                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CURCUIT
                               ________________

                                      No. 16-2962
                                   ________________

                                  KIMBERLY WELLS,
                                           Appellant

                                             v.

                       RETINOVITREOUS ASSOCIATES, LTD.
                           d/b/a MID ATLANTIC RETINA

                                   ________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 2-15-cv-05675)
                       District Judge: Honorable Juan R. Sánchez
                                    _______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 7, 2017

               Before: MCKEE, COWEN, and FUENTES, Circuit Judges.

                             (Opinion Filed: August 1, 2017)
                                   _______________

                                        OPINION
                                        _________


FUENTES, Circuit Judge.

       This is an employment retaliation suit. Plaintiff Kimberly Wells previously


 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
brought suit against her former employer Retinovitreous Associates, Ltd., alleging

disability discrimination based on her diagnosis with multiple sclerosis. Now, Wells

alleges she was disciplined, suspended, and terminated in retaliation for that lawsuit.

       For the reasons that follow, we will affirm the District Court’s order granting

summary judgement in favor of Wells’ employer.

                                              I.

       Wells worked as an Ophthalmic Technician for Retinovitreous Associates, Ltd.

(“RA”) at its Wills Eye Hospital office in Philadelphia, Pennsylvania from August 2011,

until her termination in July 2015. Wells’ job responsibilities included performing,

explaining, and documenting certain medical procedures and obtaining and documenting

patient medical histories and current symptoms. This position was governed by an

employee handbook, outlining RA’s policies. Violations of these policies, including

failure to follow a supervisor’s directions, were subject to corrective disciplinary action.1

       In the course of her first three years of employment, Wells received two such

disciplinary warnings. In March 2012, Wells received a “verbal written warning” for

failing to document a patient’s injection and failing to return a perishable drug to

refrigerated storage.2 In January 2013, Wells received a second such warning for

“unsatisfactory work performance/insubordination” for failing to complete chart

documentation per her manager’s instructions but telling her manager that the

documentation was completed.

1
  RA’s corrective disciplinary actions included verbal counseling, written warnings,
suspension with or without pay, demotion, transfer, or termination of employment.
2
  The warning notes the employee’s disagreement with the basis of the infraction.
                                              2
       During that time period, Wells also received an overall score of “meets

expectations” on her 2013 annual employee evaluations; she received a score in the “need

improvement” range in her 2014 evaluation, including in the teamwork, communication

skills, and essential abilities categories.

       In January 2013, Wells was diagnosed with multiple sclerosis. Shortly thereafter,

Wells notified RA of her diagnosis and requested leave under the Family Medical Leave

Act, which she took intermittently until October 2014. In February 2015, Wells sued RA,

bringing failure to accommodate, hostile work environment, and retaliation claims related

to her FMLA leave requests.3

       Wells received multiple disciplinary infractions following the suit, culminating in

her termination. A month after bringing this suit, Wells received a “verbal written

warning” for failing to follow proper inventory management procedures when preparing

medication for a patient’s injection. Later that month, Wells received a written warning

for failing to document three injections and discharging a patient without consulting her

supervisor. Shortly thereafter, in April, Wells received a three-day suspension after

preparing a patient’s incorrect eye for an injection. Wells received a written warning in

May for failing to follow proper procedure in signing out a drug and verifying a patient’s

insurance information.4 Finally, in July 2015, Wells was fired for failing to follow


3
  The District Judge presided over Wells’ original suit. The parties agreed to dismiss the
action with prejudice in September 2015. See Wells v. Retinovitreous Assocs. Ltd., No.
15-478 (E.D. Pa. Sept. 18, 2015).
4
  The warning noted that Wells stated that the issue was “Billing[’]s problem” and
indicates that “Kim needs to take ownership and responsibility for her own mistakes.” JA
290.
                                              3
pharmaceutical inventory management procedures and neglecting to appropriately

document an injection for billing purposes.

       Wells then filed the suit before us. She alleged that RA retaliated against her for

her initial lawsuit, in violation of the Americans with Disabilities Act (ADA),5 the Family

and Medical Leave Act (FMLA),6 and the Pennsylvania Human Relations Act (PHRA).7

       RA moved for summary judgment, which the District Court granted.8 The District

Court found that Wells could not establish a prima facie case of retaliation, because she

could not show a causal link between the filing of her original suit and subsequent

adverse employment actions. The District Court further held that even if she had done so,

she had failed to show that RA’s reasons for the adverse employment actions were

pretextual.

       This appeal followed. Wells argues the District Court erred in granting summary

judgment because (1) the District Court applied the improper standard in determining if a

pattern of discipline following a protected activity rises to the level of a materially

adverse employment action, and (2) the District Court improperly concluded that Wells

had not proven causation.9



5
  42 U.S.C. §§ 12101-12213.
6
  29 U.S.C. §§ 2601-2654.
7
  43 Pa. Cons. Stat. §§ 951-963.
8
  See Wells v. Retinovitreous Assocs., No. 15-5675, 2016 WL 3405457 (Jun. 21, 2016
E.D. Pa.).
9
  Wells’ Br. at 2. Wells does not press the pretext issue on appeal, but instead addresses
the issue as part of her argument that she has proven causation. Nevertheless, we will
construe this argument as challenging the District Court’s determination that she had not
shown pretext as well.
                                               4
                                             II.10

     Claims of retaliation under the ADA, FMLA, and PHRA are analyzed under the

McDonnell Douglas burden-shifting framework.11 Under this framework, the analysis

proceeds in three stages: (1) the plaintiff must establish a prima facie case of retaliation;

(2) if the plaintiff establishes a prima facie case, the defendant must articulate a

legitimate, nondiscriminatory reason for its adverse action against the plaintiff; (3) if the

defendant does so, the burden then returns to the plaintiff to prove by a preponderance of

the evidence that the defendant’s proffered reason is a pretext for retaliation.12 “Our

experience is that most cases turn on the third stage, i.e., can the plaintiff establish

pretext.”13

     So, too, does the case here. Even assuming Wells could make out a prima facie




10
   We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s grant of summary judgment and apply the same standard that the District
Court applies. See Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146
(3d Cir. 2005). A court should grant summary judgment “if the movant shows that 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). “In evaluating the evidence, a court must view the
facts in the light most favorable to the nonmoving party and draw all inferences in that
party's favor.” Shuman, 422 F.3d at 146 (internal quotations and citations omitted).
11
   See Williams v. Phila. Hous. Auth. Police Dep’t., 380 F.3d 751, 759 (3d Cir. 2004)
(applying McDonnell Douglas framework to ADA retaliation claim); Budhun v. Reading
Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014) (applying framework to FMLA
retaliation claims); Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)
(applying framework to PHRA retaliation claims).
12
   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Williams, 380 F.3d
at 759 n.3. While the burden of production may shift, the burden of persuasion remains at
all times with the plaintiff. Id.
13
   Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).
                                               5
case,14 she has failed to show that RA’s proffered reasons for the adverse employment

actions are pretextual. To establish pretext, the plaintiff must “either (i) discredit[] the

proffered reasons, either circumstantially or directly, or (ii) adduc[e] evidence, whether

circumstantial or direct, that discrimination was more likely than not a motivating or

determinative cause of the adverse employment action.”15 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.”16

       Wells argues that it is not believable that, after “not [being] disciplined for

approximately two . . . years, and . . . [after being] issued positive performance reviews,”


14
   To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she
engaged in a protected activity, (2) she subsequently or contemporaneously suffered an
adverse employment action, and (3) there is a causal link between the protected activity
and the adverse action. See EEOC v. Allstate Ins. Co., 778 F.3d 444, 448-49 (3d Cir.
2015) (applying the ADA standard); Budhun, 765 F.3d at 256 (applying the FMLA
standard); Daniels, 776 F.3d at 193 (applying the PHRA standard). The parties do not
dispute that Wells engaged in protected activity when she filed her prior lawsuit against
RA or that Wells was subject to adverse employment actions.

   Wells correctly argues that the District Court applied the wrong standard in
identifying the adverse employment actions she suffered. The District Court should have
applied the less restrictive Burlington Northern standard, under which “a plaintiff must
show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (internal citations and quotations omitted).

    The application of the incorrect standard does not lead us to reverse the District
Court’s order, however, because applying the correct standard, Wells’ claims still cannot
survive summary judgment, since Wells has failed to show that RA’s proferred reasons
for its disciplinary actions were pretextual. For the same reason, we need not address
Wells’ arguments regarding causation.
15
   Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
16
   Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc).
                                               6
she “suddenly became inept at her job such that she was issued discipline on an almost

monthly basis following her protected activity.”17

       However, as the District Court correctly notes, Wells “does not dispute the

underlying conduct giving rise to [RA]’s warnings and adverse employment actions.”18 In

reviewing the record, we conclude that the District Court properly found that Wells had

not shown it was more likely than not that discrimination, rather than this conduct, caused

the adverse employment actions here.

       The conduct leading to the disciplinary actions included repeated failure to

document patient medication and follow proper billing and inventory procedures,

repeated failures to follow the instructions of her supervisors, and preparing a patient’s

incorrect eye for a procedure.19 Wells was on notice of the potential for dismissal for any

of the cited infractions pursuant to RA’s established disciplinary procedures,20 and RA

followed its disciplinary procedure in issuing warnings and suggesting corrective

measures. Furthermore, prior to Wells’ filing of her initial suit, Wells’ 2013 and 2014

performance reviews indicated a need to improve in several key areas, including

monitoring patients, communication skills, and teamwork21 and Wells was subject to two

disciplinary actions. Furthermore, Wells offers no evidence that similar violations of her

employer’s policies did not result in discipline prior to the filing of her suit, and Wells


17
   Wells’ Br. at 27.
18
   JA 9.
19
   Wells acknowledged that administering this procedure to a patient’s incorrect eye
could potentially cause health risks. JA 109.
20
   JA 61.
21
   JA 264-73.
                                              7
offers no comparator evidence from which we can conclude that other employees who

did not sue RA were treated more favorably for similar disciplinary violations. And the

billing infractions, which resulted in Wells’ final written warning and her ultimate

termination,22 were discovered after a routine review of all employee billing work by a

billing agent, not a targeted search by a supervisor.23

         Thus, no reasonable juror could infer that RA’s non-discriminatory reasons for

Wells’ disciplinary warnings, suspension, and termination were a pretext based on this

evidence.

                                             IV.

         For the foregoing reasons, we will affirm the District Court’s Order granting

summary judgment to RA.




22
     JA 290, 297.
23
     JA 99.
                                              8
