PALMER v. FEDERAL EXPRESS CORPORATION

Filing 53

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum and Order filed herewith, Defendant FedEx's Motion for Summary Judgment (Doc. 39 ) is GRANTED. Signed by Judge Cathy Bissoon on 12/30/16. (jwr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JERAE PALMER,
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
also known as FEDEX EXPRESS,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 15-202
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
For the reasons that follow, Defendant’s Motion for Summary Judgment (Doc. 39)
will be granted.
Jerae Palmer (“Palmer” or “Plaintiff”) brings this lawsuit against Federal Express
Corporation (“FedEx” or “Defendant”), under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12112, et seq., the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, as
amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a, 1 and the Pennsylvania Human
Relations Act (“PHRA”), 43 Pa. Stat. §§ 951-963, alleging discrimination because of sex,
including termination and harassment, in violation of Title VII (Count I), (Doc. 1 at ¶¶ 15-33),
and the PHRA 2 (Count III), (Doc. 1 at ¶ 49), and alleging failure to reasonably accommodate and

1

Defendant mistakenly moves for summary judgment on a claim under § 1981, which relates to
race discrimination, as opposed to 42 U.S.C. § 1981a, cited in the Complaint, which is part of the
1991 amendments to Title VII. Plaintiff makes clear in her brief in opposition that she does not
pursue any § 1981 claim. (Doc. 50 at 14).
2
Plaintiff does not assert in her Complaint a claim under the PHRA for disability discrimination.

retaliatory termination for requesting a reasonable accommodation in violation of the ADA.
(Count II). (Doc. 1 at ¶¶ 34-47).
BACKGROUND 3
Palmer worked as a courier at FedEx’s AGCA station in the Three Rivers District from
2004 until her termination on March 31, 2011. (ASOF at ¶ 1). 4 At the beginning of her
employment with FedEx, she signed an employment agreement, which provides: “To the extent
the law allows an employee to bring legal action against FedEx Express, I agree to bring that
complaint within the time prescribed by law or 6 months from the date of the event forming the
basis of my lawsuit, whichever expires first.” (ASOF at ¶ 2).
Plaintiff received review ratings on a seven point scale of 6.5 in 2007, 6.1 in 2008 and 5.6
in 2009, but did not receive any performance reviews after 2009. (PSOF at ¶ 43, 44). 5 Plaintiff
did, however, receive praise in the form of an online compliment on July 22, 2010, stating that
she “did [an] outstanding job with all of her BP methods. Jerae’s pace was perfect. She was
very professional and polite to all of her customers thanking them all for their business. Thank
you Jerae for delivering the purple promise to all of your customers.” (PSOF at ¶ 32; Doc. 50-2
at 3).
During her employment with FedEx, Palmer was out on workers’ compensation leave on
several separate occasions due to work related injuries: from February 15, 2007 though April 3,

3

The factual background is derived from the undisputed evidence of record and the disputed
evidence viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”).
4
The Statement of Undisputed Material Facts admitted to by Plaintiff are referred to as “ASOF
at ¶ ___”.
5
In response to Defendant’s motion, Plaintiff filed her Concise Statement of Facts referred to as
“PSOF at ¶ ___; (Doc. No. 48).
2

2007, due to frostbite (PSOF at ¶ 43); from January 28, 2009 through April 13, 2009, due to
frostbite (PSOF at ¶ 44); from May 3, 2010 through July 8, 2010, and from December 23, 2010
through March 3, 2011, due to a head injury (PSOF at ¶ 45).
FedEx has a policy entitled “Acceptable Conduct Policy” (hereinafter “conduct policy”).
(ASOF at ¶ 4; Doc. 41 Ex. A). The policy provides guidelines for conduct and identifies conduct
subject to serious disciplinary action, up to and including termination. (ASOF at ¶ 4, 5); Doc. 41
Ex. A. The conduct policy also prohibits the use of violent, threatening, intimidating, coercing
or abusive language or displaying blatant disrespect toward or about any employee. (ASOF at
¶ 5). Plaintiff read the policy to understand what was considered acceptable conduct. (ASOF at
¶ 6).
FedEx also has a policy entitled “Performance Improvement Policy” (hereinafter
“performance policy”). (ASOF at ¶ 7). Under the performance policy, employees may be given
documented counselings, performance reminders and warning letters. (Doc. 41 at 8, 9, 17, 19).
FedEx refers to counseling notices as OLCCs. (ASOF at ¶ 8). As provided in the performance
policy, “[a] documented counseling/OLCC entry is not disciplinary in nature, but it may be
considered as a factor when determining whether discipline (i.e., Warning Letter, Performance
Reminder, termination, etc.) is warranted.” (Doc. 41, Ex. B at 117).
The performance policy further provides that:
Termination normally results upon receipt of
•
•
•

Three unsatisfactory performance reviews, or
Three performance reminders, or
a combination of any type of notification (including warning
letters for misconduct) totaling three within a 12-month period.
***

3

Termination Option Not exercised. If a manager chooses not to
discharge an employee who has three notifications of deficiency, the
manager must prepare a written explanation of the rationale and maintain
it in a department/station file. An information copy must be sent to the
matrix HR manager.
Id. at 120. Thus, according to the policy, although termination normally results it is not
mandatory for three notifications.
FedEx also has a procedure entitled “Guaranteed Fair Treatment Procedure/Internal EEO
Complaint Process.” (Doc. 41, Ex. C); (ASOF at ¶ 9). The Guaranteed Fair Treatment
Procedure (“GFTP”) is the internal procedure used by FedEx to handle employee complaints
regarding discipline and other issues, which include application of compensation and benefit
policies, terminations, performance review and work assignments presumed to be either unsafe
or for which training has not been provided. (ASOF at ¶ 10). A complaint made through GFTP
must be submitted electronically within five calendar days of the challenged event or occurrence.
(ASOF at ¶ 10). The procedure states: “All complaints will be promptly and thoroughly
investigated as a confidential a manner as possible.” (Doc. 41, Ex. C at 338); (ASOF at ¶ 11).
If an employee believed that they have been subjected to discrimination, they could file
an Internal Equal Employment Opportunity (“IEEO”) Complaint. (ASOF at ¶ 11). Anytime
Plaintiff expressed a “complaint” or complained of discrimination she was provided the
appropriate paperwork for pursuing a formal IEEO complaint. (ASOF at ¶ 12; PSOF at ¶ 48).
For example, Plaintiff was provided the appropriate EEO paperwork on five separate occasions:
March 2005, when she informed management that she “felt” intimidated by a discussion from a
fellow employee; October 2005 when she notified management about the use of profanity by
fellow employees; October 2005 when she felt that “Rad” in dispatch treated her differently than
“other employees,” presumably males; May 2007 when she felt discriminated against on the

4

distribution of hours; and August 2010 when she stated she felt she had a target on her back
since her head injury. (PSOF at ¶ 33-37, 47, 48); Doc. 50-2 at 6. At no time did she pursue the
formal EEO complaint process. (ASOF at ¶ 12.)
Between February 22, 2010, and her termination date of March 31, 2011, FedEx issued
three warning letters to Plaintiff: February 22, 2010 for unprofessional messages and behavior
directed at the dispatch department, (ASOF at ¶ 13); July 9, 2010 for unacceptable actions and
communications with a Safety Specialist, (ASOF at ¶ 14); and finally, March 31, 2011 for her
conduct on or about March 23, 2011, yelling at another employee, calling him a “nebsh*t” and
telling him “mind your damn business.” (ASOF at ¶ 16). The Court will address the specific
conduct leading to the warning letters more fully in its analysis.
On March 31, 2011, FedEx issued the third warning to Plaintiff by inter-office
memorandum from Operations Manager Brian Stashak and copied to Senior Manager Jean
Peluso and Human Resources Manager Bernice Boyden. (Doc. 44-1 at 27; Doc. 49 at ¶ 21). The
third warning letter indicated the following:
•
•
•
•
•

Plaintiff violated the Acceptable Conduct Policy on March 23, 2011
The March 31, 2011 Warning Letter represented the Plaintiff’s third notifications of
deficiency, citing to the prior two
Under FedEx policy, a recurrent pattern of misconduct consists of at least two
occurrences of the same or similar conduct in the past 5 years
Under FedEx policy, recurrent patterns of misconduct cannot be tolerated and three
notifications of deficiency within a twelve-month period normally results in
termination
Plaintiff’s employment was being terminated effective immediately.

(Doc. 44-1 at 27).
Pursuant to FedEx’s termination policy, termination decisions are made collectively by
two levels of management and a human resources advisor. (ASOF at ¶ 20). Plaintiff does not
dispute that she was terminated for receiving three disciplinary notices in a twelve month period.
5

(ASOF at ¶ 19). It also is undisputed that numerous male employees in the Three Rivers District
also had been terminated for receiving three disciplinary notices within a twelve month period.
(ASOF at ¶ 22).
Plaintiff did not suffer any migraines from 2005, until she suffered a head injury in April
of 2010. (Doc. 49 at ¶ 24). Plaintiff testified that she had approximately 20 migraines a month
at one point when she was not working, but after she returned to work the last time in March of
2011 that she “was down to only a couple” of migraines a month or “maybe one a week.” (Doc.
38 at 9, 65-66). Her migraines did not cause her to miss work or school and she was able to
engage in normal daily activities, such as bike riding, walking, and shopping. (Doc. 38 at 19,
66).
On September 28, 2011, Plaintiff went to the EEOC and filled out an intake
questionnaire, and was directed to return on October 14, 2011. (PSOF at ¶¶ 29, 30). Plaintiff’s
“official” Charge of Discrimination was filed with the Equal Employment Opportunity
Commission (“EEOC”) on October 14, 2011, (ASOF at ¶ 26), wherein she lists the date of
discrimination as November 20, 2010, at the earliest and March 31, 2011, at the latest (ASOF at
¶ 27; Doc. No. 44-2 at 39), but did not check the box indicate a continuing action. (ASOF at ¶
27; Doc. 44-2 at 39). After receiving a right to sue letter, Plaintiff filed the instant action on
February 15, 2015, almost four years after her termination. (See Doc. 1); (ASOF at ¶ 3).
SUMMARY JUDGMENT STANDARD
Plaintiff incorrectly indicates that for purposes of the present motion for summary
judgment she “is entitled to the presumption that everything plead in the complaint is true and to
every inference that may be drawn therefrom.” (Doc. 50 at 1). Plaintiff conflates the motion to
dismiss standard with the summary judgment standard. Compare U.S. Express Lines Ltd. v.

6

Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (accepting as true all well-pled factual allegations in
the complaint and viewing them in a light most favorable to the plaintiff), with Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff cannot rest on mere allegations, but must
come forward with evidence). On summary judgment, the court considers the evidentiary
materials and factual record and is “required to view the facts and draw reasonable inferences in
the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris,
550 U.S. 372, 378 (2007) (internal quotation marks and alterations omitted). See also Doe v.
Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001) (when applying this standard, the court
must examine the factual record and make reasonable inferences therefrom in the light most
favorable to the opposing party).
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). The moving party need
not produce any evidence showing the absence of a genuine issue of material fact. Id. at 325.
“Instead, … the burden on the moving party may be discharged by ‘showing’ – that is, pointing
out to the district court – that there is an absence of evidence to support the nonmoving party’s
case.” Id. After the moving party has satisfied this low burden, the nonmoving party must
provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id. at
324. “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds
of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Id. See
also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Garcia v. Kimmell, 381 F. App’x

7

211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(the non-moving party “must present more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue.”)). Ultimately,“[w]here 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 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
ANALYSIS
Defendant makes a myriad of arguments as to why the Court should grant its motion for
summary judgment. Specifically, Defendant argues that (a) Palmer’s claims are time-barred
because the action was filed more than six months after the events forming the basis of the
lawsuit, as required by her employment contract with Defendant; (b) all of her claims, except for
those challenging the denial of accommodation based on her March 2011 request and her March
2011 termination are untimely under Title VII, the ADA and the PHRA; (c) she is not disabled
and therefore not entitled to relief under the ADA; (d) she cannot show that she was treated less
favorably than similarly situated male employees and thus cannot establish a prima facie case of
sex discrimination; (e) she cannot show a causal connection between her request for reasonable
accommodation and any adverse employment action; and (f) she cannot show that the legitimate
non-discriminatory reasons proffered by Defendant for any adverse employment action were
pretextual. (Doc. 40 at 1, Doc. 52 at 4). The Court will address each argument in turn.
Citing Cole v. Federal Exp. Corp., Civ. Act. No. 06-3485, 2008 WL 4307090 (E.D. Pa.
Sept. 19, 2008), FedEx argues that because Plaintiff did not file her complaint in federal court
within six months of the challenged activity, her claims, other than for termination and failure to
reasonably accommodate, are barred under the contractual limitations provision in her
employment contract. (Doc. 40 at 4). Contractual limitations periods are not per se
8

unenforceable, however, as Cole observed “[i]t is important to note that many courts have found
that a six-month contractual limitations period does not bar claims pursuant to federal statutes
such as Title VII or the ADA.” 2008 WL 4307090, at *9. Cole found the contractual limitations
period enforceable as to pendant state common law torts but not as to the federal statutory
discrimination claims requiring exhaustion of administrative remedies. Thus, Cole does not
support Defendant’s position, but rather the opposite.
Any individual plaintiff wishing to bring a suit under Title VII or the ADA must first
receive a right to sue notice from the EEOC. 42 U.S.C. § 2000e (f)(1). The EEOC, upon the
filing of a charge of discrimination or retaliation, initially has exclusive jurisdiction over the
matter for one hundred and eighty (180) days. Id. Requiring suit in court within 6 months to
comply with an Employer’s limitations clause would interfere both with the statutory scheme
mandating exhaustion of administrative remedies under Title VII, the ADA and the PHRA and
would result in suits being filed prematurely in federal court, appropriately resulting in dismissal
for failure to exhaust. Shine v. Bayonne Bd. of Educ., 633 F. App’x 820, 824 (3d Cir. 2015)
(affirming dismissal of Title VII claims for failure to exhaust). Thus, Plaintiff’s claims under
Title VII, the ADA and the PHRA are not time-barred under the contractual limitations clause.
Alternatively, FedEx argues that the applicable statute of limitations bars all but
Plaintiff’s claim for discriminatory termination and failure to reasonably accommodate. In a
deferral state like Pennsylvania, to bring a claim under Title VII or the ADA, a plaintiff must file
a charge with the EEOC within 300 days of the alleged unlawful employment practice. 42
U.S.C. § 2000e–5(e)(1).
Plaintiff responds by arguing that (1) although her charge was not filed until October 14,
2011, the Court should consider the date she submitted her hand written intake questionnaire to

9

the EEOC, September 28, 2011, as the relevant date, citing 29 C.F.R. § 1626.3, Holender v.
Mutual Indus. North Inc., 527 F.3d 352, 355 (3d Cir. 2008) and Federal Express Corp. v.
Holowecki, 552 U.S. 389 (2008), and (2) this case presents a continuing violation such that her
challenge here is timely as to all claims. (Doc. 50 at 11-12).
Where the plaintiff’s intake filing includes the information required by regulation and
that filing also contains information reasonably construed as a request for the agency to take
remedial action, the intake questionnaire will be considered a “charge” for purposes of
determining timeliness. Holowecki, 552 U.S. at 1157-1158. Plaintiff’s September 28, 2011
intake questionnaire arguably contains all of this required information. Moreover, FedEx does
not appear to contest the use of a December 2, 2010 – 300 days prior to Plaintiff’s intake filing –
as the bar date. (Doc. 52 at 1).
Accordingly, using September 28, 2011 as the date Plaintiff filed a charge, any claim
accruing prior to December 2, 2010 will be time barred, unless it is part of a continuing violation.
Plaintiff argues that her claims are not time-barred under the continuing violation theory,
(Doc. 50 at 10), which “deems a claim timely if any act constituting part of the continuing
violation took place within the statute of limitations.” Henderson v. Borough of Baldwin, Civ.
Act. No. 15-1011, 2016 WL 5106945, at *4 (W.D. Pa. 2016). Nevertheless, “discrete
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). A
discrete act in itself constitutes a separate actionable unlawful employment practice. Id. at 114;
Mikula v. Allegheny County of PA, 583 F.3d 181, 186 n.3 (“As determined by Morgan, the
doctrine does not apply to discrete, completed employment actions.”).
[T]he continuing-violation doctrine . . . is an equitable exception to the timely
filing requirement. In brief, the rule provides that when a defendant's conduct is
10

part of a continuing practice, an action is timely so long as the last act evidencing
the continuing practice falls within the limitations period; in such an instance, the
court will grant relief for the earlier related acts that would otherwise be time
barred. The doctrine's focus is on affirmative acts of the defendant[].
The reach of this doctrine is understandably narrow. [It applies] where only in
retrospect will a plaintiff recognize that seemingly unconnected incidents were, in
fact, part and parcel of a larger discriminatory pattern.
Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014) (internal
quotations and citations omitted).
The Court finds that to the extent Plaintiff challenges any alleged earlier denial of request
for reasonable accommodation it is time barred, as is the challenge to overtime prior to
December 2, 2010. Regarding her assertion of a hostile work environment, discussed infra, if
conduct after December 2, 2010, can fairly be construed as part of a continuing practice, the
claim for conduct prior to that date will not be time-barred. As FedEx concedes, the challenges
to the March 2011 request for reasonable accommodation, to the March 2011 termination, and to
the overtime assignment practices beginning in December 2010, are not time-barred.
Sex Discrimination
Title VII cases not involving direct evidence of discrimination are examined according to
the burden-shifting framework first established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This case does not involve any direct
evidence of discrimination. Therefore, the familiar burden-shifting framework applies.
Plaintiff must first establish a prima facie case of discrimination.
Under this framework, to establish a prima facie case of discrimination, a plaintiff
must show that “1) [she] is a member of a protected class, 2) [she] was qualified
for the position [she] sought to attain or retain, 6 3) [she] suffered an adverse
6

Defendant states in its motion that Plaintiff cannot establish that she was qualified for her job,
but does not make any further argument to support its contention. The Court notes as well that
11

employment action, and (4) the action occurred under circumstances that could
give rise to an inference of intentional discrimination.” Mandel, 706 F.3d at 169
(quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.2008)).
Jones v. Temple Univ., 622 F. App'x 131, 134 (3d Cir. 2015).
Proof of these basic facts raises an inference of discrimination, which is given the
force and effect of a rebuttable presumption. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981). “The means by which a claimant most often satisfies the
[final] element is by showing that she was treated less favorably than similarly situated
employees who are not in the same protected class.” Neidigh v. Select Specialty
Hospital–McKeesport, 150 F. Supp. 3d 573, 577 (W.D. Pa. 2015), aff'd, No. 16-1013,
2016 WL 6996132 (3d Cir. Nov. 30, 2016); Pivirotto v Innovative Systems, Inc., 191
F.3d 344, 357 (3d Cir. 1999).
“Although [the Court of Appeals] has not explicitly stated what constitutes a
similarly situated employee, [it has accepted] the standard used by other circuits
that to be considered similarly situated, comparator employees must be similarly
situated in all relevant respects. Russell v. University of Toledo, 537 F.3d 596
(6th Cir.2008); Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–261 (5th
Cir.2009). A determination of whether employees are similarly situated takes into
account factors such as the employees' job responsibilities, the supervisors and
decision-makers, and the nature of the misconduct engaged in.
Wilcher v. Postmaster Gen., 441 F. App'x 879, 881–82 (3d Cir. 2011).
Once a plaintiff has made a prima facie case, the burden shifts to the defendant to
articulate a legitimate non-discriminatory reason for the adverse action. Makky, 541 F.3d at
214; Jones, 622 F. App’x at 134. A plaintiff then has the burden to show pretext—that the
legitimate non-discriminatory reason is a pretext for unlawful discrimination. Makky, 541 F.3d
at 214.
Plaintiff was performing her job at the time of her termination. Accordingly, the Court will not
entertain this assertion.
12

FedEx provides evidence of several male employees that were terminated because they
received three notifications in a twelve month work period and two males that were terminated
by FedEx for a single violation, one for a violation of the FedEx anti-harassment policy and one
for violating the policy against “threatening, intimidating, coercing, or abusive language,” for
which Plaintiff also was cited. Plaintiff responds that these male employees are not appropriate
comparators because their violations of the conduct policy were more egregious in nature than
Plaintiff’s. FedEx points to these asserted comparators to counter Plaintiff’s assertions that her
termination was based on sex discrimination. Plaintiff nowhere provides any evidence that
similarly situated male employees were treated more favorably in termination decisions in order
to raise the inference of discrimination. Instead, she simply argues against FedEx’s proffered
comparators. Ultimately, Plaintiff fails to show as part of her prima facie case that similarly
situated male employees were treated more favorably and fails to show circumstances from
which a reasonable jury could infer that her termination was based on sex.
Assuming Plaintiff could establish a prima facie case, because FedEx has articulated a
legitimate non-discriminatory reason for its decision, Plaintiff must show pretext.
In order to substantiate her assertion of pretext, Plaintiff must provide the Court
with sufficient “ ‘evidence, direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action.’ ” Michaels v. BJ's
Wholesale Club, Inc., 604 Fed.Appx. 180, 182 (3d Cir.2015) (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir.1994)). The evidence must allow a factfinder to
infer that Defendant's nondiscriminatory basis for termination of Plaintiff “was
either a post hoc fabrication or otherwise did not actually motivate the
employment action.” Fuentes, 32 F.3d at 764. Moreover, Plaintiff must do more
than demonstrate that Defendant's basis for her termination was incorrect 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.” Id. at 765.

13

Neidigh v. Select Specialty Hospital–McKeesport, 150 F. Supp. 3d 573, 578–79 (W.D. Pa.
2015), aff'd, No. 16-1013, 2016 WL 6996132 (3d Cir. Nov. 30, 2016).
It is axiomatic that Palmer must do more here than show that FedEx’s decision to
terminate her was wrong or mistaken, because the issue is whether FedEx was motivated by
discrimination not whether the decision was “wise, shrewd, prudent, or competent.” Fuentes, 32
F.3d at 765.
Plaintiff claims that FedEx’s failure to properly investigate the circumstances giving rise
to her three qualifying violations of the conduct policy evidenced discrimination based on
gender. (Doc. 50 at 3). The February 2010 incident involved unprofessional conduct with her
dispatcher McKay, with whom she did not get along, (PSOF at ¶ 60), and about whom she had
complained to her manager. Plaintiff appears to argue that the dispatch transmissions underlying
the incident should have been reviewed at the time the warning letter was issued to her. Plaintiff
does not, however, dispute the incident. Moreover, her own notes do not contradict the
transmissions. She asserts that she received a warning letter but McKay did not. McKay,
however, received a performance reminder, which is the functional equivalent of a warning level
under the three notifications in a twelve month period policy. (Doc. 41, Ex. B at 17-20).
Plaintiff fails to demonstrate how the performance reminder, as opposed to a warning letter,
shows discrimination or pretext. If she had been given a performance reminder, it still would
have constituted a “notification” properly used to justify her eventual termination.
The second incident occurred on April 14, 2010, and resulted in a July 9, 2010 warning
letter for inappropriate communications with the safety specialist and failure to operate her
vehicle safely during training. Plaintiff claims this warning letter was discriminatory because (a)
the investigation into the incident began after she suffered a work-related head injury and was
out on workers’ compensation, (b) there were conflicting witness statements regarding the
14

incident and (c) Manager Cooper only requested her statement regarding the incident when she
returned to work on July 9, 2011, just before she was given the written warning. Plaintiff had
little recall of the incident, and does not dispute it. (Doc. 50 at 5). That the investigation began a
few weeks after the incident is not a sufficient lag in time to create an inference of
discrimination. More importantly, the employer resolved any “conflicting” statements in
Plaintiff’s favor—not terminating her (or even citing her) for trying to run over the safety
specialist and assisting employee.
As to the final incident, on March 23, 2011, Plaintiff claims that FedEx failed to
interview a witness she had identified in her written statement. Plaintiff, however, admits that
she in fact called her co-worker, Mike Loresky, a “nebsh*t” and told him “mind your damn
business.” (Doc. 38 at 49). Beyond the asserted failure to interview the witness, she does not
explain how interviewing the witness would have changed the outcome of the investigation or,
more importantly, how failure to interview the witness was discriminatory. The inquiry is not
whether the employer was wise, shrewd or prudent. Simply put, nothing in the manner of
investigating the three incidents raises an inference of discrimination based on sex nor does it
demonstrate pretext.
Plaintiff also contends that her conduct did not rise to the level of “violent, threatening,
intimidating or abusive language or blatant disrespect.” (Doc. 49 at ¶ 22). This, again, misses
the point. Plaintiff is simply unable to show how receiving a warning letter for abusive language
or blatant disrespect where she admittedly called a fellow employee a “nebsh*t” and told him
“mind your damn business” gives rise to an inference of discrimination or pretext. That she
disputes the characterization of the underlying conduct is immaterial.
To avoid summary judgment, Plaintiff must show pretext, not just provide a laundry list

15

of employer actions with which she disagrees.
It is not the function of this court to determine whether defendants' business
judgment in terminating plaintiff was correct. In Watson v. Southeastern
Pennsylvania Transportation Authority, 207 F.3d 207 (3d Cir.2000), the Court of
Appeals for the Third Circuit explained that an employer is permitted “to take an
adverse employment action for a reason that is not ‘true’ in the sense that it is not
objectively correct.” Id. at 222. As an example, the court of appeals stated:
if an employer sincerely believes that an employee has stolen company funds and
discharges the employee for this reason, the employer should not be held liable
under the [employment discrimination statutes in question] just because it turns
out that the employee did not steal the funds and that the employer's reason for the
discharge was in this sense not “true.” Id. The inquiry must focus upon “the
perception of the decision maker.” Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d
Cir.1991). Defendants only needed an honest belief that the incidents occurred.
Watson, 207 F.3d at 222.
Prise v. Alderwoods Grp., Inc., 657 F. Supp. 2d 564, 596 (W.D. Pa. 2009).
Plaintiff argues that there is inconsistent discipline that gives rise to an inference of
discrimination. (Doc. 50 at 9). In support she cites to a number of incidents where she believes
male employees were not sufficiently disciplined or where she received discipline or unfair
treatment where a male coworker did not. The Court will address each briefly and explain why it
is an inadequate comparison.
•

Plaintiff claims courier Mark Bishop yelled at her and threw an 88 lb. package at
her (PSOF at ¶ 57). However, Plaintiff cannot point to any evidence in the record
that shows that the package was thrown at her or her vehicle or that she had
reported same. The evidence merely supports that Bishop tossed packages on the
curb as Plaintiff drove around and that she had reported that Bishop was not very
nice.

•

Plaintiff claims she heard Peluso respond to employee swearing with a mere
verbal warning whereas in 2005 a manager gave Plaintiff an OLCC when it was
alleged that she used profanity with a fellow employee. Yet, Plaintiff fails to
show, or even allege, sex was the basis for the disparate treatment. Plaintiff also
does not account for the fact that two different decision makers were involved in
these incidents.

•

Plaintiff complained about employees smoking too close to the building or in the
trucks and felt those complaints went unanswered. Again, Plaintiff fails to show
how this is remotely connected to her sex.
16

Plaintiff also complains about several other minor workplace events, none of which
support an inference of discrimination:
•

•

•

Plaintiff complains Peluso did not ask her why her eyes were swollen after
Plaintiff finished a shift, even though Defendant’s Performance Improvement
policy that states that before remedial action, the manager should consult with the
employee to determine if any recent traumatic events had occurred. (PSOF at ¶
81). Peluso’s response may have been perceived by Plaintiff as inconsiderate, but
that is insufficient.
Plaintiff asserts, without record evidence, that a male afternoon driver had a truck
assigned to him but she did not. (Doc. 50 at 15). Not only is Plaintiff’s assertion
not supported by any evidence in the record, Plaintiff does not even explain any
of the circumstances as to why the male driver was assigned a dedicated truck.
Moreover, her own EEOC intake questionnaire asserts that a female driver was
given an assigned truck due to asthma. (Doc. 44-2 at 41).
Plaintiff contends that, in August 2010, she reported to management that “she felt
as if she had a target on her back since her work related head injury” and that
senior manager Peluso and Plaintiff’s assigned manager at the time did nothing
more than give her an “EEO packet.” 7 (Doc. 50 at 8). Her “perception” that she
had a target on her back is not “evidence” to show discrimination based on sex, as
pretext or otherwise, particularly because Plaintiff explained that her perception
was due to her workers’ compensation injury, not due to her sex. (Doc. 50-2 at
26). Even so, that management provided her with appropriate EEO paperwork to
file a formal complaint, which she again chose not to pursue, does not tend to
show any discrimination on the part of FedEx. The Court agrees with Plaintiff
that Defendant’s voluntary EEO process does not shield it from liability here.
(Doc. 50 at 8). However, that Plaintiff chose not to provide evidence or further
documentation or explanation regarding her amorphous claims, cannot create
liability.

In addition to discriminatory termination, Plaintiff claims discrimination in the
assignment of overtime hours. A loss in overtime constitutes an adverse action under Title VII
as it affects an employee’s “compensation, terms, conditions or privileges of employment.” 42
7

Plaintiff also points to numerous other occasions she was given an “EEO packet” when she
voiced various complaints. She seemingly cries foul because FedEx did nothing further than
giving her an EEO packet in various circumstances, however, she admittedly never filled out an
EEO packet and submitted it to FedEx. The giving of a voluntary EEO packet or the failure to
give a voluntary EEO packet does not evidence unlawful discrimination or pretext.
17

U.S.C. §2002e-2; Albright v. City of Philadelphia, 399 F. Supp. 2d 575, 587 (E.D. Pa. 2005)
(“Lack of overtime opportunities, which provide significant compensation for many police
officers, is a form of reduction in compensation.”); see also Bass v. Bd. of County Com’rs,
Orange County, Fla., 256 F.3d 1095, 1118 (11th Cir. 2001). A claim for discrimination in
overtime requires a plaintiff show that the lack of overtime hours received was motivated by
discriminatory animus. Stewart v. Union County Board of Education, 655 F. App’x 151, 158 (3d
Cir. 2016).
The crux of Plaintiff’s overtime claim is that she did not know about the overtime sign-up
until she complained and her manager Stashak explained the procedure to her. Again, however,
she provides no evidence that there was any discriminatory basis for Plaintiff’s lack of
knowledge of the procedure—i.e., that men wore told the procedure and women were not or that
the sign-up sheet was hidden and placed only where male employees knew where to find it.
Likewise, Stashak’s response reveals no evidence of discrimination as he promptly showed her
the overtime forms and explained their use.
In support of her position that this is sex discrimination, Plaintiff points to three male
employees who she claims received more overtime hours than she. Plaintiff also argues, without
record evidence, that she had more seniority than male employees Robert Morgan, Dave Flack
and Guy Guarino, (Doc. 50 at 9), and therefore, should have received more overtime than they
did.
She summarizes overtime hours of three males as follows:
•
•
•

Robert Morgan received 7 days more overtime from 8/29/10 through 3/23/2011
Dave Flack received 69 days more overtime from 1/20/08 through 3/23/2011
Guy Guarino received 12 days more overtime from 10/15/08 through 3/23/2011

18

(Doc. 48 at ¶ 40). Plaintiff offers that her “summary” gave “consideration” 8 to time she was out
on workers’ compensation, (Doc. 50 at 10 n. 2), but admits that she did not account for periods
during which she was on vacation, id., and thus, would not have worked overtime. It also is
unclear whether her summary accounts for the four weeks after her return from workers’
compensation leave for which she admittedly would not been able to sign up, (Doc. 50 at 10), or
includes weeks when she actually chose to sign up on the required form. As she did not begin
using the sign-up sheets until the week ending November 10, 2010, (Doc. No. 50 at 10), the
summary regarding time in 2009 and until approximately December 2010 could not represent a
comparison of similarly situated individuals. Moreover, any challenge to overtime assignment
prior to December 2, 2011 is time-barred as indicated supra.
Notably, the record demonstrates that for the week ending December 4, 2010, she had
more overtime than her comparator Morgan, that for the week ending December 11, 2010, she
had more overtime than comparators Morgan and Flack, and that for the week ending December
18, 2010, she had more overtime than comparators Morgan and Guarino. Additionally, she went
out on workers’ compensation leave beginning December 23, 2010 and returned on March 3,
2011. (Doc. 50-2 at 21-22). As Plaintiff indicated, she would not have been able to sign up for
overtime occurring until four weeks after her return to duty. Thus, for the conceivably relevant
weeks within the limitations period as reflected in the documents on which she bases her
summary, she had more overtime than her chosen male comparator Morgan. For this reason and
for the reasons articulated above, consideration of these records simply cannot create any
inference of discrimination in overtime assignment for the relevant period.

8

The Court will presume that by “consideration” Plaintiff means that she eliminated that time
from comparison in calculating how much more overtime the three males received.
19

Thus, Plaintiff cannot provide any evidence to show circumstances giving rise to an
inference of discrimination as part of a prima facie case of discrimination in overtime nor does
she show pretext in the reasons proffered by FedEx—that Plaintiff had not signed up for
overtime on the posted form and that overtime was often assigned based on familiarity with
particular routes. Plaintiff’s claim that she was denied overtime fails both as to the prima facie
case and as to pretext. Accordingly, the Court will grant summary judgment on the alleged
discriminatory overtime claim.
Sexual Harassment
In order to prove that she suffered a hostile work environment, Plaintiff must show “that
her workplace was ‘permeated with discriminatory intimidation, ridicule, and insult that [was]
sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive
working environment.’” Peace-Wickham v. Walls, 409 F. App'x 512, 519 (3d Cir. 2010)
(quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d
106 (2002) (quotations omitted)). “[O]ffhanded comments and isolated incidents (unless
extremely serious) are not sufficient to sustain a hostile work environment claim. Rather, the
conduct must be extreme to amount to a change in the terms and conditions of employment.”
Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (internal quotations and citations
omitted). It is insufficient to show offensive conduct or that the conduct was such that it
rendered Plaintiff’s worklife unpleasant or uncomfortable. McClendon v. Dougherty, 2011 WL
677481, *8 (W.D. Pa. Feb. 15, 2011). Where there is evidence of epithets or sexist remarks,
“[t]he mere utterance of [same] which engenders offensive feelings in an employee, is not
sufficiently significant as to effect the conditions of employment and thereby violate Title VII.”
Id. (citations omitted).

20

Plaintiff claims that she felt “harassed,” that her dispatcher McKay was rude to her, that
her complaints were treated dismissively and that she was told at one point to “go away” from
behind closed doors. Plaintiff’s evidence is woefully inadequate for a reasonable jury to find a
hostile work environment based on sex. The anti-discrimination laws, such as Title VII and the
PHRA, do not guarantee a utopian workplace or one that is free from strife. Fichter v. AMG
Res. Corp., 528 F. App’x 225, 231 (3d Cir. 2013). Faragher v City of Boca Raton, 524 U.S. 775,
788 (1998) (stringent standard is adopted to filter out ordinary tribulations because Title VII is
not a civility code); Fichter, 528 F. App’x at 231 (utopian workplace is not the goal of Title VII);
Potter, 435 F.3d 451 (citing Faragher, 524 U.S. at 788) (Title VII does not “mandate a happy
workplace. Occasional insults, teasing, or episodic instances of ridicule are not enough.”);
Solomon v. Caritas, No. CV 15-4050, 2016 WL 4493193, at *7 (E.D. Pa. Aug. 26, 2016).
Rather, Title VII protects an employee from [sex] discrimination in the
workplace, which includes freedom from a racially-hostile work environment [or
a hostile work environment based on sex]. If the workplace is unpleasant, or even
revolting, for any reason other than hostility generated . . . on account of an
employee's membership in a protected class under Title VII, then the hostile
environment fails to implicate a federal claim. In short, personality conflicts
between employees are not the business of the federal courts.
Hoist v. N.J., No. CIV.A. 12-5370 FLW L, 2015 WL 4773275, at *22 (D.N.J. Aug. 13, 2015),
aff'd, 642 F. App'x 169 (3d Cir. 2016) (internal quotations omitted).
Mandel instructs:
To determine whether an environment is hostile, a court must consider the totality
of the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126
L.Ed.2d 295 (1993); see also Caver v. City of Trenton, 420 F.3d 243, 262–63 (3d
Cir.2005) (“[A] discrimination analysis must concentrate not on individual
incidents, but on the overall scenario.”).
Mandel v. M&Q Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013).
21

Here, considering the totality of the circumstances, at most, Plaintiff can show that
certain employees were rude and perhaps dismissive regarding her concerns, but that is
insufficient to constitute a hostile work environment based on conduct that is severe and
pervasive, much less based on sex.
Moreover, Plaintiff’s harassment claim is time barred. The “isolated” instances of
rudeness complained of by Plaintiff do not constitute a pattern of related behavior,
discriminatory or otherwise to qualify as a continuing violation. Plaintiff also has not offered
evidence to show that the acts alleged before and after the claims bar date of December 2, 2010,
are or could in anyway be connected, other than that they happened to her. See Stough v.
Conductive Technologies, Inc., 613 F. App’x 145, 148 n. 2 (3d Cir. 2015). Accordingly, the
Court will grant summary judgment on Plaintiff’s claim for harassment as there is insufficient
evidence from which a reasonable jury could find severe or pervasive conduct altering her work
conditions based on sex and it is untimely.
Disability Discrimination
Plaintiff additionally contends that she is disabled due to migraine headaches and that she
was discriminated against on the basis of that disability. She claims that because sharing trucks
with other drivers could trigger her migraines, due to the potential for cigarette smoke odor, she
requested and was denied an accommodation of a personal truck. (ASOF at ¶ 23).
Plaintiff’s claims under the ADA are twofold: (1) she claims liability for the failure to
reasonably accommodate; and (2) she claims liability for retaliation in response to her request for
a reasonable accommodation. FedEx argues that Plaintiff is not disabled within the meaning of
the ADA, and thus, it is not liable under the ADA for the asserted failure to provide a reasonable

22

accommodation. FedEx additionally argues that Plaintiff cannot establish a “causal nexus”
between her request for reasonable accommodation and her termination.
“The relevant time for determining whether the plaintiff is a ‘qualified individual with a
disability’ is the time of the adverse employment decision,” Rocco v. Gordon Food Serv., 609 F.
App'x 96, 98 (3d Cir. 2015), which in this case is March of 2011. 9 Plaintiff argues that she is
disabled due to migraine headaches and that under the ADA Amendments Act of 2008
(“ADAAA”), the term “disability” is to be construed broadly, citing Bare v. Federal Exp. Corp.,
886 F.Supp.2d 600, 610 (N.D. Oh. 2012). (ECF No. 50 at 15-16); 29 C.F.R. § 1630.2(h) and 29
C.F.R. § 1630.2(j)(1) (defining “physical or mental impairment” and “substantially limited in a
major life activity.”)
The ADAAA, 42 U.S.C. § 12102, broadened the definition of disability.
In fact, the ADAAA and was adopted to specifically address certain impairments
that were not receiving the protection that Congress intended—cancer, HIVAIDS, epilepsy, diabetes, multiple sclerosis, amputated and partially amputated
limbs, post-traumatic stress disorder, intellectual and developmental disabilities—
not minor, transitory impairments, except if of such a severe nature that one could
not avoid considering them disabilities. Although Congress sought to abrogate
the “significantly or severely restricting” requirement as it pertained to the
“substantially limits” factor of the ADA, the ADAAA still requires that the
qualifying impairment create and “important’ limitation. Therefore, even under
the relaxed ADAAA standards, a plaintiff is still required to plead a substantially
limiting impairment.
Koller v. Riley Riper Hollin & Colagreco, 850 F.Supp.2d 502, 513 (E.D. Pa. 2012) (internal
citations and quotations omitted).
FedEx argues that Plaintiff’s migraines do not qualify as a disability. In support, it points
to evidence that at the time of her termination and her request for reasonable accommodation,

9

Plaintiff does not argue that she is disabled under “the record of” or “regard as” prongs. See
Rocco, 609 F. App’x at 98.
23

she had only one migraine a week and that her migraines did not cause her to miss work (indeed
she was complaining about not enough overtime), and she was able to engage in normal daily
activities, such as bike riding, walking and shopping. In response, Plaintiff points to her history
of migraines, that although they were under control in 2006 with medication, that she had
suffered a head injury in 2010 that caused her migraines to return and worsen and that the smoke
in the truck she drove at work on March 23, 2011, triggered a migraine that then caused her
“escalated behavior” later that evening. (Doc. No. 50 at 15). She adds in her brief that her
“overall enjoyment of life has been diminished and while her physical activities which included
riding a bike and going to the gym have not totally stopped, they have been greatly reduced. The
migraines have also led her to develop a much more simplistic and solitary lifestyle.” (Doc. 50
at 16). Plaintiff provides no citation to record evidence to support this assertion and a review of
her deposition reveals that Plaintiff’s testimony on the matter referred to her condition at the time
of her deposition in 2015, as opposed to the time of the alleged discrimination -- March 2011.
(Doc. 38 at 8-9).
Plaintiff also now claims that her third warning letter from FedEx resulted from the fact
that her migraines had somehow caused her behavior, and that should have excused her conduct.
The ADA, however, does not require that an employer excuse an employee's
previous misconduct, even if it was precipitated by his or her disability. See
Davila v. Qwest Corp., 113 Fed.Appx. 849, 854 (10th Cir.2004) (“[A]s many
cases have recognized in various contexts, excusing workplace misconduct to
provide a fresh start/second chance to an employee whose disability could be
offered as an after-the-fact excuse is not a required accommodation under the
ADA.”); Palmer v. Circuit Court of Cook Cnty., Ill., 117 F.3d 351, 352 (7th
Cir.1997) (“[I]f an employer fires an employee because of the employee's
unacceptable behavior, the fact that that behavior was precipitated by a mental
illness does not present an issue under the Americans with Disabilities Act.”);
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir.2012) (“When an
employee requests an accommodation for the first time only after it becomes clear
that an adverse employment action is imminent, such a request can be too little,
too late.”) (internal quotation marks omitted); Heard v. St. Luke's Hosp., No. 08–
24

cv–5494, 2009 WL 3081513, at *5 (E.D.Pa. Sept. 28, 2009) (“[A]n employer is
not obligated to accommodate an employee whom it has decided to discharge for
misconduct, even if the employee subsequently cites some medical condition or
disability as the supposed cause of the prior misconduct triggering the
discharge.”)
Willis v. Norristown Area Sch. Dist., 2 F. Supp. 3d 597, 607–08 (E.D. Pa. 2014).
The Court finds that Plaintiff has failed to adduce sufficient evidence from which a
reasonable jury could find that she is an individual with a “disability.” See Namako v. Acme
Markets, Inc., No. 08-3255, 2010 WL 891144, at *5 (E.D. Pa. 2010) (applying ADAAA and
determining that the plaintiff was not disabled due to high blood pressure, related migraines and
emotional and family stress). Additionally, as to the asserted failure to reasonably accommodate,
because Plaintiff was terminated and has failed to show discrimination in her termination, the
failure to provide her with a dedicated truck based on her March 24, 2011, request is irrelevant as
she no longer worked for FedEx. Accordingly, the Court will grant summary judgment on
Palmer’s claim for failure to reasonably accommodate. The Court now turns to her claims for
retaliation.
Retaliation
A prima facie case of retaliation requires a plaintiff to show that: (1) she engaged in a
protected activity, (2) the employer subjected her to an adverse employment action, and (3) “a
causal link exists between the protected activity and the adverse action.” Weston v.
Pennsylvania, 251 F.3d 420, 430 (3d Cir.2001). Once the plaintiff establishes a prima facie case
of retaliation:
[The] burden shifts to the employer to advance a legitimate, non-retaliatory reason
for its adverse employment action.” If the employer satisfies that burden, the
plaintiff must then 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.
25

Shellenberger v. Summit Bancorp., Inc., 318 F.3d 183, 187 (3d Cir.2003) (citing McDonnell
Douglas, 411 U.S. 792). Both an internal complaint of discrimination, see Bailey v. Commerce
Nat. Ins. Services, Inc., 267 F. App’x 167, 170 (3d Cir. 2008), a request for reasonable
accommodation, Shellenberger, 318 F.3d 183 at 191, are considered protected activity.
As to retaliation, Plaintiff claims that she was terminated in retaliation on March 31, 2011
because: (1) she filed a written complaint four and one-half months earlier on November 15,
2010, against male managers contending she was subjected to harassment based on gender; and
(2) she gave her manager a written request for a non-smoking truck dedicated to her use. (Doc.
No. 50 at 5). Plaintiff also appears to contend that she was terminated because, on March 23,
2011, she left a note for Peluso asking why she was not getting overtime when less senior males
were. (PSOF at ¶ 42).
Moreover, Plaintiff argues that the investigation into her complaint regarding the
November 9, 2010 incident was inadequate because when it was investigated the memories of
those involved were “foggy,” and none of the males received any discipline or an OLCC. (Doc.
No. 50 at 7). Plaintiff admits that the person conducting the investigation believed that the
statement “go away” made from behind closed doors was meant as a joke. (Doc. No. 50 a 7).
The statement itself does not impart any discriminatory animus and the timing between her
complaint regarding the comment “go away” on November 9, 2010, and her termination over
four months later is not suggestive of any causation. See Williams v. Philadelphia Housing
Authority Police Dept., 380 F.3d 751, 759–60 (3d Cir.2004) (two month lapse between request
for accommodation and discharge was not, on its own, unusually suggestive of retaliatory
motive); Kieffer v. CPR Thomas-Taylor v. City of Pittsburgh, 2014 WL 4079944, at * 8-9 (W.D.
Pa. Aug. 18, 2014).

26

Absent temporal proximity, circumstantial evidence of a “pattern of antagonism”
following the protected conduct can also give rise to the inference. Temporal
proximity and a pattern of antagonism are not the only means to prove causation;
the proffered evidence as a whole may be sufficient to raise an inference of intent.
Thomas-Taylor v. City of Pittsburgh, No. CIV.A. 13-164, 2014 WL 4079944, at *8 (W.D. Pa.
Aug. 18, 2014) (internal quotations and citations omitted), aff'd, 605 F. App'x 95 (3d Cir. 2015).
There is nothing in this record whatsoever to connect the November 15, 2010 “internal”
complaint regarding the November 9, 2010 statement “go away,” the note regarding overtime, or
the request for a dedicated truck with the decision to terminate her. Moreover, nothing in the
record suggests that her termination was due to retaliatory animus. Plaintiff has no evidence of
“antagonism” following the November 15, 2010 internal complaint. The timing between the
March 23, 2011 note regarding overtime or the March 24, 2011 request for a dedicated truck and
her March 31, 2011 termination was close, but given her admitted conduct in calling her coworker a “nebsh*t” on March 23, 2011, under the circumstances of this case, is not unusually
suggestive of a causal link. Moreover, Plaintiff cannot show pretext.
In sum, Plaintiff’s retaliation claim fails because she has no evidence to connect the
protected activity to her termination or otherwise show retaliatory animus in that decision.
Claims under the PHRA
The same standards applied for discrimination claims under Title VII and the ADA apply
to the PHRA. Castellani v. Bucks Cty. Municipality, 351 F. App'x 774, 777 (3d Cir. 2009) (ADA
and PHRA); Harris v. SmithKline Beecham, 27 F.Supp.2d 569, 576 (E.D. Pa. 1998). Thus, the
Court will likewise grant summary judgment on the PHRA claims for the reasons discussed
above.

27

II. ORDER
Defendant’s Motion for Summary Judgment (Doc. 39) on all claims against it is
GRANTED.
IT IS SO ORDERED.

December 30, 2016

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

28