PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2437
_____________
RONALD ROSS,
Appellant
v.
KEVIN GILHULY; CONTINENTAL
TIRE OF AMERICAS, LLC
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-02631)
District Judge: Honorable Juan R. Sanchez
_______________
Argued on April 9, 2014
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed: June 17, 2014)
_______________
Wayne A. Ely, Esq.
Timothy M. Kolman, Esq.
W. Charles Sipio, Esq. [ARGUED]
Kolman Ely
414 Hulmeville Avenue
Penndel, PA 19047
Counsel for Appellant
Madeline S. Baio, Esq. [ARGUED]
Divya Wallace, Esq.
Nicolson Law Group
1400 North Providence Rd.
Rose Treet Corporate Center II, Suite 4045
Media, PA 19063
Counsel for Appellees
_______________
OPINION
_______________
JORDAN, Circuit Judge.
Ronald Ross appeals a grant of summary judgment by
the United States District Court for the Eastern District of
Pennsylvania to Continental Tire of Americas LLC
(“Continental”) and Kevin Gilhuly in this Family and
Medical Leave Act (“FMLA”) action. 29 U.S.C. §2601 et
seq. Because Ross received all to which he was entitled
under the FMLA, and suffered no adverse employment
consequences for doing so, we will affirm.
2
I. BACKGROUND1
Ross joined Continental, a tire manufacturing company
headquartered in Fort Mill, South Carolina, as a Car Dealer
Business Development Manager in February 2008. In 2010,
he became an Area Dealer Manager (“ADM”) and then, in
February 2011, an Area District Manager-3 (“ADM3”).2 As
an ADM3, Ross began reporting directly to Kevin Gilhuly, a
Regional Manager. Given the new responsibilities of his job
and the fact that much of his work would put him on the road,
Ross began working out of his home in Philadelphia,
independently setting his travel schedule and work priorities.
Ross’s contact with Gilhuly consisted of biweekly regional
sales conference calls, during which Gilhuly would review
Ross’s schedule and recommend changes as needed, and
regular email and phone contact, with “a minimum of two to
three [interactions] a week.” (App. at 172 (Ross Dep.).) Ross
concedes that, during the entire time of his employment with
Continental, he had no contract of employment and remained
an “at will” employee. (Id. at 164.)
During his tenure at Continental, Ross had questions
regarding “program specifics in terms of qualification
requirements for the customer,” “[program] calculations,
[and] the relationships that [he] was developing, attempting to
develop, with the customers to help them achieve their sales
figures.” (Id. at 171.) He sought Gilhuly’s “assistance
1
In accordance with our standard of review, see infra
note 9, we set forth the facts in the light most favorable to
Ross, the non-moving party.
2
Ross’s various job titles are as listed in his brief.
3
related to strategies, support, open discussion [sic], about how
to achieve those on a regular basis,” and he testified that
Gilhuly was generally available to him. (Id.)
One of the customers for whom Ross was responsible
was Reliable Tire Company (“Reliable Tire”). Ross testified
that the Reliable Tire account “required a lot of interaction”
with Reliable Tire’s owner, Richard Betz, and was a rather
“large account.” (Id. at 185.) In fact, Reliable Tire provided
Continental with millions of dollars in revenue in 2011 and
2012.
Shortly after Ross took over as ADM in 2010, Gilhuly
began receiving negative comments from Betz regarding
Ross’s performance. While it is unclear from the record
exactly when Betz shared his views about Ross, Gilhuly
testified that Betz “specifically asked” that Ross be removed
from the Reliable Tire account (App. at 331 (Gilhuly Dep.)),
since, according to Betz, Ross “wasn’t providing any value to
him and … was actually a detriment to his business” (id. at
350). Betz later testified that he would characterize his
statements regarding Ross as “comment[s],” not
“complaint[s],” but he confirmed that he told Gilhuly that
Ross “doesn’t understand [the] business.” (App. at 372 (Betz
Dep.).) Betz also testified that he was “upset” with Ross
because Ross had sent one of Betz’s customers to another tire
distributor. Betz further acknowledged that he asked that
Ross be taken off of Reliable Tire’s account.
According to Gilhuly, his concerns about Ross were
confirmed when he “witness[ed Ross’s] presentations at some
of the regional meetings that [Continental] had as a sales
team.” (App. at 332 (Gilhuly Dep.).) For example, after
4
Ross gave a regional presentation in February or March of
2011, Gilhuly spoke with him regarding some of the data that
Ross had presented and his presentation skills. Gilhuly also
was not impressed with Ross’s performance at a meeting to
which Gilhuly accompanied Ross in June 2011 at Reliable
Tire.
Sometime during the summer of 2011, Gilhuly began
reporting Ross’s performance deficiencies to Gabrielle
Alexander, who worked in Continental’s Human Resources
Department (“HR”). As a part of a formal meeting in August
2011 at which Gilhuly reviewed all of his team members’
performance levels and potential, Gilhuly told Alexander that
Ross was “not meeting expectations.” (App. at 446
(Performance Chart).) In addition, Gilhuly testified that they
discussed Ross’s ongoing problems working with Betz and
his poor performance at both the February/March regional
presentation and the June Reliable Tire meeting.
Later, between September 6, 2011, and October 11,
2011, Gilhuly corresponded with Alexander and Amanda
Powell, another HR team member, regarding the development
of a Performance Improvement Plan (“PIP”) for Ross, which
Gilhuly began drafting.3
3
Pursuant to Continental’s Performance Management
Policy, Section V.D.:
Persistent unsatisfactory performance as
evidenced by a “does not meet expectations”
performance rating is to be documented and a
Performance Improvement Plan (PIP) prepared
by the manager and reviewed with the Human
5
On September 21, 2011, Gilhuly told Ross “that a PIP
was in process.” (App. at 461 (Email Within Continental).)
On the evening of October 11, 2011, when both Gilhuly and
Ross were visiting Continental’s headquarters as a part of a
national sales meeting, Gilhuly took Ross aside and informed
him that they would be meeting with HR the next day to
review a PIP. Gilhuly suggested that the two of them meet in
the hotel lobby in the morning, prior to going to the corporate
office, to discuss the PIP and allow Gilhuly to formally
provide Ross with his annual review.
That same evening, Ross prepared a memorandum
outlining a six-month plan of action that acknowledged his
deficiencies and listed ways he could improve his
performance. In the first paragraph, Ross thanked Gilhuly for
the opportunity to discuss his progress and stated that he was
Resource Manager for that department prior to
facilitation to the employee. The PIP will clarify
for the employee the actions he/she will need to
take to bring performance to satisfactory levels.
When satisfactory performance is reached,
another performance review or written notice
indicating other than “unsatisfactory”
performance should be completed. ... An
employee whose performance continues to
appear to be “unsatisfactory” should normally be
removed from the position. The evaluation
period may be extended with the approval of the
manager and Human Resources.
(App. at 465 (Performance Management Policy ).)
6
“very confident” that he could meet or exceed “the
expectations in the areas [he and Gilhuly had] verbally
discussed in the last 90 days.” (App. at 473 (Ross Memo).)
At Ross’s annual review the next morning, Gilhuly
specified areas for improvement, including program
understanding, analytical skills, call preparation, frequency
of meetings with key customers, financial analysis,
communication skills during sales calls, and better
preparation, all of which were documented on an “Employee
Dialogue Form.” On that Form, Ross was rated for vision,
entrepreneurship, execution, drive, learning, and interaction.
On a scale of 1 to 5 – with 1 being “Minimum Standard not
Achieved,” 2 being “Developmental Needs,” and 5 being
“Extraordinary Strengths” – Ross was rated a 1 or 2 nineteen
times out of a total of thirty-two areas. (App. at 482
(Employee Dialogue Form).) His overall performance
evaluation was “does not meet expectations.” (Id. at 483.)
After Gilhuly reviewed his concerns with Ross, the
two met with Powell in Continental’s corporate offices to
review the PIP. The PIP included a memorandum from
Gilhuly, entitled “ADM3 Performance,” summarizing areas
of deficiency and setting forth specific guidelines to address
the identified problems. The memorandum and Continental’s
Performance Management Policy reflect that Ross’s
performance under the PIP was supposed to be evaluated after
90 days, with the possibility of additional evaluations. In
fact, the memorandum included with the PIP specified that
“[f]ailure to meet each one of these guidelines on an ongoing
basis will result in further disciplinary action up to and
including termination.” (App. at 193 (Ross Dep.).) While the
memorandum did say that Ross’s “progress against these
7
expectations” would be “discuss[ed]” every “30 days for 90
days from the day of issuance,” it did not say that the PIP
would include any written or in-person performance
evaluations. (Id.) Nor did it specify an end-date, noting that
Continental would review Ross’s job performance 90 days
from the PIP’s issuance and then decide “what additional
actions, if any, will be necessary.” (Id.)
On November 6, 2011, less than a month after the PIP
was implemented, Ross forwarded to Gilhuly and Powell a
letter from his physician to inform them that he had been
diagnosed with prostate cancer and that further testing and a
treatment plan would be forthcoming. Gilhuly promptly sent
an email to Ross saying, “My thoughts and prayers are with
you in what must be a very difficult time for you and your
family. Take whatever time you need this week for the
testing to determine the severity of the diagnosis.” (App. at
489 (Email Within Continental).) Despite his illness,
however, Ross wanted to move forward with his PIP. In late
November, he and Gilhuly exchanged emails regarding
Ross’s request for “direct feedback verbal or written [sic]
regarding [Gilhuly’s] view” of Ross’s progress and whether
Ross was “on track.” (Id. at 492.) In response, Gilhuly asked
Ross to schedule a meeting with a customer so that Gilhuly
could attend and provide feedback.
On December 5, Alexander sent an email to Ross,
Gilhuly, Powell, Chris Charity (Gilhuly’s superior), and
James Sicking (Charity’s superior) confirming that “the
company would do everything we can to support [Ross]
during this time.” (Id. at 501.) Alexander further stated that,
“based on [Ross’s] health and treatment plan[,] the PIP
timetable may need to be adjusted.” (Id.) Gilhuly answered
8
with an email only to Alexander, Powell, Charity and
Sicking, explaining that he thought Ross had “definitely made
progress on most of the areas identified in the PIP,” but that
“there is still work to be done.” (Id.) Specifically, Gilhuly
made clear that the extension of the PIP would “give [Ross]
more time to deal with the health issues.” (Id.) Sicking also
testified that Continental put the PIP on “hold” in order to
give Ross time to “take care of [his] health,” but that the
intention was to “resume” the PIP once Ross returned. (App.
at 293 (Sicking Dep.).)
Later in December, after receiving a formal
notification of Ross’s treatment plans, Gilhuly sent an email
to Sicking and Charity, notifying them that Ross would
require surgery and asking whether “we should consider
pushing the PIP timetable by at least 30 days.”4 (App. at 503
(Email Within Continental).) Gilhuly then forwarded that
email to Alexander, who agreed that the PIP timetable should
be extended. Rather than “end” on January 10th – eight days
before Ross’s surgery date – the PIP was thus extended to
February 10, 2012.
Ross, however, did not want the PIP to “hang[] over
his head” during his recovery. (Id. at 502.) He emailed
Gilhuly on December 23, 2011, asking that the PIP be
completed by January 12, 2011. According to Ross, no action
was taken in response to that request. Ross admitted at his
deposition that, “[i]n order to successfully complete [the] PIP,
4
Ross told Gilhuly by email on December 22, 2011,
that his prostate surgery was scheduled for January 18, 2012,
and that he would need to take 4 to 6 weeks of leave for
recovery.
9
as per the policy, ... management would need to determine
that [Ross’s] performance was meeting their expectations in
all areas identified in the PIP.” (App. at 208 (Ross Dep.).)
It is undisputed that Ross requested and was granted
FMLA leave that began on the date of his surgery, January
18, 2012, and ended when he returned to work on March 19,
2012. It is also undisputed that he continued to receive his
regular compensation and insurance benefits while on leave.
During the time that Ross was on leave, his PIP remained, as
Ross testified, “pending.”5 (Id. at 209.) Ross also testified
that when he finally returned to work on March 19, 2012, the
status of his PIP was yet “to be determined” but that he
returned to the same job from which he left. (Id. at 211.)
On April 12, 2012, almost a month after Ross returned
from leave, Gilhuly sent him a new memorandum, entitled
“ADM3 Performance – Addendum to October 12, 2011
5
Twice while on leave, February 17 and February 23,
Ross emailed Gilhuly regarding his PIP status. On
February 23, Gilhuly responded, saying that “[t]he PIP cannot
be changed or addressed until you return to work full time.”
(App. at 500 (Email Within Continental).) Around that same
time, Ross and Gilhuly spoke on the phone regarding Ross
returning to work under a “limited-duty basis.” (App. at 209
(Ross’s Dep.).) Given that the majority of Ross’s work
involved driving and visiting customers, which Ross would
be unable to do, Gilhuly recommended that Ross not return
until he received medical approval to engage in full-time
work.
10
PIAP” (“Addendum”).6 (App. at 506.) In it, Gilhuly stated
that he “acknowledg[ed] that progress has been made in
[Ross’s] job performance since the October 12, 2011 PIAP,”
but he went on to say, “it is also expected that [Ross] can
demonstrate that [he] fully understand[s] and can effectively
communicate to customers all the new 2012 Programs” that
were introduced while Ross was on leave. (App. at 506.)
Gilhuly extended the PIP an additional 60 days from the date
of the Addendum and instructed that he would then “conduct
a complete review of [Ross’s] job performance, including the
new requirements laid out in this addendum[,] and determine
what additional actions, if any, are necessary.” (Id.)
On May 14, 2012, Ross filed this lawsuit against
Gilhuly and Continental, alleging interference with his FMLA
rights and also alleging retaliation. On July 19, 2012, while
this action was pending, Gilhuly sent Ross a third
memorandum, entitled “ADM 3 Performance – October 12,
2011 PIAP and April 12th PIAP Addendum” (the “Final
Memorandum”) that summarized Ross’s performance since
the initiation of the PIP. (Id. at 508.) The thrust of the Final
Memorandum was that Ross was still not meeting
Continental’s expectations for his position. Citing various
examples – including email chains between Ross and Gilhuly
and anecdotes of Ross’s work – Gilhuly explained over
twelve pages that Ross was not “a ‘good fit’ for a sales role,
particularly one requiring the business acumen to understand
and effectively communicate [a] complex program.” (Id. at
519.) That same day, Continental terminated Ross’s
employment in a teleconference with his attorney. The
6
“PIAP” stands for Performance Improvement Action
Plan and is synonymous, in the parties’ usage, with “PIP.”
11
decision to terminate Ross was made by Sicking, Gilhuly, and
Alexander, along with more senior members of Continental.
Following his firing, Ross amended his complaint to add a
wrongful-discharge claim.
On October 17, 2012, the District Court dismissed
Ross’s wrongful-discharge claim.7 The remaining claims
were an FMLA interference claim against Gilhuly and FMLA
retaliation claims against both Gilhuly and Continental.8 On
summary judgment, the Court resolved those claims in favor
of Gilhuly and Continental.
Ross timely appealed.
7
Ross does not appeal the dismissal of that claim.
8
At Argument, Ross’s counsel asserted that the
interference claim is against both Gilhuly and Continental
(Oral Arg. Tr. at 4:20-21), but no fair reading of the
Complaint can support that assertion. Not only does the
Complaint list Gilhuly as the target of the interference claim,
but Ross’s Brief makes clear that that targeting was intended.
(Appellant’s Br. at 5 (“Appellant established a prima facie
case for FMLA interference against his supervisor in the court
below[ and] a causal link that could have led a reasonable fact
finder to conclude that he was retaliated against for taking
FMLA leave by Continental and his supervisor.”).) We thus
reject the effort to amend the Complaint on appeal.
12
II. DISCUSSION9
The only issue before us on appeal is whether the
District Court erred in granting summary judgment against
Ross on his FMLA claims. The FMLA provides, in relevant
part, that eligible employees are entitled to 12 workweeks of
leave during any 12-month period due to an employee’s own
serious health condition. 29 U.S.C. § 2612(a)(1). When an
employee returns from FMLA leave, the employer must
restore the employee to the same or equivalent position he
held, with equivalent benefits and with conditions of
employment comparable to those he had when he left. Id.
§ 2614(a).
In Lichtenstein v. University of Pittsburgh Medical
Center, we stated that,
9
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the District Court’s grant of summary
judgment de novo and “view inferences to be drawn from the
underlying facts in the light most favorable to the nonmoving
party.” Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir.
2010). “Summary judgment is appropriate where the [c]ourt
is satisfied ‘that there is no genuine [dispute] as to any
material fact and that the moving party is entitled to judgment
as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). A genuine dispute exists only “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
13
[w]hen employees invoke rights granted under
the FMLA, employers may not “interfere with,
restrain, or deny the exercise of or attempt to
exercise” these rights. Nor may employers
“discharge or in any other manner discriminate
against any individual for opposing any practice
made unlawful.” The former provision is
generally, if imperfectly, referred to as
“interference” whereas the latter is often referred
to as “retaliation.”
691 F.3d 294, 301 (3d Cir. 2012) (internal citations omitted).
We have also held that “an individual supervisor working for
an employer may be liable as an employer under the FMLA.”
Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d
408, 415 (3d Cir. 2012).
Ross argues that there are genuine issues of material
fact that bar the District Court’s grant of summary judgment.
He says that his rights were violated by Gilhuly failing to
conclude the initial PIP by January 2012, before he was
expected to start his FMLA leave, and then by Gilhuly adding
the PIP Addendum upon his return to work. He argues that
he established a prima facie case of interference by Gilhuly
and that there exists a causal link that could have led a
reasonable factfinder to conclude that he was retaliated
against for taking FMLA leave.
A. Interference
To make a claim of interference under the FMLA, a
plaintiff must establish:
14
(1) he or she was an eligible employee under
the FMLA; (2) the defendant was an employer
subject to the FMLA’s requirements; (3) the
plaintiff was entitled to FMLA leave; (4) the
plaintiff gave notice to the defendant of his or
her intention to take FMLA leave; and (5) the
plaintiff was denied benefits to which he or she
was entitled under the FMLA.
Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F. Supp. 2d
405, 446 (W.D. Pa. 2008); see also Sommer v. The Vanguard
Grp., 461 F.3d 397, 399 (3d Cir. 2006) (noting that an
interference claim requires an employee to show that he was
not only entitled to FMLA benefits but that he was denied
those benefits). Under an interference claim, “the employee
need not show that he was treated differently than others[,
and] the employer cannot justify its actions by establishing a
legitimate business purpose for its decision.” Sommer, 461
F.3d at 399 (3d Cir. 2006) (alteration in original) (internal
quotation marks omitted). Also, “[b]ecause the FMLA
[interference claim] is not about discrimination, a McDonnell-
Douglas burden-shifting analysis is not required.” Id.
As noted previously, Ross brought his interference
claim only against Gilhuly. On appeal, there is no dispute
that Ross met the first, third, and fourth prongs for an
interference claim, namely that he was an eligible employee
under FMLA, that he was entitled to FLMA leave, and that he
gave notice of his intention to take FMLA leave. The parties
only dispute whether Gilhuly was liable as an “employer”
under the FMLA (the third prong) and whether Ross showed
that he had been denied benefits to which he was entitled
under FMLA (the fifth prong). Because Ross received all of
15
the benefits to which he was entitled by taking leave and then
being reinstated to the same position from which he left, and
thus cannot satisfy the fifth prong of the interference analysis,
he fails to make a prima facie showing of interference, and
we need not address whether Gilhuly was an “employer”
under the FMLA.
Although Ross argues that his termination and the
Addendum to his PIP – actions which were taken after his
FMLA leave – amount to a denial of FMLA benefits, 10 we
have made it plain that, for an interference claim to be viable,
the plaintiff must show that FMLA benefits were actually
withheld. Callison v. City of Phila., 430 F.3d 117, 119 (3d
Cir. 2005) (“In order to assert a claim of deprivation of
entitlements, the employee only needs to show that he was
entitled to benefits under the FMLA and that he was denied
them.”). Ross’s argument that Gilhuly interfered with his
entitlement to take FMLA leave free from later discrimination
confuses interference with retaliation and is thus misdirected.
At bottom, “[a]n interference action is not about
discrimination[;] it is only about whether the employer
provided the employee with the entitlements guaranteed by
the FMLA.” Callison, 430 F.3d at 120. Therefore, because
Ross does not allege that Gilhuly withheld any entitlement
guaranteed by FMLA, he fails to state a claim for
interference.11
10
Ross does not argue that he was denied
reinstatement into the position that he left.
11
In an April 17, 2014, letter filed pursuant to Rule 28j
of the Federal Rules of Appellate Procedure, Ross recasts his
interference claim to assert that he had somehow been
16
B. Retaliation
To succeed on an FMLA retaliation claim, a plaintiff
must show that “(1) []he invoked h[is] right to FMLA-
qualifying leave, (2) []he suffered an adverse employment
decision, and (3) the adverse action was causally related to
h[is] invocation of rights.” Lichtenstein, 691 F.3d at 302.
Gilhuly and Continental concede for the purposes of
this appeal that Ross satisfies the first two elements of an
FMLA retaliation claim, but they dispute whether Ross
submitted sufficient evidence to raise a genuine dispute of
material fact as to whether the Addendum and his termination
were causally related to the invocation of his FMLA rights.
Although Ross argues that “it is still somewhat unclear
whether [this Court] has definitely adopted” the McDonnell
Douglas framework for an FMLA claim (Appellant’s Br. at
25), there should not be any such confusion. With respect to
discouraged from taking FMLA leave. In addition to Ross
having waived that argument by failing to advance it in
briefing, see Ethypharm S.A. France v. Abbott Labs., 707
F.3d 223, 231 n.13 (3d Cir. 2013) (“We have consistently
held that ‘[a]n issue is waived unless a party raises it in its
opening brief, and for those purposes a passing reference to
an issue ... will not suffice to bring that issue before this
court.’”), the argument has no basis in fact. There is simply
no evidence that Ross was discouraged from taking FMLA
leave; on the contrary, Continental and Gilhuly fully
supported Ross’s need for leave and Ross took more than
eight weeks of FMLA leave, without any interference or
discouragement from Continental or Gilhuly.
17
retaliation claims based on circumstantial evidence, we have
stated:
Because FMLA retaliation claims require proof
of the employer’s retaliatory intent, courts have
assessed these claims through the lens of
employment discrimination law. Accordingly,
claims based on circumstantial evidence have
been assessed under the burden-shifting
framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), while
claims based on direct evidence have been
assessed under the mixed-motive framework set
forth in Price Waterhouse v. Hopkins, 490 U.S.
228, 276–77 (1989) (O’Connor, J., concurring).
Lichtenstein, 691 F.3d at 302. While we decided to “leave for
another day our resolution of whether the FMLA continues to
allow mixed-motive claims in the wake of Gross [v. FBL
Financial Services, Inc., 557 U.S. 167 (2009)],” id., Ross
does not argue that his retaliation claims are mixed-motive
claims.12 The only question, therefore, is whether Ross is
able to meet the shifting burdens of McDonnell Douglas.
12
In Gross, the Supreme Court held that a mixed-
motive jury instruction is “never proper in an [Age
Discrimination in Employment Act of 1967] claim.” 557
U.S. at 170. Since the plaintiff in Lichtenstein “readily
survive[d] summary judgment under the more taxing
McDonnell Douglas standard,” we did not find it necessary to
address whether a mixed-motive framework was appropriate
to apply to an FMLA retaliation claim.
691 F.3d at 302.
18
Under the McDonnell Douglas framework, a plaintiff
must first establish a prima facie case of discrimination.
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d
Cir. 1997). If the plaintiff succeeds, the defendant must
articulate a legitimate, non-discriminatory reason for the
adverse employment action. Id. The burden then shifts back
to the plaintiff to prove, by a preponderance of the evidence,
that the articulated reason was a mere pretext for
discrimination. Id. Even assuming, arguendo, that Ross
established a prima facie case, Continental and Gilhuly have
submitted a legitimate, non-discriminatory reason for Ross’s
termination – his demonstrably poor job performance – and
Ross has not adduced any meaningful evidence to allow a
reasonable factfinder to find pretext.
In urging that he has shown pretext, Ross makes two
primary arguments. First, he contends that the sole
motivating factor for the PIP was Betz’s desire that Ross be
removed from the Reliable Tire account and not Ross’s
overall poor performance. In other words, at least according
to Ross, there was no assertion that he was failing to meet the
primary objectives of his position. But, even if Ross’s
version of events were accurate, his argument misses the
point. Assuming that the PIP was originally justified only on
the basis of Betz’s concerns does not help Ross because
customer feedback, particularly from an important customer
who accounts for millions of dollars of revenue, is an
obviously valid factor in evaluating performance.13 Ross’s
13
Moreover, a “plaintiff cannot simply show that the
employer’s decision was wrong or mistaken” to prove
pretext; rather, the “plaintiff must demonstrate such
19
argument is also flawed because its factual premise is belied
by the record. Betz’s concerns were not the sole justification
provided for implementing the PIP or the later Addendum,
and they were not the sole reason Ross was ultimately
terminated. He had admitted to his sub-par performance in
the memorandum he prepared for Gilhuly the evening before
the PIP was introduced, and his other numerous failures were
documented in detail and at length in Gilhuly’s Final
Memorandum.
Second, Ross contends that pretext is apparent because
of the temporal proximity between his asking for FMLA
leave and Continental’s decision to extend the PIP. He
asserts that because Continental managers did not begin to
discuss extending the PIP until after being informed of his
illness and his intent to take leave, any justification
Continental now puts forward is pretextual. Under our
precedent, however, “the timing of the alleged retaliatory
action must be unusually suggestive of retaliatory motive
before a causal link will be inferred.” Williams v. Phila.
‘weaknesses, implausibilities, inconsistencies, incoherences,
or contradictions in the employer’s proffered legitimate
reason for its action that a reasonable factfinder could
rationally find them unworthy of credence, and hence infer
that the employer did not act for [the asserted] non-
discriminatory reasons.’” Brewer v. Quaker State Oil Ref.
Corp., 72 F.3d 326, 331 (3d Cir. 1995) (alteration in original)
(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).
Here, there is no evidence of such weaknesses in the
explanations proffered by Continental and Gilhuly.
20
Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004)
(internal quotation marks omitted). Here, there is nothing
unusually suggestive about the timing of the Addendum or
Ross’s termination. Rather, it was perfectly sensible for
Continental to delay the timeline of the PIP to accommodate
Ross’s FMLA leave. The fact that Ross was placed on the
original PIP based on documented performance problems
well before his employer knew he was sick defeats any
retaliatory inference based on timing.
Again, the reasons for Ross’s termination, as detailed
in the Final Memorandum, were deficiencies that had existed
since before he took his FMLA leave. An employee cannot
easily establish a causal connection between his protected
activity and the alleged retaliation when he has received
significant negative evaluations before engaging in the
protected activity. See Shaner v. Synthes, 204 F.3d 494, 504-
05 (3d. Cir. 2000) (“In short, the record shows that Shaner’s
performance evaluations contained similar criticisms both
before and after he made the company aware that he suffered
from MS and before and after he filed his first EEOC charge.
Under these circumstances, there is simply no evidence that
any of these evaluations was causally linked to the filing of
Shaner’s first EEOC charge or that any of them was
motivated by discriminatory or retaliatory intent.”). Ross has
failed to establish a causal link here, and there was no error in
granting summary judgment.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment
of the District Court.
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