for accommodations. The first was in January 2014 when
Dr. Keller requested that Plaintiff be given flexible work hours to help with her symptoms of
depression. 12 Plaintiff’s second accommodation request was made in June 2014, after Plaintiff
returned from FMLA leave. Dr. Keller specifically requested that Plaintiff be granted a flexible
work schedule allowing her to work from home some mornings each week as necessary due to
her medical issues.
We only need to consider the second request for accommodation because the first request
is time-barred. Before commencing an ADA action in federal court, a plaintiff must exhaust her
administrative remedies by filing a timely charge of discrimination with the EEOC. Churchill v.
Star Enters., 183 F.3d 184, 190 (3d Cir. 1999). A plaintiff exhausts administrative remedies
under the ADA by filing a charge with the EEOC within 300 days of the alleged discriminatory
action. Mercer v. Se. Pa. Transit Auth., 26 F. Supp. 3d 432, 440-41 (E.D. Pa. 2014). A plaintiff
exhausts administrative remedies under the PHRA by filing a charge with the PHRC within 180
days of the alleged discriminatory action. 43 Pa. Stat. Ann. § 959(h). Here, Plaintiff dual-filed a
charge of discrimination with the EEOC and the PHRC on January 28, 2015. Accordingly, any
12

Dr. Keller indicated that Plaintiff’s 9:30 a.m. start time was a reasonable
accommodation.
33

discrete acts of discrimination that occurred more than 300 days prior to this date, or before April
3, 2014, are time-barred under the ADA. Any discrete acts of discrimination that occurred more
than 180 days prior to January 28, 2015, or before August 1, 2014, are time-barred under the
PHRA. Plaintiff’s first request for accommodation is therefore time-barred under both the ADA
and the PHRA. Plaintiff’s second request for accommodation is time-barred under the PHRA.
Plaintiff does not dispute that she failed to exhaust administrative remedies with respect to her
first accommodation. 13 Therefore, we will limit our analysis to Plaintiff’s second request for a
reasonable accommodation under the ADA.
Defendants argue that summary judgment is appropriate because Plaintiff’s second
request for a reasonable accommodation was granted. Plaintiff responds that despite being
granted this accommodation, the claim should nevertheless survive because she was disciplined
for working from home within the guidelines of her accommodation. Plaintiff fails to point to
any evidence in the record to support this argument. Instead, the evidence shows that Plaintiff
was granted the accommodation, and that she was permitted to work from home a couple hours
in the morning a couple of days per week, so long as she was available on all Vanguard channels
while she worked from home. Plaintiff conceded that the accommodation granted by Vanguard
helped with her symptoms of depression and was consistent with Dr. Keller’s Return to Work

13

Plaintiff requests that we consider the evidence related to her first request for an
accommodation when analyzing whether the second request for an accommodation was in
violation of the ADA. Evidence surrounding her first accommodation request is not relevant to
determining whether Vanguard reasonably accommodated her second request. “An employer’s
denial of a request for a reasonable accommodation is a discrete act of discrimination that is an
independently actionable unlawful employment practice under the ADA.” Mercer v. Se. Pa.
Transit Auth., 26 F. Supp. 3d 432, 442 (E.D. Pa. 2014) (citations omitted). Even if evidence
about the first request for an accommodation was relevant, it would not support Plaintiff’s claim.
Based upon a review of all of the evidence, it is apparent that Vanguard actually granted
Plaintiff’s first request for an accommodation and provided her flexible work hours consistent
with Dr. Keller’s request.
34

Certificate. Plaintiff was not disciplined or criticized for taking advantage of the reasonable
accommodation. She was, however, disciplined for working from home beyond the hours
permitted, and for other reasons. Just two weeks after being granted the accommodation, her
supervisor complained that she had only been in the office three to four hours per day, had not
yet completed any of the tasks assigned to her, and had skipped a meeting. When she did work
from home, she was not available on all Vanguard channels. Based upon this evidence, we are
satisfied that Vanguard provided Plaintiff’s accommodation request. Accordingly, summary
judgment will be granted with respect to Plaintiff’s claims for failure to accommodate.
C.

Retaliation Claim Under ADA, PHRA, and FMLA 14

Plaintiff contends that Defendants retaliated against her by subjecting her to unfair
criticism and discipline and ultimately terminating her after she engaged in various protected
activities. Defendants seek summary judgment on the retaliation claims, arguing the Plaintiff has
failed to show the required causation. The ADA provides that “[n]o person shall discriminate
against any individual because such individual has opposed any act or practice made unlawful by
[the ADA] or because such individual has made a charge . . . under [the ADA].” 42 U.S.C. §
12203(a). Accordingly, “it is unlawful for an employer to retaliate against an employee based
upon the employee’s opposition to anything that is unlawful under the ADA.” Shellenberger v.
Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003). Requesting an accommodation is a
protected activity for purposes of the ADA’s anti-retaliation provision. See id. at 191.

14

The standard to analyze a retaliation claim under the FMLA is the same standard used
to analyze retaliation claims under the ADA. Ozlek v. Potter, 259 F. App’x 417, 423 n.5 (3d Cir.
2007). Similarly, courts use the same standards when analyzing ADA and PHRA claims. Salley
v. Circuit City Stores, Inc., 160 F.3d 977, 979 n.1 (3d Cir. 1998). Accordingly, we will analyze
the claims together.
35

To make out a prima facie case of retaliation under the ADA, a plaintiff must show
(1) protected employee activity, (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity, and (3) a causal relationship between
the protected activity and the adverse action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997). The burden-shifting framework of McDonnell Douglas also applies to ADA
retaliation claims. In all cases involving retaliation, a plaintiff must prove that retaliatory animus
played a role in the employer’s decisionmaking process and that it had a determinative effect on
the outcome of that process. Id. at 501. This burden always remains with the plaintiff. Id.
Plaintiff must first demonstrate that she engaged in a protected employment activity.
“With respect to ‘protected activity,’ the anti-retaliation provision of Title VII protects those who
participate in certain Title VII proceedings (the ‘participation clause’) and those who oppose
discrimination made unlawful by Title VII (the ‘opposition clause’).” Moore v. City of
Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (citation omitted). To constitute a protected
activity, “the employee must hold an objectively reasonable belief, in good faith, that the activity
they oppose is unlawful under Title VII.” Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315, 322 (3d Cir. 2008). 15 In other words, “if no reasonable person could have believed
that the underlying incident complained about constituted unlawful discrimination, then the
complaint is not protected.” Id. In addition, a complaint must be specific enough to put an
employer on notice of the kind of discrimination being alleged. Sanchez v. SunGard Availability
Servs., LP, 362 F. App’x 283, 288 (3d Cir. 2010) (citing Barber v. CSX Distrib. Servs., 68 F.3d
694, 702 (3d Cir. 1995)). Protected activity not only includes formal charges of discrimination,
15

In the Third Circuit, precedent interpreting anti-retaliation provisions under Title VII is
equally applicable to interpreting anti-retaliation provisions under the ADA. E.E.O.C. v. Allstate
Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (citing Fogleman v. Mercy Hosp., Inc., 283 F.3d 561,
567-68 (3d Cir. 2002)).
36

but also “informal protests of discriminatory employment practices” and “making complaints to
management.” Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135
(3d Cir. 2006).
Here, Plaintiff lists thirteen instances where she believes she engaged in a protected
employment activity. Specifically, she lists as protected activities: (1) her disclosure to Morelli
that she suffered from depression in early 2012; (2) her complaints of bullying and unfair
treatment in the Open Channel Message in October 2013; (3) her request for accommodation in
January 2013; (4) her decision to take FMLA leave; (5) her subsequent request for
accommodation upon returning from FMLA leave in June 2014; (6) her complaint to Cook in
January 2013 that she felt she was being discriminated against; (7) her complaint to McCann in
July 2014 that she felt she was being discriminated against; and (8) six verbal or written
complaints of discrimination that she made to Chigullapalli or Sabin, which occurred in
December 2013, and February and March 2014. (Pl.’s Resp. 19-20.)
With regard to the first alleged protected activity, there are no allegations in the
Complaint that Plaintiff engaged in protected activity and was subjected to a subsequent adverse
employment action during the time that Morelli was her supervisor. (See Compl. ¶¶ 30-37.) In
any event, simply disclosing that you have a disability is not engaging in a protected activity
because it is neither an act of participating in a proceeding under the ADA, nor an opposition to
discrimination made unlawful by the ADA. Therefore, Plaintiff’s disclosure to Morelli that she
suffered from depression is not a protected activity. Plaintiff’s Open Channel Message also does
not constitute a protected activity. A review of the Message reveals that Plaintiff complained
generally about what she believed was unfair treatment and bullying. However, she did not
specifically tie that treatment to her disability. This is insufficient to constitute a protected

37

activity. See Curay-Cramer, 450 F.3d at 135 (“A general complaint of unfair treatment is
insufficient to establish protected activity under Title VII.”); Barber, 68 F.3d at 701 (concluding
that the plaintiff’s letter to human resources, which complained about unfair treatment in general,
and not about discrimination specifically, did not constitute a protected employment activity for
the plaintiff’s retaliation claim).
The remaining examples provided by Plaintiff—her request for FMLA leave, her
requests for reasonable accommodations, and her complaints to management and HR about
discrimination—constitute protected activities for purpose of her retaliation claims. See Erdman
v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009) (holding that a request for FMLA leave
may constitute a protected activity); Shellenberger, 218 F.3d at 191 (holding that a request for a
reasonable accommodation constitutes a protected activity); Daniels v. Sch. Dist. of Phila., 776
F.3d 181, 193 (3d Cir. 2015) (observing that protected activity includes “informal protests of
discriminatory employment practices, including making complaints to management”) (citation
omitted).
Next, Plaintiff must prove that that she suffered an adverse employment action. To
constitute an adverse employment action, Plaintiff must show that a reasonable employee would
have found that the challenged actions were “‘materially adverse’ in that they ‘well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Moore,
461 F.3d at 341 (quoting Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)).
This is an objective standard. We must evaluate the challenged action “from the perspective of a
reasonable person in plaintiff’s position, considering all of the circumstances.” Burlington, 548
U.S. at 68.

38

Plaintiff lists the following adverse employment actions to satisfy the second element of
her retaliation claims: (1) a November 6, 2013 meeting with Chigullapalli and Sabin to discuss
performance deficiencies and expectations; 16 (2) the revocation of her work-from-home
privileges in January 2014; 17 (3) the January 13, 2014 Written Warning; (4) her January 30, 2014
meeting with Sabin, where he “scolded” her and threatened further disciplinary action for
confronting co-workers about their feedback of her to Chigullapalli; (5) the June 17, 2014
Formal Warning, which was issued fifteen days after returning from FMLA leave; (6) the June
27, 2014 Midyear Update, which was issued less than four weeks after return from FMLA leave;
and (7) her termination on August 1, 2014. 18
Finally, Plaintiff must demonstrate a causal connection between the protected activity and
the adverse action. “A causal connection may be established by showing an unusually
suggestive temporal proximity between the protected conduct and the adverse action or a pattern
of antagonism coupled with timing.” Emmett v. Kwik Lok Corp., 528 F. App’x 257, 262 (3d Cir.

16

Plaintiff contends that the meeting took place on October 31, 2013. The evidence does
not support this. The meeting on October 31 was with Sabin only. The meeting on November 6
was with both Sabin and Chigullapalli.
17

Plaintiff again mischaracterizes the evidence in the record. The evidence shows that
Plaintiff’s work-from-home privileges were revoked in January 2014, not in November 2013.
18

Plaintiff also lists other employment actions that do not qualify as adverse employment
actions for purposes of her retaliation claims. For example, Morelli’s rating of “further
development needed” in the 2012 year-end Appraisal was not an adverse employment action
because Plaintiff had not yet complained about any discriminatory treatment. Chigullapalli’s
decision to document Plaintiff’s weekly performance feedback is not materially adverse; it was
simply an attempt by her supervisor to provide clear guidance for her improvement.
Chigullapalli’s March 12, 2014 message to Sabin, notifying him of Plaintiff’s performance
deficiencies was similarly not materially adverse because Plaintiff was not aware that it was sent,
and thus it could not have dissuaded a reasonable worker from making a claim of discrimination.
Finally, Sabin’s suggestion to reset the sixty-day period on Plaintiff’s written alert when she
returned from FMLA leave was not an adverse employment action because the period was never
reset.
39

2013) (citation omitted). Plaintiff argues that causal connection is shown both by the temporal
proximity between the protected activity and the adverse employment action, and by a pattern of
antagonism from Vanguard that came in the form of discipline, negative evaluations, and
warnings.
With respect to the timing, “temporal proximity between the employee’s protected
activity and the alleged retaliatory action may satisfy the causal link element of a prima facie
retaliation claim, at least where the timing is unusually suggestive of retaliatory motive.” Verma
v. Univ. of Pa., 533 F. App’x 115, 119 (3d Cir. 2013) (citation omitted). Here, Plaintiff contends
that the timing is suspicious due to the short intervals between pairings of protected activities and
adverse actions. It is true that some of the examples of adverse actions come within weeks of the
protected activity. However, Plaintiff ignores a critical flaw in this argument. All of the adverse
employment actions involve discipline for poor performance that began long before Plaintiff first
engaged in a protected activity. The Third Circuit has “declined to infer such a causal link where
the employee’s negative performance evaluations pre-dated any protected activity.” Verma, 533
F. App’x at 119.
Plaintiff’s first protected activity occurred on December 2013 when she complained to
Sabin that she believed Chigullapalli was attempting to have her fired, and that he showed no
concern for her disabilities. However, Plaintiff’s long documented history of performance
deficiencies began as early as December 2012, when she received a “further development
needed” from Morelli on her year-end Appraisal. Morelli had complained about Plaintiff’s
attendance issues, and that Plaintiff was not producing timely design concepts, arriving late to
work, and failing to communicate her whereabouts to her teammates. These concerns continued
throughout 2013, and through the transition to a new supervisor. Plaintiff’s performance issues

40

persisted under Chigullapalli. In June 2013, Chigullapalli received complaints from project
managers that Plaintiff never attended project meetings, was not open to feedback on her
designs, and was untimely with her designs. In addition, Plaintiff received several
“developmental areas” on Chigullapalli’s June 2013 Midyear Update, which included
communication, availability, and attendance.
The evidence shows that each adverse employment action alleged by Plaintiff was in
response to performance issues that arose prior to Plaintiff engaging in any protected activity.
The evidence also reveals that despite much effort by Vanguard, Plaintiff did not improve, and
indeed, at times was defiant. Plaintiff’s long history of performance issues undermines her claim
that temporal proximity reveals an inference of discrimination. See Verma, 533 F. App’x at 119
(affirming dismissal of retaliation claim where the plaintiff began receiving negative evaluations
prior to the protected activity); Tahiliani v. Bayer Corp., 170 F. App’x 215, 217 (3d Cir. 2006)
(affirming dismissal of retaliation claim due to lack of causal connection, in part, because the
plaintiff’s negative evaluation was based on a failure to address issues raised in prior
evaluations); Gairloch v. Pa. State Univ., 84 F. Supp. 3d 407, 420 (M.D. Pa. 2015) (concluding
that there was no causal connection between protected activity and adverse employment action
where plaintiff’s performance failures and subsequent termination were based on issues “that
were documented as problematic before [plaintiff] engaged in protected activities”).
Where temporal proximity is not unusually suggestive, Courts consider whether viewing
the evidence as a whole, including evidence of intervening antagonism, nevertheless raises an
inference of discrimination. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232
(3d Cir. 2007). Plaintiff argues that a pattern of antagonism stretched over a period of years and
encompassed written and verbal warnings and negative performance reviews, which all closely

41

followed complaints of harassment, discrimination, and retaliation. However, Vanguard’s
ongoing discipline—whether expressed to Plaintiff during meetings, or in writing through
performance evaluations, written warnings or formal warnings—was merely a response to
performance concerns that had arisen prior to any protected activity, and prior to Vanguard even
knowing that Plaintiff suffered from disabilities. See Lackey v. Heart of Lancaster Reg’l
Med.Ctr., No. 16-415, 2016 U.S. Dist. LEXIS 134215, at *21-23 (E.D. Pa. Sept. 29, 2016)
(granting summary judgment on retaliation claim where the ongoing antagonism was merely a
response to the plaintiff’s “long, ongoing history of substandard work evaluations and written
warnings.”). Based upon a review of the record as a whole, we are satisfied that the evidence
does not show a causal connection between Plaintiff’s protected activities and the alleged
adverse employment actions. Plaintiff has failed to make out a prima facie case of retaliation.
Accordingly, summary judgment will be granted on these claims.
D.

Harassment Claims under ADA and PHRA

Finally, Defendants seek summary judgment on Plaintiff’s harassment claims under the
ADA and the PHRA. A harassment claim under the ADA and the PHRA requires Plaintiff to
show that:
(1) [she] is a qualified individual with a disability under the ADA; (2) she was
subject to unwelcome harassment; (3) the harassment was based on her disability
or request for an accommodation; (4) the harassment was sufficiently severe or
pervasive to alter the conditions of her employment and to create an abusive
working environment; and (5) that [the employer] knew or should have known of
the harassment and failed to take prompt effective remedial action.
Walton, 168 F.3d at 667.
Defendants argue that Plaintiff has failed to present evidence that satisfies the third or
fourth prongs of the standard. Specifically, Defendants contend that Plaintiff’s few examples of
unpleasant interactions with co-workers do not amount to harassment because they were not
42

based on discriminatory animus. In her Response, Plaintiff does not address Defendants’
arguments with respect to her harassment claims. We presume that Plaintiff has therefore
abandoned these claims. However, even if she did not abandon these claims, summary judgment
is nevertheless appropriate.
Plaintiff makes few allegations in support of her harassment claims. One allegation is
that an employee made a disparaging remark about people with disabilities. Plaintiff testified
that she overheard a male employee making fun of someone by stating that they had narcissistic
personality disorder. (Brown Dep. 158-59.) She also testified that, after she returned from
FMLA leave, another male employee approached her and joked that he only needed a note from
his doctor to take a long vacation. (Id. at 161.) The first remark was not based on Plaintiff’s
disability, and therefore does not meet the standard for harassment. In fact, Plaintiff testified that
she never heard anyone at Vanguard express any bias towards people who suffered from
depression. The second remark does not rise to the level of severe or pervasive conduct that
would alter the conditions of employment or create an abusive working environment. See Kidd
v. MBNA Am. Bank, N.A., 93 F. App’x 399, 402 (3d Cir. 2004) (affirming grant of summary
judgment on hostile work environment claim, and holding that a few isolated, albeit “obnoxious”
comments from a coworker “does not establish that discrimination was pervasive and regular”).
Plaintiff also alleges that two of her co-workers—Jones and Gibson—were “abusive” to
her because they were unkind. Jones was “snippy” with Plaintiff, questioned her design
knowledge, and acted unprofessionally and belittling towards Plaintiff. (Crew Relations Session
69343; Brown Dep. 180-83.) Gibson “ripped apart” one of Plaintiff’s designs, questioned
Plaintiff’s design knowledge, and took over a project that was assigned to Plaintiff. (Crew
Relations Session 69343; Brown Dep. 184-86.) Neither of these individuals said anything to

43

Plaintiff suggesting a bias towards her disability. (Brown Dep. 183, 187.) Although their
conduct may have been unkind, it does not constitute harassment. See Walton, 168 F.3d at 667
(holding that harassment must be based on the disability).
Plaintiff also alleges that Chigullapalli’s conduct toward her constituted harassment.
Specifically, she alleges that Chigullapalli frequently walked by her desk to see if she was there,
made false accusations about her performance in her reviews, ignored positive comments from
her co-workers about her performance, removed her work-from-home privilege, and criticized
her work. (Brown Dep. 187-192.) All of these allegations, by their nature, do not involve
harassment that is related to Plaintiff’s disability. In fact, Plaintiff did not recall Chigullapalli
ever saying anything negative about her disabilities. All of Plaintiff’s allegations concerning
Chigullapalli reveal his attempt to hold Plaintiff accountable for performance deficiencies.
Defendants contend that the record “reflects a patient, professional, and meticulous attempt by
Chigullapalli to hold [Plaintiff] accountable for her performance deficiencies and coach her to
improve.” (Defs.’ Mem. 31.) We agree with this characterization. At most, Plaintiff has alleged
a complicated relationship between herself and her supervisor. However, this is not actionable
under the ADA. See Walton, 168 F.3d at 667 (“Although it is clear that the relationship between
[plaintiff] and [her supervisor] was poor, [she] has not asserted facts that would allow a
reasonable jury to find that [her supervisor] harassed her because of her disability.”).
Accordingly, summary judgment will also be granted with respect to Plaintiff’s claims for
harassment.

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IV.

CONCLUSION
For these reasons, Defendants’ Motion for Summary Judgment will be granted.
An appropriate Order follows.

BY THE COURT:

__________________________
R. BARCLAY SURRICK, J.

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