NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-1013

______________

KATIE NEIDIGH,

Appellant

v.

SELECT SPECIALTY HOSPITAL - MCKEESPORT

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 2:14-cv-00576)

District Judge: Hon. Cathy Bissoon

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

October 4, 2016

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Before: SHWARTZ, GREENBERG, and ROTH, Circuit Judges. 

(Filed: November 30, 2016)

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OPINION*

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SHWARTZ, Circuit Judge.

 

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

does not constitute binding precedent.
2

Katie Neidigh appeals from the District Court’s order granting summary judgment 

in favor of Select Specialty Hospital McKeesport (“Select”) on her discrimination claims 

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) 

and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (“PHRA”),

and retaliation claim under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.

(“FMLA”).1 For the reasons set forth below, we will affirm.

I

Select employed Neidigh as a respiratory therapist from March 6, 2009 until her 

termination on April 18, 2013. Neidigh had known and pre-existing back problems, but 

she was able to perform her job.

On or around February 22, 2013, Neidigh learned that she was pregnant and 

informed Julia Shultz, Select’s Human Resources Coordinator, Susan Pleins, Chief 

Nursing Officer, and Kristie Koklarinis, Neidigh’s immediate supervisor. CEO Daniel

Butts also learned of Neidigh’s pregnancy. Koklarinis expressed concern about 

Neidigh’s ability to continue working through her pregnancy due to her back problems.

2

 

In fact, a physician had warned Neidigh that pregnancy could exacerbate her back issues. 

Neidigh did not have back problems during the first several weeks of her 

pregnancy. On April 13, 2013, she sought medical attention at MedExpress for back 

pain. Neidigh notified Select that she would be absent from her April 14 shift due to her 

 

1 Neidigh also asserted a claim under the Americans with Disabilities Act, 42 

U.S.C. § 12101 et seq., and an FMLA interference claim, 29 U.S.C. § 2601 et seq., but 

the District Court dismissed these claims, and Neidigh does not appeal those rulings.

2 Neidigh met with Shultz, and they discussed the availability of FMLA leave. 
3

back pain,

3

and Koklarinis filled in because no one else was available. While Koklarinis 

was covering her shift, Neidigh sent a text message to another respiratory therapist who 

was working that day, asking whether Koklarinis was “mad.” App. 265. Koklarinis 

instructed him to respond that she was “furious.” App. 265. 

During the April 14 shift, Koklarinis cared for the husband of “Mrs. M.” Neidigh 

normally cared for this patient, and Mrs. M asked Koklarinis where she was. Koklarinis 

replied that Neidigh was feeling “under the weather.” App. 260, 666. Mrs. M said that 

she recently learned Neidigh was pregnant which, Mrs. M said, “explains a lot.” App. 

260. Koklarinis asked what Mrs. M meant, and Mrs. M explained that during a visit two 

weeks earlier, Neidigh yelled and waved her finger at Mrs. M and her granddaughter for 

failing to put on infection-control gowns and gloves when they entered Mrs. M’s 

husband’s room.

On April 16, Koklarinis informed Pleins about Neidigh’s behavior with Mrs. M. 

Pleins shared Koklarinis’s account with Shultz and Butts, spoke with Mrs. M about the 

incident, and e-mailed Shultz, Butts, and John St. Leger, Select’s CEO, a summary of her 

discussion with Mrs. M.

4

 

The same day, Butts met with Mrs. M and thereafter held a conference call with 

Shultz and Barbara Foster, Select’s Regional Human Resources Director, about the 

 

3 On April 16, Neidigh provided a note from her chiropractor that she would also 

be absent from her next scheduled shift on April 17 “due to a lumbar strain.” App. 501

4 Shultz is responsible for, among other things, advising on discipline. She 

testified that, if a family member complains to an employee of Select, the complaint is 

written on a form and that form is sent to the director of quality management. Neither 

Koklarinis nor Mrs. M completed such a form, but, consistent with Select’s practices, the 

Chief Nursing Officer and CEO spoke with Mrs. M. 
4

incident. Before their discussion, Shultz sent an e-mail to Foster stating, “Just an FYI, I 

know that you would need to be aware that Katie [Neidigh] is also very recently 

pregnant.” App. 548. During the call, they discussed the incident and reviewed 

Neidigh’s personnel file, which contained reports of earlier inappropriate workplace 

conduct and a “Final Written Warning,” which notified Neidigh that “[a]ny further 

violation may result in termination.”5 App. 546. Butts and Foster decided to terminate 

Neidigh’s employment. 

On April 18, Shultz called Neidigh and asked her to come in for a meeting. At the

meeting, which Shultz, Butts, and Koklarinis attended, Neidigh was told she was being 

terminated; she was not permitted to provide any information, and she refused to sign a 

disciplinary action form. Neidigh was replaced by a male respiratory therapist. 

Neidigh sued Select for, among other things, pregnancy discrimination under Title 

VII and the PHRA, and for retaliation under the FMLA. Following discovery, Select 

moved for summary judgment. The District Court granted the motion, concluding that 

Neidigh stated a prima facie case of discrimination and FMLA retaliation, but that she 

failed to demonstrate that Select’s reasons for firing her were pretextual. Neidigh 

appeals.

 

5 Neidigh received the Final Written Warning for “reprimanding another employee 

in front of patients, patient families and other staff members.” App. 546. After Neidigh 

received the Final Written Warning and before her pregnancy, Select received another 

complaint about Neidigh. Specifically, a patient, Mrs. D, complained that Neidigh had 

removed respiratory equipment without saying anything to her. Pleins investigated the 

complaint, received a written statement from Neidigh, learned that Mrs. D was viewed as 

a “confused” and “difficult person,” and that another employee was in the room during 

the incident and he witnessed no wrongdoing. App. 251, 397. No formal disciplinary 

action was taken against Neidigh with respect to Mrs. D’s complaint. 
5

II6

We examine Neidigh’s Title VII and PHRA pregnancy discrimination claims as 

well as her FMLA retaliation claim under the burden-shifting framework set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973).7 See Doe v. 

C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (pregnancy-related

discrimination); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 

(3d Cir. 2012) (FMLA retaliation). Under the McDonnell Douglas framework, a plaintiff 

claiming discrimination must first establish a prima facie case. Doe, 527 F.3d at 364. If 

the plaintiff is able to establish a prima facie case, “‘the burden then must shift to the 

employer to articulate some legitimate, nondiscriminatory reason for the employee’s 

rejection.’” Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999) (quoting McDonnell 

 

6 The district court had jurisdiction over Neidigh’s Title VII and FMLA claims 

pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4), and jurisdiction over the PHRA claim 

pursuant to 28 U.S.C. § 1367(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. 

Our review of the District Court’s grant or denial of summary judgment is plenary. 

Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply 

the same standard as the District Court, viewing facts and making all reasonable 

inferences in the non-movant’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 

266-67 (3d Cir. 2005). Summary judgment is appropriate where “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). “An issue is genuine only if there is a sufficient evidentiary basis 

on which a reasonable jury could find for the non-moving party, and a factual dispute is 

material only if it might affect the outcome of the suit under governing law.” Kaucher v. 

Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986)). The moving party is entitled to judgment as a matter of law 

when the non-moving party fails to make “a sufficient showing on an essential element of 

her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986).

7 Title VII and PHRA claims are analyzed in the same manner. See Gomez v. 

Allegheny Health Servs., Inc., 71 F.3d 1079, 1084 (3d Cir. 1995); see also Jones v. Sch. 

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999) (considering Title VII, PHRA, and 

§ 1981 claims identically under the McDonnell Douglas framework).
6

Douglas, 411 U.S. at 802). If the employer meets its burden, “[t]he plaintiff then must 

establish by a preponderance of the evidence that the employer’s proffered reasons were 

merely a pretext for discrimination, and not the real motivation for the unfavorable job 

action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam). 

“[T]hroughout this burden-shifting paradigm the ultimate burden of proving intentional 

discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d 

Cir. 1994).

A

We have reviewed Neidigh’s pregnancy discrimination claim and conclude that it 

does not withstand summary judgment. Even assuming Neidigh has established a prima 

facie case of pregnancy discrimination,8 Select has articulated a legitimate, nondiscriminatory reason for her termination. Select asserts that Neidigh’s conduct with 

Mrs. M and her granddaughter violated its policies concerning respectful treatment of 

others and professional behavior. This incident, along with Neidigh’s prior disciplinary 

record,9 which included a Final Written Warning informing her that “[a]ny further 

 

8 To establish a prima facie case of pregnancy discrimination, a plaintiff must 

demonstrate: (1) she was pregnant and the employer knew it; (2) she was qualified for 

the position she held; (3) she suffered an adverse employment action; and (4) some nexus 

existed between her pregnancy and the adverse employment action. Doe, 527 F.3d at 

365. 

9 Neidigh’s disciplinary issues also included: (1) a warning relating to 

inappropriate patient care documentation; (2) a note relating to Neidigh’s “defensive 

attitude” toward Select’s then-Director of Clinical Services and his counseling her about 

insubordination, App. 624; (3) a report by two nursing assistants that Neidigh was 

verbally rude to them and a warning that further incidences can result in disciplinary 

action; (4) counseling against horseplay and not wasting supplies and (5) a written 

warning for attendance policy violations.
7

violation may result in termination,” App. 546, provides a legitimate, non-discriminatory 

reason for the termination.

Neidigh has not adduced evidence showing that Select’s reasons for her 

termination were pretextual. To establish pretext, “the plaintiff must point to some 

evidence, direct or circumstantial, from which a factfinder could reasonably 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.” Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 

2013) (internal quotation marks and citation omitted). 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.” Keller v. Orix Credit All., Inc., 130 

F.3d 1101, 1109 (3d Cir. 1997) (en banc). 

Neidigh argues that a factfinder could disbelieve Select’s reasons based on the 

“unusually suggestive” timing of her termination. Appellant’s Br. 36, Reply Br. 15. As 

to timing, there are two significant events. One is the proximity between Neidigh’s 

announcement she was pregnant and her termination. The other is the timing of her 

absence “due to a lumbar strain” and her termination. The former is not temporally 

proximate. The latter, while proximate, does not suggest Neidigh was fired because she 

was pregnant. Even if we infer that her lumbar strain was pregnancy-related (even 

though her doctor does not say so), events transpired during her absence that led to her 

termination which were unrelated to her pregnancy. Neidigh was terminated four days 

after calling out for her April 14 shift, but in that four-day period, Neidigh’s incident with 
8

Mrs. M came to light. The timing of the revelation of the incident with Mrs. M, together 

with Neidigh’s disciplinary record, undermines any contention that the timing of her 

termination was suggestive of discrimination. See Thomas v. Town of Hammonton, 351 

F.3d 108, 114 (3d Cir. 2003) (no evidence termination for absenteeism was pretextual 

where “the chronology of events far more strongly suggest[ed]” that the employer was 

concerned about the dependability of the plaintiff, a probationary employee).

Neidigh also argues that the timing, in addition to other facts pertaining to 

Koklarinis’s role in her termination, support a finding that the reasons offered were 

pretextual. In this regard, Neidigh relies on what she considers a “plethora” of evidence 

showing Koklarinis resented her pregnancy, including Koklarinis’s concern about 

Neidigh’s ability to work during her pregnancy, her statement that she was furious for 

having to work when Neidigh was absent, and the fact that Koklarinis was the source of 

Mrs. M’s complaints. Appellant’s Br. 57, Reply Br. 11. Even assuming that evidence 

showed discriminatory animus on Koklarinis’s part, that evidence would be material here 

only if Neidigh could establish either Koklarinis participated in the decision to fire her 

from Select or she could show Select’s liability under the “cat’s paw” theory. Under the 

latter theory, discriminatory intent may be imputed to the employer if a supervisor 

performs an act motivated by discriminatory animus that is intended to cause an adverse 

employment action, and if that act is a proximate cause of the ultimate employment 

action. See McKenna v. City of Phila., 649 F.3d 171, 177-78 (3d Cir. 2011) (stating that 

“‘the supervisor's biased report may remain a causal factor if the independent 

investigation takes it into account without determining that the adverse action was, apart 
9

from the supervisor's recommendation, entirely justified’”) (quoting Staub v. Proctor 

Hosp., 562 U.S. 411, 421 (2011)). 

Neither basis applies. First, although Koklarinis was present when Neidigh was 

told she was fired, Koklarinis did not participate in the termination decision. Second, 

Koklarinis’s allegedly biased report did not serve as the sole source of facts concerning 

the incident with Mrs. M. After Koklarinis reported Mrs. M’s complaint, Pleins and 

Butts each spoke separately with Mrs. M about the incident. Thus, Koklarinis’s act was 

not the proximate cause of Neidigh’s termination. See Jones v. Se. Pa. Transp. Auth., 

796 F.3d 323, 331 (3d Cir. 2015) (stating that the Staub Court “did indicate that 

proximate cause will not exist when the employer does not rely on the ‘supervisor’s 

biased report’ in taking the ultimate adverse action” and finding no evidence that the 

employer had merely adopted the supervisor’s biased account of events). 

Neidigh also relies on the e-mail from Shultz to Foster reminding those involved 

in the termination that Neidigh was pregnant. This disclosure itself is not an indicator of 

discrimination. Indeed, we have said that having accurate information about employees 

is essential to allow employers to properly review their employment decisions and

comply with state and federal law. See Armbruster v. Unisys Corp., 32 F.3d 768, 781 (3d 

Cir. 1994), overruled on other grounds by Smith v. Borough of Wilkinsburg, 147 F.3d 

272, 277-78 (3d Cir. 1998). Here, there is no evidence that this communication was 

made for anything other than informational and potential legal purposes, nor is there
10

evidence that Neidigh’s pregnancy was a consideration in the decision to terminate her.10 

Finally, Neidigh claims that the more favorable treatment she received in response 

to Mrs. D’s 2012 complaint, discussed in note 5, infra, should have precluded summary 

judgment. The District Court correctly observed that there are legitimate, nondiscriminatory bases for the way Select responded to Mrs. D’s and Mrs. M’s complaints. 

Mrs. D was known to be a “difficult” and “confused” person, and Pleins took Neidigh’s 

statement once she had received two conflicting accounts of the incident. That Neidigh 

was terminated without submitting a written statement in response to Mrs. M’s complaint 

would not cause a reasonable factfinder to disbelieve Select’s reason for termination or to 

believe that pregnancy, rather than Mrs. M’s complaint and Neidigh’s disciplinary record, 

was more likely the basis for termination. First, there is no evidence to suggest Mrs. M’s 

account was not accurate. Second, Mrs. M’s incident was independently investigated by 

two superiors. For these reasons, no reasonable juror could conclude that the different 

treatment in connection with the Mrs. D incident gives rise to an inference of 

discrimination.11

 

10 Neidigh attempts to raise factual issues based on discrepancies in Butts’s 

testimony concerning the identities of who decided to fire her. In this case, their 

identities are immaterial as to pretext because they do not call into question Select’s 

reason for termination. See Lichtenstein, 691 F.3d at 310-11 (contradictions pertained to 

the timing of termination and went “to the very core of [the employer’s] proffered reason 

for terminating [the employee]”).

11 Relatedly, Neidigh contends that Select’s failure to follow its own complaint 

and discipline process by not taking a statement from Mrs. M at the time of the incident 

supports a finding of pretext. We disagree. First, Select was not aware of the incident 

until weeks after it occurred. Second, while Neidigh correctly notes that procedural 

irregularities can be evidence of discriminatory intent, see Stewart v. Rutgers, The State 

Univ., 120 F.3d 426, 433-34 (3d Cir. 2000), Select’s written disciplinary procedures 

provide it with discretion, allowing immediate suspension or termination of an employee 
11

B

Neidigh’s argument that the District Court erred in granting summary judgment on 

her FMLA retaliation claim also fails. Even assuming Neidigh established a prima facie

case,

12 Select provided a legitimate, non-discriminatory reason for termination and 

Neidigh has not presented evidence of pretext. While the record shows that her 

supervisor was concerned about Neidigh’s pregnancy and unhappy she was on leave, 

there is no evidence that Neidigh’s use of leave motivated the employment decision. 

Although her absence led to the discovery of the incident with Mrs. M, it was that 

incident, in the context of her prior violations, and not the fact that she was on leave, that 

led to her termination. For these reasons, we conclude that no reasonable juror could find 

that the reason for her termination was pretextual.

III

For the foregoing reasons, we will affirm the order of the District Court granting 

summary judgment for Select.

 

in some circumstances. Third, there is no evidence that similarly situated employees 

were treated differently than Neidigh. In fact, in Neidigh’s situation with Mrs. D, no 

statement was taken from Mrs. D at or around the time of her complaint either.

12 To establish a prima facie FMLA retaliation claim, a plaintiff must demonstrate 

that “(1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse 

employment decision, and (3) the adverse action was causally related to her invocation of 

rights.” Lichtenstein, 691 F.3d at 301-02.