NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-2560

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KATHY WATSON; TIMOTHY SHELLEY,

Appellants

v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF REVENUE

_____________________________________

On Appeal from the United States District Court for the 

Middle District of Pennsylvania 

(District Court Nos.: 1-18-cv-01055 & 1-18-cv-01352)

Judge: Honorable Jennifer P. Wilson

_____________________________________

Submitted under Third Circuit L.A.R. 34.1(a)

April 20, 2021

(Filed: May 11, 2021)

Before: AMBRO, RESTREPO and RENDELL, Circuit Judges.

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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RENDELL, Circuit Judge.

Timothy Shelley challenges the District Court’s grant of summary judgment in 

favor of the Commonwealth of Pennsylvania Department of Revenue (the “Department”) 

on his claims of retaliation and interference pursuant to the Family and Medical Leave 

Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. We agree with the District Court that 

Shelley failed to meet his burden of demonstrating retaliation and interference under the 

McDonnell Douglas framework. We will therefore affirm the District Court’s order. 

I.

Timothy Shelley was employed at-will in the Department from 1999 until he was 

terminated in May 2017. During this time, Shelley provided loans to three employees at 

the Department, including his supervisor Kathy Watson. The loans violated the legal 

interest rate under state law and were discouraged by Department Standards of Conduct. 

In November 2016, the Department, through the Office of the Inspector General, initiated 

an investigation into Shelley’s loans. Following the investigation, the Department 

terminated Watson on March 1, 2017. 

Watson served Shelley with a subpoena to testify at her unemployment 

compensation hearing on April 17, 2017. Shelley told Watson’s former supervisor, 

Bonnie Kabonick, about the subpoena. The following day, Kabonick issued Shelley a 

notice for a pre-disciplinary conference scheduled for April 19, 2017. The notice stated 

that the hearing was related to allegations that Shelley sent excessive e-mails, engaged in 

non-work-related activities during working hours, issued loans in excess of the legal 

interest rate, and failed to disclose loans that he had issued, all in violation of Department 
3

policy. Shelley then testified at Watson’s hearing. At Shelley’s pre-disciplinary 

conference the following day, Jane Baldo, an employee in the Labor Relations Division, 

and Tracey Sullivan, Baldo’s subordinate, discussed the topics listed in the notice. 

On May 8, 2017, Shelley requested FMLA leave paperwork from Human 

Resources. The following day, he was diagnosed with depression by his physician, who 

then faxed the FMLA paperwork to the Department’s Human Resources division. That 

same day, Shelley met with the Department’s FMLA Coordinator.

Approximately an hour-and-a-half following Shelley’s meeting with the FMLA 

Coordinator, Department Director Tim Scott met with Shelley and told him that his 

employment was terminated. Scott provided Shelley with a termination letter that was 

signed by the acting Secretary of Revenue, Daniel Hassell. The letter provided that he

was terminated for sending excessive emails, engaging in non-work-related activities 

during working hours, issuing loans in excess of the legal interest rate, not disclosing the 

loans, and failing to file or pay Pennsylvania personal income tax returns. 

On July 6, 2018, Shelley filed a complaint against the Department for retaliation 

and interference pursuant to the FMLA as well as a state-law claim for wrongful 

termination.1 Shelley argued that he had in fact paid his Pennsylvania taxes and did not 

violate any Department policies when he gave out loans and engaged in non-work-related 

1 Watson also filed a complaint against the Department for retaliation under Title VII and 

the Pennsylvania Human Relations Act. Watson’s case was consolidated with Shelley’s 

in the District Court. The District Court granted summary judgment in favor of the 

Department on Watson’s claims. Although Watson filed a notice of appeal, she decided 

not to pursue it further.
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activities. The District Court granted summary judgment in favor of the Department as to 

the retaliation and interference claims and declined to exercise jurisdiction as to the state 

law claim.

II.

The District Court had subject matter jurisdiction over the FMLA claims pursuant 

to 28 U.S.C. § 1331. This Court has jurisdiction to review the District Court’s final 

decision under 28 U.S.C. § 1291. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 

294, 300 n.8 (3d Cir. 2012).

In reviewing the District Court’s grant of summary judgment, this Court exercises 

plenary review and “view[s] the evidence in the light most favorable to the nonmoving 

party” to determine whether a genuine issue of material fact exists and whether “the 

movant is entitled to judgment as a matter of law.” Daniels v. Sch. Dist. of Phila., 776 

F.3d 181, 192 (3d Cir. 2015) (citing Fed. R. Civ. P. 56(a)). This requires “evidence on 

which the jury could reasonably find for the [nonmovant].” Id.

III.

Shelley’s retaliation and interference claims turn on the same set of facts

surrounding his termination. We will begin with his retaliation claim. 

We analyze FMLA retaliation claims “through the lens of employment 

discrimination law.” Lichtenstein, 691 F.3d at 302. In cases based on circumstantial 

evidence such as this one, we rely on “the burden-shifting framework established in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id.
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To prevail on a retaliation claim under the FMLA, Shelley must establish that 1) 

he invoked a right under the FMLA, 2) he suffered an adverse employment decision, and 

3) there was causation between the two. Id. Under the McDonnell Douglas framework, 

Shelley has the initial burden of making a prima facie case of these three elements. Id. If 

this prima facie burden is met, the Department then has the burden of production to 

“articulate some legitimate, nondiscriminatory reason” for its decision to terminate 

Shelley. Id. (citation omitted). If the Department meets this burden, the burden shifts 

back to Shelley to show “the employer’s proffered explanation was false, and that 

retaliation was the real reason for the adverse employment action.” Daniels, 776 F.3d at

193 (citation omitted).

On appeal, the Department does not challenge the District Court’s conclusion that 

Shelley satisfied his initial burden of establishing a prima facie case. We therefore turn 

to the Department’s burden to provide a “legitimate, non-retaliatory” reason for Shelley’s 

termination. See id. The Department pointed to Shelley’s loans to fellow employees, 

non-work-related computer activity, and failure to properly file Pennsylvania income tax 

as reasons for his termination. We agree with the District Court that the Department’s 

proffered reasons, which are supported by the record, satisfy its burden of production 

under the McDonnell Douglas framework. 

To overcome the Department’s proffered legitimate, non-discriminatory reasons

for termination, Shelley 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
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adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). At 

this step, Shelley must make a second showing of causation “to satisfy her ultimate 

burden of persuasion by proving pretext.” Carvalho-Grevious v. Delaware State Univ., 

851 F.3d 249, 257 (3d Cir. 2017). This requires demonstrating by “a preponderance of 

the evidence that there is a ‘but-for’ causal connection” between the adverse employment 

action and retaliatory animus.” Id. at 258. A causal connection between the protected 

activity and an employer’s alleged retaliation, however, cannot be established “without 

some evidence that the individuals responsible for the adverse action knew of the 

plaintiff’s protected conduct at the time they acted.” Daniels, 776 F.3d at 196. 

Moreover, as the Supreme Court has explained, an employer “proceeding along lines 

previously contemplated, though not yet definitively determined, is no evidence whatever 

of causality.” Clark City Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001); cf. Sarullo v. 

U.S. Postal Serv., 352 F.3d 789, 801 (3d Cir. 2003) (holding that plaintiff failed to make 

a prima facie showing of discrimination when employee “provided no evidence to rebut 

[employer’s] declaration that he was unaware of [the protected activity] when he made 

his decision,” to terminate employee). 

Shelley argues that the temporal proximity between his FMLA request and 

termination is enough to carry his burden. We disagree. Shelley provides no evidence 

that the Department employees who fired him had any knowledge of the FMLA filing. 

Although Shelley was fired only one day after he requested the FMLA paperwork, the 

record indicates he had been under investigation by the Department for months. 
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Additionally, the Department provided a declaration from Jane Baldo, who 

recommended Shelley for termination following the disciplinary conference. Baldo 

reaffirmed that the disciplinary decision for Shelley was made three weeks prior to his

termination, that the termination letter was prepared, approved, and signed before May 9, 

2017, and that she did not know of the FMLA request until after Shelley was 

terminated. We have explained that “[i]t is only intuitive that for protected conduct to be 

a substantial or motiving factor in a decision, the decisionmakers must be aware of the 

protected conduct.” Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002). 

Without any evidence of the decisionmaker’s knowledge of Shelley’s protected conduct, 

Shelley cannot establish a causal connection between the protected activity and his 

termination. This is only bolstered by the fact that the Department investigated Shelley’s 

conduct for months prior to his termination and provided evidence that the decision to 

terminate him predated the protected activity. Shelley therefore cannot meet his burden 

of showing that the Department’s reasoning was pretextual. Accordingly, we agree with 

the District Court that Shelley’s retaliation claim fails. 

For the same reason that Shelley’s retaliation claim falls short, we conclude that 

the District Court properly granted summary judgment on his duplicative claim of 

interference. See Lichtenstein, 691 F.3d at 312 (employer can defeat interference claim if 

it can demonstrate that termination was for reasons “unrelated to” employee’s exercise of 

FMLA rights).
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IV.

For the foregoing reasons, we will affirm the District Court’s grant of summary 

judgment in favor of the Department.