2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-17-2014

Ronald Ross v. Kevin Gilhuly

Precedential or Non-Precedential: Precedential

Docket No. 13-2437

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2437

_____________

RONALD ROSS,

 Appellant

v.

KEVIN GILHULY; CONTINENTAL 

TIRE OF AMERICAS, LLC

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cv-02631)

District Judge: Honorable Juan R. Sanchez 

_______________

Argued on April 9, 2014

Before: AMBRO, JORDAN and ROTH, Circuit Judges.

(Filed: June 17, 2014)

_______________
2

Wayne A. Ely, Esq.

Timothy M. Kolman, Esq.

W. Charles Sipio, Esq. [ARGUED]

Kolman Ely

414 Hulmeville Avenue

Penndel, PA 19047

 Counsel for Appellant

Madeline S. Baio, Esq. [ARGUED]

Divya Wallace, Esq.

Nicolson Law Group

1400 North Providence Rd.

Rose Treet Corporate Center II, Suite 4045

Media, PA 19063

 Counsel for Appellees

_______________

OPINION

_______________

JORDAN, Circuit Judge.

Ronald Ross appeals a grant of summary judgment by 

the United States District Court for the Eastern District of 

Pennsylvania to Continental Tire of Americas LLC 

(“Continental”) and Kevin Gilhuly in this Family and 

Medical Leave Act (“FMLA”) action. 29 U.S.C. §2601 et 

seq. Because Ross received all to which he was entitled 

under the FMLA, and suffered no adverse employment 

consequences for doing so, we will affirm. 
3

I. BACKGROUND1

Ross joined Continental, a tire manufacturing company

headquartered in Fort Mill, South Carolina, as a Car Dealer 

Business Development Manager in February 2008. In 2010, 

he became an Area Dealer Manager (“ADM”) and then, in 

February 2011, an Area District Manager-3 (“ADM3”).2 As 

an ADM3, Ross began reporting directly to Kevin Gilhuly, a 

Regional Manager. Given the new responsibilities of his job 

and the fact that much of his work would put him on the road, 

Ross began working out of his home in Philadelphia,

independently setting his travel schedule and work priorities. 

Ross’s contact with Gilhuly consisted of biweekly regional 

sales conference calls, during which Gilhuly would review 

Ross’s schedule and recommend changes as needed, and 

regular email and phone contact, with “a minimum of two to 

three [interactions] a week.” (App. at 172 (Ross Dep.).) Ross 

concedes that, during the entire time of his employment with 

Continental, he had no contract of employment and remained 

an “at will” employee. (Id. at 164.) 

During his tenure at Continental, Ross had questions 

regarding “program specifics in terms of qualification 

requirements for the customer,” “[program] calculations, 

[and] the relationships that [he] was developing, attempting to 

develop, with the customers to help them achieve their sales 

figures.” (Id. at 171.) He sought Gilhuly’s “assistance 

 

1

In accordance with our standard of review, see infra 

note 9, we set forth the facts in the light most favorable to 

Ross, the non-moving party. 

2 Ross’s various job titles are as listed in his brief.
4

related to strategies, support, open discussion [sic], about how 

to achieve those on a regular basis,” and he testified that 

Gilhuly was generally available to him. (Id.) 

One of the customers for whom Ross was responsible 

was Reliable Tire Company (“Reliable Tire”). Ross testified 

that the Reliable Tire account “required a lot of interaction” 

with Reliable Tire’s owner, Richard Betz, and was a rather 

“large account.” (Id. at 185.) In fact, Reliable Tire provided 

Continental with millions of dollars in revenue in 2011 and 

2012. 

Shortly after Ross took over as ADM in 2010, Gilhuly 

began receiving negative comments from Betz regarding 

Ross’s performance. While it is unclear from the record 

exactly when Betz shared his views about Ross, Gilhuly 

testified that Betz “specifically asked” that Ross be removed

from the Reliable Tire account (App. at 331 (Gilhuly Dep.)), 

since, according to Betz, Ross “wasn’t providing any value to 

him and ... was actually a detriment to his business” (id. at 

350). Betz later testified that he would characterize his 

statements regarding Ross as “comment[s],” not 

“complaint[s],” but he confirmed that he told Gilhuly that 

Ross “doesn’t understand [the] business.” (App. at 372 (Betz

Dep.).) Betz also testified that he was “upset” with Ross 

because Ross had sent one of Betz’s customers to another tire 

distributor. Betz further acknowledged that he asked that 

Ross be taken off of Reliable Tire’s account. 

According to Gilhuly, his concerns about Ross were 

confirmed when he “witness[ed Ross’s] presentations at some 

of the regional meetings that [Continental] had as a sales 

team.” (App. at 332 (Gilhuly Dep.).) For example, after 
5

Ross gave a regional presentation in February or March of 

2011, Gilhuly spoke with him regarding some of the data that 

Ross had presented and his presentation skills. Gilhuly also 

was not impressed with Ross’s performance at a meeting to 

which Gilhuly accompanied Ross in June 2011 at Reliable 

Tire.

Sometime during the summer of 2011, Gilhuly began 

reporting Ross’s performance deficiencies to Gabrielle 

Alexander, who worked in Continental’s Human Resources 

Department (“HR”). As a part of a formal meeting in August 

2011 at which Gilhuly reviewed all of his team members’

performance levels and potential, Gilhuly told Alexander that 

Ross was “not meeting expectations.” (App. at 446

(Performance Chart).) In addition, Gilhuly testified that they 

discussed Ross’s ongoing problems working with Betz and 

his poor performance at both the February/March regional 

presentation and the June Reliable Tire meeting. 

Later, between September 6, 2011, and October 11, 

2011, Gilhuly corresponded with Alexander and Amanda 

Powell, another HR team member, regarding the development 

of a Performance Improvement Plan (“PIP”) for Ross, which

Gilhuly began drafting.3

 

3 Pursuant to Continental’s Performance Management 

Policy, Section V.D.: 

Persistent unsatisfactory performance as 

evidenced by a “does not meet expectations” 

performance rating is to be documented and a 

Performance Improvement Plan (PIP) prepared 

by the manager and reviewed with the Human 
6

On September 21, 2011, Gilhuly told Ross “that a PIP 

was in process.” (App. at 461 (Email Within Continental).) 

On the evening of October 11, 2011, when both Gilhuly and 

Ross were visiting Continental’s headquarters as a part of a 

national sales meeting, Gilhuly took Ross aside and informed 

him that they would be meeting with HR the next day to 

review a PIP. Gilhuly suggested that the two of them meet in 

the hotel lobby in the morning, prior to going to the corporate 

office, to discuss the PIP and allow Gilhuly to formally 

provide Ross with his annual review. 

That same evening, Ross prepared a memorandum 

outlining a six-month plan of action that acknowledged his 

deficiencies and listed ways he could improve his 

performance. In the first paragraph, Ross thanked Gilhuly for 

the opportunity to discuss his progress and stated that he was 

 

Resource Manager for that department prior to 

facilitation to the employee. The PIP will clarify 

for the employee the actions he/she will need to 

take to bring performance to satisfactory levels. 

When satisfactory performance is reached, 

another performance review or written notice 

indicating other than “unsatisfactory” 

performance should be completed. ... An 

employee whose performance continues to 

appear to be “unsatisfactory” should normally be 

removed from the position. The evaluation 

period may be extended with the approval of the 

manager and Human Resources. 

(App. at 465 (Performance Management Policy ).) 
7

“very confident” that he could meet or exceed “the 

expectations in the areas [he and Gilhuly had] verbally 

discussed in the last 90 days.” (App. at 473 (Ross Memo).) 

At Ross’s annual review the next morning, Gilhuly 

specified areas for improvement, including program 

understanding, analytical skills, call preparation, frequency 

of meetings with key customers, financial analysis, 

communication skills during sales calls, and better 

preparation, all of which were documented on an “Employee 

Dialogue Form.” On that Form, Ross was rated for vision, 

entrepreneurship, execution, drive, learning, and interaction. 

On a scale of 1 to 5 – with 1 being “Minimum Standard not 

Achieved,” 2 being “Developmental Needs,” and 5 being

“Extraordinary Strengths” – Ross was rated a 1 or 2 nineteen 

times out of a total of thirty-two areas. (App. at 482 

(Employee Dialogue Form).) His overall performance 

evaluation was “does not meet expectations.” (Id. at 483.)

After Gilhuly reviewed his concerns with Ross, the 

two met with Powell in Continental’s corporate offices to 

review the PIP. The PIP included a memorandum from 

Gilhuly, entitled “ADM3 Performance,” summarizing areas 

of deficiency and setting forth specific guidelines to address 

the identified problems. The memorandum and Continental’s 

Performance Management Policy reflect that Ross’s 

performance under the PIP was supposed to be evaluated after 

90 days, with the possibility of additional evaluations. In 

fact, the memorandum included with the PIP specified that 

“[f]ailure to meet each one of these guidelines on an ongoing 

basis will result in further disciplinary action up to and 

including termination.” (App. at 193 (Ross Dep.).) While the 

memorandum did say that Ross’s “progress against these 
8

expectations” would be “discuss[ed]” every “30 days for 90 

days from the day of issuance,” it did not say that the PIP 

would include any written or in-person performance 

evaluations. (Id.) Nor did it specify an end-date, noting that 

Continental would review Ross’s job performance 90 days 

from the PIP’s issuance and then decide “what additional 

actions, if any, will be necessary.” (Id.) 

On November 6, 2011, less than a month after the PIP 

was implemented, Ross forwarded to Gilhuly and Powell a 

letter from his physician to inform them that he had been 

diagnosed with prostate cancer and that further testing and a 

treatment plan would be forthcoming. Gilhuly promptly sent 

an email to Ross saying, “My thoughts and prayers are with 

you in what must be a very difficult time for you and your 

family. Take whatever time you need this week for the 

testing to determine the severity of the diagnosis.” (App. at 

489 (Email Within Continental).) Despite his illness, 

however, Ross wanted to move forward with his PIP. In late 

November, he and Gilhuly exchanged emails regarding 

Ross’s request for “direct feedback verbal or written [sic] 

regarding [Gilhuly’s] view” of Ross’s progress and whether 

Ross was “on track.” (Id. at 492.) In response, Gilhuly asked 

Ross to schedule a meeting with a customer so that Gilhuly 

could attend and provide feedback. 

On December 5, Alexander sent an email to Ross, 

Gilhuly, Powell, Chris Charity (Gilhuly’s superior), and 

James Sicking (Charity’s superior) confirming that “the 

company would do everything we can to support [Ross] 

during this time.” (Id. at 501.) Alexander further stated that, 

“based on [Ross’s] health and treatment plan[,] the PIP 

timetable may need to be adjusted.” (Id.) Gilhuly answered 
9

with an email only to Alexander, Powell, Charity and 

Sicking, explaining that he thought Ross had “definitely made 

progress on most of the areas identified in the PIP,” but that 

“there is still work to be done.” (Id.) Specifically, Gilhuly 

made clear that the extension of the PIP would “give [Ross] 

more time to deal with the health issues.” (Id.) Sicking also 

testified that Continental put the PIP on “hold” in order to 

give Ross time to “take care of [his] health,” but that the 

intention was to “resume” the PIP once Ross returned. (App. 

at 293 (Sicking Dep.).)

Later in December, after receiving a formal 

notification of Ross’s treatment plans, Gilhuly sent an email 

to Sicking and Charity, notifying them that Ross would 

require surgery and asking whether “we should consider 

pushing the PIP timetable by at least 30 days.”4 (App. at 503 

(Email Within Continental).) Gilhuly then forwarded that 

email to Alexander, who agreed that the PIP timetable should 

be extended. Rather than “end” on January 10th – eight days 

before Ross’s surgery date – the PIP was thus extended to 

February 10, 2012. 

Ross, however, did not want the PIP to “hang[] over 

his head” during his recovery. (Id. at 502.) He emailed 

Gilhuly on December 23, 2011, asking that the PIP be 

completed by January 12, 2011. According to Ross, no action 

was taken in response to that request. Ross admitted at his 

deposition that, “[i]n order to successfully complete [the] PIP, 

 

4 Ross told Gilhuly by email on December 22, 2011, 

that his prostate surgery was scheduled for January 18, 2012, 

and that he would need to take 4 to 6 weeks of leave for 

recovery. 
10

as per the policy, ... management would need to determine 

that [Ross’s] performance was meeting their expectations in 

all areas identified in the PIP.” (App. at 208 (Ross Dep.).) 

It is undisputed that Ross requested and was granted 

FMLA leave that began on the date of his surgery, January 

18, 2012, and ended when he returned to work on March 19, 

2012. It is also undisputed that he continued to receive his 

regular compensation and insurance benefits while on leave. 

During the time that Ross was on leave, his PIP remained, as 

Ross testified, “pending.”5 (Id. at 209.) Ross also testified 

that when he finally returned to work on March 19, 2012, the 

status of his PIP was yet “to be determined” but that he 

returned to the same job from which he left. (Id. at 211.) 

On April 12, 2012, almost a month after Ross returned 

from leave, Gilhuly sent him a new memorandum, entitled 

“ADM3 Performance – Addendum to October 12, 2011 

 

5 Twice while on leave, February 17 and February 23, 

Ross emailed Gilhuly regarding his PIP status. On 

February 23, Gilhuly responded, saying that “[t]he PIP cannot 

be changed or addressed until you return to work full time.” 

(App. at 500 (Email Within Continental).) Around that same 

time, Ross and Gilhuly spoke on the phone regarding Ross 

returning to work under a “limited-duty basis.” (App. at 209 

(Ross’s Dep.).) Given that the majority of Ross’s work 

involved driving and visiting customers, which Ross would 

be unable to do, Gilhuly recommended that Ross not return 

until he received medical approval to engage in full-time 

work. 
11

PIAP” (“Addendum”).6 (App. at 506.) In it, Gilhuly stated 

that he “acknowledg[ed] that progress has been made in 

[Ross’s] job performance since the October 12, 2011 PIAP,” 

but he went on to say, “it is also expected that [Ross] can 

demonstrate that [he] fully understand[s] and can effectively 

communicate to customers all the new 2012 Programs” that 

were introduced while Ross was on leave. (App. at 506.) 

Gilhuly extended the PIP an additional 60 days from the date 

of the Addendum and instructed that he would then “conduct 

a complete review of [Ross’s] job performance, including the 

new requirements laid out in this addendum[,] and determine 

what additional actions, if any, are necessary.” (Id.) 

On May 14, 2012, Ross filed this lawsuit against 

Gilhuly and Continental, alleging interference with his FMLA

rights and also alleging retaliation. On July 19, 2012, while 

this action was pending, Gilhuly sent Ross a third 

memorandum, entitled “ADM 3 Performance – October 12, 

2011 PIAP and April 12th PIAP Addendum” (the “Final 

Memorandum”) that summarized Ross’s performance since 

the initiation of the PIP. (Id. at 508.) The thrust of the Final 

Memorandum was that Ross was still not meeting 

Continental’s expectations for his position. Citing various 

examples – including email chains between Ross and Gilhuly 

and anecdotes of Ross’s work – Gilhuly explained over 

twelve pages that Ross was not “a ‘good fit’ for a sales role,

particularly one requiring the business acumen to understand 

and effectively communicate [a] complex program.” (Id. at 

519.) That same day, Continental terminated Ross’s 

employment in a teleconference with his attorney. The 

 

6

“PIAP” stands for Performance Improvement Action 

Plan and is synonymous, in the parties’ usage, with “PIP.”
12

decision to terminate Ross was made by Sicking, Gilhuly, and 

Alexander, along with more senior members of Continental. 

Following his firing, Ross amended his complaint to add a 

wrongful-discharge claim. 

On October 17, 2012, the District Court dismissed 

Ross’s wrongful-discharge claim.

7

 The remaining claims 

were an FMLA interference claim against Gilhuly and FMLA

retaliation claims against both Gilhuly and Continental.

8 On 

summary judgment, the Court resolved those claims in favor 

of Gilhuly and Continental. 

Ross timely appealed. 

 

7 Ross does not appeal the dismissal of that claim. 

8 At Argument, Ross’s counsel asserted that the 

interference claim is against both Gilhuly and Continental 

(Oral Arg. Tr. at 4:20-21), but no fair reading of the 

Complaint can support that assertion. Not only does the 

Complaint list Gilhuly as the target of the interference claim,

but Ross’s Brief makes clear that that targeting was intended. 

(Appellant’s Br. at 5 (“Appellant established a prima facie

case for FMLA interference against his supervisor in the court 

below[ and] a causal link that could have led a reasonable fact 

finder to conclude that he was retaliated against for taking 

FMLA leave by Continental and his supervisor.”).) We thus 

reject the effort to amend the Complaint on appeal. 
13

II. DISCUSSION9

The only issue before us on appeal is whether the 

District Court erred in granting summary judgment against 

Ross on his FMLA claims. The FMLA provides, in relevant 

part, that eligible employees are entitled to 12 workweeks of 

leave during any 12-month period due to an employee’s own 

serious health condition. 29 U.S.C. § 2612(a)(1). When an 

employee returns from FMLA leave, the employer must 

restore the employee to the same or equivalent position he 

held, with equivalent benefits and with conditions of 

employment comparable to those he had when he left. Id. 

§ 2614(a). 

In Lichtenstein v. University of Pittsburgh Medical 

Center, we stated that, 

 

9 The District Court had jurisdiction under 28 U.S.C. 

§ 1331. We exercise jurisdiction pursuant to 28 U.S.C. 

§ 1291. We review the District Court’s grant of summary 

judgment de novo and “view inferences to be drawn from the 

underlying facts in the light most favorable to the nonmoving 

party.” Montanez v. Thompson, 603 F.3d 243, 248 (3d Cir. 

2010). “Summary judgment is appropriate where the [c]ourt 

is satisfied ‘that there is no genuine [dispute] as to any 

material fact and that the moving party is entitled to judgment 

as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 

330 (1986). A genuine dispute exists only “if the evidence is 

such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986).
14

[w]hen employees invoke rights granted under 

the FMLA, employers may not “interfere with, 

restrain, or deny the exercise of or attempt to 

exercise” these rights. Nor may employers 

“discharge or in any other manner discriminate 

against any individual for opposing any practice 

made unlawful.” The former provision is 

generally, if imperfectly, referred to as 

“interference” whereas the latter is often referred 

to as “retaliation.”

691 F.3d 294, 301 (3d Cir. 2012) (internal citations omitted).

We have also held that “an individual supervisor working for 

an employer may be liable as an employer under the FMLA.” 

Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 

408, 415 (3d Cir. 2012).

Ross argues that there are genuine issues of material 

fact that bar the District Court’s grant of summary judgment. 

He says that his rights were violated by Gilhuly failing to 

conclude the initial PIP by January 2012, before he was 

expected to start his FMLA leave, and then by Gilhuly adding 

the PIP Addendum upon his return to work. He argues that 

he established a prima facie case of interference by Gilhuly 

and that there exists a causal link that could have led a 

reasonable factfinder to conclude that he was retaliated

against for taking FMLA leave. 

A. Interference

To make a claim of interference under the FMLA, a 

plaintiff must establish:
15

(1) he or she was an eligible employee under 

the FMLA; (2) the defendant was an employer 

subject to the FMLA’s requirements; (3) the 

plaintiff was entitled to FMLA leave; (4) the 

plaintiff gave notice to the defendant of his or 

her intention to take FMLA leave; and (5) the 

plaintiff was denied benefits to which he or she 

was entitled under the FMLA.

Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F. Supp. 2d 

405, 446 (W.D. Pa. 2008); see also Sommer v. The Vanguard 

Grp., 461 F.3d 397, 399 (3d Cir. 2006) (noting that an 

interference claim requires an employee to show that he was 

not only entitled to FMLA benefits but that he was denied 

those benefits). Under an interference claim, “the employee 

need not show that he was treated differently than others[, 

and] the employer cannot justify its actions by establishing a 

legitimate business purpose for its decision.” Sommer, 461 

F.3d at 399 (3d Cir. 2006) (alteration in original) (internal 

quotation marks omitted). Also, “[b]ecause the FMLA

[interference claim] is not about discrimination, a McDonnellDouglas burden-shifting analysis is not required.” Id.

As noted previously, Ross brought his interference 

claim only against Gilhuly. On appeal, there is no dispute

that Ross met the first, third, and fourth prongs for an

interference claim, namely that he was an eligible employee 

under FMLA, that he was entitled to FLMA leave, and that he

gave notice of his intention to take FMLA leave. The parties 

only dispute whether Gilhuly was liable as an “employer” 

under the FMLA (the third prong) and whether Ross showed 

that he had been denied benefits to which he was entitled 

under FMLA (the fifth prong). Because Ross received all of 
16

the benefits to which he was entitled by taking leave and then 

being reinstated to the same position from which he left, and 

thus cannot satisfy the fifth prong of the interference analysis, 

he fails to make a prima facie showing of interference, and 

we need not address whether Gilhuly was an “employer” 

under the FMLA. 

Although Ross argues that his termination and the

Addendum to his PIP – actions which were taken after his 

FMLA leave – amount to a denial of FMLA benefits,

10 we 

have made it plain that, for an interference claim to be viable,

the plaintiff must show that FMLA benefits were actually 

withheld. Callison v. City of Phila., 430 F.3d 117, 119 (3d 

Cir. 2005) (“In order to assert a claim of deprivation of 

entitlements, the employee only needs to show that he was 

entitled to benefits under the FMLA and that he was denied 

them.”). Ross’s argument that Gilhuly interfered with his 

entitlement to take FMLA leave free from later discrimination 

confuses interference with retaliation and is thus misdirected. 

At bottom, “[a]n interference action is not about 

discrimination[;] it is only about whether the employer 

provided the employee with the entitlements guaranteed by 

the FMLA.” Callison, 430 F.3d at 120. Therefore, because 

Ross does not allege that Gilhuly withheld any entitlement 

guaranteed by FMLA, he fails to state a claim for 

interference.11

 

10 Ross does not argue that he was denied 

reinstatement into the position that he left. 

11 In an April 17, 2014, letter filed pursuant to Rule 28j 

of the Federal Rules of Appellate Procedure, Ross recasts his 

interference claim to assert that he had somehow been 
17

B. Retaliation

To succeed on an FMLA retaliation claim, a plaintiff 

must show that “(1) []he invoked h[is] right to FMLAqualifying leave, (2) []he suffered an adverse employment 

decision, and (3) the adverse action was causally related to 

h[is] invocation of rights.” Lichtenstein, 691 F.3d at 302. 

Gilhuly and Continental concede for the purposes of 

this appeal that Ross satisfies the first two elements of an

FMLA retaliation claim, but they dispute whether Ross 

submitted sufficient evidence to raise a genuine dispute of 

material fact as to whether the Addendum and his termination 

were causally related to the invocation of his FMLA rights. 

Although Ross argues that “it is still somewhat unclear 

whether [this Court] has definitely adopted” the McDonnell 

Douglas framework for an FMLA claim (Appellant’s Br. at 

25), there should not be any such confusion. With respect to 

 

discouraged from taking FMLA leave. In addition to Ross 

having waived that argument by failing to advance it in 

briefing, see Ethypharm S.A. France v. Abbott Labs., 707 

F.3d 223, 231 n.13 (3d Cir. 2013) (“We have consistently 

held that ‘[a]n issue is waived unless a party raises it in its 

opening brief, and for those purposes a passing reference to 

an issue ... will not suffice to bring that issue before this 

court.’”), the argument has no basis in fact. There is simply 

no evidence that Ross was discouraged from taking FMLA 

leave; on the contrary, Continental and Gilhuly fully 

supported Ross’s need for leave and Ross took more than 

eight weeks of FMLA leave, without any interference or 

discouragement from Continental or Gilhuly. 
18

retaliation claims based on circumstantial evidence, we have

stated: 

Because FMLA retaliation claims require proof 

of the employer’s retaliatory intent, courts have 

assessed these claims through the lens of 

employment discrimination law. Accordingly, 

claims based on circumstantial evidence have 

been assessed under the burden-shifting 

framework established in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973), while 

claims based on direct evidence have been 

assessed under the mixed-motive framework set 

forth in Price Waterhouse v. Hopkins, 490 U.S. 

228, 276–77 (1989) (O’Connor, J., concurring).

Lichtenstein, 691 F.3d at 302. While we decided to “leave for 

another day our resolution of whether the FMLA continues to 

allow mixed-motive claims in the wake of Gross [v. FBL 

Financial Services, Inc., 557 U.S. 167 (2009)],” id., Ross 

does not argue that his retaliation claims are mixed-motive 

claims.12 The only question, therefore, is whether Ross is 

able to meet the shifting burdens of McDonnell Douglas. 

 

12 In Gross, the Supreme Court held that a mixedmotive jury instruction is “never proper in an [Age 

Discrimination in Employment Act of 1967] claim.” 557 

U.S. at 170. Since the plaintiff in Lichtenstein “readily 

survive[d] summary judgment under the more taxing 

McDonnell Douglas standard,” we did not find it necessary to 

address whether a mixed-motive framework was appropriate 

to apply to an FMLA retaliation claim. 

691 F.3d at 302.
19

Under the McDonnell Douglas framework, a plaintiff 

must first establish a prima facie case of discrimination. 

Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d 

Cir. 1997). If the plaintiff succeeds, the defendant must 

articulate a legitimate, non-discriminatory reason for the 

adverse employment action. Id. The burden then shifts back 

to the plaintiff to prove, by a preponderance of the evidence, 

that the articulated reason was a mere pretext for 

discrimination. Id. Even assuming, arguendo, that Ross 

established a prima facie case, Continental and Gilhuly have

submitted a legitimate, non-discriminatory reason for Ross’s 

termination – his demonstrably poor job performance – and 

Ross has not adduced any meaningful evidence to allow a 

reasonable factfinder to find pretext.

In urging that he has shown pretext, Ross makes two 

primary arguments. First, he contends that the sole 

motivating factor for the PIP was Betz’s desire that Ross be 

removed from the Reliable Tire account and not Ross’s 

overall poor performance. In other words, at least according 

to Ross, there was no assertion that he was failing to meet the 

primary objectives of his position. But, even if Ross’s 

version of events were accurate, his argument misses the 

point. Assuming that the PIP was originally justified only on 

the basis of Betz’s concerns does not help Ross because

customer feedback, particularly from an important customer 

who accounts for millions of dollars of revenue, is an 

obviously valid factor in evaluating performance.13 Ross’s 

 

13 Moreover, a “plaintiff cannot simply show that the 

employer’s decision was wrong or mistaken” to prove

pretext; rather, the “plaintiff must demonstrate such 
20

argument is also flawed because its factual premise is belied 

by the record. Betz’s concerns were not the sole justification 

provided for implementing the PIP or the later Addendum, 

and they were not the sole reason Ross was ultimately 

terminated. He had admitted to his sub-par performance in 

the memorandum he prepared for Gilhuly the evening before 

the PIP was introduced, and his other numerous failures were 

documented in detail and at length in Gilhuly’s Final 

Memorandum. 

Second, Ross contends that pretext is apparent because 

of the temporal proximity between his asking for FMLA 

leave and Continental’s decision to extend the PIP. He 

asserts that because Continental managers did not begin to 

discuss extending the PIP until after being informed of his

illness and his intent to take leave, any justification 

Continental now puts forward is pretextual. Under our 

precedent, however, “the timing of the alleged retaliatory 

action must be unusually suggestive of retaliatory motive 

before a causal link will be inferred.” Williams v. Phila. 

 

‘weaknesses, implausibilities, inconsistencies, incoherences, 

or contradictions in the employer’s proffered legitimate 

reason 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] nondiscriminatory reasons.’” Brewer v. Quaker State Oil Ref. 

Corp., 72 F.3d 326, 331 (3d Cir. 1995) (alteration in original) 

(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). 

Here, there is no evidence of such weaknesses in the 

explanations proffered by Continental and Gilhuly. 
21

Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) 

(internal quotation marks omitted). Here, there is nothing

unusually suggestive about the timing of the Addendum or 

Ross’s termination. Rather, it was perfectly sensible for 

Continental to delay the timeline of the PIP to accommodate 

Ross’s FMLA leave. The fact that Ross was placed on the 

original PIP based on documented performance problems 

well before his employer knew he was sick defeats any 

retaliatory inference based on timing. 

Again, the reasons for Ross’s termination, as detailed 

in the Final Memorandum, were deficiencies that had existed 

since before he took his FMLA leave. An employee cannot 

easily establish a causal connection between his protected 

activity and the alleged retaliation when he has received 

significant negative evaluations before engaging in the 

protected activity. See Shaner v. Synthes, 204 F.3d 494, 504-

05 (3d. Cir. 2000) (“In short, the record shows that Shaner’s 

performance evaluations contained similar criticisms both 

before and after he made the company aware that he suffered 

from MS and before and after he filed his first EEOC charge. 

Under these circumstances, there is simply no evidence that 

any of these evaluations was causally linked to the filing of 

Shaner’s first EEOC charge or that any of them was 

motivated by discriminatory or retaliatory intent.”). Ross has 

failed to establish a causal link here, and there was no error in 

granting summary judgment. 

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment 

of the District Court.