NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-1013
______________
KATIE NEIDIGH,
Appellant
v.
SELECT SPECIALTY HOSPITAL - MCKEESPORT
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2:14-cv-00576)
District Judge: Hon. Cathy Bissoon
______________
Submitted under Third Circuit L.A.R. 34.1(a)
October 4, 2016
______________
Before: SHWARTZ, GREENBERG, and ROTH, Circuit Judges.
(Filed: November 30, 2016)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Katie Neidigh appeals from the District Court’s order granting summary judgment
in favor of Select Specialty Hospital McKeesport (“Select”) on her discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”)
and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”),
and retaliation claim under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”).1 For the reasons set forth below, we will affirm.
I
Select employed Neidigh as a respiratory therapist from March 6, 2009 until her
termination on April 18, 2013. Neidigh had known and pre-existing back problems, but
she was able to perform her job.
On or around February 22, 2013, Neidigh learned that she was pregnant and
informed Julia Shultz, Select’s Human Resources Coordinator, Susan Pleins, Chief
Nursing Officer, and Kristie Koklarinis, Neidigh’s immediate supervisor. CEO Daniel
Butts also learned of Neidigh’s pregnancy. Koklarinis expressed concern about
Neidigh’s ability to continue working through her pregnancy due to her back problems.2
In fact, a physician had warned Neidigh that pregnancy could exacerbate her back issues.
Neidigh did not have back problems during the first several weeks of her
pregnancy. On April 13, 2013, she sought medical attention at MedExpress for back
pain. Neidigh notified Select that she would be absent from her April 14 shift due to her
1
Neidigh also asserted a claim under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., and an FMLA interference claim, 29 U.S.C. § 2601 et seq., but
the District Court dismissed these claims, and Neidigh does not appeal those rulings.
2
Neidigh met with Shultz, and they discussed the availability of FMLA leave.
2
back pain,3 and Koklarinis filled in because no one else was available. While Koklarinis
was covering her shift, Neidigh sent a text message to another respiratory therapist who
was working that day, asking whether Koklarinis was “mad.” App. 265. Koklarinis
instructed him to respond that she was “furious.” App. 265.
During the April 14 shift, Koklarinis cared for the husband of “Mrs. M.” Neidigh
normally cared for this patient, and Mrs. M asked Koklarinis where she was. Koklarinis
replied that Neidigh was feeling “under the weather.” App. 260, 666. Mrs. M said that
she recently learned Neidigh was pregnant which, Mrs. M said, “explains a lot.” App.
260. Koklarinis asked what Mrs. M meant, and Mrs. M explained that during a visit two
weeks earlier, Neidigh yelled and waved her finger at Mrs. M and her granddaughter for
failing to put on infection-control gowns and gloves when they entered Mrs. M’s
husband’s room.
On April 16, Koklarinis informed Pleins about Neidigh’s behavior with Mrs. M.
Pleins shared Koklarinis’s account with Shultz and Butts, spoke with Mrs. M about the
incident, and e-mailed Shultz, Butts, and John St. Leger, Select’s CEO, a summary of her
discussion with Mrs. M. 4
The same day, Butts met with Mrs. M and thereafter held a conference call with
Shultz and Barbara Foster, Select’s Regional Human Resources Director, about the
3
On April 16, Neidigh provided a note from her chiropractor that she would also
be absent from her next scheduled shift on April 17 “due to a lumbar strain.” App. 501
4
Shultz is responsible for, among other things, advising on discipline. She
testified that, if a family member complains to an employee of Select, the complaint is
written on a form and that form is sent to the director of quality management. Neither
Koklarinis nor Mrs. M completed such a form, but, consistent with Select’s practices, the
Chief Nursing Officer and CEO spoke with Mrs. M.
3
incident. Before their discussion, Shultz sent an e-mail to Foster stating, “Just an FYI, I
know that you would need to be aware that Katie [Neidigh] is also very recently
pregnant.” App. 548. During the call, they discussed the incident and reviewed
Neidigh’s personnel file, which contained reports of earlier inappropriate workplace
conduct and a “Final Written Warning,” which notified Neidigh that “[a]ny further
violation may result in termination.”5 App. 546. Butts and Foster decided to terminate
Neidigh’s employment.
On April 18, Shultz called Neidigh and asked her to come in for a meeting. At the
meeting, which Shultz, Butts, and Koklarinis attended, Neidigh was told she was being
terminated; she was not permitted to provide any information, and she refused to sign a
disciplinary action form. Neidigh was replaced by a male respiratory therapist.
Neidigh sued Select for, among other things, pregnancy discrimination under Title
VII and the PHRA, and for retaliation under the FMLA. Following discovery, Select
moved for summary judgment. The District Court granted the motion, concluding that
Neidigh stated a prima facie case of discrimination and FMLA retaliation, but that she
failed to demonstrate that Select’s reasons for firing her were pretextual. Neidigh
appeals.
5
Neidigh received the Final Written Warning for “reprimanding another employee
in front of patients, patient families and other staff members.” App. 546. After Neidigh
received the Final Written Warning and before her pregnancy, Select received another
complaint about Neidigh. Specifically, a patient, Mrs. D, complained that Neidigh had
removed respiratory equipment without saying anything to her. Pleins investigated the
complaint, received a written statement from Neidigh, learned that Mrs. D was viewed as
a “confused” and “difficult person,” and that another employee was in the room during
the incident and he witnessed no wrongdoing. App. 251, 397. No formal disciplinary
action was taken against Neidigh with respect to Mrs. D’s complaint.
4
II6
We examine Neidigh’s Title VII and PHRA pregnancy discrimination claims as
well as her FMLA retaliation claim under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973).7 See Doe v.
C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (pregnancy-related
discrimination); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302
(3d Cir. 2012) (FMLA retaliation). Under the McDonnell Douglas framework, a plaintiff
claiming discrimination must first establish a prima facie case. Doe, 527 F.3d at 364. If
the plaintiff is able to establish a prima facie case, “‘the burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason for the employee’s
rejection.’” Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999) (quoting McDonnell
6
The district court had jurisdiction over Neidigh’s Title VII and FMLA claims
pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4), and jurisdiction over the PHRA claim
pursuant to 28 U.S.C. § 1367(a). We have jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of the District Court’s grant or denial of summary judgment is plenary.
Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply
the same standard as the District Court, viewing facts and making all reasonable
inferences in the non-movant’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265,
266-67 (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). “An issue is genuine only if there is a sufficient evidentiary basis
on which a reasonable jury could find for the non-moving party, and a factual dispute is
material only if it might affect the outcome of the suit under governing law.” Kaucher v.
Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). 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).
7
Title VII and PHRA claims are analyzed in the same manner. See Gomez v.
Allegheny Health Servs., Inc., 71 F.3d 1079, 1084 (3d Cir. 1995); see also Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999) (considering Title VII, PHRA, and
§ 1981 claims identically under the McDonnell Douglas framework).
5
Douglas, 411 U.S. at 802). If the employer meets its burden, “[t]he plaintiff then must
establish by a preponderance of the evidence that the employer’s proffered reasons were
merely a pretext for discrimination, and not the real motivation for the unfavorable job
action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam).
“[T]hroughout this burden-shifting paradigm the ultimate burden of proving intentional
discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994).
A
We have reviewed Neidigh’s pregnancy discrimination claim and conclude that it
does not withstand summary judgment. Even assuming Neidigh has established a prima
facie case of pregnancy discrimination,8 Select has articulated a legitimate, non-
discriminatory reason for her termination. Select asserts that Neidigh’s conduct with
Mrs. M and her granddaughter violated its policies concerning respectful treatment of
others and professional behavior. This incident, along with Neidigh’s prior disciplinary
record,9 which included a Final Written Warning informing her that “[a]ny further
8
To establish a prima facie case of pregnancy discrimination, a plaintiff must
demonstrate: (1) she was pregnant and the employer knew it; (2) she was qualified for
the position she held; (3) she suffered an adverse employment action; and (4) some nexus
existed between her pregnancy and the adverse employment action. Doe, 527 F.3d at
365.
9
Neidigh’s disciplinary issues also included: (1) a warning relating to
inappropriate patient care documentation; (2) a note relating to Neidigh’s “defensive
attitude” toward Select’s then-Director of Clinical Services and his counseling her about
insubordination, App. 624; (3) a report by two nursing assistants that Neidigh was
verbally rude to them and a warning that further incidences can result in disciplinary
action; (4) counseling against horseplay and not wasting supplies and (5) a written
warning for attendance policy violations.
6
violation may result in termination,” App. 546, provides a legitimate, non-discriminatory
reason for the termination.
Neidigh has not adduced evidence showing that Select’s reasons for her
termination were pretextual. To establish pretext, “the plaintiff must point to some
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.” Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir.
2013) (internal quotation marks and citation omitted). The employee “must show[] not
merely that the employer’s proffered reason was wrong, but that it was so plainly wrong
that it cannot have been the employer’s real reason.” Keller v. Orix Credit All., Inc., 130
F.3d 1101, 1109 (3d Cir. 1997) (en banc).
Neidigh argues that a factfinder could disbelieve Select’s reasons based on the
“unusually suggestive” timing of her termination. Appellant’s Br. 36, Reply Br. 15. As
to timing, there are two significant events. One is the proximity between Neidigh’s
announcement she was pregnant and her termination. The other is the timing of her
absence “due to a lumbar strain” and her termination. The former is not temporally
proximate. The latter, while proximate, does not suggest Neidigh was fired because she
was pregnant. Even if we infer that her lumbar strain was pregnancy-related (even
though her doctor does not say so), events transpired during her absence that led to her
termination which were unrelated to her pregnancy. Neidigh was terminated four days
after calling out for her April 14 shift, but in that four-day period, Neidigh’s incident with
7
Mrs. M came to light. The timing of the revelation of the incident with Mrs. M, together
with Neidigh’s disciplinary record, undermines any contention that the timing of her
termination was suggestive of discrimination. See Thomas v. Town of Hammonton, 351
F.3d 108, 114 (3d Cir. 2003) (no evidence termination for absenteeism was pretextual
where “the chronology of events far more strongly suggest[ed]” that the employer was
concerned about the dependability of the plaintiff, a probationary employee).
Neidigh also argues that the timing, in addition to other facts pertaining to
Koklarinis’s role in her termination, support a finding that the reasons offered were
pretextual. In this regard, Neidigh relies on what she considers a “plethora” of evidence
showing Koklarinis resented her pregnancy, including Koklarinis’s concern about
Neidigh’s ability to work during her pregnancy, her statement that she was furious for
having to work when Neidigh was absent, and the fact that Koklarinis was the source of
Mrs. M’s complaints. Appellant’s Br. 57, Reply Br. 11. Even assuming that evidence
showed discriminatory animus on Koklarinis’s part, that evidence would be material here
only if Neidigh could establish either Koklarinis participated in the decision to fire her
from Select or she could show Select’s liability under the “cat’s paw” theory. Under the
latter theory, discriminatory intent may be imputed to the employer if a supervisor
performs an act motivated by discriminatory animus that is intended to cause an adverse
employment action, and if that act is a proximate cause of the ultimate employment
action. See McKenna v. City of Phila., 649 F.3d 171, 177-78 (3d Cir. 2011) (stating that
“‘the supervisor's biased report may remain a causal factor if the independent
investigation takes it into account without determining that the adverse action was, apart
8
from the supervisor's recommendation, entirely justified’”) (quoting Staub v. Proctor
Hosp., 562 U.S. 411, 421 (2011)).
Neither basis applies. First, although Koklarinis was present when Neidigh was
told she was fired, Koklarinis did not participate in the termination decision. Second,
Koklarinis’s allegedly biased report did not serve as the sole source of facts concerning
the incident with Mrs. M. After Koklarinis reported Mrs. M’s complaint, Pleins and
Butts each spoke separately with Mrs. M about the incident. Thus, Koklarinis’s act was
not the proximate cause of Neidigh’s termination. See Jones v. Se. Pa. Transp. Auth.,
796 F.3d 323, 331 (3d Cir. 2015) (stating that the Staub Court “did indicate that
proximate cause will not exist when the employer does not rely on the ‘supervisor’s
biased report’ in taking the ultimate adverse action” and finding no evidence that the
employer had merely adopted the supervisor’s biased account of events).
Neidigh also relies on the e-mail from Shultz to Foster reminding those involved
in the termination that Neidigh was pregnant. This disclosure itself is not an indicator of
discrimination. Indeed, we have said that having accurate information about employees
is essential to allow employers to properly review their employment decisions and
comply with state and federal law. See Armbruster v. Unisys Corp., 32 F.3d 768, 781 (3d
Cir. 1994), overruled on other grounds by Smith v. Borough of Wilkinsburg, 147 F.3d
272, 277-78 (3d Cir. 1998). Here, there is no evidence that this communication was
made for anything other than informational and potential legal purposes, nor is there
9
evidence that Neidigh’s pregnancy was a consideration in the decision to terminate her.10
Finally, Neidigh claims that the more favorable treatment she received in response
to Mrs. D’s 2012 complaint, discussed in note 5, infra, should have precluded summary
judgment. The District Court correctly observed that there are legitimate, non-
discriminatory bases for the way Select responded to Mrs. D’s and Mrs. M’s complaints.
Mrs. D was known to be a “difficult” and “confused” person, and Pleins took Neidigh’s
statement once she had received two conflicting accounts of the incident. That Neidigh
was terminated without submitting a written statement in response to Mrs. M’s complaint
would not cause a reasonable factfinder to disbelieve Select’s reason for termination or to
believe that pregnancy, rather than Mrs. M’s complaint and Neidigh’s disciplinary record,
was more likely the basis for termination. First, there is no evidence to suggest Mrs. M’s
account was not accurate. Second, Mrs. M’s incident was independently investigated by
two superiors. For these reasons, no reasonable juror could conclude that the different
treatment in connection with the Mrs. D incident gives rise to an inference of
discrimination.11
10
Neidigh attempts to raise factual issues based on discrepancies in Butts’s
testimony concerning the identities of who decided to fire her. In this case, their
identities are immaterial as to pretext because they do not call into question Select’s
reason for termination. See Lichtenstein, 691 F.3d at 310-11 (contradictions pertained to
the timing of termination and went “to the very core of [the employer’s] proffered reason
for terminating [the employee]”).
11
Relatedly, Neidigh contends that Select’s failure to follow its own complaint
and discipline process by not taking a statement from Mrs. M at the time of the incident
supports a finding of pretext. We disagree. First, Select was not aware of the incident
until weeks after it occurred. Second, while Neidigh correctly notes that procedural
irregularities can be evidence of discriminatory intent, see Stewart v. Rutgers, The State
Univ., 120 F.3d 426, 433-34 (3d Cir. 2000), Select’s written disciplinary procedures
provide it with discretion, allowing immediate suspension or termination of an employee
10
B
Neidigh’s argument that the District Court erred in granting summary judgment on
her FMLA retaliation claim also fails. Even assuming Neidigh established a prima facie
case,12 Select provided a legitimate, non-discriminatory reason for termination and
Neidigh has not presented evidence of pretext. While the record shows that her
supervisor was concerned about Neidigh’s pregnancy and unhappy she was on leave,
there is no evidence that Neidigh’s use of leave motivated the employment decision.
Although her absence led to the discovery of the incident with Mrs. M, it was that
incident, in the context of her prior violations, and not the fact that she was on leave, that
led to her termination. For these reasons, we conclude that no reasonable juror could find
that the reason for her termination was pretextual.
III
For the foregoing reasons, we will affirm the order of the District Court granting
summary judgment for Select.
in some circumstances. Third, there is no evidence that similarly situated employees
were treated differently than Neidigh. In fact, in Neidigh’s situation with Mrs. D, no
statement was taken from Mrs. D at or around the time of her complaint either.
12
To establish a prima facie FMLA retaliation claim, a plaintiff must demonstrate
that “(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse
employment decision, and (3) the adverse action was causally related to her invocation of
rights.” Lichtenstein, 691 F.3d at 301-02.
11