NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3423
____________
STANLEY KIEFFER,
Appellant
v.
CPR RESTORATION & CLEANING SERVICES, LLC;
CPR RESTORATION, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. Civil Action No. 2-15-cv-03048)
District Judge: Honorable Wendy Beetlestone
Submitted under Third Circuit LAR 34.1(a)
on March 24, 2017
Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit Judges
(Opinion filed: May 15, 2018)
OPINION*
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
Stanley Kieffer sued his employers CPR Restoration & Cleaning Service, LLC
(CPR LLC) and CPR Restoration, Inc., (CPR Inc.) and now appeals the District Court’s
grant of summary judgment in favor of CPR LLC and CPR Inc. For the reasons stated
below, we will affirm the judgment of the District Court.
I.
Kieffer worked for CPR LLC from 2003 to 2008 and 2010 to 2013. He worked
for CPR Inc. from January to June of 2014. CPR LLC and CPR Inc. are separate
companies, both owned by Michael Fingerman. While Kieffer was working for CPR
LLC, he claims he had diabetes and Crohn’s disease, although he did not report this on
his employee health insurance enrollment/change form. Around August 30, 2013,
Kieffer injured his right shoulder and filed for worker’s compensation, which he
received. As Kieffer was not able to drive on the job, he also requested a driver as an
accommodation. This request was denied by his manager John Fickenscher. Kieffer then
requested, and was granted, leave beginning in September 2013. Around October 18,
2013, Kieffer told CPR LLC that he was returning on November 13, 2013. When Kieffer
arrived unannounced to return to work on November 4, 2013, CPR LLC terminated him.
Kieffer then filed a Charge of Discrimination with the Equal Employment Opportunity
Commission. When Fingerman found out that Kieffer had filed the Charge, he sent him a
text, stating, “What the fuck is this?”1
1
The District Court notes that it is not clear whether Kieffer was already employed by
CPR Inc. when the text was received.
2
In January 2014, CPR Inc. hired Kieffer as a supervisor, requiring him to commute
daily to Northern New Jersey from his home in Pennsylvania. Kieffer’s manager, Joseph
Keller, discussed paying to move Kieffer to New Jersey in order to shorten his commute.
Kieffer claims that, after Fingerman found out that Kieffer had filed a Charge of
Discrimination, Keller refused to pay for the move. Kieffer claims that this decision
amounted to a constructive discharge, causing him to quit CPR Inc. in June 2014.2
When the 180-day period had elapsed after the filing of the EEOC charge, Kieffer
filed this action in the Eastern District of Pennsylvania against both CPR LLC and CPR
Inc., alleging violations of the Americans with Disabilities Act (ADA), the Pennsylvania
Human Relations Act (PHRA), and the Family Medical Leave Act (FMLA), as well as
Pennsylvania state law.
At the close of discovery, CPR LLC and CPR Inc. moved for summary judgment.
The District Court held that CPR LLC and CPR Inc. were not joint/integrated employers
for the purposes of the FMLA. The District Court additionally found that Kieffer was not
a “qualified individual” under the ADA and that Kieffer did not prove causation
necessary for retaliation. Accordingly, the District Court granted summary judgment on
Kieffer’s ADA, PHRA, FMLA, and Pennsylvania law retaliation claims. Kieffer
appealed.
2
Kieffer has taken a job in Florida. He and his wife moved there at their own expense.
3
II.3
A.
While neither CPR Inc. nor CPR LLC alone meet the employment requirements
for the FMLA,4 Kieffer alleges that CPR Inc. and CPR LLC constitute a single employer
under the integrated employer test so that they jointly meet the employment requirements
for the FMLA.5 Because we find that CPR Inc. and CPR LLC do not constitute a single
employer, we will affirm the District Court’s grant of summary judgment on Kieffer’s
FMLA claims.
The integrated employer standard is rigorous and is satisfied when “two entities
are ‘so integrated that they [are], in effect, one entity.’”6 While case law regarding the
integrated employer test is sparse, courts consider factors such as “(i) [c]ommon
management; (ii) [i]nterrelation between operations; (iii) [c]entralized control of labor
relations; and (iv) [d]egree of common ownership/financial control.”7 The critical
3
The District Court had jurisdiction under 28 U.S.C. § 1331 and exercised supplemental
jurisdiction over Kieffer’s state law claims. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We exercise plenary review over a grant of summary judgment, and make all
inferences in favor of the nonmoving party. Nat’l Amusements Inc. v. Borough of
Palmyra, 716 F.3d 57, 62 (3d Cir. 2013).
4
The FMLA applies to employers who employ “50 or more employees for each working
day during each of 20 or more calendar workweeks in the current or preceding calendar
year[.]” 29 U.S.C. § 2611(4)(A)(i).
5
Kieffer alleges that CPR Inc. and CPR LLC constitute a single employer under both the
joint employment and integrated employer tests but only provides evidence for the
integrated employer test. We will not discuss the joint employment test but note that the
outcome would be the same under it.
6
Braden v. Cty. of Washington, 749 F. Supp. 2d 299, 307 (W.D. Pa. 2010) (alteration in
original) (citation omitted).
7
29 C.F.R. § 825.104; accord Grace v. USCAR, 521 F.3d 655, 664 (6th Cir. 2008).
4
criterion is centralized control over labor relations.8 We conclude that, under the test,
Kieffer has not created a genuine issue of material fact as to whether CPR Inc. and CPR
LLC are integrated employers.
First, Kieffer has not provided sufficient evidence of common management. While
Fingerman, as owner, presumably can hire or fire employees at either entity, each entity
has separate managers and there is no evidence that the managers for either entity had
authority in the other entity.9
Second, while both CPR Inc. and CPR LLC perform disaster cleaning services,
each has separate offices, equipment, and records. Even though Fingerman has offices at
both CPR LLC and CPR Inc. and some employees periodically perform work for both
entities, this is insufficient to establish interrelated operations. Fingerman’s offices in
both entities are merely a reflection of his ownership; the fact that a few administrative
employees supported both entities is insufficient to create a genuine issue of material fact.
See Engelhardt v. S.P. Richards Co., Inc.10
Third, there is no evidence of centralized labor relations. While Fingerman had
the authority to hire and fire in both entities, he refrained from interfering in
Fickenscher’s decision to fire Kieffer. According to Kieffer, Fingerman said that “he put
John Fickenscher in position as the manager to run the company, and he’s not going to
step on his toes. If [Fickenscher] made the decision to let [Kieffer] go, then he has to
8
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 84 (3d Cir. 2003).
9
Cf. Grace, 521 F.3d at 665 (finding no common management where one company did
not oversee the other’s corporate decisions or facilities).
10
472 F.3d 1 (1st Cir. 2006).
5
stand by it.”11 Additionally, there is no evidence that the managers of one entity had any
control over the labor decisions of the other entity.
The final factor is whether there is common ownership of the two entities. We
have noted that common ownership alone does not create a genuine inference that the two
entities are a single entity.12 While Fingerman owns both CPR LLC and CPR Inc.,
Kieffer did not introduce evidence that this common ownership translated into the two
entities having a corporation/division relationship.
For these reasons, Kieffer has not introduced enough evidence to create an
inference that one company “control[led] enough facets of [the other’s] business and
operations, such that it has not maintained its economic distinctness.”13 Since
individually neither CPR Inc. nor CPR LLC has a sufficient number of employees to be
subject to the FMLA, we will affirm the District Court’s grant of summary judgment on
Kieffer’s FMLA claims.
B.
Kieffer alleges discrimination in violation of both the ADA and PHRA; given that
the ADA and PHRA have been interpreted coextensively,14 we will discuss only the
11
A 165.
12
Limbach Co. v. Sheet Metal Workers Int’l Ass’n, AFL-CIO, 949 F.2d 1241, 1260 (3d
Cir. 1991) (“However, since common ownership is always present in a sister-corporation
situation, it alone does not establish single employer status.”) (citation omitted). See also
Engelhardt, 472 F.3d at 8; Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1257
(11th Cir. 2004) (“As a matter of law, we do not believe that common ownership of two
corporations is enough for a jury to conclude that they were integrated into one operation
for FMLA purposes”);
13
Engelhardt, 472 F.3d at 5.
14
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012).
6
ADA claims. To establish an ADA discrimination claim, a plaintiff must establish, inter
alia, that he is qualified for his position because he can perform the “essential functions”
of his job with or without reasonable accommodations.15 The District Court determined
that Kieffer was not qualified for his position because he was unable to perform physical
labor after his injury with or without reasonable accommodation. On appeal, Kieffer
makes two arguments: 1) physical labor was not an essential function of his
employment, and 2) even if it were, leave would be a reasonable accommodation that
would allow him to perform such a function. We address each argument in turn.
1.
Kieffer argues that he could perform his supervisory role with the reasonable
accommodation of a driver. CPR LLC asserts that physical labor was an essential
function of Kieffer’s job; thus, its refusal to provide a driver was appropriate because
Kieffer could not perform manual labor even with such an accommodation. We agree.
A function is considered essential if it is “fundamental” to the position. Factors
used to determine whether a function is essential include the 1) employer’s judgment,
2) written job descriptions, 3) time spent on the job performing the function,
4) consequences of not requiring a worker to perform the function, 5) terms of a
collective-bargaining agreement, 6) work experience of past employees in the job, and
15
Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006) (“In order to make
out a prima facie case of disability discrimination under the ADA, [the plaintiff] must
establish that she (1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered
an adverse employment action because of that disability.” (citation omitted)). CPR LLC
does not contest that Kieffer is disabled or that he suffered an adverse employment
action, it just contests that he is qualified.
7
7) work experience of current employees in similar jobs.16
In considering this question, we will look only at the essential functions of the job
at CPR LLC because that is where Kieffer was working at the relevant time. While
determining whether a task is an essential function is generally a fact-intensive inquiry,17
the only evidence Kieffer offers to show that physical labor was not an essential function
is his self-contradictory deposition testimony and the testimony of a manager at CPR Inc.
At his deposition, Kieffer first testified that physical labor was part of his daily work. He
claimed that he would work with his crew whenever a job needed to be rushed, and that
he would perform physically-intensive “board-ups” alone. Kieffer testified that he was
compensated equally for board-ups and for other jobs that he supervised and that he
considered both activities as part of his employment. Later in his deposition, however,
Kieffer claimed that, in the context of supervision, “[i]t was [his] choice if [he] did
physical work with the guys.”18 Kieffer also offered testimony from Keller that a
supervisor is not required to do physical labor. However, Keller was describing
supervisors at CPR Inc., not CPR LLC, so his testimony cannot bear on Kieffer’s
responsibilities at CPR LLC. In response, CPR LLC produced evidence that physical
labor is an essential function, including a job description in Kieffer’s Employment
Agreement, a job description on Craigslist, and the actual time spent performing the
function.19 Kieffer’s contradictory personal testimony and Keller’s testimony about CPR
16
Id. at 612.
17
Id. at 614.
18
A 163.
19
Kieffer testified that he physically assisted his crew “most of the time.” A 151-52.
8
Inc. supervisors is insufficient to render the question, whether physical labor was an
essential function of Kieffer’s position at CPR LLC, a genuine issue of material fact. For
this reason, we conclude that it was an essential function and that Kieffer was not
qualified for the position when he could not perform physical labor.
2.
Having decided then that physical labor was an essential function, we conclude
nevertheless that the leave requested here was not a reasonable accommodation. Kieffer
argues that the leave he requested would have allowed him to perform his essential
functions after he returned from leave. The District Court dismissed this claim on the
basis that the leave requested was indefinite and that other circuits have found that
indefinite leave is not a reasonable accommodation.20 The basis for such a holding
reflects the fact that an accommodation of a short period of definite leave would enable
an employee to perform his essential job functions in the near future, as for example if
the leave was taken in order to schedule a future course of treatment.21 The request for
leave here specified neither a leave for a definite period, nor a return in the near future.
Kieffer did ask for time off and it was granted. However, the testimony at the later
depositions indicates that the request for leave was worded loosely as being for a few
weeks or a few months. There is not any record that leave was requested as an
accommodation or that it was requested for a definite rather than an open-ended period of
time.
20
See Rascon v. U. S. West Communications, Inc., 43 F.3d 1324, 334 (10th Cir. 1998).
21
Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004).
9
Because, making all reasonable inferences for the non-movant, we cannot find that
the requested leave was for a definite period or that it was a reasonable accommodation,
we will affirm the District Court’s grant of summary judgment on Kieffer’s ADA/PHRA
claims.22
C.
Kieffer also appeals the District Court’s grant of summary judgment on his
retaliation claims under the ADA/PHRA, FMLA, and Pennsylvania worker’s
compensation law. As noted above, since CPR LLC and CPR Inc. are not subject to the
FMLA, we will analyze Kieffer’s retaliation claims only under the ADA/PHRA and
Pennsylvania worker’s compensation law.
To establish a prima facie case of retaliation,23 a plaintiff must show 1) a protected
activity, 2) an adverse employment action, and 3) a causal connection.24 “To demonstrate
a causal connection, a plaintiff generally must show either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or
22
As for Kieffer’s claims that CPR LLC and CPR Inc. failed to accommodate his other
potential disabilities, including Crohn’s Disease and diabetes, Kieffer did not identify any
other specific occasion during the relevant time period when he requested time off for
other medical issues except for the instance when he asked for, and was denied, time off
for a common cold. We will therefore affirm the District Court’s dismissal of these other
claims for failure to accommodate.
23
The Pennsylvania Supreme Court has not provided any guidance on the elements of the
prima facie case for retaliation claims under Pennsylvania law. District court opinions
have applied the Title VII burden-shifting framework. See Reifer v. Colonial
Intermediate Unit 20, 462 F. Supp. 2d 621, 639 n.9 (M.D. Pa. 2006). The parties follow
this structure in their briefings. We will also apply this framework.
24
Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d Cir. 2004)
(citation omitted).
10
(2) a pattern of antagonism coupled with timing to establish a causal link.”25 Kieffer
raises retaliation claims under the ADA/PHRA for both his terminations and a retaliation
claim under Pennsylvania worker’s compensation laws for his termination from CPR
LLC. We will address each in turn.
1.
a.
Kieffer’s ADA retaliation claim from CPR LLC alleges that he was terminated for
two protected activities: requesting an accommodation and utilizing the reasonable
accommodation of taking leave.
Requesting an accommodation in good faith is a protected activity.26 Kieffer
requested leave two months before his termination. We have held that over two months
between protected activity and adverse employment activity—without more—is
insufficient to prove causation;27 Kieffer cannot rely on suggestive timing alone. Absent
suggestive timing, Kieffer could prove retaliation by CPR LLC by producing evidence
that Kieffer’s request for a break “was the likely reason for h[is] termination.”28 Kieffer
seeks to establish causality in a number of ways: he first claims that Fingerman and
Fickenscher denied him time off for his Crohn’s disease; however, since he claims this
happened only in 2008-2009, it could not be in retaliation for his request for a break in
25
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (internal
quotation marks and citation omitted).
26
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (finding that
the right to request an accommodation in good faith is protected conduct).
27
Williams, 380 F.3d at 760.
28
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 179 (3d Cir. 1997) (internal
quotation marks and citation omitted).
11
2013. Second, Kieffer alleges that Fingerman discussed his concern about Kieffer’s
medical condition interfering with his job “seven or eight times over the last four or five
years.”29 Since these discussions were not limited to the period following his request for
accommodation, we have no evidence upon which to infer antagonism. Finally, Kieffer
alleges that the facilities manager told him that Fingerman did not believe he hurt his
shoulder; however, despite skepticism of his shoulder injury, CPR LLC granted Kieffer
leave. None of this constitutes a pattern that would establish an inference that Kieffer
was fired for requesting leave as an accommodation.
b.
Kieffer’s retaliation claim against CPR Inc. under the ADA/PHRA alleges that he
was constructively terminated in June 2014 for filing a claim for discrimination in
November 2013. Kieffer claims that Fingerman’s “What the fuck is this?” text in
January 2014 is evidence of rising antagonism that led CPR Inc. to renege on its promise
to move Kieffer to New Jersey. Kieffer also vaguely alleges that Keller denied him leave
to get medicine for a bad cold. Taken together, this evidence cannot create an inference
of causality. Even assuming that CPR Inc.’s reneging on its promise to relocate Kieffer
qualifies as an adverse employment action, Kieffer alleges no other evidence to suggest
any hostility or antagonism between the filing of the EEOC claim and the denial of
moving costs. The Fingerman text message alone cannot rise to the level of suggestive
evidence, since Kieffer continued to be employed with CPR Inc. for months after the text.
The denial of leave to get medicine is similarly too vague and too minimal to create such
29
A 146.
12
an inference.
For this reason, we will affirm the District Court’s grant of summary judgment for
Kieffer’s retaliation claims under the ADA against CPR Inc.30
2.
Kieffer also brings retaliation claims under Pennsylvania worker’s compensation
law, alleging that his termination from CPR LLC was retaliation for his request for
worker’s compensation in August 2013. Kieffer relies on the same arguments as he used
for the ADA/PHRA retaliation claim for his termination from CPR LLC. While Kieffer
characterizes the protected activity as receiving worker’s compensation, he does not
provide any authority for this. Under Pennsylvania law, however, requesting worker’s
compensation is a protected activity.31 Kieffer requested worker’s compensation even
earlier than he requested leave, more than two months before his alleged termination. As
discussed above, two months between protected activity and adverse employment
activity—without more—is insufficient to prove causation.
Kieffer cannot prove temporal proximity plus animus in this context either.
30
As an alternative ground, Kieffer offers evidence that CPR LLC and CPR Inc.’s
reasons for terminating him are pretextual. Evidence of pretext is appropriate only when
the employer has met its burden of production and has asserted a legitimate,
nonretaliatory reason for the challenged action. See Bruno v. W.B. Saunders Co., 882
F.2d 760, 764 (3d Cir. 1989) (citations omitted). Even if the Defendants made such a
showing, Kieffer has not introduced evidence sufficient to prove that “retaliation was the
real reason for” his constructive termination. Moore v. City of Philadelphia, 461 F.3d
331, 342 (3d Cir. 2006), as amended (Sept. 13, 2006) (internal quotation marks and
citation omitted).
31
Shick v. Shirey, 716 A.2d 1231, 1237 (Pa. 1998) (“The Workers’ Compensation Act
does provide a basis for our finding that termination of an at-will employee for filing a
workers’ compensation claim violates public policy.”).
13
Kieffer argues that the fact that CPR LLC expressed skepticism of the injury is sufficient
to establish animus. Not only is this insufficient to establish animus on its own, but
paired with the fact that CPR LLC did not request a hearing or file any motions opposing
the grant of worker's compensation, Kieffer has not introduced sufficient evidence of
causation. Accordingly, we will affirm the District Court’s grant of summary judgment
for Kieffer’s retaliation claims under Pennsylvania worker’s compensation laws.
III.
For the aforementioned reasons, we will affirm the District Court’s grant of
summary judgment against Kieffer.
14