NON-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2327
______________
DONALD JACOBS,
Appellant
v.
COUNTY OF BUCKS; JOSEPH KHAN; MARGARET MCKEVITT
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 5-20-cv-04016)
U.S. District Judge: Honorable Edward G. Smith
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on May 16, 2023
______________
Before: SHWARTZ, MONTGOMERY-REEVES, and ROTH, Circuit Judges.
(Filed: July 10, 2023)
______________
OPINION ∗
______________
∗
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SHWARTZ, Circuit Judge.
Donald Jacobs sued the County of Bucks (the “County”), its Chief Operating
Officer (“COO”), and its Solicitor (collectively, “Defendants”), under the Family and
Medical Leave Act (“FMLA”), 42 U.S.C. § 1983, and Pennsylvania’s Whistleblower
Law. 1 Because the District Court properly granted Defendants’ motion for summary
judgment on the two federal claims and acted within its discretion in declining to exercise
supplemental jurisdiction over the state whistleblower claim, we will affirm.
I
A
Jacobs served as the County’s Chief Information Officer (“CIO”). As the CIO, he
was responsible for, among other things, “maintain[ing] the operation of” and “procuring
services” for the Information Technology (“IT”) Department. App. 391.
In 2012, Jacobs began working with Robert Ayers, an information technology
professional then-employed by the Commonwealth of Pennsylvania. That year, and
again in 2016, Ayers assisted the County in responding to a malware cyber-attack. Ayers
later told Jacobs that he could privately provide services to the County. Jacobs was
receptive because he thought Ayers’ prior work for the County was “wonderful.” App.
408.
Margaret McKevitt is the COO, and Joseph Khan is the Solicitor. McKevitt
1
became the interim COO on February 14, 2020, and the permanent COO in March 2020.
The COO is the highest-ranking non-elected official in the County.
2
Jacobs thereafter spoke with his supervisors, David Boscola, the County’s Chief
Financial Officer (“CFO”), and Brian Hessenthaler, the COO prior to Margaret McKevitt,
about retaining a cyber-security consultant. Both Boscola and Hessenthaler specifically
opposed contracting with Ayers. Jacobs knew that Hessenthaler was “[a]bsolutely dead
set” against using Ayers because he believed a state employee should not be contracted to
independently provide services to the County, as that would present a conflict of interest.
App. 406.
Nonetheless, later in 2016, Ayers began providing services to the County through
a private company called CyberRisk Services (“CRS”). 2 Jacobs oversaw Ayers’ private
contract work for the County without Hessenthaler or Boscola’s knowledge through at
least 2018 and approved CRS invoices. 3 Jacobs also recommended Ayers as a private
contractor to other government offices but did not mention Ayers’ concurrent state
employment.
2
In November 2016, one employee complained to Jacobs about Ayers’ firm,
stating that he did not “appreciate being used after hours to assist [Ayers] with enriching
himself at my and County expense.” App. 514. The employee also expressed his view
that if Ayers’ private work “conflicts with his primary employment as a PA State
employee then he needs to reevaluate that commitment and the one he made with the
County of Bucks. You can tell him this or I will, you[]r[] choice.” App. 514. Directly
below the email was a forwarded message from “Robert Ayers” whose email address was
“rayers@cyber-risk-services.com.” App. 514. At this point, at the latest, Jacobs was on
full notice that Ayers was related to CRS. Despite his knowledge, Jacobs did not advise
Hessenthaler or Boscola of Ayers’ connection to CRS.
3
Jacobs had the authority to unilaterally approve contracts below a certain dollar
amount. While the County Commissioners approved two subsequent CRS invoices,
Boscola did not know Ayers was involved with CRS at the time. It is unclear exactly
when Hessenthaler learned of Ayers’ connection to CRS, but Jacobs stated that when he
did, Hessenthaler “was livid” and “lost all faith in [Jacobs].” App. 408.
3
In September 2019, Jacobs communicated with a potential software vendor that
also had a relationship with Ayers. The vendor stated that any contract would result in a
ten-percent finder’s fee “paid to Robert Ayers [at] Cyber Risk Services LLC . . . as he is
the one who initiated this opportunity.” App. 582. Jacobs raised the finder’s fee with
two members of the Bucks County Solicitor’s Office, but one member stated that Ayers’
identity was never disclosed. Ultimately, the County did not contract with the vendor.
B
During his employment, Jacobs applied for and was granted FMLA leave on
several occasions. Relevant here, on January 8, 2020, Jacobs emailed various County
employees, including Hessenthaler and Boscola, stating that he would need to be out of
the office for cancer treatment on certain dates. On January 9, 2020, Jacobs submitted a
request for intermittent FMLA leave to the County’s health insurance claims processor.
The request was granted the following week, subject to the requirement that Jacobs’
health care provider submit certain documentation by January 25, 2020. 4 On February 4,
2020, the County denied Jacobs’ request because the claims processor did not receive the
requisite documentation. 5
C
4
The County’s human resources department reminded Jacobs of this requirement
at least once before the deadline.
5
Shortly before becoming interim COO on February 14, 2020, McKevitt learned
that Jacobs had not attended a meeting due to receiving cancer treatment, but she could
not recall when she first learned he was on medical leave.
4
On January 16, 2020, investigators for the Pennsylvania State Ethics Commission
interviewed Jacobs in connection with Ayers’ alleged use of his state employment for
private financial gain. 6 Around the same time, the County initiated its own investigation
into, among other things, Jacobs’ relationship with Ayers. The County’s investigation
team included McKevitt, Joseph Khan, and Virginia Hardwick, an attorney from the
Solicitor’s Office.
On February 21, 2020, McKevitt, Khan, and Hardwick interviewed Jacobs about
Ayers and the finder’s fee issue (“February Interview”). According to Khan, Jacobs
made several “false statements” on those topics, including that “no one had raised
concerns or objections to the relationship between Mr. Ayers and the IT Department and
the County.” App. 803-04. Except for Jacobs, no party to the February Interview
remembers any mention of his FMLA leave or upcoming surgery. Jacobs recalls that
when his FMLA leave was mentioned, McKevitt “rolled her eyes and waved [him] off.”
App. 351.
At the conclusion of the February Interview, Jacobs was told he had been placed
on administrative leave pending further investigation. On March 2, 2020, the County
6
Jacobs gave conflicting accounts to the investigators as to how and when he first
learned that Ayers was behind CRS and when and whether he told Hessenthaler about
Ayers’ relationship with CRS. Jacobs also told the investigators that “Brian
[Hessenthaler] was so right [about Ayers]. Brian was right . . . . Yeah, I f[ ]d up. I
should’ve listened to him right off the bat.” App. 426.
5
issued a letter terminating Jacobs and providing several reasons for termination. 7 As a
result, Jacobs applied for unemployment benefits and filed suit.
D
Jacobs alleged that the termination of his employment constituted, among other
things, (1) retaliation under the FMLA; (2) a violation of § 1983 under the Fourteenth
Amendment; 8 and (3) a violation of Pennsylvania’s whistleblower law. After discovery,
Defendants moved for summary judgment on all counts.
The District Court granted the motion, holding (1) the FMLA retaliation claim
failed because Jacobs did not identify facts from which a jury could infer a causal link
between his termination and his invocation of his FMLA rights, Jacobs v. Cnty. of Bucks,
20-CV-4016, 2022 WL 2239960, at *6-7 (E.D. Pa. June 22, 2022); (2) the § 1983 claim
failed because McKevitt and Khan did not violate the Fourteenth Amendment and thus
they were entitled to qualified immunity, id. at *8-11; and (3) there was no reason to
exercise supplemental jurisdiction over the state whistleblower claim, id. at *11. 9
Jacobs appeals.
7
The reasons included, among other things, dishonesty, providing incomplete,
misleading, or incorrect information, insubordination, failure to report illegal or
inappropriate activity, and violation of human resources policies.
8
The § 1983 claim was asserted only against McKevitt and Khan.
9
Jacobs does not appeal the District Court’s order granting summary judgment on
his FMLA interference or First Amendment claims, and thus the claims are waived.
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir. 2017).
6
II 10
A
We will first review Jacobs’ FMLA retaliation claim. An “FMLA retaliation
claim is assessed under the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).” Capps v. Mondelez Glob., LLC, 847 F.3d 144,
151 (3d Cir. 2017). Under that framework, a plaintiff must first establish a prima facie
case, which requires him to show that (1) “he invoked his right to FMLA-qualifying
leave, (2) he suffered an adverse employment [action], and (3) the adverse action was
causally related to his invocation of rights.” Id. at 152 n.6. “If the plaintiff succeeds, the
defendant must articulate a legitimate, nondiscriminatory reason for the adverse
employment action. [If the defendant does so,] [t]he burden then shifts back to the
plaintiff to [show] . . . that the articulated reason was a mere pretext for
discrimination.” Id. at 152 (quoting Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014)).
Defendants do not contest that Jacobs has satisfied the invocation and adverse
10
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. We review a district court’s order granting
summary judgment de novo, Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413,
418 (3d Cir. 2013), and we view the facts and make all reasonable inferences in the non-
movant’s favor, Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party is entitled to judgment as a matter of law when the non-moving party
fails to make “a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Additionally, we review the District Court’s refusal to exercise supplemental jurisdiction
for abuse of discretion. Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.
1999).
7
action elements of the prima facie case. Thus, we must decide whether there are facts
upon which a reasonable juror could find a causal link between the adverse employment
action and his invocation of his FMLA rights. To determine whether a causal link exists,
we consider “timing and evidence of ongoing antagonism.” Abramson v. William
Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001). Unusually close timing between
the protected activity and the adverse action may suggest a causal connection. Daniels v.
Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015). Absent close temporal proximity,
“we consider the circumstances as a whole, including any intervening antagonism by the
employer, inconsistencies in the reasons the employer gives for its adverse action, and
any other evidence suggesting that the employer had a retaliatory animus when taking the
adverse action.” Id. (citations omitted).
Here, the timing between the protected activity and the adverse action was not
unusually suggestive. Jacobs invoked his FMLA rights on January 9, 2020, when he
submitted his request for leave. The County’s decision to place Jacobs on administrative
leave occurred on February 20, 2020, one day before the February Interview. This gap of
forty-two days, or six weeks, does not raise an inference of causation. See, e.g., Thomas
v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (concluding that “the temporal
proximity [was] not so close as to be unduly suggestive” where “over three weeks [had]
passed”). 11
11
Jacobs contends that the real temporal proximity is only nine days because it
should be measured between the February Interview during which Jacobs argues
McKevitt first became aware of his FMLA leave, and March 2, 2020, the date of Jacobs’
termination. This argument is meritless for two reasons. First, the relevant period is the
8
There is also no evidence of ongoing antagonism or retaliatory animus. To the
contrary, Jacobs requested and received FMLA leave on multiple occasions throughout
his employment and was denied FMLA leave in 2020 only because he failed to provide
the requisite documentation. Jacobs nonetheless contends it is “suspicious” that
McKevitt, Khan, and Hardwick do not recall if his medical leave or surgery were
discussed at the February Interview. Appellant’s Br. at 44-45. Even coupled with
McKevitt allegedly rolling her eyes during the February Interview, these failures to recall
a discussion about his health do not establish a pattern of antagonism or animus. See
Dondero v. Lower Milford Twp., 5 F.4th 355, 362 (3d Cir. 2021) (concluding there was
no pattern of antagonism despite, among other things, attempts to eliminate plaintiff’s
position and the cancellation of his work-provided cell-phone plan).
The County also offered consistent explanations for Jacobs’ termination. In fact,
the County has repeatedly provided the same reasons for terminating Jacobs, which
include its belief that Jacobs was (1) dishonest about his knowledge of, and relationship
with, Ayers and (2) insubordinate in continuing to use Ayers for County work. 12 The
time “between [the] protected activity and the adverse action.” Daniels, 776 F.3d at 198;
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007).
Second, even assuming McKevitt did not learn about Jacobs’ FMLA leave until the
February Interview, as Jacobs claims, his FMLA request had no relation to the decision to
place him on administrative leave because that decision was made before the February
Interview. See Daniels, 776 F.3d at 196 (“The plaintiff . . . cannot establish that there
was a causal connection without some evidence that the individuals responsible for the
adverse action knew of the plaintiff’s protected conduct at the time they acted.”).
12
Jacobs argues that Hessenthaler’s directives not to contract with Ayers
constitute inadmissible hearsay. This argument lacks merit because “[i]nstructions to an
individual to do something are . . . not hearsay, because they are not declarations of fact
9
termination letter, contemporaneous documentary evidence, and deposition testimony
reiterate these justifications, demonstrating that the County has provided consistent
reasons for Jacobs’ termination. 13 Therefore, viewing the facts in Jacobs’ favor, no
reasonable juror could find a causal connection between his invocation of his FMLA
rights and his termination. 14
B
We next address Jacobs’ claim that his termination jeopardized his reputation,
giving rise to a liberty interest under the Fourteenth Amendment. “[T]o make out a due
process claim for deprivation of a liberty interest in reputation, a plaintiff must show a
stigma to his reputation plus deprivation of some additional right or interest.” Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (citation omitted). The “stigma-
plus” test may be satisfied in the public employment context by the public dissemination
of defamatory statements followed by termination. 15 Id. An employee is not deprived of
and therefore are not capable of being true or false.” United States v. Reilly, 33 F.3d
1396, 1410 (3d Cir. 1994) (internal citations and quotations omitted).
13
Jacobs contends that there is a dispute about who placed him on administrative
leave, but the question of who executed the decision is irrelevant to whether the County
provided inconsistent reasons for that decision. Jacobs’ other argument, that McKevitt
and Khan failed to recall specific details about Jacobs’ termination, does not mean the
stated reasons were inconsistent. To the contrary, the record shows that Defendants
consistently offered the same reasons for Jacobs’ termination.
14
Even if Jacobs established causation, his claim would fail because he has not
adduced evidence from “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.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)
(quotations omitted).
15
An employee who shows he suffered reputational damage is entitled to a name-
clearing hearing. See Codd v. Velger, 429 U.S. 624, 627-28 (1977); accord Hill, 455 F.3d
10
his liberty interests when “there is no public disclosure of the reasons for the discharge.”
Bishop v. Wood, 426 U.S. 341, 348 (1976). 16 Public disclosure means publication “to
the general public” and does not include dissemination to entities related to the employer.
Chabal v. Reagan, 841 F.2d 1216, 1224 (3d Cir. 1988).
There is no evidence that the reasons for Jacobs’ termination were disseminated to
the general public. The record shows that the reasons were discussed only among County
employees at the February Interview and were described in the March termination
letter. Insofar as the purportedly stigmatizing reasons for termination have been
disclosed through this litigation, or at his unemployment proceeding, neither constitutes a
public disclosure upon which Jacobs can seek relief. Bishop, 426 U.S. at 348 (disclosure
of allegedly stigmatizing reasons during litigation “cannot provide retroactive support”
for plaintiff’s claim); Buntin v. City of Boston, 813 F.3d 401, 407 (1st Cir. 2015)
(holding stigma-plus claim failed where there was “no allegation [of publication] beyond
the [unemployment] hearings”). Accordingly, Jacobs has not satisfied the public
at 236. Jacobs did not request such a hearing. Although our sister circuits require a
plaintiff to request such a hearing to bring a stigma-plus due process claim, see Wojcik v.
Mass. State Lottery Comm'n, 300 F.3d 92, 103 (1st Cir. 2002); Macklin v. City of New
Orleans, 300 F.3d 552, 553 (5th Cir. 2002); Quinn v. Shirey, 293 F.3d 315, 323 (6th Cir.
2002); Winskowski v. City of Stephen, 442 F.3d 1107, 1111 (8th Cir. 2006); Johnston v.
Borders, 36 F.4th 1254, 1272 (11th Cir. 2022) (noting that “due process requires a
meaningful opportunity to clear one’s name . . . upon request”), we have not decided
whether such a request is required. See Hill, 455 F.3d at 239 n.19 (“[W]e have not held
that [plaintiff] was required to [request a hearing.]”); see also Dean v. City of Coatesville,
No. CIV.A. 09-4399, 2010 WL 1005142, at *4 (E.D. Pa. Mar. 17, 2010) (gathering
cases). Because Jacobs’ stigma-plus claim otherwise fails, we need not decide this issue.
16
The allegedly stigmatizing statements must also be substantially false. Codd,
429 U.S. at 627.
11
disclosure element of the stigma-plus test, and thus fails to establish a Fourteenth
Amendment violation. 17
III
For the foregoing reasons, we will affirm.
17
Because Jacobs has not shown he was prejudiced by McKevitt and Khan’s
failure to assert qualified immunity as a defense in their answer, the District Court
properly permitted them to pursue the defense in their summary judgment motion, Oliver
v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017), and because Jacobs fails to “make out a
violation of a constitutional right,” McKevitt and Khan are entitled to qualified immunity,
Karns v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018) (quoting Pearson v. Callahan, 555
U.S. 223, 232 (2009)).
Moreover, because the District Court granted summary judgment on Jacobs’
federal claims, it acted within its discretion in declining to exercise supplemental
jurisdiction over Jacobs’ state whistleblower claim. Doe v. Mercy Catholic Med. Ctr.,
850 F.3d 545, 567 (3d Cir. 2017).
12