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w . v i l l a no v a . e du/thir dc ir c uit_2012/1193NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 11

- 1769

_____________ STACY A. NABER, Appellant

v. DOVER HEALTHCARE ASSOCIATES INC., a DE corporation d/b/a Silverlake Center

_____________ Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 1

- 09

- cv - 0094 6 ) District Judge: Honorable Mary Pat Thynge

_____________ Submitted Under Third Circuit LAR 34.1(a) Ma rch 19, 2012 Before: RENDELL, FISHER and CHAGARES, Circuit Judges (Opinion Filed : April 2, 2012 )

_____________ OPINION OF THE COURT

_____________ RENDELL, Circuit Judge

. Stacy Naber appeal s an order granting summary judgment in favor of her former employer , Dover Healthcare Associates , Inc. , d/b/a/ Silver Lake Center (“Silver Lake”) , which dismissed her claims alleging violations of the Family Medical Leave Act , 292 U.S.C. § 2601 , et seq. (“ F M L A”) and the Americans with Disabilities Act , 42 U.S.C. §
12101 , et seq. (“ADA”). We will affirm.
I. Naber w orked as a Recreation Assistant at Silver Lake , a nursing home facility ,

u nder the direc t supervision of Erin Mueller

. I n January 2009 , Naber complained to several supervisors and human resource representatives that she was stressed from increased responsibilities. When Naber approached Mueller about the possibility of working a reduced schedule , Mueller told Naber that she should have discusse d the need for a reduced schedule with Mueller , not with human resources. Naber submitted a request on March 1 , 2009 , for vacation on March 23

- 26 , 2009 , which was approved

. On March 3 , 2009 , Mueller reprimanded Naber for wearing jeans to work , and
issue d her a written notice for violating the dress code policy. Naber expressed concern to Silver Lake’s administrator James Adams that Mueller was nit

- p icking her and she requested time off for March 9

- 13 , 2009

. Mueller approved th e leave request

. On Mar ch 10 , 2009 , Naber was diagnosed with depression by Maryelle n Carbaugh , a Licensed Professio nal Counselor of Medical Health. Carbaugh indicated in her report that Naber needed FMLA leave because of “stress at work due to hostile environment.” (App. 61). Naber requested intermittent FMLA leave so that she could
attend one hour counseling sessions for alleged depression , as well as regular medical appointments once a week. Adams approved this request

. Naber returned to work on March 15 , 2009. That day , she failed to conduct an activity she was scheduled to lead . Mueller issued Naber a warning. According to3 Naber , Mueller then stated , “Just because you’re on FMLA doesn’t mean you are on light duty , you still have to do the work.” (App. 67). Naber als o asserts that l ater that day , Mueller told Naber that she was “being watched.” (App. 67). On March 29 , 2009 , Naber was performing room visits with several r esidents. Naber entered into what she believed was the room of Resident A , a non - vocal African American male resident. However , the resident she visited was not Resident A , but another non

- vocal African American male. N aber recorded her visit on the chart for Resident A , yet Resident A was in the hospital that day. Mueller advised Adams of the i naccurate documentation , and Adams commenced

an investigation into the matter. Two other r esidents that Naber cla ims to have met with

o ne - on - one that day , Resident B and Resident C , denie d that such meetings took place

. When confronted , Naber insisted th at she met with Resident A and when she was told that Resident A was in the ho spital , she suggested that he might have returned for a few hours to Silver Lake. After the investigation , Adams suspended Naber , concluding that she had falsified the activity log for Resident A. On April 1 , 2009 , he terminated her employment

. Naber sued , claiming she was terminated because of her request for FMLA leave and /or her disability . The District Court granted summary judgment t o the Appellee with respect to
both th e FMLA claim and the ADA claim.4 II. 1
A . FMLA Claim Naber argues that she was fired from her job in retaliation for filing a leave request under the FMLA. This claim is governed by the burden

- shiftin g framework established
in McDonnell Douglas Corp. v. G reen , 411 U.S. 792 (1973). Initially , the plaintiff bears the burden of establishing a prima facie case of discrimination or retaliation. To establish a prima facie case of FMLA retaliation , Naber must show that : “(1) plaintiff availed herself of a prote cted right under the FMLA; (2) plaintiff suffered an adverse employment action; and (3) there was a causal connection between the employee’s protected activity and the employer’s adverse employment action.” Sch lifke v. Trans
Wo r ld Entm’ t Corp

. , 479 F. Sup p. 2d 445 , 4 52 (D. Del. 2007); see also Conshenti v. Pub. Serv. Elec. & Gas Co. , 364 F.3d 135 , 146 (3d Cir. 2004). If the plaintiff succeeds in d oing so , “ the burden shifts to the employer to articulate a legiti mate , non discriminatory

reason for its adver se employment action. ” Bearley v. Friendly Ice Cream Corp. , 322 F. Supp. 2d 563 , 57 1 (M.D. Pa. 2004); s ee also Fuentes v. Perskie , 32 F.3d 759 , 763 (3d Cir. 1994) (applying McDonnell Douglas test in Title VII context ). When that burden is

met , the burden shifts back to the plaintiff to show tha t the employer’s stated reason is

1 The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over this appeal from an o rder granting summary judgment. Thus, we must determine whether there is a genuine issue of material fact for trial. In doing this, we must view all facts and draw all reasonable inferences in favor of the non

- movant, take as true all allegations of the non - movant that conflict with those of the movant, and resolve all doubts against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy , 762 F.2d 338, 340 (3d Cir. 1985).5 pretextual. Baltuskonis v. U S Airways , Inc. , 60 F. Supp. 2d 445 , 448 (E.D. Pa. 1999); see also Sheridan v. E.I. DuPont de Nemours & Co. , 100 F.3d 1061 , 1067 (3d Cir. 1996) (applyin g McDonnell Douglas test in Title VII context ). We agree with the District Court that Appellant failed to make out a prima facie

case because she did not submit sufficient evidence of a causal connection between the protected activity and the adverse emp loyment action. We do not believe Mueller’s isolated statement that Naber was not on “ light duty ”

— made after Naber admittedly failed to perform a job duty

— is enough for a jury to find a casual connection between the
FMLA re quest and ultimate termination. Naber’s reprimand for wearing jeans to work predated her invocation of FMLA rights and therefore is not evidence of retaliation. Furthermo re , Appellant ’s contention that Adams was upset by Carbaugh’s reference to “stress at work due to hostile environmen t” in her medical report

— even her claim that he tried to get those words removed

— does not support an inference that Adams was upset because Naber request ed FMLA leave. Naber offers no evidence that Adams sought to prevent Naber from receiving FMLA leave. Naber’s leave request was granted. Therefore , we hold that the Appellant failed to establish a prima facie case o f retaliation. Even if Appellant coul d establish a prima facie case of FMLA retaliation , we would affirm because t he Appellee asserts a non - discriminatory reason for firing Naber
and Naber failed to offer sufficient evidence to show that the Appellee’s reasoning is actually a pretext for discrimination. To establish pretext , the Appellant must offer evidence “from which a fact finder could re asonably either (1) disbelieve the employer ’ s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was6 more likely than not a motivating or dete rminative cause of the employer’ s action. ”
Fuentes , 32 F.3d at 76 4

. However , the p laintiff must provide evidence that the employer’s decision was more than just wrong or mistaken since the allegation is that discriminatory animus was a motivating factor in the decision. Keller v. Orix Credit Alliance , Inc

. , 130 F.3 d 1101 , 1108

- 09 ( 3d Cir. 1997) (en banc)

. Appellant cites several other employees who misidentif ied residents or accidentally erred in filling out charts with no disciplinary repercus sions , including herself earlier in her employment. T he Appellant’s claim is insuffic ient as a matter of law to show that the employer’s reasons for firing Na b er were pretextual. We agree with the District Court that these other employees are not appropriate comparators

. Naber also claims that Residents B and C were mentally handicapped and t hat Adams’s reliance on their statement demonstrates that his proffered reason for firing her is a pretext for discrimination. We disagree. Naber does not allege that Adams was aware of the mental capacities of Residents B and C at the time he made the decision to terminate Naber

. “To discredit the employer’ s proffered reason , . . . the plaintiff canno t simply show that the employer’ s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the e mployer, not whether the employer is wise, shrewd, prudent, or competent. ” Fuentes , 32 F.3d at 765

. Since there is no allegation or evidence that Adams was aware of these facts when deciding to terminate Naber , they cannot be considered in evaluating whe ther the decision was discriminatory

.7 B . ADA Claim For reasons similar to those described in Part A above , the Appellant’s claim of ADA discrimination fails. Appellant fails to produce sufficient evidence of a prima facie case of disability discrim ination. Mainly , Naber fails to offer evidence supporting an inference of a causal connection between her disability and the adverse employment action. Moreover , the Appellant does not offer sufficient evidence from which a reasonable jury could find pre text for discrimination based on Appellant’s disability in Silver Lake’s reason for Naber’s termination

. Thus , we agree with the District Court’s grant of summary judgment in favor of the Appellee with respect to the ADA claim.
III. For the foregoing re asons , we will affirm the order of the District Court.