Conway v. Celtic Healthcare of Carlisle, Inc. et al

BRIEF IN SUPPORT re MOTION for Summary Judgment

M.D. Pa.May 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA LISA CONWAY, Plaintiff, v. CELTIC HEALTHCARE OF CARLISLE, INC., t/d/b/a CELTIC HEALTHCARE; and KIM KRANZ, Defendants. ) ) ) ) ) ) ) ) ) ) No. 3:15-cv-02496-MEM Electronically Filed DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Catherine S. Ryan (PA78603) cryan@reedsmith.com Richard L. Etter (PA92835) retter@reedsmith.com Robert J. Tyler III (PA312557) rtyler@reedsmith.com REED SMITH LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 288-4226/3806/3090 Facsimile: (412) 288-3063 Attorneys for Defendants Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 1 of 28 - i - TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. PROCEDURAL HISTORY ............................................................................ 3 III. STATEMENT OF UNDISPUTED MATERIAL FACTS .............................. 3 IV. STATEMENT OF QUESTIONS INVOLVED .............................................. 5 V. ARGUMENT ................................................................................................... 6 A. Plaintiff’s Wrongful Termination Claims Are Barred .......................... 6 B. Plaintiff’s ADA Claims Should Be Dismissed ..................................... 7 1. Plaintiff Cannot State A Prima Facie Case of Disability Discrimination ............................................................................. 7 2. Plaintiff Is Not A “Qualified Individual With A Disability” ................................................................................... 7 3. Plaintiff Has Not Stated A Prima Facie Case As To The Written Warning ......................................................................... 9 4. Plaintiff Cannot Rebut Defendants’ Legitimate Articulated Reason .................................................................... 11 C. Plaintiff’s ADA and FMLA Retaliation Claims Should Be Dismissed ............................................................................................ 16 D. Plaintiff’s Claims against Kranz Fails Because There Was No Discrimination or Retaliation for Her to Aid And Abet. .................... 19 E. Plaintiff’s FMLA Interference Claim Should Be Dismissed .............. 20 VI. CONCLUSION .............................................................................................. 21 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 2 of 28 - ii - TABLE OF AUTHORITIES Page(s) Cases Ade v. KidsPeace Corp., 401 Fed. Appx. 697 (3d Cir. 2010) ..................................................................... 13 Anderson v. Consolidated Rail Corporation, et al., 297 F.3d 242 (3d Cir. 2002) ............................................................................... 12 Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996) ................................................................................. 6 Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995) ................................................................................. 16 Burgh v. Borough Counsel of Montrose, 251 F.3d 465 (3d Cir. 2000) ................................................................................. 6 Deans v. Kennedy House, Inc., 587 F. App’x 731 (3d Cir. 2014) .......................................................................... 9 Diaz v. Saucon Valley Manor Inc., 579 F. App’x 104 (3d Cir. 2014) .......................................................................... 7 Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (3d Cir. 2008) ............................................................................... 14 Fahnestock v. Carlisle Regional Medical Center, 659 Fed. Appx. 75 (3d Cir. 2016) .......................................................... 14 Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) ............................................................................... 18 Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) ................................................................................. 7 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) ..................................................................... 14, 15, 19 Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1997) ............................................................................. 7, 8 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 3 of 28 - iii - Geatti v. AT & T, 232 F. App’x 101 (3d Cir. 2007) ........................................................................ 18 Goosby v. Johnson & Johnson Med. Inc., 228 F.3d 313 (3d Cir. 2000) ............................................................................... 13 Harris v. Harley-Davidson Motor Co. Operations, No. 1:09-CV-1449, 2011 WL 6003191 (M.D. Pa. Sept. 28, 2011) ............... 9, 10 Hicks v. ABT Assoc., Inc., 572 F.2d 960 (3d Cir. 1978) ................................................................................. 6 Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101 (3d Cir. 1997) ................................................................. 14, 16, 19 Lopez v. Citywide Cmty. Counseling Servs., Inc., 2016 WL 5420685 (Pa. Super. Ct. Sept. 27, 2016) ........................................................................... 20 Marra v. Phila. Hous. Auth., 497 F.3d 286 (3d Cir. 2007) ............................................................................... 17 Mieczkowski v. York City Sch. Dist. 414 F. App’x 441 (3d Cir. 2011) ........................................................................ 10 Morse v. Lower Merion Sch. Dist. 132 F.3d 902 (3d Cir. 1997) ............................................................................... 14 Ramos v. EquiServe, 146 Fed. Appx. 565 (3d Cir. 2005) ..................................................................... 13 Ross v. Gilhuly, 755 F.3d 185 (3d Cir. 2014) ............................................................................... 21 Rozic v. Trinity Indus., Inc., 47 Fed. Appx. 151 (3d Cir. 2002) ....................................................................... 15 Santarelli v. Nat'l Book Co. Inc., 41 Pa. D. & C.4th 483 (Com. Pl. 1999) .................................................................................................................. 19 Simpson v. Kay Jewelers, 142 F.3d 639 (3d Cir. 1998) ......................................................................... 13, 15 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 4 of 28 - iv - Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ........................................................................................ 17 Wallace v. United Parcel Serv., 2006 WL 1806404 (D.N.J. June 29, 2006), aff’d, 2007 WL 2988582 (3d Cir. Oct. 15, 2007) ......................................................................... 19 Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751 (3d Cir. 2004) ............................................................................... 19 Woodson v. Scott Papers, 109 F.3d 913 (3d Cir. 1997) ................................................................................. 6 Regulations 29 C.F.R. § 1630.2(n)(1) ............................................................................................ 8 29 C.F.R. § 1630.2(n)(2) ............................................................................................ 8 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 5 of 28 - 1 - I. INTRODUCTION Celtic Healthcare of NEPA, Inc. (incorrectly named as Celtic Healthcare of Carlisle Inc., t/d/b/a Celtic Healthcare) (“Celtic”) issued a written warning to Plaintiff Lisa Conway, a former Bereavement Counselor, after she failed to appear to meet grieving families for two scheduled appointments. Plaintiff was later terminated as part of a reduction in force that impacted 13 other employees. Her Bereavement Counselor job was eliminated and those duties were consolidated with those of a Volunteer Coordinator who could provide both bereavement and counseling services. The position of Bereavement Coordinator has not been re- established. Despite these undisputed facts, Plaintiff claims that she was discriminated and retaliated against because of her disability or perceived disability (depression) and that Celtic interfered with, and retaliated against her because of, her exercise of FMLA rights. She has also named her former supervisor Kim Kranz as an individual defendant under these same claims. The undisputed facts and applicable law confirm that summary judgment is warranted on all counts and that no trial is necessary here. Plaintiff’s claims fail for multiple reasons. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 6 of 28 - 2 - First, Plaintiff’s termination claim fails because she never filed an administrative charge challenging her termination and, thus, failed to exhaust her administrative remedies and is barred from challenging it here. Plaintiff’s discrimination and retaliation claims fail because there is no evidence from which a jury reasonably could conclude that Plaintiff was issued a written warning or terminated because of her disability. To the contrary, the evidence confirms that Plaintiff was disciplined because of her unprofessional behavior, including her failure to reschedule the appointments of two grieving families who arrived for bereavement counseling while Plaintiff was out on leave. Plaintiff’s FMLA interference and retaliation claims fail because she received all of the FMLA leave she ever requested. Likewise, there is no evidence whatsoever to support the claim that Ms. Kranz aided and abetted any discrimination or retaliation. Indeed, Plaintiff testified that she had no problems working with Ms. Kranz. Because there are no disputed issues of material fact and because Plaintiff’s claims are fatally deficient as a matter of law and fact, this Court should enter summary judgment in favor of Defendants and dismiss the Amended Complaint in its entirety with prejudice. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 7 of 28 - 3 - II. PROCEDURAL HISTORY On December 29, 2015, Plaintiff filed her Complaint. On August 29, 2016, Plaintiff filed an Amended Complaint, which added an allegation that Plaintiff was terminated from employment with Celtic on July 23, 2014. Am. Compl. ¶ 44. On September 12, 2016, Defendants filed their Answer and Affirmative Defenses, and discovery then commenced. Contemporaneously with the filing of this Brief, Defendants have filed their Motion for Summary Judgment and Statement of Undisputed Facts (“SOF”) with respect to all claims asserted by Plaintiff. III. STATEMENT OF UNDISPUTED MATERIAL FACTS Celtic (re)hired Plaintiff as a Hospice Bereavement Coordinator on May 21, 2012.1 SOF ¶ 6. As a Bereavement Coordinator, Plaintiff worked with family members who lost, or were in the process of losing, a loved one, including providing counseling sessions for the family. SOF ¶¶ 7-8. Plaintiff was granted all of the FMLA leave she requested, including leaves for depression in 2011, 2012 and January and May 2014. SOF ¶¶ 12, 16-17. In May 2014, Plaintiff again requested, and received, FMLA leave. SOF ¶¶ 16-17. Specifically, Plaintiff requested FMLA leave from May 27, 2014 through June 2, 2014. SOF ¶ 20. On June 2, 2014, Plaintiff failed to return to work as scheduled. 1 Plaintiff had previously been employed by Celtic, and its predecessor, Hospice Community Care, until she was laid off in March 2012. SOF ¶¶ 1, 3. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 8 of 28 - 4 - SOF ¶ 22. Instead, without prior approval, Plaintiff took off another week for bereavement leave and returned to work on June 10, 2014. SOF ¶ 22. Plaintiff had previously scheduled bereavement counseling sessions with two families during the week she knew she would be absent. SOF ¶ 23. Plaintiff, however, failed to advise Defendants of the scheduled sessions. SOF ¶ 27. She also failed to inform the families of her absence. SOF ¶ 28. As a result, when the families arrived for counseling, Celtic had no one prepared to assist them with their bereavement issues. SOF ¶¶ 28. Not surprisingly, Plaintiff was issued a written Disciplinary Notice on June 18, 2014 for failing to follow Celtic’s procedures and practices. SOF ¶¶ 29-30. In or about March 2014, Celtic initiated a reduction in force to eliminate redundancies and reduce costs. SOF ¶ 34. At that time, Celtic employed one Hospice Bereavement Coordinator and two Hospice Volunteer Coordinators. SOF ¶ 35. Vice President Kim Kranz transferred the Bereavement Coordinator’s duties to a Volunteer Coordinator, who, unlike Plaintiff, was able to provide both bereavement and volunteer counseling services. SOF ¶ 37. Accordingly, on July 23, 2014, Celtic notified Plaintiff that her position was eliminated. SOF ¶ 36. Plaintiff was one of 13 employees impacted by the reduction. SOF ¶ 38. None of the other 13 individuals were on FMLA leave at the time of the reduction. SOF ¶ 53. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 9 of 28 - 5 - IV. STATEMENT OF QUESTIONS INVOLVED 1. Is Plaintiff’s termination claim under the ADA and PHRA barred for failure to exhaust the administrative process? SUGGESTED ANSWER: Yes 2. Is Plaintiff a qualified individual under the ADA and PHRA? SUGGESTED ANSWER: No. 3. Has Plaintiff proven a prima facie case of disability discrimination under the ADA or PHRA? SUGGESTED ANSWER: No 4. Has Plaintiff proven a prima facie case of FMLA interference? SUGGESTED ANSWER: No 5. Has Plaintiff proven a prima facie case of retaliation? SUGGESTED ANSWER: No 6. Has Plaintiff failed to meet her burden of proof that Defendants’ legitimate non-discriminatory reasons for her written warning and termination were pretextual? SUGGESTED ANSWER: Yes 7. Has Plaintiff failed to meet her burden of proof that Kranz aided and abetted the alleged disability discrimination? SUGGESTED ANSWER: Yes Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 10 of 28 - 6 - V. ARGUMENT A. Plaintiff’s Wrongful Termination Claims Are Barred A plaintiff cannot bring employment discrimination claims in federal court unless she has exhausted her administrative remedies on these claims. See, e.g., Burgh v. Borough Counsel of Montrose, 251 F.3d 465, 469 (3d Cir. 2000) (to bring discrimination claims a plaintiff must first exhaust those claims before the EEOC); Woodson v. Scott Papers, 109 F.3d 913, 925 (3d Cir. 1997) (to bring PHRA claims a plaintiff must first exhaust those claims before the PHRC). A claim is considered exhausted only if it is “fairly within the scope of the [administrative] complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). In other words, “the scope of a resulting private civil action in the district court is defined by the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge of discrimination.” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (citation and internal quotations omitted). Plaintiff’s claims challenging her termination are not within the scope of her EEOC charge. On July 1, 2014, Plaintiff filed an EEOC charge alleging disability discrimination as it pertained only to her written warning. See Am. Compl. ¶ 18. In fact, Plaintiff’s EEOC charge does not contain a single reference to her termination. SOF ¶ 46. Accordingly, Plaintiff has failed to administratively exhaust Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 11 of 28 - 7 - her discrimination claims as to her termination and, therefore, Defendants are entitled to summary judgment on this claim. B. Plaintiff’s ADA Claims Should Be Dismissed2 1. Plaintiff Cannot State A Prima Facie Case of Disability Discrimination To state a prima facie case under the ADA, Plaintiff must establish that she: (1) was disabled within the meaning of the ADA; (2) was otherwise qualified to perform the essential functions of the job with or without reasonable accommodations; and (3) suffered an adverse employment action. Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1997). Plaintiff cannot satisfy the second prong, or the third prong with respect to the written warning. 2. Plaintiff Is Not A “Qualified Individual With A Disability” Based on Plaintiff’s own deposition testimony and medical records, she is not a qualified individual under the ADA or PHRA because she could not perform the essential duty of the Bereavement Coordinator position; i.e. consulting with clients. SOF ¶ 10. 2 Plaintiff’s ADA and PHRA disability discrimination and retaliation claims are all evaluated using the same legal standards. See e.g. Diaz v. Saucon Valley Manor Inc., 579 F. App'x 104, 105 (3d Cir. 2014); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). Accordingly, Plaintiff’s disability discrimination and retaliation claims are all fatally flawed for the same reasons. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 12 of 28 - 8 - To establish that she is a “qualified individual” under the Act, Plaintiff must prove that she could perform the essential functions of the Bereavement Coordinator position with or without a reasonable accommodation. See Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1997). The ADA’s regulations provide that the “essential functions” of an employee’s position are the “fundamental job duties,” as opposed to merely “marginal functions.” 29 C.F.R. § 1630.2(n)(1). The regulations further provide that “[t]he function may be essential because the reason the position exists is to perform that function.” 29 C.F.R. § 1630.2(n)(2). It is undisputed that interacting with clients is an essential function of the Bereavement Coordinator position. SOF ¶ 9. It is further undisputed that Plaintiff’s depression restricted her interacting with clients, with or without reasonable accommodation. SOF ¶ 10. A: Normally when you have depressive disorder you can interact fine with people. But there does come to be a point that you’re more introverted, you’re sad, you’re hopeless, you’re not sleeping, it’s hard to function. Q: And during those times are you able to interact with others? A: Sometimes. Q. During those times are you able to perform the functions of your job as a Bereavement Coordinator? A. No. And that’s why I had to go out on FMLA.” Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 13 of 28 - 9 - Plaintiff’s physician agreed that Plaintiff was unable to perform the duties of her job. Appx. Tab 2. In fact, following her termination from Celtic, Plaintiff was hired as a counselor at Scranton Counseling Center, but resigned only three months later because her depression prevented her from performing her job. SOF ¶ 54. Indeed, Plaintiff is not currently looking for employment because she is unable to work due to memory loss, and she has filed for Social Security Disability benefits, claiming that she is totally disabled and unable to work in any capacity. SOF ¶¶ 55-56. To the extent Plaintiff claims she was perceived as disabled, the record evidence clearly shows that Plainitff never informed Kranz, nor did Kranz have any reason to know, that Plaintiff had taken FMLA leave for depression -- and therefore could not have perceived her as suffering from depression. SOF ¶¶ 18-19. Accordingly, Plaintiff is not a qualified individual afforded protection under the ADA or PHRA, and therefore, Plaintiff’s disability discrimination claim fails. 3. Plaintiff Has Not Stated A Prima Facie Case As To The Written Warning As an initial matter, and even if Plaintiff is a “qualified individual” under the Act, (which she is not), Plaintiff’s written warning is not an adverse employment action and therefore cannot be the basis for her discrimination claim. Deans v. Kennedy House, Inc., 587 F. App'x 731, 734 (3d Cir. 2014) (written warning, even with a dock in pay, is not an adverse employment action that can support a discrimination claim); Harris v. Harley-Davidson Motor Co. Operations, No. 1:09- Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 14 of 28 - 10 - CV-1449, 2011 WL 6003191, at *5 (M.D. Pa. Sept. 28, 2011) (“plaintiff's written warning does not constitute adverse employment action, and plaintiff cannot establish this element of a prima facie case of employment discrimination.”)3. In determining whether a written warning constitutes a material change in the terms or condition of employment, the Third Circuit looks for significant events such as demotion, change of work schedule, reassignment, reduction of hours, or the denial of a pay raise or promotion. Mieczkowski v. York City Sch. Dist. 414 F. App’x 441, 447 (3d Cir. 2011). It is undisputed that Plaintiff’s employment status was not affected in any of these ways as a result of the written warning. See generally Am. Compl. Plaintiff’s subjective belief that the written warning was unjustly issued is not sufficient to show a material change in employment. See Id. (“Beyond alleging that the letters of reprimand were unjustly issued… [plaintiff] has not demonstrated how the letters materially changed her employment status. In the absence of such evidence…we find that [plaintiff] failed to demonstrate that the letters constituted adverse employment actions”). Therefore, Plaintiff’s written warning cannot be the basis for her discrimination or retaliation claims. 3 All unpublished opinions cited herein are appear under Tab 10 of the Appendix. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 15 of 28 - 11 - 4. Plaintiff Cannot Rebut Defendants’ Legitimate Articulated Reason Even if Plaintiff could establish a prima facie case of disability discrimination (which she cannot), she has produced no evidence to rebut Defendants’ legitimate, non-discriminatory reasons for the written warning or termination. Plaintiff was issued a written warning for unprofessional behavior for failing to reschedule or alert Defendants of two appointments; and she was terminated as part of a reduction in force. Plaintiff admits that she scheduled the bereavement counseling appointments for two families before she went on medical leave, but did not reschedule or make arrangements for another counselor to cover them. SOF ¶¶ 23, 27-28. Plaintiff further admits that she did not inform anyone else at Celtic that these appointments needed to be covered or rescheduled while she was on leave. SOF ¶ 27. It is undisputed that Ms. Kranz informed Plaintiff that she was receiving the written warning because of her unprofessional conduct in allowing the two bereavement appointments to go unattended. SOF ¶¶ 29-30. Plaintiff failed to record these appointments in Celtic’s central calendar as required. SOF ¶ 26. If she had done so, Celtic would have been aware of the appointments and could have ensured they were covered or rescheduled. SOF ¶¶ 24-25. Plaintiff’s failure to enter the appointments in the central calendar occurred during work hours, not when she was on leave. SOF Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 16 of 28 - 12 - ¶ 23. Therefore, the written warning was based on a work-related deficiency that occurred prior to Plaintiff’s medical leave. Moreover, Plaintiff has failed to adduce any evidence that any non-disabled employees were treated differently than she was. SOF ¶ 49, 51-52. Q. Have any of the other people you identified ever taken FMLA leave? A. I don’t know. Q. Have any of those people, for the people that you identified, do any of them have disabilities? A. I don’t know. … Q. So is there anyone else at Celtic who ever treated other employees differently than they treated you? A. Not that I know of. Indeed, Plaintiff has failed to identify a single person, whether inside or outside of her protected class, who engaged in the same or similar misconduct but who was treated more favorably. SOF ¶ 48. The Third Circuit has repeatedly affirmed summary judgment where a plaintiff alleges, but produces no record evidence of, any similarly situated individuals outside of the protected class who received more favorable treatment. See, e.g., Anderson v. Consolidated Rail Corporation, et al., 297 F.3d 242, 252-53 (3d Cir. 2002) (affirming dismissal of discrimination claim for failure to establish that similarly situated employees received more favorable treatment); Simpson v. Kay Jewelers, 142 F.3d 639, 645-57 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 17 of 28 - 13 - (3d Cir. 1998); Goosby v. Johnson & Johnson Med. Inc., 228 F.3d 313, 322 (3d Cir. 2000)); Ade v. KidsPeace Corp., 401 Fed. Appx. 697, 703-04 (3d Cir. 2010) (not precedential); Ramos v. EquiServe, 146 Fed. Appx. 565, 569 (3d Cir. 2005) (not precedential). Plaintiff’s position was eliminated as the result of a reduction-in-force necessitated by Celtic’s loss in profits. SOF ¶ 34. Celtic made the decision to undertake a reorganization and reduction-in-force to eliminate redundancies and reduce cost. SOF ¶ 34. At that time, Celtic employed one Hospice Bereavement Coordinator and two Hospice Volunteer Coordinators. SOF ¶ 35. Kranz eliminated the Bereavement Coordinator position and transferred those job duties to a volunteer coordinator who, unlike Plaintiff, was equipped to provide both bereavement and volunteer counseling services. SOF ¶ 37. Accordingly, on July 23, 2014, Celtic notified Plaintiff that her position was eliminated. SOF ¶ 40. Thirteen other employees were terminated as part of the reduction of force. SOF ¶ 38. Plaintiff has provided no evidence to refute Defendants’ stated reason for her termination. Again, the record is also completely devoid of evidence that similarly- situated employees outside of Plaintiff’s protected class were treated more favorably than Plaintiff. SOF ¶¶ 49-52. In fact, none of the other thirteen individuals impacted by the reduction in force were on medical leave. SOF ¶ 53. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 18 of 28 - 14 - Against the backdrop of Plaintiff’s multiple admissions and the additional evidence and testimony establishing the legitimate reasons for the written warning and termination, Plaintiff supplies no facts, but merely states her personal belief, that these incidents were related to her disability. However, Plaintiff’s subjective belief is insufficient to defeat summary judgment. Fahnestock v. Carlisle Regional Medical Center, 659 Fed. Appx. 75, 78-79 (3d Cir. 2016) (“speculation does not create a genuine issue of fact.”). To avoid summary judgment, Plaintiff must put forth evidence from which a fact finder could either: (1) disbelieve Defendants’ articulated reasons for its actions; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of Defendants’ actions. See, e.g., Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997); Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). In this respect, Plaintiff bears “a difficult burden.” Fuentes, 32 F.3d at 765. Plaintiff cannot rely on mere speculation as to the motives behind Defendants’ actions. Fahnestock, 659 Fed. at 78-79; Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor can Plaintiff simply argue that a fact finder might not believe Defendants’ reasons. Rather, the plaintiff must put forth sufficient probative evidence to establish pretext: [T]he non-moving plaintiff must demonstrate such weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable fact-finder could rationally find them unworthy of credence. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 19 of 28 - 15 - Fuentes, 32 F.3d at 765; Simpson, 142 F.3d at 643-45. Thus, where -- as here -- the Defendants’ proffered reasons are undisputed, pretext cannot be established, because no reasonable jury could doubt the veracity of such reasons. See Rozic v. Trinity Indus., Inc., 47 Fed. Appx. 151 (3d Cir. 2002) (not precedential). Moreover, the record evidence confirms that Defendants’ reasons for issuing the written warning (unprofessionalism) and eliminating Plaintiff’s position (costs) were true. Indeed, Plaintiff admits that she failed to act professionally when she left her clients unattended and that she, along with 13 other employees, were terminated as part of the reduction in force. SOF ¶¶ 28, 38, 40. As such, no juror could reasonably disbelieve Defendants’ articulated legitimate reasons. Further, to sufficiently discredit the employer's non-discriminatory reasons, “the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765. The ultimate burden of proving that the defendant intentionally discriminated against the plaintiff remains, at all times, with the Plaintiff. Id. Moreover, it is well-settled that in the absence of specific, admissible evidence indicating that an employer acted with discriminatory intent, managerial decisions should not be second-guessed by the courts. See, e.g., Keller, 130 F.3d at Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 20 of 28 - 16 - 1108 (“federal courts are not arbitral boards ruling on the strength of ‘cause’ for discharge. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination].”); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995) (“[courts] do not sit as a super-personnel department that reexamines an entity’s business decisions.”). Defendants’ decision to issue a written warning and eliminate Plaintiff’s position is exactly the type of business judgment which courts are reluctant to “second guess” under cover of employment discrimination laws. See id. Moreover, it is unreasonable to believe that Defendants suddenly decided to discriminate against Plaintiff on the basis of her disability after having granted every one of her FMLA requests for more than three years -- without discrimination or retaliation. SOF ¶¶ 12-15. Indeed, Plaintiff admitted that she never had any issues with Kranz prior to the written warning, and that Kranz never treated her differently than any other employee. SOF ¶¶ 33, 51. In short, Plaintiff’s speculation is insufficient to demonstrate pretext. C. Plaintiff’s ADA and FMLA Retaliation Claims Should Be Dismissed To state a prima facie case of retaliation, Plaintiff must produce admissible evidence in the record sufficient to establish that: (1) she engaged in protected activity; (2) she suffered an adverse action after the protected activity; and (3) a Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 21 of 28 - 17 - causal link exists between the protected activity and the adverse action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). This Court should enter summary judgment in favor of Defendants on Plaintiff’s retaliation claims because: (1) Plaintiff cannot show that she would not have been issued a written warning or been selected for the reduction in force but for being disabled or for taking FMLA leave; and (2) Plaintiff cannot establish pretext. Even if Plaintiff could satisfy the first two elements of retaliation (which she cannot), Plaintiff cannot prove the third element – that a causal link exists between the protected activity and the adverse action. To satisfy this element, Plaintiff “must establish that… her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). Plaintiff cannot establish the requisite but-for causation, nor can she establish pretext. It is undisputed that Plaintiff never complained to anyone at Celtic regarding discrimination, retaliation, or FMLA interference. SOF ¶¶ 41-42. Plaintiff took FMLA leave for her depression in 2011, 2012, and again in January 2014. SOF ¶ 12. Plaintiff admits that she was never subjected to disciplinary action, discrimination, or retaliation as a result of taking FMLA leave in 2011, 2012 or January 2014. SOF ¶¶ 14-15. Despite Plaintiff’s multiple FMLA leaves without issue, Plaintiff now contends that Defendants retaliated against her because she is Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 22 of 28 - 18 - disabled and for her use of FMLA leave on May 27, 2014, by issuing the written warning and selecting her for the reduction in force. Importantly, the decision to reduce Celtic’s workforce was made in March 2014 -- two months before Plaintiff took medical leave and four months before Plaintiff filed an EEOC Charge, which prohibits Plaintiff from establishing the requisite but-for causation. SOF ¶ 34. Geatti v. AT & T, 232 F. App'x 101, 103 (3d Cir. 2007) (“With respect to his claim of retaliation, we agree that [employee’s] claim must fail as the adverse employment action in question—the elimination of [employee’s] position—had already been decided upon prior to [employee’s] complaints.”). Therefore, Plaintiff’s termination cannot possibly be in retaliation for either activity. Moreover, the written warning cannot be the basis for retaliation because it was issued due to Plaintiff’s failure to ensure that her clients received counseling at the scheduled time -- which is wholly unrelated to Plaintiff’s use of medical leave and could have been avoided had she scheduled the appointments in Celtic’s central calendar prior to her leave, as required. Further, the time elapsed between Plaintiff’s leave and her written warning and job elimination cannot, by itself, establish but-for causation. The May 27, 2014 leave was 22 days before her June 18, 2014 written warning, and two months before her July 23, 2014 termination. See, e.g., Farrell v. Planters Lifesavers Co., 206 F.3d Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 23 of 28 - 19 - 271, 280 (3d Cir. 2000) (more than 10 days is too long to create inference of causation alone); Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (two months too long); Wallace v. United Parcel Serv., 2006 WL 1806404, at *5 (D.N.J. June 29, 2006) (same), aff’d, 2007 WL 2988582 (3d Cir. Oct. 15, 2007). Finally, even if Plaintiff is able to establish her prima facie case of retaliation (which she cannot), she cannot survive summary judgment without evidence that Defendants’ explanation for its actions was pretext. See Fuentes, 32 F.3d at 764-65; Keller, 130 F.3d at 1109. As discussed above, the record evidence clearly shows that Plaintiff has failed to rebut Defendants’ legitimate, nondiscriminatory reasons for the written warning and termination. Accordingly, Plaintiff’s ADA and FMLA retaliation claims fail. D. Plaintiff’s Claims against Kranz Fails Because There Was No Discrimination or Retaliation for Her to Aid And Abet. Under Pennsylvania law, “individual employees are not to be held liable under these Acts unless a supervisory employee can be shown to have aided and abetted the employer's discriminatory actions in violation of the PHRA.” Santarelli v. Nat'l Book Co. Inc., 41 Pa. D. & C.4th 483, 491 (Com. Pl. 1999). In other words, a supervisory employee cannot be held liable for aiding and abetting discrimination when, as a matter of law, Plaintiff’s discrimination claims against the employer fail. That is the case here. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 24 of 28 - 20 - For all the reasons set forth above, Plaintiff’s disability discrimination and retaliation claims fail. Put simply, Kranz cannot be found liable for aiding and abetting in alleged acts of discrimination or retaliation that, as a matter of law, did not occur. Even if Plaintiff could prove discrimination or retaliation, (which she cannot), she has still failed to prove that Kranz aided or abetted such discrimination or retaliation. To do so Plaintiff must prove: (1) that Kranz personally engaged in discriminatory or retaliatory conduct; or (2) Kranz refused to take prompt and remedial action against the discrimination or retaliation that Plaintiff alleges. Lopez v. Citywide Cmty. Counseling Servs., Inc., 2016 WL 5420685, at *8 (Pa. Super. Ct. Sept. 27, 2016). As indicated above, Plaintiff has set forth no evidence that Kranz personally discriminated or retaliated against her. Indeed, Plaintiff never made any complaint against Kranz. SOF ¶ 43. Moreover, Plaintiff never complained to Kranz, or anyone at Celtic, that she was being discriminated or retaliated against, and therefore no remedial measures were needed. SOF ¶ 41-44. As such, Plaintiff’s aiding and abetting claim against Kranz must fail. E. Plaintiff’s FMLA Interference Claim Should Be Dismissed To state a claim of interference under the FMLA, a Plaintiff must establish: (1) she was an eligible employee under the FMLA; (2) Celtic was subject to the FMLA; (3) Plaintiff gave notice of her intention to take FMLA leave; and Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 25 of 28 - 21 - (4) Plaintiff was denied benefits to which she was entitled. Ross v. Gilhuly, 755 F.3d 185, 191–92 (3d Cir. 2014). Assuming, for purposes of summary judgment, that Plaintiff meets the first three elements, Plaintiff cannot establish the fourth element – that she was denied FMLA benefits. To the contrary, Plaintiff testified unequivocally that Celtic never denied her FMLA leave at any time. SOF ¶ 13. (“Q. Were you ever denied FMLA leave at any time by Celtic? A. No.”). Accordingly, Plaintiff’s FMLA interference claim must fail as a matter of law. VI. CONCLUSION Defendants have offered abundant evidence to show that Plaintiff was issued a written warning because of her unprofessional conduct and that her position was subsequently eliminated as part of a reduction in force. Plaintiff has failed to present any evidence from which a juror could reasonably conclude that Defendants’ proffered reasons for these actions were a post hoc fabrication, or that intentional disability discrimination, FMLA interference, or retaliation was the real reason. Plaintiff has also failed to provide any evidence to establish that other employees outside of her protected class were treated more favorably. Accordingly, this Court should grant summary judgment in favor of Defendants against Plaintiff on all claims. Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 26 of 28 - 22 - Respectfully submitted, REED SMITH LLP /s/ Robert J. Tyler III Catherine S. Ryan (PA78603) cryan@reedsmith.com Richard L. Etter (PA92835) retter@reedsmith.com Robert J. Tyler III (PA312557) rtyler@reedsmith.com REED SMITH LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 288-4226/3806/3090 Facsimile: (412) 288-3063 Attorneys for Defendants Dated: May 30, 2017 Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 27 of 28 - 24 - CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Defendants’ Brief in Support of Motion for Summary Judgment was filed electronically on this 30th day of May 2017. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s ECF System. /s/ Robert J. Tyler III Counsel for Defendants Case 3:15-cv-02496-MEM Document 47 Filed 05/30/17 Page 28 of 28 - 23 - CERTIFICATE OF CONFORMANCE WITH M.D. PA. LOCAL RULE 7.8(B)(2) I, Robert J. Tyler III, hereby certify pursuant to Local Rule 7.8(b)(2) that the foregoing Brief in Support of Defendants’ Motion for Summary Judgment does not exceed 5,000 words. Specifically, the word count function of my word-processing software indicates that the text and footnotes in the body of this Brief comprise 4,634 words. s/ Robert J. Tyler III Robert J. Tyler III Case 3:15-cv-02496-MEM Document 47-1 Filed 05/30/17 Page 1 of 1