                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 16-3303
                                  _________________

                                   BRENDA KELLY,

                                                 Appellant

                                            v.

              UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEMS,
                           d/b/a PENN MEDICINE
                             _________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 2:16-cv-00618)
                        District Judge: Hon. Mark A. Kearney
                                  _________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   July 11, 2017

Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK, Chief District Judge*

                              (Filed: September 11, 2017)

                                  _________________

                                      OPINION**
                                  _________________

*
 The Honorable Leonard P. Stark, Chief Judge of the United States District Court for the
District of Delaware, sitting by designation.
**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.

              Brenda Kelly appeals an adverse summary judgment ruling on her suit brought

under the Family and Medical Leave Act (“FMLA”),1 the Americans with Disabilities Act

(“ADA”),2 and the Pennsylvania Human Relations Act (“PHRA”).3 We will affirm.

                                             I.

              Kelly worked for the University of Pennsylvania Health System (“Penn

Medicine”) from February 1991 until her termination in June 2015. Penn Medicine

manages multiple hospitals and medical facilities in the Philadelphia region. As an

Operator and Lead Operator at Penn Medicine’s call center, Kelly was responsible for

processing incoming calls directed to Penn Medicine’s hospitals and other medical

facilities.      Importantly, she also was responsible for delivering emergency

announcements—such as alerts for gunshot or stabbing victims, patients in distress, or fire

in the facility—to certain hospitals through the overhead speaker system.

              Late in her tenure with Penn Medicine, Kelly began to suffer from various

medical conditions, including osteoarthritis, Hepatitis B, and morbid obesity. She therefore

began to frequently use both FMLA leave and Penn Medicine’s supplemental Other

Medical Leave4 to take time off from work starting in 2008. For example, Kelly took over


1
    29 U.S.C. §§ 2601, et seq.
2
    42 U.S.C. §§ 12101, et seq.
3
    43 Pa. Cons. Stat. §§ 951, et seq.
4
    Other Medical Leave is available to Penn Medicine’s employees if they exhaust their
FMLA leave.

                                              2
250 days of leave between 2008 and 2010, and she exhausted her FMLA leave in both

2011 and 2014.

          Parallel to her medical issues, Kelly began to have work-related issues as well,

and in 2014 she entered Penn Medicine’s five-step disciplinary program. The first step is

“Coaching”; the second step is a “First Written Warning”; the third step is a “Second

Written Warning”; the fourth step is a “Final Warning”; and, once an employee has a Final

Warning, the policy provides that any further violation during the next 12 months will

result in the fifth step—immediate termination.

          Between April 2014 and June 2015, Kelly progressed through each step of this

disciplinary process. She received her First Written Warning in April 2014 for failing to

submit a completed physician’s certification accompanying an FMLA request.             In

December 2014, she got a Second Written Warning for failure to cooperate with an

operator who was seeking information about a code response. And in February 2015, Kelly

received a Final Warning for failing to properly call out of work on multiple occasions.

After her Final Warning, Kelly made an unprofessional statement to a coworker, but,

instead of terminating Kelly, Penn Medicine demoted her from Lead Operator to Operator

with no decrease in salary.

          The final straw came in June 2015 when Kelly botched an emergency rapid-

response request. Because she was on a personal call with her husband at the time, Kelly

used the back-up alert system to send a rapid-response announcement to the hospital; the

problem was that Kelly inadvertently entered the wrong hospital code, thereby sending the



                                            3
emergency alert to the wrong hospital. With this incident occurring only four months after

Kelly’s Final Warning, she was terminated by Penn Medicine several days later.

          Kelly then filed this suit, alleging that Penn Medicine subjected her to ADA-

prohibited discrimination due to her physical ailments, and illegally retaliated against her

under the FMLA, ADA, and PHRA based on her frequent use of medical leave. The

District Court granted summary judgment for Penn Medicine. This appeal followed.

                                             II.5

          All of Kelly’s FMLA, ADA, and PHRA claims are governed by McDonnell

Douglas’s familiar three-step burden shifting framework.6 Thus, Kelly must first establish

a prima facie case for each of her claims;7 if she succeeds, the burden then shifts to Penn

Medicine to articulate a legitimate, non-discriminatory reason for Kelly’s adverse

employment action; finally, the burden shifts back to Kelly for proof that the articulated


5
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have
jurisdiction under 28 U.S.C. § 1291. We conduct a plenary review of the District Court’s
summary judgment decision. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 325 (3d Cir.
2015).
6
  Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014) (FMLA
retaliation); Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002) (“The PHRA
is basically the same as the ADA in relevant respects and Pennsylvania courts generally
interpret the PHRA in accord with its federal counterparts.” (alterations and citations
omitted)); Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999)
(ADA discrimination); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997)
(ADA retaliation).
7
 See, e.g., EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (“A prima facie
case of illegal retaliation requires a showing of (1) protected employee activity; (2) adverse
action by the employer either after or contemporaneous with the employee’s protected
activity; and (3) a causal connection between the employee’s protected activity and the
employer’s adverse action.” (citation and quotation marks omitted)).

                                              4
reason was a mere pretext for discrimination.8 At this final step—pretext—Kelly “cannot

simply show that the employer’s decision was wrong or mistaken,” but must “demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence, and hence infer that the employer did not act

for the asserted non-discriminatory reasons.”9

              The District Court found that Kelly established a prima facie case for FMLA

retaliation, and assumed she could do the same for her ADA and PHRA claims, but

concluded that Kelly could not rebut Penn Medicine’s legitimate, non-discriminatory

reason for terminating her: namely, that she had accumulated three written warnings and

was therefore on her Final Warning when she sent the rapid-response announcement to the

wrong hospital.10 Specifically, the District Court explained that Kelly’s theory was based

on a drastic shift in the tenor of her employment after returning from three-month

consecutive leave in 2014 and notifying Penn Medicine that she may need similar

consecutive leave in the future.11 But, the Court noted, Kelly was terminated eight months

after returning from consecutive leave and, in the interim, was demoted rather than


8
 Budhun, 765 F.3d at 256; Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014); Walton, 168
F.3d at 668.
9
 Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (alterations, citations, and quotation
marks omitted).
10
  Kelly v. Univ. of Pa. Health Sys., No. 2:16-cv-00618, 2016 WL 4149991, at *6-10 (E.D.
Pa. Aug. 2, 2016).
11
     Id. at *6.

                                              5
terminated after her incident of allegedly unprofessional behavior. 12 “This timing cuts

against pretext.”13

              Moreover, the District Court explained that there was no material evidence

supporting Kelly’s general denial of conduct resulting in the First, Second, and Final

Written Warnings.14 The most relevant evidence on this front was an affidavit from Kelly’s

coworker; a coworker that did not have any first-hand knowledge of the prior Written

Warnings and admits that Kelly sent the rapid-response announcement to the wrong

hospital. 15 And although both Kelly and her coworker assert general allegations that

comparative individuals were not disciplined for similar mistakes, the District Court

recognized that neither had pointed to specific comparators, nor had Kelly submitted any

evidence that “these employees committed the same infraction, were not disciplined, or

were at the same level of the [five-step disciplinary] plan when or if they committed any

infraction.” 16 Accordingly, the District Court granted summary judgment for Penn

Medicine on all of Kelly’s claims because she could not show that the reason given for her

termination was merely pretextual.17



12
     Id. at *7.
13
     Id.
14
     Id. at *8.
15
     Id. at *8.
16
     Id.
17
     Id. at *8-10.

                                             6
          After a careful review of the record on appeal, the parties’ arguments, and the

District Court’s thorough opinion, we find Kelly’s FMLA, ADA, and PHRA claims to be

without merit. Accordingly, and for substantially the same reasons expressed by the

District Court, we will affirm the grant of summary judgment for Penn Medicine on all of

Kelly’s claims.

                                           III.

          For the foregoing reasons, we will affirm.




                                            7
