PHILADELPHIA – According to a federal court, an ophthalmic technician was not subject to retaliation by her former employer under the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA), and the Family and Medical Leave Act (FMLA).

Judge Juan R. Sanchez of the U.S. District Court for the Eastern District of Pennsylvania found plaintiff Kimberly Wells did not properly establish a prima facie case of retaliation on the aforementioned grounds, or that pre-textual reasoning caused the retaliation Wells averred to have suffered when working for Retinovitreous Associates over a near four-year period – from July 2011 to August 2015.

Wells worked at the defendant’s Wills Eye Hospital in Philadelphia over that time period, and was diagnosed with Multiple Sclerosis (MS) in January 2013. From the diagnosis, Wells requested FMLA leave – which she took on a sporadic basis until Oct. 17, 2014.

On Feb. 2, 2015, Wells filed suit against the defendant asserting ADA, PHRA and FMLA violations, alleging failure to accommodate, hostile work environment, and retaliation claims related to her requests for FMLA leave. Wells was terminated five months later in July, after Retinovitreous Associates claimed she committed a number of professional infractions.

“The parties do not dispute that plaintiff engaged in protected activity when filing her prior lawsuit against defendant alleging FMLA, ADA, and PHRA violations,” Sanchez said. “Nor do the parties dispute that plaintiff was subject to adverse employment actions, including her April 20, 2015, three-day suspension and July 10, 2015, termination. The parties contest whether plaintiff has established a causal connection between her prior lawsuit and the subsequent adverse actions.”

Sanchez noted that Wells’ April 20, 2015 three-day suspension and subsequent July 10, 2015 termination both “fall beyond the period typically found by courts in this Circuit to be unduly suggestive.”

“Instead, plaintiff argues a causal connection exists here, as the discipline she received coupled with the lawsuit constituted a pattern of antagonism,” Sanchez said. “Here, plaintiff does not dispute the underlying conduct giving rise to defendant’s warnings and adverse employment actions. Instead, she contends the disciplinary actions are retaliatory because she received warnings after the lawsuit for workplace violations that previously went unwarned.”

But, Sanchez said this argument did not establish a causal link necessary for Wells to prove her case.

“Even viewing the facts in the light most favorable to the plaintiff, she does not establish a link between the adverse employment actions and her lawsuit,” Sanchez added. “For the same reasons, the Court finds the evidence as a whole does not establish a causal link between plaintiff’s filing of a lawsuit and subsequent adverse employment actions. She has thus failed to make out a prima facie case of retaliation.”

“For the same reasons the Court finds plaintiff has not establish her prima facie case, the Court finds she has not given the Court reason to ‘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,” Sanchez said.

Sanchez stated the defendant “produced a legitimate, nondiscriminatory reason for its adverse employment actions: Plaintiff’s repeated violations of defendant’s workplace policies and procedures.”

“Plaintiff’s argument for pretext is identical to her argument to establish her prima facie case. Defendant’s motion for summary judgment will therefore be granted,” Sanchez stated.

The plaintiff is represented by Christine E. Burke, Jonathan Chase, Timothy S. Seiler and Ari Risson Karpf of Karpf Karpf & Cerutti, in Bensalem.

The defendants are represented by Tracy A. Walsh and Charles R. Starnes of Weber Gallagher Simpson Stapleton Fires & Newby, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05675

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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